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S. HRG. 113–219

S. 1074, THE THOMASINA E. JORDAN INDIAN

TRIBES OF VIRGINIA FEDERAL RECOGNITION

ACT OF 2013; S. 1132, THE LUMBEE

RECOGNITION ACT; AND S. 161, THE LITTLE

SHELL TRIBE OF CHIPPEWA INDIANS

RESTORATION ACT OF 2013

HEARING

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS 

UNITED STATES SENATE

ONE HUNDRED THIRTEENTH CONGRESS

FIRST SESSION

OCTOBER 30, 2013

Printed for the use of the Committee on Indian Affairs

(

(II)

COMMITTEE ON INDIAN AFFAIRS 

MARIA CANTWELL, Washington, Chairwoman 

JOHN BARRASSO, Wyoming, Vice Chairman 

TIM JOHNSON, South Dakota 

JON TESTER, Montana 

TOM UDALL, New Mexico 

AL FRANKEN, Minnesota 

MARK BEGICH, Alaska 

BRIAN SCHATZ, Hawaii 

HEIDI HEITKAMP, North Dakota 

JOHN MCCAIN, Arizona 

LISA MURKOWSKI, Alaska 

JOHN HOEVEN, North Dakota 

MIKE CRAPO, Idaho 

DEB FISCHER, Nebraska 

MARY J. PAVEL, Majority Staff Director and Chief Counsel 

DAVID A. MULLON JR., Minority Staff Director and Chief Counsel 

(III)

C O N T E N T S 

Page 

Hearing held on October 30, 2013 .......................................................................... 1

Statement of Senator Barrasso ............................................................................... 16

Statement of Senator Burr ..................................................................................... 17

Statement of Senator Cantwell .............................................................................. 1

Prepared statement .......................................................................................... 1

Statement of Senator Hagan .................................................................................. 7

Prepared statement .......................................................................................... 8

Statement of Senator Kaine .................................................................................... 3

Prepared statement .......................................................................................... 5

Statement of Senator Tester ................................................................................... 10

WITNESSES

Adkins, Hon. Stephen R., Chief, Chickahominy Indian Tribe ............................. 22

Prepared statement .......................................................................................... 24

Brooks, Hon. Paul, Chairman, Lumbee Tribe ....................................................... 26

Prepared statement .......................................................................................... 28

Gray, Hon. Gerald, Chairman, Little Shell Tribe of Chippewa Indians ............. 30

Prepared statement .......................................................................................... 31

Washburn, Hon. Kevin, Assistant Secretary—Indian Affairs, U.S. Department 

of the Interior ....................................................................................................... 11

Prepared statement .......................................................................................... 12

APPENDIX

Fox, Hon. Tim, Attorney General, State of Montana, prepared statement ........ 47

Hicks, Hon. Michell, Principal Chief, Eastern Band of Cherokee Indians, 

prepared statement .............................................................................................. 50

Hudson, Hon. Richard, U.S. Representative from North Carolina, prepared 

statement .............................................................................................................. 46

McIntyre, Hon. Mike, U.S. Representative from North Carolina, prepared 

statement .............................................................................................................. 45

Response to written questions submitted to Hon. Kevin Washburn by: 

Hon. Lisa Murkowski ....................................................................................... 50

Hon. Jon Tester ................................................................................................ 51

Warner, Hon. Mark R., U.S. Senator from Virginia, prepared statement .......... 48

(1)

S. 1074, THE THOMASINA E. JORDAN INDIAN 

TRIBES OF VIRGINIA FEDERAL

RECOGNITION ACT OF 2013; S. 1132, THE 

LUMBEE RECOGNITION ACT; AND S. 161, 

THE LITTLE SHELL TRIBE OF CHIPPEWA 

INDIANS RESTORATION ACT OF 2013 

WEDNESDAY, OCTOBER 30, 2013

U.S. SENATE, 

COMMITTEE ON INDIAN AFFAIRS, 

Washington, DC. 

The Committee met, pursuant to notice, at 2:45 p.m. in room 

628, Dirksen Senate Office Building, Hon. Maria Cantwell,

Chairman of the Committee, presiding. 

OPENING STATEMENT OF HON. MARIA CANTWELL,

U.S. SENATOR FROM WASHINGTON 

The CHAIRWOMAN. We will now turn to our legislative hearing, 

which today is to discuss the Federal recognition legislation of 

three different jurisdictions that are here today, the Lumbee Recognition Act, S. 1132, S. 161, the Little Shell Tribe Indian Restoration Act of 2013, and the Thomasina E. Jordan Indian Tribes of 

Virginia Federal Recognition Act of 2013, S. 1074. 

I know that several of our colleagues wanted to join us today to 

discuss these various legislative proposals. We have with us our 

colleague from Virginia, Senator Tim Kaine. If you would like to 

start off with your discussion or comments about S. 1074, it is a 

pleasure to have you before the Committee. 

And I should just note that I think, Senator Kaine, every time 

I see him, brings up how important this legislation is. So thank you 

for being here today. 

[The prepared statement of Senator Cantwell follows:]

PREPARED STATEMENT OF HON. MARIA CANTWELL, U.S. SENATOR FROM WASHINGTON

Legislative Hearing on S. 1074, the Thomasina E. Jordan Indian Tribes of Virginia Federal Recognition Act of 2013; S. 1132, the Lumbee Recognition Act, and 

S. 161, the Little Shell Tribe of Chippewa Indians Restoration Act of 2013

This afternoon the Committee is holding a legislative hearing on bills that would 

extend legislative federal recognition to tribes in Virginia, North Carolina, and Montana. 

The first bill is S. 1074, the Thomasina E. Jordan Indian Tribes of Virginia Federal Recognition Act. This bill would extend federal recognition to six tribes located 

in Virginia. Those tribes are:

2

• the Chickahominy [Chick-Ah-HA-Mah-Knee) Indian Tribe, 

• the Eastern Chickahominy [Chick-Ah-HA-Mah-Knee], 

• the Upper Mattaponi [Mat-ah-PAH–NIGH], 

• the Rappahannock [Rap-Ah-HAN-Auck], 

• the Monacan [MAH-Nah-Kin], and 

• the Nansemond [NAN-See-Mond].

The second bill is S. 1131, the Lumbee Recognition Act. This bill would extend 

federal recognition to the Lumbee Tribe located in North Carolina. 

And the third bill we will hear about today is S. 161, the Little Shell Tribe of 

Chippewa [CHIP-Eh-Wah] Indians Restoration Act of 2013. This bill would provide 

federal recognition to the Little Shell Band of Montana. 

Normally, Congress prefers to defer to the expertise and process that exists at the 

Department of the Interior for decisions on federal recognition. However, there can 

be unique circumstances that preclude tribes from participating in that process. The 

three bills before us today represent examples of those unique circumstances. 

In the case of the Virginia tribes, two historical circumstances have created gaps 

in records for Indian people and tribes. First, during the Civil War period many 

records of identification for Indians and other citizens were destroyed or burned. 

Second, in 1924, the State of Virginia passed the Racial Integrity Act. 

That Act prohibited any official documents from identifying Virginia residents as 

‘‘Indian.’’ That law remained in place until 1967 and resulted in a four-decade gap 

of records for Indian people in Virginia. 

In North Carolina, the Lumbee tribe is the subject of prior legislation in 1956. 

Although that legislation was not a true reflection of tribal recognition legislation, 

the Department’s hands are tied and the tribe is prohibited from going through the 

administrative recognition process. So, the only way for the Lumbee to receive recognition is now through Congress. 

The Little Shell recognition bill is one that is very familiar to this Committee. 

Senator Tester has been a tireless advocate for the Little Shell Band and has introduced recognition legislation each session of Congress since becoming a Senator. 

In the case of the Little Shell Band, the administrative process just didn’t work. 

The Little Shell Band has been seeking administrative recognition since 1978, the 

same year the federal acknowledgment regulations became final. 

During that 35-year period, the tribe received an initial positive proposed decision 

on recognition, only to have that decision reversed a decade later to a finding of nonrecognition. The Little Shell decision is somewhat of an anomaly in how the administrative recognition process is supposed to work. 

Even the Department has recognized this, and in September, they agreed to reconsider the Little Shell decision. Although that decision is pending, it is important 

for the Committee to examine not only the legislation before us, but to hear from 

the Band on their experience so we can make sure the process works for the Little 

Shell and all tribes. 

Before I move on to hear other Committee member statements, I would like to 

add on to Senator Barrasso’s remarks on the departure of David Mullon from the 

Committee. 

David has been a critical presence on the Committee for over a decade. My staff 

and I have always appreciated the bipartisan approach and commitment that David 

brings to his work on behalf of Indian Country. The entire Committee will miss David’s knowledge and expertise and we all wish him well as he leaves the Committee 

to continue his advocacy for the rights of tribes and Indians throughout the Country. 

I am now pleased to recognize Senator Kaine, the sponsor of S. 1074, the Virginia 

recognition bill, and Senators Burr and Hagan, the sponsors of S. 1132, the Lumbee 

Recognition bill. Senator Kaine has been a long-time supporter of the recognition 

of the Virginia tribes. 

And Senators Burr and Hagan have lent their continuous, bi-partisan support to 

the Lumbee recognition bill. I am pleased that the Committee will have the opportunity to hear from all of you today. 

Again, I want to thank today’s witnesses for their testimony. Your testimony is 

helpful in determining how the Committee can move forward on these bills. These 

bills are clearly very important to the affected tribes. Your testimony highlights the 

struggle that these and many other tribes have in trying to establish their government-to-government relationship with the United States. 

I appreciate the work of the Department in conducting a review of the federal recognition regulations and I look forward to a continued dialogue as the Administration proceeds with that process.

3

STATEMENT OF HON. TIM KAINE,

U.S. SENATOR FROM VIRGINIA 

Senator KAINE. Thank you, Madam Chair, and members of the 

Committee. I very much appreciate the opportunity to be here to 

talk about this important recognition of Virginia tribes. I want to 

acknowledge work that has been done on this issue for many years 

by Congressman Jim Moran. There are also representatives from 

Senator Warner’s office here who have worked hard on the bill as 

well. 

I will begin by apologizing in advance. I don’t think I have ever 

said this before. I cannot put into words how strongly this means 

to me. So I am going to do my best, but I am not going to be able 

to describe in words how strongly I feel about this issue. So just 

take what I say and magnify it by 10 or 100, please. 

In 1607, the English began the English settlement of this continent in Jamestown. Earlier efforts by the English to establish settlements had failed, and in North Carolina there had been a Spanish effort to settle Virginia near Williamsburg that had failed. But 

the Jamestown settlement thrived and became the start of Englishspeaking civilization in this continent. 

Why did they thrive where earlier efforts failed? Well, you can’t 

sugar-coat the story and make it all peace and harmony. It is clear 

that Jamestown succeeded where earlier efforts had failed because 

the Virginia Indian tribes saved the English settlers at many 

points along those earlier decades of their history. 

Some of the best known stories of the European interaction with 

Indians were stories of these Virginia tribes. Pocahontas saving 

John Smith’s life at a point when, if he had been killed, he was the 

only competent one among the settlers who knew how to help them 

out. Pocahontas marrying John Rolfe and moving to England for a 

time. Pocahontas dying in England and her grave is still cared for 

by the English government in a church in Graves, England. 

The stories of these Virginia tribe are told in a permanent exhibit at the National Museum of the American Indian just a few 

blocks from here. So this is a well known story that we tell to our 

children they understand. But while America has recognized over 

500 Indian tribes, these Virginia tribes have never been recognized 

by the United States, even though they have lived in distinct communities and maintained their identity for hundreds of years, even 

to this day. 

The bill seeks to rectify this injustice by recognizing these tribes, 

six tribes that were situated in Eastern Virginia in 1607 and before. The tribes are the Chickahominy, Chickahominy Eastern Division, Upper Mattaponi, Rappahannock, Monacan and Nansemond. 

Recognition for these tribes was first sought in 1999, and it is overwhelmingly supported by Virginians, by bipartisan Virginia elected 

officials, by all nine living governors. You will hear from Chief 

Steve Adkins of the Chickahominy Tribe in a later panel, and 

many other representatives are here. 

Let me address the question of why these tribes have never been 

recognized. Because this is a very, very troubling and really tragic 

story. The story of the tribes is a story of triumph and overcoming, 

but the story of the lack of recognition is a tragic one. 

4

These tribes have explored recognition via the BIA process. But 

they were told in the late 1990s that because of their peculiar circumstances, there would be no chance of recognition within the 

lifetimes of any of the tribal leaders who have worked so hard and 

so long to gain this appropriate recognition. There are two problems. 

The first problem is this. The tribes made peace with their neighbors too soon. They made peace with their neighbors too soon. The 

tribes entered into the treaty at Middle Plantation in 1677 with the 

English 100 years before there was a United States of America. 

Federal recognition often relies on or starts on or includes in a significant factor a treaty made between a tribe and the United 

States. But since the Virginia tribes made peace with the English, 

they are treated as a sovereign, respected people by the English 

government, welcomed with the red carpet treatment every time 

they go to England, but they have never been recognized by their 

home country, even though members of these tribes have fought 

proudly under the American flag as American troops in every war 

from the Revolutionary War through the most recent wars in Iraq 

and Afghanistan. That is the first reason they have never been recognized. 

And the second is if anything, even more tragic. The tribes have 

had difficulty because of the destruction of their records, their ancestral records. These Virginia tribes are largely located in six 

counties in Eastern Virginia. Five of the six county courthouses 

that held their birth, death and marriage records were destroyed 

during the Civil War. And more cruelly, their remaining records 

after the Civil War were systematically altered as part of an official 

Virginia State policy from 1924 to 1967. 

In the 1920s, under the grips of a horrific, now-eugenics movement, Virginia passed a statute called the Racial Integrity Act. The 

Racial Integrity Act compelled that anyone who could not demonstrate that they were Caucasian would be simply labeled 

‘‘colored’‘ for purposes of all other State law and records. There 

would be no distinction between an African American, somebody 

who had emigrated from another nation or a native Virginian. The 

director of the State Department of Vital Statistics, an individual 

by the name of Walter Plecker, who sadly stayed in his job way too 

long, undertook a massive effort over the course of three decades 

to reclassify Virginia Indians as colored, and altered or destroyed 

records for nearly 40 years. And this is all documented history 

about the destruction of these records. 

This shameful history in Virginia has stood as a barrier to recognition of these tribes through the normal administrative process. 

Virginia, under governors prior to me, began to make this right 

with State recognition of all these tribes in the 1980s. And Virginia 

governors have unified to now request the recognition of these 

tribes who number approximately 3,000 to 5,000 people in these six 

tribes. And all who might potentially qualify for membership would 

be less than 10,000. 

Let me just conclude and say this. I see I have gone a bit over 

my time. There is a beautiful tradition in Virginia, the day before 

Thanksgiving every year, that dates back to the 1670s. These 

tribes come to the governor’s mansion in Richmond, and they 

5

present a tribute to the governor to recognize this bond between 

the Commonwealth and the tribes. And they bring gifts. Usually 

they come with families and we have a celebration and ham, biscuits and coffee and visit. Family members look forward to it and 

Virginia governors look forward to it. Then we go out and do a 

ceremony, it is called a tribute ceremony, in the front lawn of the 

Virginia governor’s mansion in Richmond. We have done it every 

year since 1677, these tribes paying tribute to the governor of Virginia in a way to honor this friendship. 

It is time that we pay these tribes a tribute. Four hundred and 

six years after the first interaction between the English and these 

tribes, 336 years after these tribes pledged to live forever in peace 

with their Virginia neighbors, it is time the government of the 

United States finally recognizes them. I strongly urge your support 

for S. 1074. 

And Madam Chair, with your permission, I have a son graduating from the Marine Infantry program at Quantico this afternoon, and I am going to depart. But you are going to hear in a 

much more even powerful way from Chief Adkins on the third 

panel. I would just ask your favorable consideration of this legislation. 

Thank you. 

[The prepared statement of Senator Kaine follows:]

PREPARED STATEMENT OF HON. TIM KAINE, U.S. SENATOR FROM VIRGINIA

Chairwoman Cantwell and Ranking Member Barrasso. Thank you for inviting me 

to be here. I will be submitting a statement for the record and giving brief remarks 

here today. 

I appreciate the Committee’s willingness to have this hearing today. I am here 

to talk about my bill the ‘‘Thomasina E. Jordan Indian Tribes of Virginia Federal 

Recognition Act of 2013’’ (S. 1074). This bill would grant federal recognition to six 

Indian Tribes from the Commonwealth of Virginia. 

First, I would like to thank my good friend, Chief Stephen Adkins of the Chickahominy Indian Tribe, Assistant Chief Wayne Adkins and Bill Leighty for being here 

today and representing the six Virginia Indian Tribes’ tireless efforts in seeking federal recognition. For the six tribes in my state, the rigid nature of the administrative recognition process has been a source of delay and frustration and has left a 

lingering sense of unfairness. 

I want to recognize other Virginians in attendance today: Monacan Chief Sharon 

Bryant; Upper Mattaponi Chief Kenneth Adams; Chickahominy First Assistant 

Chief Wayne Adkins; Chickahominy—Eastern Division Assistant Chief Gerald Stewart; Monacan Assistant Chief Dean Branham; Chickahominy Tribal Council Member 

Martha Adkins; Chickahominy—Eastern Division Tribal Council Member Norman 

Hogge; Upper Mattaponi Tribal Council Member Eunice Adams; Chickahominy 

Tribal Member Steve Adkins, Jr.; Chickahominy Tribal Member Elwyn Smith; Virginia Council of Churches Executive Director Reverend Jonathan Barton; Samaria 

Baptist Church Pastor Jay Hurley. 

I would be remiss if I didn’t recognize Congressman Jim Moran, whose dedication 

and commitment to this legislation and the six Virginia Tribes has been unrelenting. 

This is not a new issue for this Committee. Support for these six Virginia tribes 

has been voiced many times since they began seeking federal recognition. These six 

tribes are the Chickahominy, Chickahominy Indian Tribe Eastern Division, the 

Upper Mattaponi, the Rappahannock, the Monacan, and the Nansemond Indian 

Tribe. 

These six Indian tribes gained state recognition in the Commonwealth of Virginia 

between 1983 and 1989. They have received strong bipartisan support from the Virginia General Assembly for federal recognition. Importantly, seven former Virginia 

governors (including myself) and Virginia’s current governor have expressed support 

for this legislation. 

6

This legislation is critically important, because it is a major step toward reconciling an historic wrong for Virginia and the Nation. While the Virginia Tribes have 

received official recognition from the Commonwealth of Virginia, acknowledgement 

and officially-recognized status from the Federal Government has been considerably 

more difficult due to their systematic mistreatment over the past century. Legislation was first introduced in support of these six Tribes in 1999. 

The identities of the tribal members of Virginia’s Indian Tribes were stripped 

away by Virginia’s Racial Integrity Act, a state law in effect from 1924 to 1967. Racial identifications of those without white ancestry were changed to ‘‘colored’’ on 

birth certificates during that period. In addition, five of the six courthouses that 

held the vast majority of the Virginia Indian Tribal records needed to document 

their history to the degree required by the Bureau of Indian Affairs Office of Federal 

Acknowledgement were destroyed in the Civil War. 

Furthermore, Virginia Indians and England signed the Treaty of Middle Plantation in 1677. This predated the creation of the United States of America by just 

short of 100 years. This Treaty was never recognized by the founding fathers of the 

United States. Therefore, the Tribes were not granted federal recognition while 

tribes signing treaties with the U.S. have been recognized. 

I understand that there is reluctance from some members in Congress to grant 

Native American tribes federal recognition through legislation. And these members 

would prefer that these Tribes go through the BIA administrative process instead. 

However, we have heard testimony from the BIA in the past, from various tribes 

and officials, time and time again that the administrative process has proven to be 

an arduous one due to lack of clear guidelines, cost, lack of resources which have 

contributed to the current backlog that has resulted in waits as long as 20 years 

for federal recognition. This has been well documented by repeated GAO studies. 

We have heard from the BIA in the past on how they will resolve these issues, 

but to date—little has been done to fix the recognition process. 

Most importantly, Virginia’s unique history and its harsh policies of the past have 

created a barrier for Virginia’s Native American Tribes to meet the BIA criteria. 

I am proud of Virginia’s recognized Indian Tribes and their contributions to our 

Commonwealth. It has been six years after the 400th anniversary of the first permanent English settlement at Jamestown, it is especially tragic that these tribes 

still have not received equal status with the 566 other Federally Recognized Tribes 

in the United States. The Virginia Tribes are a part of us. We go to school together, 

work together, and serve our Commonwealth and nation together every day. These 

contributions should be acknowledged, and this federal recognition for Virginia’s native peoples is long overdue. 

Congress has the power to recognize Native American Tribes. And it has exercised 

this power in the past. I believe that the Tribes’ situation and Virginia’s harsh history clearly distinguishes them as excellent candidates for Congressional action. Virginians consider this a matter of fundamental justice. 

It is my hope that this Committee will move quickly to approve S. 1074 and the 

full Senate and House will act upon my legislation, to finally give these six Virginia 

Indian Tribes the federal recognition that is long overdue.

The CHAIRWOMAN. Thank you, Senator Kaine, and thank you for 

your testimony. And thank you for your passion about this. As we 

can see from our agenda items today, and I should just say that 

the Chair forgot to make opening statements about our panel, and 

with consultation with our Vice Chairman I think we have just decided to submit for the record. 

But I will just summate them to say this, that Congress can play 

a role when there has been a confusion or conflict about a process 

moving forward, and certainly we appreciate your passion to bring 

this issue to our attention. So thank you for being here today. 

We will now turn to our colleague from North Carolina, Senator 

Hagan. Thank you for being here today. We look forward to your 

comments about S. 1132, which by the way, for our colleagues, has 

I believe passed out of this Committee before, I think passed out 

of the House before. But again, never all in consecutive timing. But 

we certainly appreciate your bringing, S. 1132, the Lumbee Recognition Act. Thank you for being here. 

7

STATEMENT OF HON. KAY R. HAGAN,

U.S. SENATOR FROM NORTH CAROLINA 

Senator HAGAN. Thank you, Madam Chairman, and Vice Chairman Barrasso and the entire Committee. Thank you very much for 

allowing me to participate today. 

This is a very important bill for the Lumbee Indian Tribe in 

North Carolina. I want to thank the Lumbee Tribal Chairman Paul 

Brooks for being here, and the rest of the Lumbee representatives 

who have traveled from North Carolina to join us. 

I also want to ask that my full statement be submitted to the 

record. 

The CHAIRWOMAN. Without objection. 

Senator HAGAN. I am pleased that the Committee is holding this 

important hearing, and I want to take the opportunity to discuss 

an issue that is just as important to me as Senator Kaine is about 

his tribes. The Lumbee Indians are among the earliest North Carolinians. They descended from the coastal tribes of North Carolina. 

They have lived along the Lumbee River since before our Nation 

was founded. 

During that time, the Lumbee have maintained a distinct community in what is now Robeson County, with more than 40,000 

current members in and around the county seat of Lumberton. Because this tribe lacked a formal treaty relationship with the new 

United States, the tribe has worked for over 120 years to win this 

recognition that they deserve. And as Madam Chairman said, this 

has passed in different houses, but we have never been able to get 

it to a conference. 

The State of North Carolina officially recognized the tribe in 

1885. And despite generations of uninterrupted self-governing, the 

Lumbee still have not received full recognition by the Federal Government. 

In 1956, the Lumbee Act expressly precluded the tribe from 

pursing Federal acknowledgment through the Bureau of Indian Affairs administrative process. Thus, while the Lumbee were identified in Federal legislation as a tribe back in 1956, existing law 

strictly limits the group’s ability to access vital services otherwise 

available to a federally-designated tribe. 

As the Senate Indian Affairs Committee has noted, Congress 

placed only one other Indian tribe in a similar position. In 1965, 

the Tewa Indians of Texas won recognition in Congress, but were 

prohibited from pursuing BIA and other Federal services. That was 

in 1965. Congress recognized the problem and in 1987, passed legislation granting full recognition to the Tewa Tribe. This has left 

the Lumbee as the only tribe in America that is recognized by the 

Federal Government while also being forbidden to access critical 

programs that are available to every other tribe in the Country. 

This current Administration has also recognized this basic inequity. At a past House hearing on the bill, George Skibine, who 

served as Deputy Assistant Secretary for Policy and Economic Development for Indian Affairs at the time testified, ‘‘There are rare 

circumstances when Congress should intervene and recognize a 

tribal group. The case of the Lumbee Indians is one such rare 

case.’‘

8

So the Lumbee Recognition Act, which I have introduced with my 

colleague, Senator Burr, would rectify this longstanding inequity 

and provide the Lumbee with the full recognition that they so 

clearly deserve. Beyond simple fairness, the issue of Lumbee recognition is critically important to Robeson County, the communities, and they have been one of the hardest hit communities by 

this recent economic downturn. 

The Harvard School of Public Health has found that residents of 

Robeson County have a lower average life expectancy due to persistent poverty and limited access to affordable health care. This 

bill will enable the Lumbee to combat these trends through access 

to critical programs within the Indian Health Service and economic 

development programs through the Bureau of Indian Affairs. 

Some in Congress have argued that the cost of providing BIA 

and Indian Health Services to the Lumbee will be too high and 

that the Lumbee recognition will draw down funds that are currently going to other tribes. I understand those concerns, but I 

want to be clear: the Lumbee do not want recognition on the backs 

of other tribes. This bill simply ensures that the Lumbee are eligible for the same services as their peers. Funding for these services 

will be subject to future appropriations and the Lumbee will not dilute support for tribes that currently receive Federal resources. 

Federal recognition is about more than Federal resources and 

creating economic development opportunities for their community. 

It is about tribal identity and fairness. And it is essential that we 

ensure that current and future generations of Lumbee are no 

longer treated as a second class tribe. 

Madam Chair, I urge the Committee to work on this bill, to approve this important legislation without delay. Thank you, Madam 

Chairman. 

[The prepared statement of Senator Hagan follows:]

PREPARED STATEMENT OF HON. KAY R. HAGAN, U.S. SENATOR FROM NORTH

CAROLINA

Good Afternoon. I’d like to thank Chairwoman Cantwell, Vice Chairman, and the 

entire Committee for allowing me to participate in today’s hearing. Additionally, I’d 

like to thank Lumbee Tribal Chairman Paul Brooks and the rest of the Lumbee representatives who have traveled from North Carolina to be here. 

I am very pleased the Committee is holding this important hearing and I want 

to take this opportunity to discuss an issue that is vitally important to North Carolina’s economy, and to the heritage and cultural identity of more than 40,000 Americans. 

The Lumbee Indians are among the earliest North Carolinians. They descended 

from the coastal tribes of North Carolina and have lived along the Lumber River 

since before our nation was founded. 

During that time, the Lumbees have maintained a distinct community in what 

is now Robeson County, North Carolina, with more than 40,000 current members 

in and around the county seat of Lumberton. 

Tribe members have worked diligently throughout the generations to sustain a 

strong tribal society. 

Each and every Lumbee can trace his or her ancestry to the Tribe’s base roll, 

which is comprised of school and church records and early 20th-century census data. 

This common ancestry has bound the tribe for generations and established the 

Lumbee as a longstanding, distinct community in southeastern North Carolina. 

Nearly two-thirds of the tribe live within fifteen miles of Pembroke, where they 

start families and businesses, run for tribal office, and attend the annual July 4th 

parade. 

The Lumbee fought alongside the American Colonists during the Revolutionary 

War, and helped shape North Carolina’s history. 

9

But because the tribe lacked a formal treaty relationship with the new United 

States, the tribe has worked for over 120 years to win the recognition they deserve. 

As has been noted by the Senate Indian Affairs Committee, ‘‘The Lumbees have 

a longstanding history of functioning like an Indian tribe and being recognized as 

such by State and local authorities. Since 1885, the Lumbees have maintained an 

active political relationship with the State of North Carolina.’’

The State officially recognized the Tribe in 1885, and established a separate 

school system for Lumbee children. 

With initial enrollment limited to children who could demonstrate at least four 

generations of Lumbee descent, this autonomous school system has remained in 

place for over 100 years. 

And in the late 1800s, the State of North Carolina established the Indian Normal 

School to train Lumbee teachers for the Tribe’s school system. This school has been 

in continuous operation since that time and has grown into the University of North 

Carolina at Pembroke. 

Religion and culture have also remained strong in the Lumbee community, with 

more than 130 Lumbee churches in Robeson County. 

Despite generations of uninterrupted self-governing, the Lumbee still have not received full recognition by Federal Government. 

Instead, Congress in 1956 enacted the Lumbee Act, which simultaneously recognized the tribe, but DENIED tribal members access to federal services. 

The Lumbee Recognition Act—which I have introduced with my colleague from 

North Carolina, Senator Burr—would rectify this longstanding inequity, and provide 

the Lumbees with the FULL recognition that they so clearly deserve. 

Beyond simple fairness, the issue of Lumbee recognition is critically important to 

the North Carolina economy, and to counties and communities that have been hardest hit by the recent economic downturn. 

Because the 1956 Lumbee Act forbid the Lumbee from pursuing the federal resources available to every other recognized tribe in the country, the Tribe does not 

have access to critical services through the Bureau of Indian Affairs and Indian 

Health Service. 

The Harvard School of Public Health has found that residents of Robeson County 

have a lower average life expectancy due to persistent poverty and limited access 

to affordable health care. 

Our bill will enable the Lumbee to combat these trends through sustained economic development and quality health services. 

It will allow members of the Lumbee tribe to access critical programs through Indian Health Services, and will help treat and prevent chronic illnesses that negatively affect the quality of life in the region. 

With a healthier population, and access to federal programs, the Tribe can focus 

on economic development. Robeson County—and the surrounding counties of Scotland, Hoke, Bladen, and Columbia—continue to experience unemployment rates 

that are among the highest in North Carolina. 

Economic development programs through the Bureau of Indian Affairs will allow 

the tribe to create jobs where they are needed most, and will support a true economic recovery in this distressed region. 

Some in Congress have argued that the cost of providing BIA and Indian Health 

services to the Lumbee will be too high, and that Lumbee recognition will draw 

down funds that are currently going to other tribes. I certainly understand these 

concerns. 

But, I want to be clear—the Lumbee do NOT want recognition on the backs of 

other tribes. 

This bill simply ensures that the Lumbee are ELIGIBLE for the same services 

as their peers. Funding for these services will be subject to future appropriations, 

and the Lumbee will not dilute support for tribes that currently receive federal resources. 

Some also argue that the Lumbee do not need Federal recognition because they 

can apply for acknowledgement through the Bureau of Indian Affairs administrative 

process. But let me be clear about this: the Lumbee have been prohibited from being 

considered by this process. 

This is because the Lumbee were unfortunate enough to win partial recognition 

during a time when the BIA was actively working to terminate longstanding relationships with tribes and roll back federal services for Native Americans across the 

country. 

The 1956 Lumbee Act expressly precludes the tribe from pursuing federal acknowledgment through the Bureau of Indian Affairs administrative process. Thus, 

while the Lumbee were identified in federal legislation as a tribe more than 50 

10

years ago, existing law strictly limits the group’s ability to access vital services otherwise available to a federally designated tribe. 

As the Senate Indian Affairs Committee has noted, Congress placed only one 

other Indian tribe in a similar position. In 1965, the Tiwa Indians of Texas won recognition in Congress, but were prohibited from pursuing BIA and other federal services. 

Congress recognized this problem, and in 1987 passed legislation granting full recognition to the tribe. This has left the Lumbee as the only tribe in America that 

is recognized by the Federal Government while also being forbidden from accessing 

critical programs that are available to every other tribe in the country. 

The Administration has also recognized this basic inequity. At a past House hearing on the bill, George Skibine, who served as Deputy Assistant Secretary for Policy 

and Economic Development for Indian Affairs at the time, testified that, ‘‘There are 

rare circumstances when Congress should intervene and recognize a tribal group, 

and the case of the Lumbee Indians is one such rare case.’’

I agree. It is long past time for the Lumbee to receive the full federal recognition 

they deserve. 

Federal recognition is about more than federal resources and creating economic 

development opportunities for this community. It is about tribal identity and fairness. And it is essential that we ensure that current and future generations of 

Lumbee are no longer treated as a second-class tribe. 

I urge the Committee to work quickly to approve this important legislation without delay.

The CHAIRWOMAN. Thank you, Senator Hagan, and thank you for 

being here and testifying on behalf of this legislation. We appreciate you and your advocacy. 

Does anybody have any questions for our colleague? 

If not, I know that your colleague, Senator Burr, was on the 

other side of the Capitol and is on his way here. I was going to see 

if in that process, we might turn to S. 161 to see if there are any 

comments from our colleagues on the Little Shell bill, and when 

Senator Burr arrives, we will give him a chance to speak on behalf 

of this legislation as well. 

Senator HAGAN. I am sure he will want to. 

The CHAIRWOMAN. Thank you. 

Senator Tester, would you like to make a comment about S. 161? 

If not, we will move on to other things. 

STATEMENT OF HON. JON TESTER,

U.S. SENATOR FROM MONTANA 

Senator TESTER. I would, very briefly. I think Assistant Secretary Washburn is next up. But I would just say this, first of all, 

welcome, Chairman Gray. This isn’t the first time the Little Shell 

has been in front of this Committee, but this is the first time 

Chairman Gray has been in front of this Committee. The Little 

Shell have been seeking recognition, I will just say for generations. 

It has been over 35 years. They have received recognition and they 

have had that decision revoked. It tends to be, we will just call it 

a Ferris wheel, for lack of a better term. 

The Montana legislature, when I was in it, as a matter of fact, 

passed a resolution recognizing the Little Shell. The other tribes in 

the State of Montana recognize Little Shell. The only entity that 

doesn’t recognize Little Shell is the Federal Government. I have 

had this conversation with Assistant Secretary Washburn before, 

we need to keep working at this, get the process streamlined so 

things can happen in a positive way. 

With that, thank you, Madam Chair. 

11

The CHAIRWOMAN. Thank you, Senator Tester. Again, thanks for 

this legislation. 

I think what we will do is now turn to Assistant Secretary 

Washburn and have him come before the Committee. As I said, 

when Senator Burr arrives, perhaps after the Secretary has answered questions, we will have him be able to make a statement 

as well. So again, thank you for being here. We appreciate your 

time before the Committee and your service. 

STATEMENT OF HON. KEVIN WASHBURN, ASSISTANT

SECRETARY—INDIAN AFFAIRS, U.S. DEPARTMENT OF THE

INTERIOR 

Mr. WASHBURN. Thank you, Madam Chairwoman. It is an honor 

to be here. Vice Chairman and Senator Tester, thank you. 

Let me add my praise for David Mullon today quickly. David is 

one of the best that I’ve worked with. Senators are very busy, so 

it is very important to have good staff. And David Mullon has embraced the spirit of bipartisanship that guides this Committee so 

well, and it has been a real honor to work with him. I am fortunate 

that I am going to continue to be able to work with him in his new 

job, and I wish him Godspeed in that job. So thank you for that. 

I am here to talk about the three bills that would extend Federal 

Government-to-government relationship to several tribal groups. 

This is a matter that I have spoken with some of you about previously. The Part 83 process, our Federal recognition process, has 

been criticized quite a bit over the years as expensive, inefficient, 

burdensome, intrusive, less than transparent and unpredictable. 

And some of those criticisms have come from Senator Tester. 

So when I arrived in this position, Secretary Salazar asked me 

to look at this area. After having met with Senator Tester, I knew 

it was important. So I have been working on it, my staff and I, 

Deputy Assistant Secretary Larry Roberts and I, and other staff 

have worked really hard to develop a process first to roll this out, 

so that everybody gets a chance to comment on it, especially tribal 

groups through tribal consultation. We are in that process. 

So we are working to try to make the process more transparent, 

more timely, more efficient and more flexible, while maintaining 

the rigor of the process. We are working, again, working hard to 

do that. I would add that Larry Townsend, who is here, has worked 

closely with the National Congress of American Indians to help us 

with this. We have had a lot of support from NCAI for this effort, 

which is nice, which is very impressive, because National Congress 

of American Indians largely serves federally-recognized tribes that 

are already recognized, so they don’t have to do this. But they are 

extending a hand to the tribes that haven’t reached that point yet. 

So we are grateful for that, it is heartwarming. 

So let me first move quickly to the Lumbee Recognition Act. This 

bill especially I think is appropriate for Congress to act upon, because Congress in 1956 already enacted legislation with regard to 

this tribe that we have interpreted, our sister department interpreted precludes the Department of Interior from doing anything 

as far as recognizing this tribe. So we support the Lumbee Recognition Act, S. 1132, and we have a couple of minor concerns that we 

hope would be addressed, but we generally support the bill. So I 

12

would say that one of those concerns is the bill asks us to verify 

the membership of the Lumbee Tribe, and that is more than 40,000 

people and perhaps 55,000 people. That would be a lengthy process, 

and a difficult process and might take a small army of people to 

accomplish. So that makes us a little bit nervous. 

But again, we think it is a matter of justice that the Lumbee 

Tribe be recognized and be brought into the tent. We support that 

bill. 

Let me move secondly to the Little Shell bill, S. 161. We do not 

oppose this bill. This is currently before me, so I am not going to 

say very much about it. But I will say that it was Senator Tester’s 

description of the situation of Little Shell that convinced me that 

it was very, very important that we take a look at this whole process. And indeed, we listened to Senator Tester and his comments 

when we put together our own discussion draft for how to reform 

this process. 

One of his complaints about the Little Shell process is that he 

felt they were sandbagged. They had a positive finding and it was 

put out for comments. He didn’t see any negative comments come 

in, and yet the finding was reversed. And that does cry out for 

more transparency. 

So one of the things that was in our discussion draft is if we put 

out a positive finding and we get no negative comments, then that 

finding should hold. We haven’t accepted that yet, that is in the 

discussion draft. But that is something that we put out there for 

conversation. And we have gotten a heck of a lot of comments. Our 

next stage will be to go to a proposed rule and get more comments 

and more tribal consultation that has issues like that in it. 

So we do not oppose S. 161, the Little Shell Tribe of Indians Restoration Act of 2013. 

Now, let me turn to S. 1074, Thomasina E. Jordan Indian Tribes 

of Virginia Federal Recognition Act. We are neutral on this bill. 

These groups are all petitioners in our process, a process that we 

are desperately trying to improve. Because we haven’t seen their 

applications yet, they haven’t been finalized, we are not taking a 

position on the bill. We are remaining neutral on whether Congress 

should go ahead and enact this bill, but we stand ready to assist 

in any way we can and we will continue to work on their applications until Congress should act. 

So I think that probably is enough for me to say. I am happy to 

answer any questions, or turn it over to other witnesses who have 

arrived. 

[The prepared statement of Mr. Washburn follows:]

PREPARED STATEMENT OF HON. KEVIN WASHBURN, ASSISTANT SECRETARY—INDIAN

AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR

Good afternoon Madam Chair Cantwell, Vice-Chairman Barrasso and members of 

the Committee. My name is Kevin Washburn and I am the Assistant Secretary for 

Indian Affairs at the Department of the Interior (Department). Thank you for the 

opportunity to provide the Administration’s testimony on three legislative bills that 

would federally recognize several groups that are seeking, or have sought, or are 

precluded from seeking federal recognition under the Department’s regulations at 

25 C.F.R. Part 83: S. 1132, the ‘‘Lumbee Recognition Act’’, S. 1074, the ‘‘Thomasina 

E. Jordan Indian Tribes of Virginia Federal Recognition Act of 2013,’’ and S. 161, 

the ‘‘Little Shell Tribe of Chippewa Indians Restoration Act of 2013.’’

13

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

most solemn and important responsibilities of the United States. Under the United 

States Constitution, Congress has the authority to recognize a ‘‘distinctly Indian 

community’’ as an Indian tribe. Federal acknowledgment enables Indian tribes to 

participate in Federal programs and establishes a government-to-government relationship between the United States and the Indian tribe, and recognizes certain 

legal rights under federal law. 

We note that the authority to acknowledge a tribe has been delegated to the Secretary of the Interior to act in appropriate cases. As the Committee is aware, the 

process has been subject to criticism over the years. 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.

This past summer, the Department released a discussion draft on potential revisions to the Part 83 regulation. We received numerous helpful comments. We are 

working through comments received and plan to proceed with 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 hope is to have a final rule published in 2014. 

While the Department’s process is a rigorous one that we hope to further improve, 

we also recognize that it is sometimes appropriate for Congress to engage in recognition of Indian tribes. Thus, we are happy to provide our views on the individual bills 

under consideration. 

S. 1132, the ‘‘Lumbee Recognition Act’’

In 1956, Congress designated Indians then ‘‘residing in Robeson and adjoining 

counties of North Carolina’’ as the ‘‘Lumbee Indians of North Carolina’’ in the Act 

of June 7, 1956 (70 Stat. 254). Congress went on to note the following: 

Nothing in this Act shall make such Indians eligible for any services performed 

by the United States for Indians because of their status as Indians, and none of the 

statutes of the United States which affect Indians because of their status as Indians 

shall be applicable to the Lumbee Indians. 

In 1989, the Department’s Office of the Solicitor advised that the 1956 Act forbade 

the federal relationship within the meaning of the acknowledgment regulations, and 

that the Lumbee Indians were therefore precluded from consideration for federal acknowledgment under the administrative process. Because of the 1956 Act, the 

Lumbee Indians have been deprived of the ability to seek Federal acknowledgment 

through administrative means. 

Given that it is Congress that has specifically addressed the Lumbee Indians on 

a previous occasion and has barred Interior from undertaking this review, only Congress can take up the matter of federal recognition for the Lumbee Indians. We support S. 1132 with amendments as discussed below. 

S. 1132 extends Federal recognition to the ‘‘Lumbee Tribe of North Carolina’’ and 

permits any other group of Indians in Robeson and adjoining counties whose members are not enrolled in the Lumbee Tribe to petition under the Department’s acknowledgment regulations. The Office of Federal Acknowledgment has received letters of intent to petition from six groups that may overlap with each other. In addition, we have identified over 80 names of groups that derive from these counties 

and are affected by the 1956 Lumbee Act. Some of these groups claim to be the 

‘‘Lumbee Tribe’’. Therefore, we recommend Congress clarify the Lumbee group that 

14

would be granted recognition under this bill based on the group’s current governing 

document and its current membership list. Not doing so could potentially expose the 

Federal Government to unwarranted lawsuits and possibly delay the recognition 

process for the other groups of Indians in Robeson and adjoining counties not enrolled in the Lumbee Tribe. 

Under S. 1132, any fee land that the Lumbee seeks to convey to the United States 

to be held in trust shall be considered an ‘‘on-reservation’’ trust acquisition if the 

land is located within Robeson County, North Carolina. The current language in the 

bill implies that the Secretary has the authority to take land into trust; however, 

the bill does not expressly provide that authority. Section 4 of the bill should be 

amended to clarify that Congress intends to delegate authority to the Secretary to 

acquire land in trust for the Lumbee Indians. 

In addition, the bill would prohibit the Lumbee Indians from conducting gaming 

activities under any federal law, including the Indian Gaming Regulatory Act or its 

corresponding regulations. 

Under S. 1132, the State of North Carolina has jurisdiction over criminal and civil 

offenses and actions on lands within North Carolina owned by or held in trust for 

the Lumbee Tribe or ‘‘any dependent Indian community of the Lumbee Tribe.’’ The 

legislation, however, does not address the State’s civil regulatory jurisdiction, which 

includes jurisdiction over zoning, and environmental regulations. Additionally, the 

Secretary of the Interior is authorized to accept a transfer of jurisdiction over the 

Lumbee from the State of North Carolina, after consulting with the Attorney General of the United States and pursuant to an agreement between the Lumbee and 

the State of North Carolina. Such transfer may not take effect until two years after 

the effective date of such agreement. 

We are concerned with the provision requiring the Secretary, within two years, 

to verify the tribal membership and then to develop a determination of needs and 

budget to provide Federal services to the Lumbee group’s eligible members. Under 

the provisions of this bill, the ‘‘Lumbee Tribe,’’ which the Department understands 

includes over 40,000 members, would be eligible for benefits, privileges and immunities that are similar to those possessed by other Federally recognized Indian tribes. 

In our experience verifying a tribal roll is an extremely involved and complex undertaking that can take several years to resolve with much smaller tribes. While we 

believe there are approximately over 40,000 members, we do not currently have access to the Lumbee’s membership list and thus do not have the appropriate data 

to estimate the time to verify them nor do we know how many Lumbee members 

may be eligible to participate in Federal needs based programs. Moreover, S. 1132 

is silent as to the meaning of verification for inclusion on the Lumbee group’s membership list roll. 

In addition, section 3 may raise a problem by purporting to require the Secretary 

of the Interior and the Secretary of Health and Human Services to submit to the 

Congress a written statement of a determination of needs for the Lumbee Tribe for 

programs, services and benefits to the Lumbee Tribe. The appropriate means for 

communicating to Congress a determination of needs for programs administered by 

the Department of the Interior and the Department of Health and Human Services 

is the President’s Budget. Finally, the Department notices that some text in S. 1132 

may have been inadvertently omitted. In 2009, H.R. 31, an almost identical 

‘‘Lumbee Recognition Act,’’ included several passages of ‘‘Whereas,’’ language in Sec. 

2 (3) after ‘‘clauses:’’ that is not in the current S. 1132. 

S. 161, the ‘‘Little Shell Tribe of Chippewa Indians Restoration Act of 2013’’

S. 161, the Little Shell Tribe of Chippewa Indians Restoration Act of 2013 would 

acknowledge the Little Shell Tribe of Chippewa Indians of Montana. This group, Petitioner #31 in the Department’s Federal acknowledgment process, submitted its letter of intent to the Department in 1978, and completed documenting its petition in 

1995. A Determination against the federal Acknowledgment of the Little Shell Tribe 

of Chippewa Indians of Montana was issued on October 27, 2009, and published in 

the Federal Register on November 3, 2009, 74 Fed Reg. 56861. The decision is not 

final and effective for the Department because the Little Shell Tribe filed a request 

for reconsideration before the Interior Board of Indian Appeals (IBIA) on February 

1, 2010. On June 12, 2013, the IBIA affirmed the Determination against acknowledgment and referred issues to the Secretary. On September 16, 2013, the Secretary 

referred those issues to the Assistant Secretary as possible grounds for reconsideration of the affirmed Determination. The current deadline for reconsideration of 

these matters is 120 days from September 16, 2013. The Little Shell petitioner also 

requested that the Department suspend reconsideration of the petitioner pending 

the enactment of revised acknowledgment regulations. These requests are under review. 

15

As we noted above, under the United States Constitution, Congress has the authority to recognize American Indian groups as Indian tribes with a governmentto-government relationship with the United States. For this reason, we do not oppose enactment of S. 161. 

S. 1074, ‘‘Thomasina E. Jordan Indian Tribes of Virginia Federal

Recognition Act of 2013’’

S. 1074 would provide Federal recognition as Indian tribes to six Virginia groups: 

the Chickahominy Indian Tribe, the Chickahominy Indian Tribe—Eastern Division, 

the Upper Mattaponi Tribe, the Rappahannock Tribe, Inc., the Monacan Indian Nation, and the Nansemond Indian Tribe, all of which are currently petitioners in the 

Department’s Federal acknowledgment process. 

Under 25 CFR Part 83, these six groups have submitted letters of intent and partial documentation to petition for Federal acknowledgment as Indian tribes. Some 

of these groups are awaiting technical assistance reviews under the Department’s 

acknowledgment regulations. The purpose of the technical assistance reviews is to 

provide the groups with opportunities to supplement their petitions due to obvious 

deficiencies and significant omissions. To date, none of these petitioning groups have 

submitted completed documented petitions to demonstrate their ability to meet all 

seven mandatory criteria. 

Given that we are awaiting more information and have not concluded our own review as to the merits of recognition for these groups, we have not developed views 

on the merits of Congressional recognition in this instance. 

This concludes my prepared statement. I will be happy to answer any questions 

the Committee may have.

The CHAIRWOMAN. Thank you, Assistant Secretary Washburn. 

Does the Vice Chairman have any questions? I can start with my 

questions if that is easier. 

I have several questions for you, both about the process, but I 

feel like I want to get some input for the record on these current 

bills. Has the Department ever considered undertaking a review of 

the 1989 Solicitor opinion on the Lumbee legislation and barring it 

from the administrative process? 

Mr. WASHBURN. It has. It hasn’t taken any final action on that, 

but it has looked at that opinion a bit over the years. And it could 

be reconsidered. It hasn’t been reconsidered yet, and that is outside 

my lane. 

The CHAIRWOMAN. Okay. So do you think that is an open question? 

Mr. WASHBURN. Well, Congress acted to create the situation that 

Lumbee is in. So I think it is appropriate for Congress to be the 

one to act to address that situation otherwise, or specifically address, specifically ask us to do something different. So I don’t want 

to undermine movement in this bill. If Congress is inclined to enact 

this bill, I think that is probably the best approach. But we would 

be happy to look at that issue if we need to. 

The CHAIRWOMAN. And on the Virginia bill, S. 1074, does the Department recognition process allow for any kind of consideration of 

unique historical circumstances? 

Mr. WASHBURN. It is very much focused on historical circumstances. It is quite, well, let me say the people who do this 

work are historians and ethnologists and anthropologists. So it is 

very much a history-driven process. 

The CHAIRWOMAN. But has anybody ever looked at that, the historical process is usually about the nexus to the land and the history of the region and how far it is and where the tribal hunting 

grounds were. In this case the historical contexts we are asking 

people to consider is the notion that by action of the State at the 

16

time, basically records were destroyed. So that is a unique historical circumstance. Does the current process allow for that kind of 

consideration? 

Mr. WASHBURN. Probably not adequately, to be quite honest. So 

we are looking at those criteria to try to figure out how can we 

make the process more fair. It needs to be a rigorous process, because people need to have trust in the outcome. But it shouldn’t be 

so rigorous that it is unfair. We need to take those kinds of considerations into account whenever we are making a decision. So we 

are looking at the individual criteria, many of which do have to do 

with historical circumstances. So that is one of the things we have 

taken up as far as our reform process. 

The CHAIRWOMAN. And Secretary Jewell did announce a reconsideration for the final determination on the Little Shell. How 

would you describe that process for reconsideration? What is the 

process for that? 

Mr. WASHBURN. Well, it has been sent back to me. That was in 

mid-September, and I have 120 days to act, to reconsider three or 

four very specific issues that were not subject to the Interior Board 

of Indian Appeals appeal, things that they could not consider. However, we have also been asked basically to stay this consideration 

while we reform our process. Because if we end up changing our 

criteria, which we may well do, they shouldn’t be rejected on old 

criteria that still remain in place. So it strikes me as a fairly reasonable request to ask us to hold until we finish the reform process. We have that under consideration right now. 

The CHAIRWOMAN. Okay. Does the Vice Chairman, Senator 

Barrasso, do you have a question? 

STATEMENT OF HON. JOHN BARRASSO,

U.S. SENATOR FROM WYOMING 

Senator BARRASSO. Just maybe two, Madam Chairman, if I 

could. The Committee has received testimony over several Congresses in the past that have been critical of the recognition process, lack of due process, failure to consider unique tribal histories 

are among some of the criticisms that we have heard. How do you 

draft regulations that address due process and the unique history 

of the tribal petitioners? Any suggestions on that? 

Mr. WASHBURN. Well, let me just say this. We used a robust 

process to go at this. So we started, we had a whole bunch of people meet together over several weeks, multiple meetings each week, 

and we came up with all kinds of ideas that we could find. And 

then we reviewed them and tried to find the best ideas to move forward. 

One of the things, there is a due process issue but there is also 

a timeliness issue. So one of the things we would like to do is have 

expedited positive findings and expedited negative findings so that 

we don’t necessarily have to go through the third degree if things 

are leaning a certain way. Because these things take so long. So 

we need to make sure the process is fair, but also that we move 

in a timely way. 

Senator BARRASSO. Madam Chair, I see that Senator Burr is 

here, so I am just going to put the rest of my questions into writing. Thank you, Madam Chairwoman. 

17

The CHAIRWOMAN. Thank you. 

Senator Tester? 

Senator TESTER. You can go to him if you want and then come 

back again, whatever you want. 

Mr. WASHBURN. I would be delighted to yield for a few moments 

and stick around. 

The CHAIRWOMAN. Well, Senator Burr, it is your lucky moment. 

Thank you for being here. The Assistant Secretary is willing to 

yield to you. Thank you for being here in support of the Lumbee 

Recognition Act. 

STATEMENT OF HON. RICHARD BURR,

U.S. SENATOR FROM NORTH CAROLINA 

Senator BURR. Thank you, Chairwoman Cantwell, Ranking Member Barrasso. Senator Tester, you and I are absent from another 

one right now, so I know you want to get down to it. 

I appreciate the Committee’s time and effort regarding the Federal recognition of the Lumbee Tribe. I would like to thank my colleague, Senator Hagan, Representatives Richard Hudson and Mike 

McIntyre for their passion and their dedication to this issue. These 

individuals have been relentless in their pursuit for Federal recognition for the Lumbees, and I appreciate all of their hard work. 

It is good to see my Lumbee friend, Paul Brooks, here today. I 

am confident that the Committee will find his testimony very informative, if you haven’t already had it. 

As many of you know, the Lumbees have been part of North 

Carolina’s history for centuries. They have served their communities as farmers, doctors, lawyers, small business owners and 

bankers. They have provided their Country with sheriffs and clerks 

of court, served our State as legislators and judges, and have protected our Nation by serving in the United States armed forces. 

I understand that Congressional recognition is viewed by some as 

unnecessary. But I want to be clear that the Lumbees are in a 

unique situation. In 1956, Congress designated the Indians ‘‘residing in Robeson and adjoining counties of North Carolina’‘ as 

‘‘Lumbee Indians of North Carolina.’‘ In the Lumbee Act of June 

7th, 1956, however, this Act also prevented the Lumbees from 

being eligible for any services performed by the Federal Government or any benefits derived by law on behalf of other recognized 

tribes. When the Bureau of Indian Affairs established its process 

for formal recognition, the Lumbees were effectively denied from 

pursuing this option. In 1989, the Department of Interior decided 

that the 1956 Act prevented the Lumbee from being considered for 

Federal recognition under the BIA process. 

Therefore, the limited Federal recognition of the Lumbees in 

1956 has been as much a detriment as a benefit. It is my hope that 

Congress will consider the difficult position the Lumbees have been 

in since 1956 and fulfill its commitment to achieve fairness and 

justice in the recognition process. 

In fact, Congress has taken action to fulfill such a commitment 

previously. In 1987, Congress enacted special legislation to recognize the Tewa Tribe of Texas, a tribe that was similarly prevented 

from gaining recognition through the BIA process, due to a previous act of Congress. As a result of the Tewa’s Congressional recVerDate 0ct 09 2002 10:07 Mar 27, 2014 Jkt 087270 PO 00000 Frm 00021 Fmt 6633 Sfmt 6601 S:\DOCS\87270.TXT JACK
18

ognition, the Lumbees find themselves as the only tribe in the 

United States which is prevented from gaining recognition through 

the BIA process. Although some members of this Committee may 

prefer to change the BIA recognition criteria to allow Lumbees to 

avail themselves to this process, I believe that option is simply too 

little too late. 

And let me say if I could, Madam Chairman and members, what 

we have put this tribe through is disgraceful. The way this issue 

has been footballed around in Congress, one can’t apologize to a 

group of Americans any more than the Lumbees deserve an apology. Apologies won’t suffice now. Only recognition. 

And in North Carolina, our State motto is esse quam videri, and 

translated from Latin, ‘‘to be rather than to seem.’‘ I find no better 

example of this motto than the plight of the Lumbees. They are 

here today to be a federally-recognized tribe, rather than to seem 

to be one. 

So I appreciate the opportunity, Madam Chairman, I appreciate 

your kindness in letting me work in with a schedule that I know 

we all deal with. Before I leave, I would ask, I know there is at 

the desk the testimony of Congressman Richard Hudson. I would 

ask unanimous consent that it be included in the record as well. 

I thank the Chair and the Committee for this time. 

The CHAIRWOMAN. Without objection, those statements will be 

entered into our Senate record. Thank you for being here on behalf 

of the Lumbees. I am sure they greatly appreciate it, and thank 

you for your passion. 

I know you and I have spoken about this several times over the 

last couple of years. As I mentioned in the hearing prior to your 

being here, this is action that the Committee has taken in the past, 

and the House has taken, but you are right, it is time for us to take 

it all consecutively and get something done. 

So thank you for being here. Unless my colleague has a question 

for you? 

Senator TESTER. All my questions will be directed at Assistant 

Secretary Washburn, but now that you have taken care of the 

Lumbees, Senator Burr, you can go take care of the veterans. 

[Laughter.] 

The CHAIRWOMAN. Thank you. Senator Tester? 

Senator TESTER. Thank you, Madam Chair. I really appreciate 

the fact that the Department is looking to make updates. I am 

going to get to that in a minute. 

A former chairman of this Committee, Byron Dorgan, always felt 

that it was important that the Department do their job of recognition and felt like if Congress gets into this position of doing Federal 

recognition, it becomes more of a political football. And it is much 

more effective to take the politics out and really have the Department look at the facts and the criteria that they are based around. 

That is part of why I am glad you are updating the party of three. 

But it does bring up an interesting question. And that question 

is, not to put you on the spot, but you are here on the spot, that 

question is, is the general proposition, are there circumstances 

where it is appropriate for Congress to act and take that power 

away from you in certain circumstances? And if so, what are those 

circumstances? 

19

Mr. WASHBURN. Thank you, Senator. 

Honestly, I believe that Congress has sort of an equal responsibility here. I know that we have a process and we have a process 

that is loaded up with PhDs and genealogists and historians and 

that sort of thing. It is a very rigorous administrative process. I 

think the Congressional process is probably a little different than 

that. It is more like who is for this and who is against it. Those 

are the kinds of things you consider. 

But Congress has the same trust responsibility that we have, 

and in fact, Congress has the ability to define the trust responsibility to Indian tribes. So I think that Congress has the right to 

do so and in appropriate situations should do so. 

Senator TESTER. Thank you. You released a preliminary discussion on Part 83. You have been holding consultations, thank you 

for that. 

At a hearing in 2009, and again in 2011 before this Committee, 

we were informed that a draft had been completed, and correct me 

if I am wrong, we were informed that it had been completed yet 

we didn’t see a draft until 2013. Why was there such a delay in 

releasing the draft for discussion? 

Mr. WASHBURN. I can’t tell you that, Senator. Because I just 

don’t know. I don’t know why that one didn’t move forward. But 

I will tell you, we didn’t really start with that draft. When Larry 

Roberts and I got to the Department, now I did get very clear instructions from Secretary Salazar that, you need to look at this. We 

have been making promises that we haven’t met, so you need to 

look at this. But we sort of started from scratch and said, what can 

we do here. And we consulted our experts in the Office of Federal 

Acknowledgment, but we also consulted much more widely than 

that. And again, we are trying to have a very open process. We 

have put a lot of ideas out there in the discussion draft, and if we 

adopt every one of them, some people are going to blow a gasket. 

So it is about putting a lot of ideas out there and then seeing 

which ones are most useful. That is where we are right now. 

Senator TESTER. And those final, most useful ideas would be put 

in the final version of the Part 83. 

Mr. WASHBURN. That is right, first in the proposed rule, and 

then we will get more comments and do more consultation, and 

then ultimately a final rule, hopefully. 

Senator TESTER. So interestingly enough, I serve on the Banking 

Committee, and we just had a conversation with the SEC about 

proposed final rules. I will ask you the same question I asked 

them. When can we expect a final rule on Part 83? 

Mr. WASHBURN. Our hope is to get through this whole process in 

about 24 months. The government shutdown put us sideways for 

a little while, and we have had people ask for extensions of time. 

The Connecticut Congressional delegation asked for additional time 

to comment on our discussion draft. We gave it to them, because 

that seems to be the reasonable thing to do when people ask for 

more time in good faith. So we have been willing to grant more 

time. We hope to have a proposed rule out some time after the first 

of the year. We got a lot of comments on our discussion draft, and 

we have to carefully go through those and make sure, we will see 

20

which of the comments make sense and which ones we can incorporate. 

Senator TESTER. Okay. I think it is true, with any rule, I think 

you need to be deliberate and you need to be thoughtful. But you 

also need to get it done. I should have started this whole conversation expressing my appreciation for the work you do. 

Mr. WASHBURN. Thank you. 

Senator TESTER. Because I think you do good work. And along 

that good work line, you talked about you deferred it because you 

are redoing part of it. Where is Little Shell at in process in your 

agency? Can you tell me? 

Mr. WASHBURN. It is on my desk for consideration of sort of three 

additional issues that had not been finally addressed by the Interior Board of Indian Appeals. The Interior Board of Indian Appeals 

upheld the negative finding that was reached through the long 

process. And then it went to the Secretary, and the Secretary has 

sent it back to me to ask me to look at three additional issues. But 

again, also with the request that we put it on hold, that comes 

from the Little Shell Tribe, that we put this on hold while we figure out how we are going to change the criteria. 

And actually, again, there is some sense in that. Because if we 

change the criteria in such a way that they would succeed, we 

ought to wait. So we haven’t made a final decision, but that may 

be where this is headed. 

Senator TESTER. I am picking up what you are laying down. I appreciate it. I ran over, and I appreciate that, Madam Chair. I will 

put the others in written form for you to answer. Thank you. 

Thank you, Secretary Washburn. 

Mr. WASHBURN. Thank you, Senator. 

The CHAIRWOMAN. Secretary Washburn, before you leave, hearing my colleagues’ concerns, and yes, this whole process is a complex one, going back to, well, my former colleague, the chairman of 

the Committee, Chairman Dorgan and the process in 2009 and his 

oversight hearings on the regulation process. So one could say, yes, 

this is a long, drawn-out process. When you then throw in obviously the case of delaying various recognitions based on it, you can 

see the complexity. 

But I wanted to bring up, I have also heard from several tribes, 

though, about lessening the burden of recognition. Just as I was 

mentioning the historical context, the uniqueness of the Virginia 

case juxtaposed with the historical hunting grounds and everything 

else. In this case, we obviously want a smoother, clearer Bureau of 

Indian Affairs process based on evidence and criteria and policy. 

And at the same time, we don’t want to weaken what is the burden 

of recognition as it relates to how other tribes have been recognized 

as well. So I don’t know if you can comment on some of the concerns that people have had in the draft discussions about too much 

weakening of recognition standards. 

Mr. WASHBURN. Thank you, Madam Chairwoman. I have to say, 

I guess, that weakening, to some people, seems reasonable to others. So for example, there is a question of how do you treat Staterecognized tribes, that is, tribes that have been recognized already 

by the State and/or tribes that have had a State-recognized reservation for many years. Those tribes seem, they already have subVerDate 0ct 09 2002 10:07 Mar 27, 2014 Jkt 087270 PO 00000 Frm 00024 Fmt 6633 Sfmt 6601 S:\DOCS\87270.TXT JACK
21

stantial recognition if the State, the government that they have 

been working with, is recognizing them and they have a reservation. That ought to carry some weight in the process. That is one 

of the things we have looked at. 

So that would be a change in the recognition that would maybe 

make it a little less rigorous for those tribes. But those are tribes 

that have substantial legitimacy because they have long been recognized. So those are some of the things we have been looking at, 

and many others. And I mentioned the sort of automatic final determination. If we have a proposed determination that is positive, 

and we get no negative comments, that should become an automatic positive final determination, that kind of thing. So we have 

a bunch of different ideas. 

Concerns, anybody, any group that is opposed to someone that is 

petitioning, so some State and local governments, have had various 

concerns. I think in part because they ultimately don’t like the potential that a group that they are opposing could become recognized. So we need to consider those comments as well, and we will 

in good faith. 

We are getting all kinds of comments and they are kind of all 

over the map. And we are carefully going through them right now. 

The CHAIRWOMAN. I am trying to follow all of that. I guess I 

would ask the question again this way, are you concerned that you 

could go too far, do you understand the point that some people 

think you could go too far the other way? 

Mr. WASHBURN. Yes, ma’am, I do. We don’t intend, again, it 

needs to be a rigorous process. It really needs to be the case that 

on the far side of this, when we have made a decision, people have 

faith in that decision. So it does need to have rigor. We do have 

PhD historians and genealogists and anthropologists looking at 

these things. It is a fairly scientific type process. We need to make 

sure that people know that the experts have looked at this with 

rigor and come up with a conclusion. 

So we don’t intend to make it a rubber stamp process. We think 

it needs to be rigorous. So we will be attuned to that. 

We have seven criteria, and they tend to be fairly rigorous, very 

rigorous criteria now. We don’t intend to make them lighter, we intend to make the process more efficient. 

The CHAIRWOMAN. Thank you for that. And I want to add my 

comments to Senator Tester’s, we certainly appreciate the process 

and your hard work and attention on it. Actually today’s hearing 

is not really about the review of your Federal recognition review 

process, it is about these particular bills that are, in my opinion, 

unique for very specific reasons. A legislative approach is being 

considered. But perhaps we will have you back at the Committee 

at some future date to talk specifically about your proposals and 

changes. We very much appreciate the attention to this particular 

area of Indian Affairs. 

Again, thank you for being here today and for your testimony on 

these legislative bills. 

Mr. WASHBURN. Thank you, Madam Chairwoman. 

The CHAIRWOMAN. Thank you. 

We will now turn to our third panel and hear from the Honorable 

Stephen Adkins, Chief of the Chickahominy Indian Tribe from 

22

Charles City, Virginia; the Honorable Paul Brooks, Chairman of 

the Lumbee Tribe of North Carolina; and the Honorable Gerald 

Gray, Chairman of Little Shell Tribe of Chippewa Indians of Montana, Black Eagle, Montana. So thank you all very much or being 

here and for your patience today, of us going through our executive 

session and colleagues coming to support your legislative proposals. 

We are very happy to have you before the Committee today. Chief 

Adkins, I think we will start with you. 

STATEMENT OF HON. STEPHEN R. ADKINS, CHIEF, 

CHICKAHOMINY INDIAN TRIBE 

Mr. ADKINS. Thank you, Madam Chairwoman Cantwell and 

Ranking Member Barrasso and other distinguished members of 

this Committee, Senator Tester, for inviting me here today to provide testimony in support of Senate Bill 1074. 

This bill was introduced by Senators Tim Kaine and Mark Warner. The bill would extend Federal recognition to the Chickahominy 

Indian Tribe Eastern Division, the Monacan Indian Nation, the 

Nansemond Indian Tribe, the Rappahannock Indian Tribe, Inc., the 

Upper Mattaponi Indian Tribe and my tribe, the Chickahominy Indian Tribe. These six tribes gained State recognition in the Commonwealth of Virginia between 1983 and 1989. And in 1997, we 

began to look ahead to Federal recognition. 

It may surprise members of the Committee that these tribes are 

not currently recognized. After all, our tribes are proud descendants of the colonial era tribes whose beneficence was the main reason the first permanent English settlement at Jamestown survived 

the rigors of a strange new environment. But Madam Chair, while 

you and most Americans may know the early history of our tribes, 

the fact that we were so prominent in early history, and then so 

callously denied our Indian heritage, that is a story that most don’t 

want to remember or recognize. 

The relationships between the tribes and the settlers were tested 

over the 17th century and several treaties were drawn. The culminating treaty, the Treaty of 1677, also referred to as Articles of 

Peace, the culminating treaty, this treaty would be sufficient to 

allow us recognition as sovereign tribes. But because it was signed 

while Virginia was still a colony and the crown still reigned, the 

government of the United States has failed to honor it. 

We were invited to England in commemoration of the 400th anniversary of the first permanent English settlement at Jamestown 

as guests of the Queen. Our tribes saw first-hand how reverently 

the crown still holds the Treaty of 1677. It is our hope, Madam 

Chair, that you will embrace the spirit of the Articles of Peace and 

affirm our sovereign relationship with the United States of America. 

We are also seeking recognition through an act of Congress rather than the BIA, because actions taken by the Commonwealth of 

Virginia during the 20th century annihilated our nations. Not 

through blood as in the 17th century, but through papers, as State 

registrar Walter Aspey Plecker sought to systematically erase all 

history of Virginia Indians. In 1924, Virginia enacted the Racial Integrity Act. This law forced all segments of the population to be 

registered at birth as either white or colored. Those with a single 

23

drop of non-white blood were considered to be colored for the purposes of the Commonwealth. 

The policies established by Plecker made it illegal to designate 

Indian on a birth certificate or to give an Indian child a traditional 

Indian name. The official practice of the Commonwealth of Virginia 

was to erase the existence of Indians through statutes and legislation. This has made the administrative process nearly impossible. 

Anthropologists have said there is no other State that attacked Indian identity as directly as the laws passed during that period of 

time in Virginia. This law stayed in effect nearly half my life, until 

1967, a date so recent that only one member of this Committee, 

Senator Schatz, was born after its repeal. 

As part of the Indian Reorganization Act in 1934, the United 

States Government officials contacted the Commonwealth of Virginia regarding its Indian population. Mr. Plecker advised that 

there were no Indian tribes in Virginia. Despite Plecker’s response, 

Federal officials visited Virginia Indian tribes and substantiated 

our existence. But no action was taken, and we remained unrecognized. 

We believe the petition process would not understand this history 

and would not be able to see beyond the corrupted documentation 

that legally denied our Indian heritage. Given the realities of the 

Office of Federal Acknowledgment and the historical slights suffered by the Virginia Indian tribes for the last 400 years, the six 

tribes referenced in S. 1074 feel that our situation clearly distinguishes us as candidates for Congressional Federal recognition. 

As chiefs of our respective tribes, we do not want our families or 

our tribes to let the legacy of Walter Plecker stand. We are asking 

Congress to help us make history for the Indian people of Virginia, 

a history that honors our ancestors who were there at the beginning of this great Country. 

Madam Chairwoman, passage of this bill would honor the treaty 

our ancestors made with the early colonists and the crown. And it 

would show respect for our heritage and identity that has never before been acknowledged. 

Finally, let me say there is never, there is never a wrong time 

to do the right thing. Our people were introduced to Christianity 

by the settlers and despite the abuses of the messengers, we heard 

the message. And we believe in the saving grace of Almighty God. 

We believe that God placed you here, Madam Chairwoman, Senator Barrasso, Senator Tester and others, placed you here today to 

do the right thing, to acknowledge these six Indian tribes as sovereign nations. Esther 4:14 states it clearly, and I won’t quote that 

today, but you have the power to do the right thing. And yes, you 

were placed here for such a time as this. 

Madam Chairwoman, I appreciate the opportunity to testify before you today. I would ask that my written testimony be submitted in record today also. Again, thank you and thank the Committee. 

[The prepared statement of Mr. Adkins follows:]

24

PREPARED STATEMENT OF HON. STEPHEN R. ADKINS, CHIEF, CHICKAHOMINY INDIAN

TRIBE

Thank you Chairwoman Cantwell, ranking member Barrasso, and other distinguished members of this Committee for inviting me here today to provide testimony 

in support of S. 1074. The bill, introduced by Senators Tim Kaine and Mark Warner 

and entitled the Thomasina E. Jordan Indian Tribes of Virginia Federal Recognition 

Act of 2013, would extend Federal Recognition to the Chickahominy Indian TribeEastern Division, the Monacan Indian Nation, the Nansemond Indian Tribe, the 

Rappahannock Indian Tribe, Inc., the Upper Mattaponi Indian Tribe and my Tribe, 

the Chickahominy Indian Tribe. 

It may surprise members of the Committee that these tribes are not currently recognized. After all, our tribes are proud descendants of pre-colonial era tribes who 

were the keepers of this land when the settlers arrived in 1607. In fact, it was 

through the beneficence of these tribes that the first permanent English Settlement 

at Jamestown survived the rigors of a strange new environment. It was a complicated history: tribes were sometimes at peace and trading as friends with the settlers, while at other times things were more contentious. 

I could tell you, Madame Chair, the much publicized story of the 17th Century 

Virginia Indians, but you, like most Americans, know our first contact history. Wellknown is the story of Chief Powhatan and his daughter Pocahontas, her picture 

being in the United States Capitol building with her English husband John Rolfe. 

I often say this country is here today because of the kindness and hospitality of my 

forebears who helped the English colonists at Jamestown gain a foothold in a new 

and strange environment. 

But while you, and most Americans, may know the early history of our tribes, the 

fact that we were so prominent in early history and then so callously denied our 

Indian heritage is the story that most don’t want to remember or recognize. I, and 

those Chiefs here with me, stand on the shoulders of tribes like the Papsehegh, a 

tribe wantonly destroyed by Lord Delaware in 1610. We stand on the shoulders of 

leaders like my predecessor, Chief Arthur Lonewolf Adkins, who died in 2001 and 

who was among the delegation advised by the Assistant Secretary of the Department of the Interior in 1999 that many of the delegation would pass away before 

federal recognition would be achieved administratively. 

Madame Chairwoman, the government of the United States of America currently 

offers to us an administrative route to achieve formal recognition, which many have 

encouraged us to seek. Yet this is impossible for our tribes to accomplish, owing to 

actions taken by the governments of the United States and of the Commonwealth 

of Virginia. 

You see, you know the early history of our tribes and our relationships with the 

settlers. You know that relationships between the tribes and settlers were tested 

over the 17th century and several treaties were drawn. The culminating treaty 

signed between the settlers and the Virginia Indian Tribes to enable the two peoples 

to peacefully coexist is the Treaty of 1677 (also referred to as the Articles of Peace 

or the Treaty of the Middle Plantation). This treaty detailed the rights of sovereign 

tribal governance, the relationship between the Indians and the colonists, and fishing, hunting and trading rights. 

This Treaty would be sufficient to allow us recognition as sovereign tribes, if it 

were recognized by the government of the United States. But because the Treaty 

was signed in 1677, while Virginia was still a colony and the Crown still reigned, 

the government of the United States has failed to honor this treaty. 

Madame Chairwoman, I would like to pause for a moment just to reiterate that 

last statement. Our tribes are not recognized as legitimate because the treaty was 

not signed by the United States government, a government that would not come into 

existence for nearly one hundred years. Because our ancestors achieved a peaceful 

settlement with the settlers, our recognition as sovereign tribes is denied. We were 

invited to England in Commemoration of the 400th Anniversary of the First Permanent English Settlement at Jamestown. We were guests of the Queen. Our Tribes 

saw first-hand how reverently the Crown still holds the Treaty of 1677. It is our 

hope that you will embrace the spirit of the Articles of Peace and affirm our sovereign relationship with United States of America. 

We are also seeking recognition through an act of Congress rather than the BIA 

because actions taken by the Commonwealth of Virginia during the 20th Century 

annihilated our nations, not through blood, as in the 17th century, but through 

paper. The Commonwealth of Virginia, through its agent, Walter Ashby Plecker, 

sought to systematically erase all history of Native Americans. 

In 1924, Virginia’s state legislature enacted The Racial Integrity Act. This vile 

law forced all segments of the population to be registered at birth in one of two catVerDate 0ct 09 2002 10:07 Mar 27, 2014 Jkt 087270 PO 00000 Frm 00028 Fmt 6633 Sfmt 6621 S:\DOCS\87270.TXT JACK
25

egories: white or colored. Enforced byWalter Plecker, a rabid separatist and the director of the Virginia Bureau of Vital Statistics, the official policy of the Commonwealth eliminated Indian, Mexican, and Asian as a race. Those with a single drop 

of non-white blood were considered to be ‘‘Colored’’ for the purposes of the Commonwealth. 

Sadly this tells only a part of the story. The policies established by Plecker made 

it illegal to designate Indian on a birth certificate or to give an Indian child a traditional Indian name. The law stayed in effect until 1967, a date so recent that only 

one member of this committee, Senator Schatz, was born after its repeal. This law 

made it necessary for my parents to travel to Washington D.C. on February 20, 

1935 in order to be married as Indians. 

The official practice of the Commonwealth of Virginia was to erase the existence 

of my people through statutes and legislation. Not only is the Treaty of 1677 disregarded, but the destruction of documents regarding our existence during the Civil 

War and other periods of early history pales in comparison to the State-sanctioned 

indignities heaped upon my people under the hand of Walter Ashby Plecker. This 

has made the administrative process nearly impossible. Although socially unacceptable to kill Indians outright, Virginia Indians became fair game to Plecker as he 

led efforts to eradicate all references to Indians in Vital Records (a practice that was 

supported by the state’s Establishment when the eugenics movement was endorsed 

by leading state universities). The effect of this period and the racial policies of the 

State meant that Indian people were targeted—it was feared that they would dare 

to try to claim their heritage and seek extra protection outside the state or with 

the Federal Government. Violations put doctors and midwives at risk of up to one 

year in jail. Our anthropologist says there is no other state that attacked Indian 

identity as directly as the laws passed during that period of time in Virginia. No 

other ethnic community’s heritage was denied in this way. Our State, by law, declared there were no Indians in the State in 1924, and if you dared to say differently, you went to jail or worse. That law stayed in effect half of my life. 

We have been asked why many of us do not have traditional Indian names. Quite 

simply, the law said we couldn’t, and the law said that we weren’t Indian. Our parents weighed the risks and decided violating The Racial Integrity Act was not worth 

the risk of going to jail. 

In addition, as part of the Indian Reorganization Act in 1934, United States government officials contacted the Commonwealth of Virginia regarding its Indian population. The state registrar, Mr. Walter A. Plecker, advised there were no Indian 

Tribes in Virginia. Despite Plecker’s response, Federal Government officials visited 

Virginia tribes, conducted interviews, and photographed people, places and things, 

thereby substantiating our existence. But no action was taken, and we remain unrecognized. 

We are seeking recognition through Congress because we believe the petition 

process would not understand this history and would not be able to reconcile this 

State action with our heritage. We feared the process would not be able to see beyond the corrupted documentation that legally denied our Indian heritage. Many of 

the elders in our community also feared racial backlash if they tried, and for good 

reason. 

Our parents lived through the Plecker years and carried those scars to their 

graves. When I approached my father and his peers regarding our need for state 

recognition they pushed back very strongly. In unison they said, ‘‘Let sleeping dogs 

lie and do not rock the boat’’. Their fears of reprisal against those Indians who had 

risked marrying in Virginia, and those whose birth records accurately reflected their 

identity, outweighed their desire to openly pursue any form of recognition. Those 

fears were not unfounded because the threat of fines or jail time was very real to 

these Virginia Indians. 

The story I just recounted to you is very painful and I do not like to tell that 

story. Many of my people will not discuss what I have shared with you, Chairwoman 

Cantwell, but I feel you need to understand recent history opposite the romanticized, inaccurate accounts of 17th century history. 

Let me tell you how we got here today. The six tribes on this bill gained State 

Recognition in the Commonwealth of Virginia between 1983 and 1989. Subsequent 

to state recognition, George Allen, as governor, learned our story. In 1997, he passed 

the statute that acknowledged the aforementioned discriminatory laws and allowed 

those with Indian heritage to correct their records with costs to be borne by the 

Commonwealth. At that juncture, we began to look ahead to federal recognition. In 

1999, we were advised by the Assistant Secretary—Indian Affairs that many of us 

would not live long enough to see our petition go through the administrative process, a prophecy that has come true—we have buried three of our chiefs since then. 

26

Given the realities of the Office of Federal Acknowledgement and the historical 

slights suffered by the Virginia Indian Tribes for the last 400 years, the six tribes 

referenced in S. 1074 feel that our situation clearly distinguishes us as candidates 

for Congressional Federal recognition. 

As Chiefs of our respective tribes, we have persevered in this process for one reason. We do not want our families or our Tribes to let the legacy of Walter Plecker 

stand. We want the assistance of Congress to give the Indian Tribes in Virginia 

their freedom from a history that denied their Indian identity. Without acknowledgment of our identity, the harm of racism is the dominant history. We want our children, and the next generation, to have their Indian Heritage honored and to move 

past what we and our parents experienced. We want our veterans, the descendants 

of veterans who gave the ultimate sacrifice in the defense of this country, our tribal 

elders who have gone before, and those who struggle for recognition today to know 

their efforts have not been in vain. We, the leaders of these six Virginia Tribes, are 

asking Congress to help us make history for the Indian people of Virginia, a history 

that honors our ancestors who were there at the beginning of this great country. 

I would like to quote a statement made by Chief Powhatan to John Smith, a 

statement that has almost been forgotten but ironically still has relevance today:

Why should you take by force that which you can have from us by love? Why 

should you destroy us who have provided you with food? What can you get by 

war? . . . I therefore exhort you to peaceable councils...

Madame Chairwoman, passage of this bill would give us the peace that Chief 

Powhatan sought, would honor the treaty our ancestors made with the early Colonists and the Crown, and would show respect for our heritage and identity that has 

never before been acknowledged. 

Finally, there is never a wrong time to do the right thing. Acknowledging these 

six Indian Tribes as sovereign nations is the right thing to do. You have the power 

to do it. Perhaps you were placed here for such a time as this.

The CHAIRWOMAN. Thank you, Chairman Adkins. 

We will now turn to the Honorable Paul Brooks. Thank you very 

much for being here as well, Mr. Chairman. 

STATEMENT OF HON. PAUL BROOKS, CHAIRMAN, LUMBEE 

TRIBE 

Mr. BROOKS. Good afternoon, Chairwoman Cantwell and other 

distinguished members of the Committee. Thank you for the opportunity to present a testimony on S. 1132, a bill to provide recognition to the Lumbee Tribe of North Carolina. 

I am Paul Brooks, Chairman of the Lumbee Tribe, which has a 

membership of 55,000. 

My statement is based on historical research and first-hand 

knowledge prior to becoming chairman. I have served in different 

leadership roles in the tribe. I serve on the tribe’s Federal Recognition Committee. The tribe has a long and proud history. It has 

been recognized as an Indian tribe by the State of North Carolina 

since 1885, and at the same time established a separate school system for tribal members. The tribe was given the exclusive authority 

to manage its own educational affairs. 

In 1887, tribal leaders petitioned the General Assembly to establish the Indian Normal School. The members were trained there to 

become teachers in the tribe’s schools. That school exists today as 

the University of North Carolina at Pembroke, and is part of the 

State’s 16 university systems. 

The tribe has enjoyed a long, strong relationship with the State, 

and that relationship continues today. Present Governor Pat 

McCrory has openly supported the tribe’s Federal recognition effort. The tribe began its first fight for Federal recognition in 1888, 

when tribal leaders petitioned Congress for educational aid. The 

27

petition was denied based solely on economic consideration. The 

Department of Interior didn’t have sufficient funds to assist the 

tribe. 

Since that time, numerous bills have been introduced to recognize the tribe. Repeatedly, Interior has opposed these bills. There 

have been 12 Federal commission reports on the history and status 

of the Lumbee Tribe. Each report identifies the Lumbees as an Indian tribe and recommends the Federal Government provide services. However, Federal officials did not implement any of the recommendations. Services were not denied because we were an Indian tribe, but because of insufficient funds to provide funding. 

In 1956, Congress passed the Lumbee Act. As with other bills, 

this was one intended to recognize the tribe, just as the State had 

done in 1952 under the name Lumbee. The Department opposed 

the bill and insisted the bill be amended to make sure the tribe 

was not eligible for services. Congress amended the bill and the Department requested and enacted the law they gave with one hand 

and took away with the other hand. The 1956 Act prohibited services to the tribe. Since the passage of this Act, we have been considered second class Indians by the Department of Interior and 

even by some in Indian Country. 

In 1987, the tribe submitted a petition to go through the fact 

process. However, because of the termination language in the Act, 

the solicitor’s office issued an opinion in 1989 stating the tribe was 

ineligible to petition for recognition through the administrative 

process. Therefore, the only remedy for the tribe is for Congress to 

act. 

The Lumbee Tribe is now the only tribe in the Country trapped 

in this legal limbo. Congress should correct this situation for the 

Lumbees by the enactment of S. 1132, just as Congress has done 

in the past. Because Congress placed the Lumbee Tribe in this 

legal limbo by the 1956 Lumbee Act, only Congress can restore the 

tribe to full Federal recognition. As a result, Congress must act to 

resolve the status of the Lumbee Tribe. The 100 years of Congressional and administrative deliberation on the tribe’s history has 

produced a compelling record of the tribe’s existence. This record 

includes the explicit statement by Interior in 1934, based on a report by anthropologist John Swanton, that the Lumbee descended 

from the Cheraw and other coastal North Carolina tribes. Because 

of this record, there is no need for further study by the Department 

on the tribe’s status. The proposed bill restores the Lumbee Tribe 

to full Federal recognition by amending the 1956 Act in keeping 

with the tribe’s long history of self-determination and establishing 

the historic territory of the tribe as a service area and does not create a reservation. 

Consistent with general policy, respecting internal tribal matters, 

the bill authorizes the Secretary of the Interior to review the 

Lumbee tribal role but only for the purpose of determining that 

members meet the tribal enrollment criteria. Finally, the bill reflects the longstanding relationship between the tribe and the State 

of North Carolina by granting the State civil and criminal jurisdiction of the Lumbee Indians, just as it exists today. 

It is time for Congress to finish what it started in 1956 and extend full recognition to the Lumbee Tribe. The proposed bill would 

28

accomplish this. Our people deserve fair treatment, and we believe 

that this bill deserves the support of this Committee, and such an 

honorable committee that I am looking at today. Thank you very 

much. 

[The prepared statement of Mr. Brooks follows:]

PREPARED STATEMENT OF HON. PAUL BROOKS, CHAIRMAN, LUMBEE TRIBE

Good afternoon Chairwoman Cantwell, and other distinguished members of the 

Senate Committee on Indian Affairs. First, let me thank you for the opportunity to 

appear before the Committee to present testimony on S. 1132, a bill to provide recognition to the Lumbee tribe of North Carolina. My name is Paul Brooks and I am 

the Chairman of the Lumbee Tribe, which has a membership of 55,000. The tribe 

is located in southeast North Carolina, and the tribal territory includes the counties 

of Robeson, Scotland, Hoke and Cumberland. We are governed by a Constitution 

adopted by the tribal membership, which consist of three branches of government: 

the executive branch, the legislative branch, which includes a 21 member Tribal 

Council representing fourteen districts throughout the tribal territory, and the judicial branch. My statement is based on historical research, and first-hand knowledge. 

Prior to becoming Tribal Chairman, I have served in different leadership roles within the Lumbee Tribe. I was Chairman of the non-profit organization, Lumbee Regional Development Association, Inc., the entity who once administered federal and 

state programs for the benefit of the tribal membership, and was in charge of the 

tribe’s efforts to obtain federal recognition. I served on the on the tribe’s Federal 

Recognition Committee, and was a major supporter of the tribe’s efforts to adopt a 

tribal constitution. In addition, I served as Chairman of the North Carolina Commission of Indian Affairs, an agency created by legislation to assist the state’s Indian communities in a wide range of social, legal, political, economic, and cultural 

concerns. 

The Lumbee has been recognized as an Indian tribe by the State of North Carolina since 1885. Legislation was passed to recognize the Lumbee tribe and naming 

it Croatan, at the same time establishing a separate school system for the benefit 

of tribal members. The law also established Indian School Committees made up of 

tribal members who were empowered to determine the eligibility of students to attend, and hire their own teachers. Tribal members were given the exclusive authority to manage its own educational affairs. The authority of the school committees 

to determine student eligibility was challenged by the local school board, and in 

1890, the North Carolina Supreme Court reaffirmed the Committee’s exclusive authority to determine who could attend the Indian schools. The schools were improperly funded, and in 1887, tribal leaders petitioned the North Carolina General Assembly to establish the Croatan Indian Normal School to be used to train tribal 

members to become teachers in the tribe’s school system. This petition prompted the 

General Assembly to pass legislation, which created the teaching institution, and 

provided funding for the operation of the school. That school continues to exist today 

as the University of North Carolina at Pembroke, and is an integral part of the 

state’s sixteen University system. 

The tribe has enjoyed a strong relationship with the State of North Carolina, and 

that relationship continues to exist today. Legislation has been passed through the 

years to protect the tribe’s identity, acknowledge their status as an Indian tribe, and 

maintain and preserve their culture. They have worked with the tribe in their efforts to obtain federal recognition, and that commitment continues. 

The tribe began its fight for federal recognition in 1888, when forty-four tribal 

leaders petitioned Congress for educational aid. This petition was signed by most 

of the same tribal leaders who had petitioned the North Carolina Legislature in 

1887. The petition ultimately was sent to the Department of the Interior for its consideration; however, their response was to deny the tribe’s request for assistance 

based solely on economic considerations. The Department felt they had insufficient 

funding to take care of the Indian tribes to whom they were responsible, and could 

not assist the tribe. The petition resulted in the first federal bill being introduced 

in the U.S. House of Representatives on behalf of the Lumbee tribe. Congressman 

John D. Bellamy introduced the bill in 1900, appeared before the House Committee 

on Indian Affairs to present an overview of the tribe, and gave the same presentation to the full House; however, the bill did not pass. 

Since 1900, there have been numerous bills introduced in both the U.S. House of 

Representatives and the US Senate; however to no avail. Repeatedly, the DepartVerDate 0ct 09 2002 10:07 Mar 27, 2014 Jkt 087270 PO 00000 Frm 00032 Fmt 6633 Sfmt 6621 S:\DOCS\87270.TXT JACK
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ment of the Interior has opposed bills by Congress to recognize the tribe and our 

bills failed. 

Our people have also tried to get federal recognition from the Department of the 

Interior. After Congress passed the Indian Reorganization Act (IRA) in 1934, the 

tribe attempted to qualify for federal recognition only to be subjected to a ludicrous 

exercise in pseudo-science. The Federal Government sent an anthropologist who 

took physical data on members of the tribe in our attempt to qualify under the IRA. 

Data was taken on their hair, eyes, ears, nose, lips, teeth and head, as well as blood 

type and general body measurements. Tribal members felt this was an insult, and 

there was very little participation. Out of the two-hundred applicants, only twentytwo Lumbee were certified as one-half or more Indian blood. The Department eventually refused to take land into trust for these individuals; the tribe could not organize under a constitution and did not become recognized under the Indian Reorganization Act. This is only one of twelve federally commissioned reports on the history and status of the Lumbee tribe. Each report identified the Lumbee as an Indian 

tribe, and recommended that the Federal Government should provide services; however, federal officials did not implement any of the recommendations provided by 

those they sent to conduct studies of the Lumbee tribe. In every instance, the tribe 

was denied services not because we were not an Indian tribe, but because there was 

insufficient funding to provide services to the Lumbee. 

In 1956, Congress finally passed a bill for the Lumbee. As with other bills, this 

one was intended to recognize the tribe, just as the State had recently done, under 

the name Lumbee. Once again, the Department opposed the bill and insisted that, 

if enacted, the bill should be amended to make sure the tribe was not eligible for 

Indian services. Congress amended the bill as the Department requested and enacted a law that gave with one hand and took away with the other. The 1956 

Lumbee Act gave us the name we had sought for so long, the giving of a name being 

thought by our people to be official recognition, and the 1956 Lumbee Act prohibited 

the application of federal Indian statutes to the tribe. Since the passage of the Act, 

we have been considered second-class Indians: by the Department of the Interior 

and even by some in Indian country. 

In 1987, the tribe submitted a documented petition to the Bureau of Indian Affairs in accordance to the Federal Acknowledgment regulations; however, because 

of the termination language in the 1956 Act the Solicitor’s Office at the Department 

of the Interior issued an opinion in 1989 stating the tribe was ineligible to petition 

for federal recognition through the administrative Federal Acknowledgment Process. 

Therefore, the only remedy for the tribe is for Congress to take action. 

There are those who feel the Lumbee Act should be repealed or amended to make 

the tribe eligible for the Acknowledgment Process; however, Congress itself reconsidered the status of the only other tribe in precisely the same position as the Lumbee 

Tribe; the Tiwa of Texas. In a 1968 statute that was modeled on the 1956 Lumbee 

Act, Congress designated and recognized those Indians as the Tiwa Indian of Ysleta, 

Texas, but included the same termination language as that in the Lumbee Act. In 

1987, well after the Department of the Interior had established its Federal Acknowledgment Process, Congress fixed this problem for the Tiwa. It enacted the Ysleta 

Del Sur Pueblo Restoration Act, which restored the federal trust relationship with 

the Tiwa and the federal Indian services for the Tiwas. The Lumbee Tribe is now 

the only tribe in the country trapped in this legal limbo. Congress should correct 

this situation for the Lumbee Tribe by the enactment of S. 1132, just as Congress 

has already corrected the situation for the Ysleta Del Sur Pueblo. 

Because Congress placed the Lumbee Tribe in this legal limbo by the 1956 

Lumbee Act, only Congress can restore the Lumbee Tribe to full federal recognition. 

The 1989 Solicitor’s opinion concluded the termination language of the 1956 Lumbee 

Act makes the tribe ineligible for the administrative acknowledgment process. As 

a result, Congress must act to resolve the status of the Lumbee Tribe, and Congress 

can do so with full confidence the tribe meets the criteria for federal acknowledgment. The hundred years of congressional and administrative deliberation on the 

Tribe’s history has produced a voluminous and compelling record of the Tribe’s existence. This record includes an explicit statement by the Department of the Interior 

in 1934, based upon a report by the eminent anthropologist John Reed Swanton 

that the Lumbee descend from the Cheraw and other coastal North Carolina tribes. 

Because of this record, there is no need for further study by the Department of the 

Interior on the Tribe’s status. Congress should treat the Lumbee Tribe just as it did 

the Ysleta Del Sur and enact S. 1132, a comprehensive recognition bill. 

The proposed bill restores the Lumbee Tribe to full federal recognition by amending the 1956 Lumbee Act. In keeping with the Tribe’s long history of self-determination, it establishes the historic territory of the tribe as a service area and does not 

create a reservation. Consistent with federal policy respecting internal tribal matVerDate 0ct 09 2002 10:07 Mar 27, 2014 Jkt 087270 PO 00000 Frm 00033 Fmt 6633 Sfmt 6621 S:\DOCS\87270.TXT JACK
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ters, the bill authorizes the Secretary of the Interior to review the Lumbee tribal 

roll, but only for the purpose of determining that members meet the Tribe’s enrollment criteria. Finally, the bill reflects the long-standing relationship between the 

Tribe and the State of North Carolina by granting the state civil and criminal jurisdiction over Lumbee Indians, just as it exists today. 

It is time for Congress to finish what it started in 1956 and extend full recognition 

to the Lumbee Tribe. The proposed bill would accomplish this. Further, it does so 

in a responsible way in keeping with current federal Indian policy. Our people deserve fair treatment, and we believe that this bill deserves the support of this Committee.

The CHAIRWOMAN. Thank you, Mr. Chairman, and thank you for 

being here and for your advocacy. I know this has been an ongoing 

issue, so I certainly appreciate your continuing to push for this legislation. 

We will hear last from Chairman Gray. Thank you for being 

here. 

STATEMENT OF HON. GERALD GRAY, CHAIRMAN, LITTLE 

SHELL TRIBE OF CHIPPEWA INDIANS 

Mr. GRAY. Thank you, Senator. 

Good afternoon. My name is Gerald Gray and I am the chairman 

of the Little Shell Tribe of Chippewa Indians of Montana. 

Chairwoman Cantwell, Vice Chairman Barrasso, thank you for 

holding this important hearing today and providing the Little Shell 

with this opportunity to testify. I also want to extend a special 

thank you to Senator Tester, who has been the Little Shell Tribe’s 

great champion for so many years, and who, together with our good 

friend, Senator Baucus, has made this possible, S. 1161, the Little 

Shell Band of Chippewa Restoration Act of 2013. 

The Little Shell Tribe began the administrative recognition process in 1978, which means that we have been in the Department of 

Interior’s administrative Federal acknowledgment process for more 

than 35 years, which has meant lost services, emotional scars for 

generations of Little Shell members. Thirteen years ago, we believed we saw the light at the end of the tunnel when Assistant 

Secretary Gover issued a proposed finding in favor of restoring 

Federal recognition to the Little Shell Tribe. 

The issuance of Assistant Secretary Gover’s proposed finding 

began a public comment period during which the Department received no negative comments on the proposed recognition of our 

tribe. The State of Montana, all affected local governments and all 

of Montana’s federally-recognized tribes support the Little Shell’s 

recognition. 

Even so, in November of 2009, the Department inexplicably reversed Assistant Secretary Gover’s positive findings and denied restoration of the Little Shell Tribe. We appealed the negative decision to the Interior Board of Indian Appeals on several grounds. 

The BIA in turn referred several questions to the Secretary of Interior as provided by the regulations which govern the administrative 

appeal process. 

On September 16th, 2013, the Secretary exercised her discretion 

in favor of the tribe when she referred five serious questions to the 

Assistant Secretary instructing that ‘‘Based on the nature of the 

five alleged grounds, particularly with regard to due process concerns and questions regarding burdens of proof, I am exercising my 

31

discretion to request that you reconsider the Little Shell final determination.’‘

As our appeal was proceeding, Assistant Secretary Kevin 

Washburn announced that the Department would undertake a review of Federal regulations which govern the administrative Federal acknowledgment process. He issued a decision draft of proposed revisions which, if adopted, will make the administrative acknowledgment process fairer and lead to more just results. 

The Little Shell Tribe of Chippewa Indians is deeply grateful to 

Assistant Secretary Washburn for this undertaking. As this Committee so well knows from its own experience in overseeing the 

Federal acknowledgment process, genuine reform of the administrative process is long overdue. I would ask that you please refer 

to my written testimony for detailed examples of why we support 

proposed reforms. 

While we support Assistant Secretary Washburn’s efforts to reform the recognition process, there is no certainty as to when or 

even if these regulations will be adopted. That is why the Little 

Shell Tribe urges Congress to delay no further in exercising its 

Constitutional authority to restore my tribe’s recognition through 

legislation. Even a reformed administrative process cannot address 

the inherent additional issues which all newly-recognized tribes 

must face: the acquisition of homeland, the designation of service 

areas and the navigation of the brutal complications caused by the 

Carcieri decision. The Little Shell Tribe Restoration Act of 2013, on 

the other hand, effectively resolves all those issues for my tribe, 

and by doing so, provides certainty, not just for us, but also for our 

non-Indian neighbors. 

We continue to enjoy the full support of other federally-recognized tribes in Montana, also of Governor Bullock and all the local 

communities near us. And just in fact, two days ago, we received 

a statement of support from Montana Attorney General Tim Fox. 

This is why the full Montana Congressional delegation supports 

our legislation. We ask that the Committee also support S. 161, 

and that in turn, it do whatever it can to ensure that the legislation is acted favorably upon by the United States Congress. 

Until our recognition is restored, the historical wrongdoings committed against my people will continue unabated into the 21st century. Again, I am deeply grateful for your time today and I am 

happy to answer any questions. 

[The prepared statement of Mr. Gray follows:]

PREPARED STATEMENT OF HON. GERALD GRAY, CHAIRMAN, LITTLE SHELL TRIBE OF

CHIPPEWA INDIANS

Introduction 

My name is Gerald Gray, and I am the elected Chairman of the Little Shell Tribe 

of Chippewa Indians. On behalf of the Little Shell Tribe I urge Congress to enact 

The Little Shell Tribe of Indians Restoration Act of 2013, S. 161. Further, I ask that 

this written testimony be included in the record of this hearing. 

The Little Shell Tribe of Chippewa Indians of Montana (Tribe) has been involved 

in the federal acknowledgment process since 1978. To put that into perspective, the 

Tribe has been in the process for all or parts of five decades. We still do not have 

a final determination and no indication of when a final determination might be rendered. We urge Congress to end the Tribe’s ordeal by legislatively recognizing the 

Tribe. The Tribe already has suffered too long from the brutalizing effects of the 

Bureau of Indian Affairs’ administrative recognition process—and forcing it to wait 

32

1 Relying largely on the summary under the proposed findings, the Montana Supreme Court 

held that the Little Shell Tribe met the criteria of Montoya v. United States, 180 U.S. 261 (1901) 

for common law recognition as a Tribe. Koke v. Little Shell Tribe of Chippewa Indians of Montana, Inc., 315 Mont. 510, 68 P.3d 814 (2003). 2Two third party comments were received. One was moot and the other comment simply requested explanation of certain matters. George T. Skibine, ‘‘Summary under the Criteria and 

Evidence for Final Determination Against the Federal Acknowledgment of the Little Shell Tribe 

of Chippewa Indians of Montana,’’ 15–16, (Oct. 27, 2009)(‘‘FD’’). 

any longer only prolongs the historical injustices already endured by a Tribe that 

has no federally protected land base on which it can protect its heritage and culture, 

and provide desperately needed services and housing for its people. 

I. Overview of the Procedural History of the Tribe’s Participation in BIA’s 

Federal Acknowledgment Process 

On July 14, 2000, twenty-two years after starting the process, Kevin Gover, the 

Assistant Secretary—Indian Affairs (‘‘AS–IA’’), signed a ‘‘Proposed Finding for Federal Acknowledgment of the Little Shell Tribe of Chippewa Indians of Montana.’’ 65 

Fed. Reg. 45,394 (July 21, 2000) (‘‘PF’’ or ‘‘Proposed Finding’’). After summarizing 

the evidence under each of the criteria, the Assistant Secretary concluded that ‘‘the 

petitioner should be acknowledged to exist as an Indian tribe.’’ 1 Id. at 45,396 (emphasis added). However, on November 3, 2009, after an administration change, the 

Acting Principal Deputy, Assistant Secretary—Indian Affairs reversed course and 

issued a Final Determination (FD) against recognition of the Little Shell Tribe of 

Chippewa Indians of Montana (Tribe), thereby reversing the favorable proposed 

finding. 74 Fed. Reg. 56,861. The Acting Principal Deputy reversed Assistant Secretary Gover’s Proposed Finding despite the fact that in the interim no negative 

comments were received on the PF, and despite that fact that the State of Montana, 

all affected local governments, and all Montana Tribes, as well as others, expressly 

supported Little Shell’s recognition. 2

The Tribe appealed to the Interior Board of Indian Appeals (IBIA) on several 

grounds within its jurisdiction, as set forth in 25 C.F.R § 83.11 (d)(9). On June 12, 

2013, the IBIA rejected the Tribe’s arguments based on those grounds. The Tribe 

also raised arguments outside the jurisdiction of the IBIA that were referred to the 

Secretary of the Interior under § § 83.11 (f)(2) and (g)(2). 25 C.F. R. § 83.11 (f) (2) 

which provides that the Secretary has the ‘‘discretion to request that the Assistant 

Secretary reconsider the final determination on [the] grounds’’ referred by the IBIA. 

On September 16, 2013, the Secretary of the Interior granted the Tribe’s request 

on all grounds and referred five serious questions to the Assistant-Secretary, stating: ‘‘Based on the nature of the five alleged grounds, particularly with regard to 

the due process concerns and questions regarding burdens of proof, I am Exercising 

my discretion to request that you reconsider the Little Shell Final Determination.’’ 

(Exhibit A attached). The five questions sent back to the Assistant-Secretary for reconsideration are as follows: 

1. Should reconsideration be granted based on the allegation that due process required that Petitioner be provided with an opportunity to review and comment on 

the interviews of 71 individuals conducted by OFA, and other materials obtained by 

OFA after Petitioner’s last filings and prior to the issuance of the Final Determination? 

2. Should reconsideration be granted based on the allegation that application of 

criterion § 83.7 (a) is arbitrary, capricious, and contrary to law? 

3. Should reconsideration be granted based on the allegation that the Final Determination erred in requiring Petitioner to demonstrate that the Federal actions relied upon by Petitioner to obtain the benefit of section 83.8, were clearly premised 

on Petitioner’s ancestors being a tribal political entity with a government-to-government relationship with the United States, and that the Final Determination applied 

an incorrect burden of proof to the evidence that Petitioner provided to show five 

instances of previous Federal acknowledgment? 

4. Should reconsideration be granted based on the allegation that the Final Determination imposed upon Petitioner a burden of proof greater than that required by 

§ 83.6(e)? 

5. Should reconsideration be granted based on the allegation that it was arbitrary 

and capricious, or contrary to law, for the Final Determination to reverse the favorable Proposed Finding, when no substantial negative comments were received regarding the Proposed Finding and Petitioner submitted evidence strengthening its 

petition? 

As to these questions, the Secretary concluded that ‘‘The allegations in these 

grounds suggest that further review by your office would ensure that the DepartVerDate 0ct 09 2002 10:07 Mar 27, 2014 Jkt 087270 PO 00000 Frm 00036 Fmt 6633 Sfmt 6621 S:\DOCS\87270.TXT JACK
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3 Indeed, the Tribe was required to file a FOIA request to even obtain the materials which 

should have been provided to it as a matter of course. It then had to wait months to get the 

materials, was denied access to some materials, and was required to pay costs of over $5000 

to receive the documents that were provided. The IBIA’s pondering over what was received and 

when, is irrelevant since all materials were received after the time in which the Tribe could 

have commented prior to the FD. 57 IBIA at 127, n. 21. 

ment’s final decision in this matter benefits from a full analysis and comports with 

notions of a full and fair evaluation of the Little Shell petition.’’

Earlier this year, and prior to the referral of these questions to the Secretary, the 

Assistant Secretary for Indian Affairs made an important announcement of ‘‘Consideration of Revisions to Federal Acknowledgment Regulations.’’ (Copy attached as 

Exhibit B). Because the Little Shell FD is not yet final agency action, the Tribe requested that it be provided the same opportunity to suspend further consideration 

of its petition until the revised regulations are promulgated. This request was also 

addressed by the Secretary who concluded that, ‘‘In addition to addressing the five 

matters referred by the IBIA, please consider the petitioner’s request that the Department suspend consideration of the petition pending the enactment of revised acknowledgment regulations.’’

During the decades that the Tribe has been subjected to the administrative recognition process, it has consistently highlighted its concerns about the defects in 

that process and the profound injustices those defects often cause. After years of 

having its concerns fall on deaf ears, the validity of the Tribe’s complaints shows 

signs of finally being addressed by the depth and breadth of the proposed amended 

regulations. Nevertheless, these proposed regulations are not yet adopted, and the 

Tribe has no way to know when or even if they will be. The United States owes 

an obligation to the Little Shell Tribe and its people, and that obligation already 

has been too long overdue in its fulfillment. Accordingly, the Little Shell Tribe respectfully urges the United States Congress to exercise its constitutional power to 

restore federal recognition to our Tribe, and finally to deliver us from the misery 

that for five decades has been our lot with the current version of the Bureau of Indian Affair’s federal acknowledgment process. 

II. The Ways in Which the Current Administrative Federal Acknowledgment Process Has Failed the Little Shell Tribe 

For the purpose of demonstrating to Congress that the current administrative 

process is woefully defective, and that to avoid further injustice Congress must step 

in to recognize the Tribe, the Tribe provides below additional information related 

to the five questions raised by the Tribe and referred by the Secretary to the Assistant Secretary. 

1. The Regulations Denied the Tribe Due Process; The Draft Regulations Implicitly 

Recognize the Need for More Due Process Protection in the Administrative Acknowledgment Process 

Before the Final Determination on the Tribe’s petition, an OFA staff member 

made an additional, extensive field trip to visit the Tribe, during which 71 individuals were interviewed. FD page 49, fn 38. In addition, scores of other documents 

were obtained and relied upon in the FD. Id. There is no provision in the regulations for petitioners to review documents under such circumstances and the FD was 

issued without the Tribe having had the chance to review and respond to this evidence. 3 The FD specifically indicates that the OFA relied on ‘‘evidence that the Department researchers developed during their verification research.’’ 74 Fed. Reg. 

56,862. 

There are substantial benefits that flow from federal recognition. § 83.2 provides 

that ‘‘Acknowledgment of tribal existence by the Department is a prerequisite to the 

protection, services, and benefits of the Federal government available to Indian 

tribes by virtue of their status as tribes. Acknowledgment shall also mean that the 

tribe is entitled to the immunities and privileges available to other federally acknowledged Indian tribes by virtue of their government-to-government relationship 

with the United States . . . ’’ Given the importance of the benefits which flow from 

recognition, tribes have a right to due process in the recognition process. Kelly v. 

Railroad Retirement Board, 625 F.2d 486, 490 (3d Cir. 1980); Marconi v. Chicago 

Heights Police Pension Board, 836 N.E. 2d 705, 725–26 (Ct. App. Ill. 2005). 

While the Tribe’s direct contention that it had a right to see and comment on all 

evidence before a FD issued is not addressed by the draft regulations, there are proposed changes which reflect a realization that the present regulations do not provide 

adequate due process. § 83.10 (n)(2) provides for the opportunity for a hearing on 

the ‘‘reasoning, analyses, and factual bases for the proposed finding, comments and 

responses. The Office of Hearings and Appeals (OHA) or Assistant Secretary for InVerDate 0ct 09 2002 10:07 Mar 27, 2014 Jkt 087270 PO 00000 Frm 00037 Fmt 6633 Sfmt 6621 S:\DOCS\87270.TXT JACK
34

dian Affairs (ASIA), written in the proposed regulations as ‘‘[OHA or AS–IA?],’’ may 

require testimony from OFA staff involved in preparing the proposed finding. Any 

such testimony shall be subject to cross-examination by the petitioner.’’ Exhibit B. 

These suggested revisions are consonant with the Tribe’s contentions and the Tribe 

has suggested, in comments on the preliminary discussion draft regulations, that 

the final regulations require that petitioners receive all documents on which a FD 

is based, with an opportunity to comment before issuance of the FD. 

2. Criterion 83.7 (a) Is Arbitrary, Capricious, and Contrary To Law. The AS–IS Evidently Realizes This As the Draft Regulations Propose Deletion of This Criterion 

25 C.F.R. § 83.7 is titled ‘‘Mandatory criteria for Federal acknowledgment.’’ Failure to meet any criterion results in a negative Final Determination. 74 Fed. Reg. 

56,861. Criterion (a) requires a showing that ‘‘The petitioner has been identified as 

an American Indian entity on a substantially continuous basis since 1900.’’ While 

such a showing may constitute evidence that a tribe exists, it cannot be a mandatory criterion. The unacceptability of (a) as a mandatory criterion is demonstrated 

by a simple thought experiment. Imagine that a tribe definitively satisfies the other 

six criteria—in other words, demonstrates tribal existence in every meaningful 

sense. Imagine further, that they have not been referred to as a tribe, or even as 

a collective by unknowing outsiders ‘‘on a substantially continuous basis since 

1900’’. They would be denied acknowledgment under the regulations. That result 

cannot possibly be the law, as it would clearly violate the equal protection clause 

of the Constitution which requires those similarly situated to be treated similarly. 

City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985). It would also 

violate Congressional legislation requiring that all tribes be treated equally. Federally Recognized Indian Tribe List Act of 1994, PL 103–454 (1994). 

The AS–IA has apparently conceded this issue by proposing, in the draft regulations, to delete criterion (a). See Exhibit B, § 83.7(a). The Secretary has also requested reconsideration of criterion (a). 

3. The OFA Applied The Incorrect Standard To The Question of Previous Federal 

Acknowledgment 

The FD indicates that to show previous federal acknowledgment, and so avail 

itself of the relaxed standards of proof contained in § 83.8, the Tribe had to show 

not merely that its existence was previously acknowledged, but that it had a previous government-to-government relationship with the United States. 74 Fed. Reg. 

56,863. The latter requirement runs afoul of the regulations and the policy underlying those regulations and will be the subject of comment on the preliminary discussion draft regulations. The Discussion Draft Regulations propose some excellent 

improvements in streamlining the process if a petitioner demonstrates previous federal acknowledgment. 

The draft regulations provide in § 83.8 (d) (2) and (3) that if previous federal acknowledgment is shown, then community § 83.7 (b) and political influence § 83.7 (c) 

need only be shown for the present time. These are excellent proposals and should 

be adopted in the final regulations. Further changes must be made to clarify what 

must be shown to establish previous federal acknowledgment. The present regulations have been interpreted by OFA to require that a petitioner show not only that 

its existence was previously acknowledged, but also that it had a previous government-to-government relationship with the United States. See, e.g., 74 Fed. Reg. 

56,863. 

The Tribe has submitted comments on the discussion draft regulations arguing 

that this needs to be done and is hopeful that its views will ultimately prevail on 

this issue as it has so far on the other issues. In this regard, it is significant that 

this issue relates to burden of proof, which was an area given special emphasis, as 

noted previously, in the Secretary’s referral to the Assistant Secretary. See Exhibit 

A. 

4. The Final Determination Imposed A Higher Burden of Proof Than Should Have 

Been Required, Had Historical Circumstances Been Properly Taken Into Account. The Discussion Regulations Propose Significant Changes in The Criteria 

That Must Be Met 

Kevin Gover, the then AS–IA, in issuing a preliminary finding in favor of the 

Tribe, indicated that the historical circumstances, in large part caused by U.S. policy, dictated that the proof of criteria under the regulations be interpreted in light 

of those circumstances. The FD did not adequately allow for historical circumstances. In vindication of the Tribe’s position throughout the years, the discussion draft regulations propose sweeping changes in the criteria themselves in recognition of the complexity of tribal histories cause by US policy. Even the proposed 

35

changes are inadequate, but are a vast improvement and vindicate the Tribe’s constant urging that complex historical situations must be taken into account. 

The draft regulations propose substantial changes to criterion § 83.7 (b), community, which are in general salutary, but the final regulations need to go further. The 

draft regulations change the requirement that a petitioner show that a ‘‘predominant portion’’ of the petitioning group comprise a distinct community to a showing 

that an unspecified, ‘‘(XX),’’ per cent do so, and changes the timeframe for such a 

showing from historic times to from 1934. The proposal to eliminate the reference 

to ‘‘predominant portion’’ is a good one, but the proposal to insert a percentage is 

fundamentally flawed. A percentage arrived at in the abstract cannot do justice to 

the complexity on the ground. Rather, a determination should be made ‘‘based on 

an overall evaluation of the totality of the evidence’’ and a favorable finding ‘‘should 

not be precluded because of some gaps in the record.’’ The determination should be 

governed by the ‘‘substantial evidence’’ test, with the evidence viewed in the light 

most favorable to the petitioner, and taking into account historical circumstances 

and any adverse effects of federal actions or policy. 

The present definition of community refers to ‘‘consistent interactions and significant social relationships within its membership’’. The present regulations distort 

this definition when they set forth the types of evidence that can be presented to 

meet the criterion of community, by references to ‘‘significant rates of marriage’’, 

‘‘significant rates of informal social interaction which exist broadly among the members of the group’’, ‘‘a significant degree of shared or cooperative labor... ’’, ‘‘evidence of strong patterns of discrimination... ’’; ‘‘Shared sacred or secular ritual 

activity encompassing most of the group’’; cultural patterns shared among a significant portion of the group... ’’. These qualifiers distort the meaning of the definition which does not imply any specified portion of the community must engage in 

any specific activity. Rather, it just requires consistent interaction and relationships 

of significance ‘‘within the membership’’. Few recognized tribes today could meet the 

arbitrary standards imposed by the qualifying terms contained in the references to 

the types of evidence listed. It is best to list the types of evidence without the qualifiers which seem to introduce arbitrary standards at every turn and then to make 

a determination based on the totality of the evidence. 

Likewise the draft regulations propose changes in the ways in which community 

can be definitively shown. The present provisions provide that community can be 

shown by demonstrating 50 per cent in-marriage, 50 per cent sharing of distinct cultural patterns, or 50 per cent concentration in residential areas. The draft regulations delete the reference to 50 per cent and instead indicate an unspecified, ‘‘[XX],’’ 

per cent. § 83.7 (b) (2). If percentages for definitive showings of community are ultimately adopted, it should be made clear that these percentages do not imply that 

something close to those percentages is needed to establish community absent such 

a definitive showing. 

§ 83.7 (c) (2) provides that political influence can be shown by ‘‘demonstrating that 

group leaders and/or other mechanisms exist or existed which:

(i) Allocate group resources such as land, residence rights and the like on a consistent basis;

(ii) Settle disputes between members or subgroups by mediation or other means 

on a regular basis;

(iii) Exert strong influence on the behavior of individual members, such as the 

establishment or maintenance of norms and the enforcement of sanctions to direct or control behavior;

(iv) Organize or influence economic subsistence activities among the members, 

including shared or cooperative labor.’’

The draft regulations propose a new ‘‘(v) Show a continuous line of group leaders 

and a means of selection or acquiescence by a majority of the group’s members.’’ 

This is a good revision if the word ‘‘majority’’ is deleted and with that change should 

be adopted. 

Proposals for criterion (c), political influence, likewise changes the relevant period 

for which political authority is measured from historic times to 1934. § 83.7 (c). This 

is an important step in the right direction, but once again adopts an arbitrary criterion. 1934 is obviously based on the date of the passage of the Indian Reorganization Act (IRA), but that Act contemplated actions related to recognition occurring 

after that date, and that factor should be reflected in the final regulations. In addition, the situation on the ground may be such, that starting from 1934 does not adequately do justice to the Tribe’s situation, and in that case the regulations must be 

flexible enough to deal with the history and context of each Tribe. Once again, the 

decision must be made based on the totality of the evidence without the present 

36

qualifiers attached to the type of evidence, such as ‘‘significant numbers of members’’, ‘‘most of the membership’’. If, the evidence provides ‘‘substantial evidence’’ of 

political influence, then the criterion must be considered met. 

5. The Reversal of the Favorable PF Despite A Stronger Record, and No Negative 

Comments, Is Arbitrary, Capricious, and Contrary To Law. The Draft Regulations Implicitly Agree With That Conclusion 

As noted previously, no negative comments of any consequence were received as 

to the favorable PF, despite years for people to complain. In fact, substantial time 

and money were invested in strengthening the petition. To reverse the favorable PF 

under such circumstances is arbitrary, capricious and contrary to law. Cf. Mobile 

Communications Corp. of America v. F.C.C.. 77 F.3d 1399, 1407 (D.C. Cir. 1996). 

The draft regulations implicitly recognize the force of the Tribe’s argument and 

would resolve the issue in the Tribe’s favor. Exhibit B, § 83.10 (m) provides: 

At the end of the period for comment on a proposed finding, ‘‘[OHA or AS–IA?]’’ 

will automatically issue a final determination acknowledging petitioner as an Indian 

tribe if the following are met (emphasis supplied):

(1) The proposed finding is positive, and

(2) ‘‘[OHA or AS–IA?]’’ does not receive timely arguments and evidence challenging the proposed finding from the State or local government where the petitioner’s office is located or from any federally recognized Indian tribe within the 

state.

As noted, no substantive negative comments were received from anyone, and all 

local and state governments and Indian Tribes in Montana support the acknowledgment of the Little Shell Tribe. See 74 Fed. Reg. 56,862, FD at 15–16, and PF at 

9. Under such circumstances, as recognized in the draft regulations, an automatic 

favorable final determination would be warranted, not reversal of a proposed favorable finding. 

Conclusion 

The Little Shell Tribe of Chippewa Indians applauds Assistant Secretary Kevin 

Washburn for finally addressing the serious, long-identified flaws and failures of the 

current administrative federal acknowledgment process, a process that repeatedly 

has been criticized by the Senate Indian Affairs Committee as broken. The regulations as presently written have subjected the Tribe to a continuing, serious miscarriage of justice that has stretched now over five decades. The arguments the 

Tribe has made as to the defects in the system are largely vindicated in the discussion draft regulations. It is crucial that the process of amending the regulations go 

forward expeditiously and be strengthened along the lines the Tribe has argued. 

However, it is not known how long the process of amending the regulations will 

take, what shape the ultimate regulations will have, or even whether they will ever 

be adopted. The Tribe already has waited too long for restoration of its recognition. 

The Tribe must not be asked to continue to wait in limbo for several more years 

while it waits to see what happens to the regulations. Again, the Little Shell Tribe 

of Indians respectfully urges Congress to end the Tribe’s ordeal by extending federal 

recognition to the Little Shell Tribe through enactment of the Little Shell Tribe of 

Chippewa Indians Restoration Act of 2013.

37


1030a1.eps

EXHIBIT A. 

TfI~ SECRE.TARY OF THE NHRIOR 

WASlllNI)TON 

SEP I 0 lOll - -, 

Memoremlwm 

To: 

From: 

StlbjcCI: 

::::~;=!:rrl~" Reqwest -fu~econs~~eralion of Determination Again~1 Acknowledgmenr of the 

Uttle Shell Tribe ofChippt:wa Indian. oflvlonllina 

The Lillie Shell Tribe of Chippewa JndhU1~ of M(liitann (LinIc Sh~l1: petitioners) petitioned for 

fedcralllcknowledgmcnL via the regulntions al 25 C.F.R. pm 83. The Depa.>1ment publish~d a 

I'hlll J)el~mlinlltion ~gnln.~t <\cknowl<ldgll1cnt. Lillie Shell asked Ihe Inlerior Hoard oilndimJ 

Appeals (lBIA) for reoonsid~rlltiOllllrthc Finnl Determination. TIIC lBIA denied tile petitioner's 

request for reC()n~idermlon wilh respect to grounds over which the lBIA hasjurisdktiou. !1I.ll 

F"erleral.-l.cknllwfedgmalll o/'he I.illl~ Shv/l Tribe ojChiPfmw. lildiwl-'l o!A·kmrana, 57 IBIA 

101. The 1I3JA also idemin~d Jlve ~Ileged grounds for rec(lilsiderdtion over which it dOllS nat 

ha\'e juri~clitli{)n pUlilu3nl [Q the regulations, WId refell"Cd those issues to me in accordance with 

25 C.F.R. § l!3.11(t)(2). 

On July 16,2013, the Department received the Pelilione:'~ submission selling out argum~nlJ< in 

suppOrt oftheoo fivc point~, tlIld also 3rguing for "swsp~nsi(ln'· of allY fwnhcr I\sscs.mell! of the 

pelitioo pcnding clUlctmem ofrevislons to the port 83 regulntiollS. The re,\:ulations <tl25 C,!'.R. 

§ a).II(f)(S) provide Ihal 1 mllS! dclemlinc wh~lher 10 r~'luest n re"on~idernLion o[the r:inal 

n"l~nnintllilln by tilo.: A,..i.1.aJ,1 Se~,~tu'y, and noliry all j)anies of my dC1eJ.lllin~lion, within 60 

days ofreceil"ing all commcnt~. The Depanment recdv~d comments ~ubmiLted hy Little Shell 

on July 16. No othtr comments wen: submiu~d. TIle 6(J day o;Ieudline for my delcntllnfllion is 

Mondny. September 16, 2013. 

BMCd (·m the \1arure of tile five alleged grounds. pankularly whh regard \(] tho:: du~ process 

~OnCCmS and questions rcgBrding burdcns Ofpr(lOI~ J am exercising my di$crNiollto requeStlhal 

you reconsider ,he Little Shell Fio~l D(lIcrminalion. 

TIle IBIA referred five grounds 10 me thnt nre beyond itsjurisdiclion: 

1. Should recl'lHsidcrntion be I1-mnfcd ba~ on ~le allegalion that due process 

required that Pdit;(In~r he provided with an upportunity 10 review U!Id 

C(lmment on the interviews ei"7! indi\"idualscondtletcd by OFA during 56 

imerv;ew s~'<Sioru<, find o!h~r materials obtuiccd by OFA after Petitioner', last 

millg.~ and prior to the isswancc orU1e Final Delemlinati(ln? 

2. Should reoonsidemtion be granted bruled on the 1I11eg~tion lhat applicali(ln of 

criterion § 83.7(a) in thi~ c~c is arbitrary, capricious, and CQllIrnry 10 law? 
38


1030a2.eps

3. Should reconsideration hi: gnmtcd based on the allegation that the Final 

Detemrination erred in requiring P~tit!oner to demonstrate that the Federal actions 

relied upon by PetitiWlerto obtain 1he benefit of § 83.8 were clearly premised on 

Petitioner's IllIccstors being a tribal political entity with a gOYemmenHo-goveIllIllellt 

relationship with the United States, ernIlhlU the Finsl Dctcnnination applied IllI 

incorrect burden of proof to theevidenee that Petitioner provided to showiive 

Instances of previous federol aclcnowledgment? 

4. Should Tecoru;idemtion be grm.ted based On the allegation that theFinlll 

Determinntiou imposed upon Pctitiom::r a burden of proof greater than that required 

by § 83.6(d), and failed to W::e into account the complexity of Petitioner's historical 

circumstrulces as required by § U6(e)? 

s. Should reconsidemrion be granted based on the allegl'.tion that it was arbitrruy nnd 

capricious, or Cl;l1l1rai'y to lJl.w, for the Finlll Delennin.ation to n:v~r:s~ the favorable 

Proposed Finding,. wh~n no subdantial negative comments were ;received regatding 

the Proposed Findjng and Petitione;r submitted evidence .rucngthcning its petition? 

In re Federal Acknowledgment 'of the Lit/Ie Shell Tribi.! QfChipp~wa lnr!i= of Monfana, 57 

filA WI, 12B·31 (2013). 

The allegatio!15 in these grounds suggest that further review by your office would =~ Ihat tho:: 

Depar..meut's fuJai decisiOllin Ibis matterbcnefit~fmm afu]] analysis and comports wlthnotions 

of a full and fair evaluation of the Little Shell petition. 

In addition to addrcssingthc fi.\~llllItters referred by the IBIA, pleMe consider the petitioner's 

reqUCllt that the Department su~d COllSideratioJl of the petition pending the entIClInent of 

revised acknowledgment regulv.tions. 

The curre!l1 deadline for reconsideratiollofthese matters is 120 (Jays from theIeCcipt of this 

request. See 25 C.F.R. § 83.11(g)(1). 

Thank you fox your attention to thi3 matter. 
39


1030a3.eps

E»lIBIT B 

News Release 

u.s, Department 

of the Interior 

Office ofthc Assismnt Secretary Il1dian Affairs 

FOR IMMEDIATE RELEASE 

Junc21,2013 

CONTACT: Nedrn Darling 

202·219-4152 

Washburn Announces Consideration of Revisions to Federal 

Acknowledgment Regulations 

Tribal Consultatjons and Publjc Meetings will Begjn jn July and August 

WASInNGTON - As part of Pre sf dent Obama's commitment to strengthen the nation-to-nation 

relationship with Nutive Am~ricllru; and AllIllka Natives, Asliisl!mt Secretary - Indian AffaiIl! 

Kevin K, Washburn today announced the avaiiabilityCifa disCllssil)I1 draft ClfpCltel\tial change:; to 

theDepartmenL onhe Intt:rior's Part 8) process for acknowledging certain Indi8ll groups as 

federaHyWJognfzed lribes. The discu~sion dmft is intended to provide tribes and the public an 

early opportwlityto provide input on p<Jtenti~1 changes to IhePart 83 process. 

The Federal recognition Qckwwledgmcnt proces!i is tile Department's regulatory process by 

which petitioning groups thllt me~1 the regulalory criteria a!'(l "acknowledged" as fcdCl'ally 

recognized Indian tribe:> with ~ govennnC!lt-to-goverrunent relationship with the United States. 

There are currently 5GG federally recognized tribes in the U.S. 

~The discussion draft is a startillgpoint in the conver:sation with federally recognized tribes, 

petitioners and the public on how to ensure that Ihe process is fair, efficient and transparent, n 

Washburn said. "We are starting with an open mind 8Ild no fixed agenda, and we're looking 

forward to getting input from 311 stakeJl0lders before we move fOlWard with a proposed rule that 

will provide additional certRinty and timeliness to the process. In manypaI1s of the discussion 

dratt, we have mooe no fixed rec<lmmendations in order to have the benefit of that input in 

formulating a proposed rule." 

The discussion draft rnainlaius stringent standards for core criteria and seeks comment on 

objective critcrialo be incorporated into th~ standards. 'The draftsuggcsts changes to improve 

timeliness and efficiency by providing for n thorough review ofa petItioner's conununity and 

political authority. That review would begin with the year 1934 to align with the United States 

repudiation of~!1otment and assimilation policies ond eliminate the requirement that an external 

entity identifyth~ group as Indian since 1900. 
40

The CHAIRWOMAN. Thank you very much for your testimony. I 

wonder if you can expand on that, I will just start with you, Chairman Gray, given this history of no opposition or next to no opposition to the previous submission, what is your understanding of why 

your proposal was under administrative review for approval and 

then after a time period denied? 

Mr. GRAY. I want to defer to counsel. 

The CHAIRWOMAN. We would have to get him to come up to the 

microphone. If that is something you don’t have readily with you 

or can respond to, we can get an answer from you in writing. That 

would be helpful to the Committee, and we would appreciate that. 


1030a4.eps
41

Mr. GRAY. Certainly. 

The CHAIRWOMAN. Thank you. Chairman Adkins, if you could tell 

us about, you have made a commitment on part of this legislation, 

S. 1074, that you are foregoing any possible rights to gaming under 

the Indian Gaming Regulatory Act as part of this legislation. Is 

that correct? 

Mr. ADKINS. Yes, that is correct. 

The CHAIRWOMAN. Why do you believe that compromise is necessary? 

Mr. ADKINS. First, let me tell you that philosophically, I don’t 

support gaming. And perhaps if it were allowed and I said, let’s 

bring in a casino, I would be kicked out of my church as well as 

the tribe. But that is another story. The Virginia delegation, several members of the Virginia delegation strongly oppose gaming 

and would not support a bill if that provision were in there. So we 

agreed to take it out because again, the tribes weren’t proponents 

of gaming. But we couldn’t have gotten it this far had we kept that 

provision in it. Even if the provision remained, the Chickahominy 

Tribe would not game. 

The CHAIRWOMAN. Is that just the Chickahominy or the other 

tribes? 

Mr. ADKINS. I think I can speak for those other tribes, too, because we all willingly took it out. 

Now, at the end of the day, sovereignty should be sovereignty. So 

that should not have these qualifications. I would love a clean bill, 

but I had no problem giving up gaming, except it does chip away 

at the sovereignty of my tribe and the other tribes on this bill. And 

it did cause us to incur disfavor with some of the currently federally-recognized tribes. 

But even in the face of that, we were able to get a resolution of 

support from the National Congress of American Indians where 

many tribes had the option to opine on it and they do support our 

efforts toward Federal recognition, while they do not support the 

fact that we gave up the provision for gaming. 

The CHAIRWOMAN. Okay, and Chairman Brooks, on your issue, 

what will it mean for you to be able to exercise authority and jurisdiction over your lands? What would that entail and what do you 

think, how do you resolve issues and conflict with the State? 

Mr. BROOKS. Repeat that again? 

The CHAIRWOMAN. Obviously the bill would give you jurisdiction 

over lands that the United States would take into trust on behalf 

of the tribe. What are your interests in that regard and how do you 

anticipate basically resolving any kind of conflicts that would happen with the State of North Carolina? 

Mr. BROOKS. I’m not sure that we would have a conflict in relation to that, because basically what we need, economics, education 

and health. We are not looking at a situation where we are going 

to be reservated by any mean whatsoever. The territory that we occupy now is basically four counties, Robeson, Hoke, Scotland and 

Cumberland. And when you think of the way we have survived in 

the last hundreds of years is by doing our own things. 

Today I gave you a statement in relation to education. Education 

is one of the main things that we survive with. We started with 

a small group that wanted education to be the pronouncement of 

42

moving forward. That progressed into the University at Pembroke 

and became one of the 16 campuses for the University system of 

the State. 

So when you look at, I guess the way we work with the State 

and the State works with us, the problems would probably be very 

minimal. 

The CHAIRWOMAN. Okay, thank you. 

Senator Tester, do you have questions? 

Senator TESTER. I do, Madam Chair, thank you very, very much. 

I think, not to put words in Chairman Gray’s mouth, but I don’t 

know that I have heard a clear reason for the lack of recognition 

from the Department. That is part of the problem and that is part 

of why we have this bill in front of you. 

As I said in my opening comments, it is my understanding that 

the other federally-recognized tribes in Montana as well as the 

State of Montana support Little Shell’s recognition. Is that your 

understanding too? 

Mr. GRAY. Yes, it is, Senator. And also a lot of the counties in 

which we live also support us. 

Senator TESTER. Can you describe the Little Shell’s relationship 

with other tribes in Montana? 

Mr. GRAY. We have a really good relationship with all the tribes. 

We sit at the same table, we are afforded the same opportunities 

that they are, and they don’t object to any of that. And we do sit 

at the same table. 

Senator TESTER. And in fact, Madam Chair, you may remember 

when we had the meeting at the School of Law in Missoula, Montana, Chairman Gray was there with the other federally-recognized 

tribes. 

Can you describe some of the difficulties you have had as a tribe 

that can be directly associated with the lack of Federal recognition? 

Mr. GRAY. Oh, yes. We are missing out on the services, like all 

of the federally-recognized tribes are afforded: education, health 

care, school services. We can’t offer our veterans services just due 

to the lack of economics. And it also poses a problem for us in planning for the future for our people. 

Senator TESTER. So the opposite of that was, if you had Federal 

recognition you could gain all those health care benefits. 

Mr. GRAY. Yes. 

Senator TESTER. Thank you for being here, thank you for your 

testimony. I want to thank all of you for your testimony. I very 

much appreciate it. It is kind of like a history lesson sitting here 

today. And it is kind of fun to be able to hear what folks have gone 

through. 

I do have a couple questions for you, Mr. Adkins, that my staff 

didn’t prepare for me. So they called this freelancing and they get 

very nervous when I do this. Are there other federally-recognized 

tribes in Virginia? 

Mr. ADKINS. No, sir. 

Senator TESTER. There are none? 

Mr. ADKINS. There are none. 

Senator TESTER. So there is no gaming compact with the State 

as far as tribes go? 

Mr. ADKINS. No, sir, there are not. 

43

Senator TESTER. Okay, that is interesting. 

Once again, thank you all for your testimony. I appreciate, 

Madam Chair, your having this hearing today. I think it is an important one, it is a difficult one, but very, very important. Thank 

you all. 

Mr. ADKINS. Madam Chair, I would like to make one observation, 

if I may. 

The CHAIRWOMAN. Chairman Adkins, yes, go ahead. 

Mr. ADKINS. There is one thing that is very near and dear to our 

heart, in several museums, the Smithsonian, for instance, there are 

the remains of Virginia Indians. In some of the colleges in Virginia 

there are remains of members of my tribe. As a matter of fact, we 

did some testing on some of the remains, we sent a couple of the 

crania to the University of Wyoming at Laramie, and the busts 

were created. When you looked at them, it looked like you were 

looking at modern-day Chickahominy Indians. 

But we are precluded by law from receiving those remains. The 

Native American Grave Protection and Repatriation Act specifically 

excludes State-recognized tribes. So we would love to bring the remains of our ancestors back to their respective communities and repatriate them with honor and dignity. 

The CHAIRWOMAN. Thank you. If this legislation would pass, 

then that would be, if S. 1074 passed, that would automatically 

then occur, is that correct? 

Mr. ADKINS. Yes, ma’am, that is correct. 

The CHAIRWOMAN. Thank you for bringing that distinction and 

meaning to what it would do for that particular aspect of being recognized. We appreciate it. 

Again, thank you all for your testimony today. The word endurance comes to mind. Not just for a hearing today, but many years 

of endurance on these issues. So we thank you for your testimony, 

and obviously this is the first step in the legislative process for this 

Congress on these issues. But we will be proceeding. So thank you 

all very much. We are adjourned. 

[Whereupon, at 4:00 p.m., the Committee was adjourned.] 

(45)

APPENDIX

PREPARED STATEMENT OF HON. MIKE MCINTYRE, U.S. REPRESENTATIVE FROM NORTH

CAROLINA

Madame Chairman and Members of the Committee, thank you for the opportunity 

to submit testify before you today regarding federal recognition for the Lumbee Indians. Chairman Cantwell and Ranking Member Barrasso, the members of the Lumbee 

Tribe and I appreciate your support and willingness to listen again today as the 

tribe presents its case for federal recognition. 

A special thanks to my North Carolina colleagues—Senator Burr, Senator Hagan, 

and Congressman Hudson for their work and support of this important issue. 

Madame Chairman, over the last six years, the Lumbee Tribe and many of its 

members have faithfully traveled to Capitol Hill. They are now attending their seventh hearing in six years to present their strong and solid case for federal recognition by the U.S. Congress. And this does not take into account the numerous times 

the Congress has discussed this issue prior to this time. The Lumbees have been 

patient. They have been respectful. And, yes they have been persistent. 

But Madame Chairman, the time has come for action. The time has come for 

movement of legislation. The time has come for discrimination to end and recognition to begin! The time for Lumbee recognition is now! 

During these hearings, the Lumbee Tribe has heard concerns raised about them 

as to whether they are ‘‘true Native Americans,’’ and I am certain that it will be 

raised again here today. Chairman Cantwell, that question is a dagger in the heart 

of the good, decent, and honorable people who compose the Lumbee Tribe! It represents a weak attempt to try and confuse the issue of federal recognition. 

Madame Chairman, the record and the facts are crystal clear—the Lumbee Tribe 

exists as an Indian tribe and has done so over its long history. The Department of 

Interior has, on several occasions, concluded that the Lumbees are a distinct Indian 

community. The various names by which the tribe has been known were the result 

of State law. In no case, except for the name Lumbee, were the names chosen by 

the tribe itself. All the other names were imposed upon the tribe or chosen for them! 

Furthermore, the BIA regulations on acknowledgement of Indian tribes specifically 

provide that changes in names are not relevant to Indian identity. 

In the late 1500s, when English ships landed on the shores at Roanoke Island on 

the North Carolina coast, the Englishman discovered Native Americans. Included 

among those Native Americans were both the Cheraw and Pee Dee Indians, who 

are direct ancestors of the Lumbee Indians. Later, in 1888, the Lumbees made their 

first effort at gaining federal recognition. For at least 500 years, Lumbee Indians 

have been inhabitants of this land, and for over half of the time that our country 

has been in existence, 119 of the 237 years, the Lumbee Indians have been seeking 

the recognition and respect that they deserve. As the largest tribe east of the Mississippi and the largest non-recognized tribe in America, it is unfathomable that this 

tribe of 55,000 people has never been fully recognized by our government. 

I was born and reared in Robeson County, North Carolina, the primary home of 

the Lumbee people. I go home there virtually every weekend, and I have had the 

high honor of representing for 16 of my 18 years in Congress approximately 40,000 

of the 55,000 Lumbees who live in my home county. In fact, there are more 

Lumbees in Robeson County than any other racial or ethnic group. The Lumbee Indians, many of whom are in the in the audience today, are my friends, many of 

whom I have known all my life. They are important to the success of everyday life 

in Southeastern North Carolina, and their contributions to our society are numerous 

and endless. From medicine and law to business and banking, from the farms and 

factories to the schools and the churches, from government, military, and community service to entertainment and athletic accomplishments, the Lumbees have 

made tremendous contributions to our county, state, and nation. In fact, in my home 

county, the former sheriff, the current clerk of court, the register of deeds, the 

school superintendent, several county commissioners and school board members, 

46

and the representative in the state legislature of the area where I live, as well as 

a number of our local judges are all Lumbee Indians. 

Madame Chairman, those contributions have been recognized in the U.S. House 

through twice passing legislation, on a bi-partisan basis, that I have introduced to 

grant the Lumbees federal recognition. 

Lumbee contributions are also being recognized at home by both the public and 

private sector. From City Councils to County Commissioners, from the Chamber of 

Commerce to the Southeastern Regional Medical Center—all have endorsed the effort to grant the Lumbees federal recognition. 

Madame Chairman, in conclusion, let me urge this Committee, and this U.S. Congress, not to delay any more on this issue. Justice delayed is justice denied! As you 

will hear from Chairman Brooks, the evidence is clear, cogent, and convincing. It 

is time to say ‘‘yes’’—yes to dignity and respect; yes to fundamental fairness; yes 

to decency; yes to honor; yes to federal recognition! And as I said earlier, it’s time 

for discrimination to end and recognition to begin! 

Thanks again for the opportunity to present this testimony, and I look forward 

to working with you and the Committee for this long over-due recognition. May God 

grant that justice finally be done! With your help, I am confident that it will! 

PREPARED STATEMENT OF HON. RICHARD HUDSON, U.S. REPRESENTATIVE FROM

NORTH CAROLINA

Chairwoman Cantwell, Vice Chairman Barasso, I want to thank you and this 

Committee for holding this important hearing today and for calling attention to the 

multiple recognition bills we have before us in Congress. 

I want to applaud the Lumbee Recognition bill which my colleague, Senator Burr, 

has introduced in the Senate and share with you my thoughts on, and commitment 

to full federal recognition for the Lumbee tribe of North Carolina. This critical piece 

of legislation which provides recognition to the largest Indian tribe east of the Mississippi has a long history of consideration by Congress and is long overdue. 

As the sponsor of the companion legislation in the House and the U.S. Representative for the bulk of the Lumbee population across the state, this is a major priority 

for my office and for my district. 

Full recognition and services for a tribe that has long been recognized as distinctively as Native American, but has consistently and unfairly been denied the benefits that come with federal recognition is just wrong. This is a matter of basic fairness. 

As you are aware, Congressman Mike McIntyre and I have introduced similar bipartisan legislation to halt the discriminatory policy against the Lumbee tribe and 

bring forward equal treatment to more 50,000 people in my home state. 

Congress recognized the Lumbees in 1956, but that legislation unjustly prevented 

them from receiving federal benefits. This is inherently unfair as no other tribe has 

been subjected to this type of discrimination. The Lumbee Recognition Act would 

provide the Lumbees with complete recognition and make the tribe eligible for all 

federal benefits and programs they are entitled to. 

This legislation is critically important if you consider the counties with the largest 

Lumbee populations face unemployment rates that are among the highest in North 

Carolina. With access to economic development programs recognized in our bill 

through the Bureau of Indian Affairs, the Tribe could create jobs to accelerate the 

region’s slow economic recovery. 

Similar legislation to the Lumbee Recognition Act was introduced in the 108th 

Congress and all subsequent Congresses. In the 110th and 111th Congresses the bill 

was passed by the House, and companion Senate legislation was introduced. This 

bipartisan and bicameral legislation does not require additional budgeting of new 

funding since it utilizes the existing resources of the Bureau of Indian Affairs. 

Granting the Lumbees federal recognition is necessary to creating jobs and revitalizing a region plagued by chronically high unemployment and a slow economic 

recovery. 

As the only federal tribe subjected to the unfair caveat of recognition without benefits, the only path forward to resolve this injustice is through Congressional action. 

We introduced this bipartisan bill to end this inequitable policy and bring fair treatment to the Lumbee so they receive the same benefits that every other federal tribe 

currently enjoys. 

Thanks to the Committee for the opportunity to speak today and for your efforts 

on behalf of my constituents. 

47

PREPARED STATEMENT OF HON. TIM FOX, ATTORNEY GENERAL, STATE OF MONTANA

Chairwoman Cantwell, Ranking Member Barrasso and distinguished members of 

the Senate Committee on Indian Affairs, I thank you for the opportunity to provide 

written testimony on this important matter. My name is Tim Fox, and I am the Attorney General for the State of Montana. I write to express my strong support of 

Senate Bill 161, the Little Shell Tribe of Chippewa Indians Restoration Act of 2013, 

and to urge your approval of this bill. 

The State of Montana has long recognized the Little Shell Tribe of Chippewa Indians as a distinct Indian tribe. As Senate Bill 161 finds, the Little Shell Tribe is a 

political successor to the 1863 Pembina Treaty, which ceded large amounts of what 

is now North Dakota to the United States. Little Shell members have resided in 

Montana for over a century, and the Little Shell have sought federal recognition 

since the 1930s. The State of Montana has actively supported that effort from its 

inception, and has consistently engaged with the Little Shell Tribe on a governmentto-government basis. In 1949, Arnold H. Olsen, one of my predecessors as Montana 

Attorney General, wrote to the U.S. Commissioner for Indian Affairs criticizing the 

Bureau of Indian Affairs’ failure to assist the Little Shell Tribe. In both 1949 and 

1955, the Montana Legislature enacted ‘‘Joint Memorials’’ requesting the federal 

government to recognize the Little Shell Tribe and to provide them with the muchneeded assistance that federal recognition brings. Since that time, the State of Montana has consistently voiced its strong support for the Little Shell Tribe’s efforts to 

achieve the federal recognition it deserves. 

This past July, I wrote to Department of the Interior Secretary Sally Jewell to 

ask her to accord the Little Shell Tribe’s recognition petition all due consideration. 

(A copy of that letter is included with this written testimony as Attachment A.) That 

recognition petition has been pending before the Department of the Interior since 

1978. It is unconscionable that the Little Shell Tribe, a distinct and long-standing 

political community, has been in limbo in regard to its relationship with the United 

States for so long. Senate Bill 161 is essential to correcting this injustice and to allowing the Little Shell Tribe to proudly take its rightful place among the Indian 

tribes formally recognized by the United States government. I urge your strong support of this vital and long overdue act. 

Thank you very much for your time and consideration. My office stands ready to 

provide whatever further assistance it can in securing federal recognition for the 

Little Shell Tribe.

48

PREPARED STATEMENT OF HON. MARK R. WARNER, U.S. SENATOR FROM VIRGINIA

I am a strong advocate of federal recognition for the Virginia Chickahominy, Eastern Chickahominy, Monacan, Nansemond, Rappahannock and Upper Mattaponi 

tribes. I have been supportive of federal recognition of these Indian tribes since my 

time as Governor of the Commonwealth of Virginia. 

During my time in the Senate, I have been proud to co-sponsor various legislation 

seeking recognition for these Virginia tribes, including S. 1074, The Thomasina E. 

Jordan Indian Tribes of Virginia Federal Recognition Act of 2013. I appreciate the 

Committee convening this legislative hearing and hope you will move quickly to 

pass S. 1074 and bring this bill to the full Senate for consideration. 

This bill is not new to the Committee. The issue has been thoroughly discussed, 

hearings held and a tremendous amount of information has been compiled over the 

years. This bill would provide recognition by the United States of America to the 

Chickahominy Tribe, the Chickahominy Eastern Division Tribe, the Monacan NaVerDate 0ct 09 2002 10:07 Mar 27, 2014 Jkt 087270 PO 00000 Frm 00052 Fmt 6601 Sfmt 6621 S:\DOCS\87270.TXT JACK

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tion, the Nansemond Tribe, the Rappahannock Tribe and the Upper Mattaponi 

Tribe. These tribal names may not be as well known to the people of the United 

States as they are to us in Virginia, but their story is universally known to Americans. 

As has been noted in research and in the testimony before this committee, these 

tribes have the oldest Treaty in the United States; The Treaty of Middle Plantation, 

signed originally in 1646, amended in 1658 and again ratified in 1677. I know of 

this history well, because as part of that treaty, the Tribes go to Richmond once a 

year to present to the Governor of Virginia a ‘‘tribute’’ in lieu of taxes upon their 

land. I had the honor of receiving the tribes and their families on four occasions as 

Governor of Virginia. The Tribes have honored their part of the Treaty well. They 

have also waited patiently for federal recognition. Ironically, the fact that these 

Tribes ended their hostilities with the early colonists so early in the history of what 

is now the United States creates one of the barriers that prevented them from being 

recognized before now. 

I realize that some of my colleagues have apprehensions about pursuing legislative recognition when an administrative route was established by Congress in 1978. 

However, because of Virginia’s unique history, this is simply not an option for these 

Virginia tribes. 

While the Tribes of Virginia maintained close knit communities over the years, 

adopted strict and consistent governance mechanisms and also have maintained 

their tribal rolls well, there remains a significant gap in the documented history of 

the tribes as defined by the Office of Federal Recognition (OFA). 

The reason for this documentation gap rests with two aspects of Virginia’s history 

that resulted in the destruction of nearly all of the type of documentation that the 

OFA requires for the completion of the administration recognition process. The 

burning of Virginia’s courthouses during the civil war resulted in the destruction of 

much of the historical record of births, deaths, marriages and other essential documentation. Lost were virtually all records between 1740 and mid 1860s. In addition, 

the Racial Integrity Act of 1924 which was passed by the Virginia General Assembly 

and implemented with passion by Walter Plecker, the Commonwealth’s Register of 

Public Records. Mr. Plecker, took the implementation well beyond what also occurred in other southern states, not only refusing to recognize any race other than 

black or white, but he penalized local elected officials that did issue birth, death and 

marriage certificates with ‘‘Indian American’’ designations. In addition, Mr. Plecker 

removed, altered and reinserted these documents in the central registry in Richmond, essentially eliminating this designation in Virginia records. 

Statutory processes, like the Office of Federal Acknowledgment’s (OFA) Federal 

Acknowledgement Process (FAP), should be seen as the primary, most efficient and 

responsive route to recognition available. Unfortunately, this is not so. The system 

is broken and the numbers prove this point. While I am supportive of the recently 

proposed revisions to the FAP, the potential for these changes in no way diminishes 

the need for this legislation. The delays the Virginia Tribes have already experienced in achieving well deserved recognition should not be compounded by amending the process and requiring them to start over administratively. The Chickahominy, Eastern Chickahominy, Monacan, Nansemond, Rappahannock and Upper 

Mattaponi tribes of Virginia should not have to spend any additional time in an attempt to gain the federal recognition they deserved to receive many years ago. 

The Virginia Indian Tribes have waited long enough for official recognition. Their 

record in Virginia is clear. I urge you to pass S. 1074 out of Committee and I look 

forward to working with my colleagues towards the successful passage of this bill. 

Thank you. 

50

PREPARED STATEMENT OF HON. MICHELL HICKS, PRINCIPAL CHIEF, EASTERN BAND

OF CHEROKEE INDIANS

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. LISA MURKOWSKI TO

HON. KEVIN WASHBURN

As the Committee considers several bills involving the legislative recognition of 

specific Indian tribes, I would like to follow-up on an ongoing dialogue between my 

office and the office of the Assistant Secretary of Indian Affairs regarding the Alaska-specific standard for tribal recognition set forth in the Alaska Amendment to the 

Indian Reorganization Act (Alaska IRA). Assistant Secretary Echo Hawk confirmed 

by letter to me dated January 31, 2012, that, under the Alaska IRA, Congress provided the Assistant Secretary authority to recognize groups of Alaska Natives as 

tribes, provided they can show they meet the standard of sharing a ‘‘common bond 

of occupation, or association, or residence within a well-defined neighborhood, community or rural district.’’

In more recent correspondence, you have indicated that your office is actively reviewing the requests of the Knugank Tribe (Dillingham) and the Qutekcak Native 

Tribe (Seward) to have their federal tribal status affirmed under the applicable 


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51

Alaska IRA standards and/or pursuant to agency precedent, so that the Agency 

would treat them consistently with the 229 similarly-situated Alaska Native tribes. 

The tribes involved and the regional Alaska Native organizations supporting them 

have invested significant resources to clarify their status. Indeed, your office, the 

BIA Alaska Region and the Office of Solicitor have been engaged in this matter over 

the past few years. These tribes urgently need a final resolution.

Question. Can you please indicate what steps still remain in order for you to issue 

a final decision? 

Answer. As you note in your question, both applications are currently under active review by our office. Federal recognition decisions are some of the most important decisions issued by the Department, and these applications in particular have 

significant legal implications for the State of Alaska. We are therefore reviewing 

these requests with the utmost care and deliberation. 

Specifically, we are in the process of assessing the extensive factual and historical 

background of the Alaska Native groups requesting federal recognition. The Office 

of the Solicitor will also undertake an independent analysis on the legal framework 

underlying these requests. Prior to any final determination, the Assistant SecretaryIndian Affairs will carefully consider and evaluate these findings. We expect to continue to work with the Knugank Tribe and the Qutekcak Native Tribe with the goal 

of issuing final decisions on these applications this year. 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. JON TESTER TO

HON. KEVIN WASHBURN

I understand that the Secretary of the Interior has asked you to consider Little 

Shell’s request that the Department suspend its consideration of the Tribe’s petition 

for federal acknowledgement pending the promulgation of the revised acknowledgement regulations.

Question 1. Will the revised acknowledgment regulations impact Little Shell’s petition? If so, how? 

Answer. The Department recently sent a letter to Little Shell accepting their request that we suspend consideration of the Secretary’s referral until revisions to the 

Part 83 regulations are finalized. However, I do not know what the final regulations 

will entail. The Department did release a Redline Discussion Draft, which was intended to begin the discussion on how the Part 83 regulations might be revised. We 

received nearly 300 comments from various parties on the Discussion Draft, but I 

want to reiterate that that Draft was not a Proposed Rule. The Discussion Draft, 

and the ensuing comments, have been instrumental in getting us to the point where 

we are now—which is preparing to release a Proposed Rule and begin the next 

phase toward revising the Part 83 regulations. 

It is also very important that the Department not make any assumption on the 

content of the Final Rule. We must place our trust in the comprehensive consultation process and the notice and comment period for the Proposed Rule. In doing so, 

the Department is confident that the Final Rule will reflect many different views 

and concerns which is natural in the process of constructive agency rulemaking.

Question 2. Did the Little Shell petition for federal acknowledgement receive any 

negative comments to your knowledge? 

Answer. In addition to over 10,000 pages of comments by the Little Shell on the 

proposed finding, the Department received comments from two third parties during 

the comment period. These two comments could be characterized as negative.

Question 3. If a tribe goes through the Part 83 process and gets a positive proposed finding and no negative comments, is there any reason why that tribe 

shouldn’t be recognized immediately by Congress? 

Answer. Congressional recognition is, of course, a separate process than the Part 

83 process. As I know you are aware, Congress can act to recognize and Indian tribe 

wholly outside the Part 83 process. In general, we have no objection to Congress 

exercising its own authority to make recognition decisions. 

The Part 83 process provides for a comment period on both positive and negative 

proposed findings. It provides also for further evaluation by the Department based 

on a more complete record for the final determination and provides for requests for 

reconsideration before the IBIA. In three cases, following IBIA review, positive final 

determinations were not sustained (Chinook, Pequot, Schaghticoke).

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