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S. HRG. 110–468 

RECOMMENDATIONS FOR IMPROVING THE 

FEDERAL ACKNOWLEDGEMENT PROCESS 

HEARING 

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

APRIL 24, 2008 

Printed for the use of the Committee on Indian Affairs 

( 

(II) 

COMMITTEE ON INDIAN AFFAIRS 

BYRON L. DORGAN, North Dakota, Chairman 

LISA MURKOWSKI, Alaska, Vice Chairman 

DANIEL K. INOUYE, Hawaii 

KENT CONRAD, North Dakota 

DANIEL K. AKAKA, Hawaii 

TIM JOHNSON, South Dakota 

MARIA CANTWELL, Washington 

CLAIRE MCCASKILL, Missouri 

JON TESTER, Montana 

JOHN MCCAIN, Arizona 

TOM COBURN, M.D., Oklahoma 

JOHN BARRASSO, Wyoming 

PETE V. DOMENICI, New Mexico 

GORDON H. SMITH, Oregon 

RICHARD BURR, North Carolina 

ALLISON C. BINNEY, 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 April 24, 2008 .............................................................................. 1 

Statement of Senator Dorgan ................................................................................. 1 

Statement of Senator Murkowski ........................................................................... 1 

Statement of Senator Tester ................................................................................... 2 

WITNESSES

Artman, Hon. Carl J., Assistant Secretary, Indian Affairs, U.S. Department 

of the Interior ....................................................................................................... 4 

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

Ferguson-Bohnee, Patty, Clinical Professor of Law and Director, Indian Legal 

Clinic, Sandra Day O’Connor College of Law, Arizona State University ........ 11 

Prepared statement with attachment ............................................................. 14 

Rivera, Jr., Hon. Anthony, Chairman, Juanen ̃ o Band of Mission Indians, 

Acjachemen Nation .............................................................................................. 8 

Prepared statement .......................................................................................... 9 

APPENDIX

Johnston, Hon. Sonia, Chairwoman, Juanen ̃ o Band of Mission Indians, 

Acjachemen Nation, prepared statement ........................................................... 73 

(1) 

RECOMMENDATIONS FOR IMPROVING THE 

FEDERAL ACKNOWLEDGEMENT PROCESS 

THURSDAY, APRIL 24, 2008 

U.S. SENATE, COMMITTEE ON INDIAN AFFAIRS, Washington, DC. 

The Committee met, pursuant to notice, at 9:21 a.m. in room 

562, Dirksen Senate Office Building, Hon. Byron L. Dorgan, Chairman of the Committee, presiding. 

OPENING STATEMENT OF HON. BYRON L. DORGAN, 

U.S. SENATOR FROM NORTH DAKOTA 

The CHAIRMAN. Next we will go to a hearing on the Federal acknowledgment process. I thank all my colleagues for being here 

today for the business meeting. 

The Federal acknowledgment process is, as all of us know, very 

difficult and controversial. Mr. Artman, if you would be willing to 

allow us to do this, I would like to call you to the witness table. 

We have two additional witnesses; with your permission, I would 

like all three witnesses to appear at the table. 

We will be hearing from Mr. Carl Artman, who is the Assistant 

Secretary for Indian Affairs; Patricia Ferguson-Bohnee, a clinical 

professor of law and Director of Indian Legal Clinic, Sandra Day 

O’Connor College of Law, Arizona State University; and Anthony 

Rivera, Jr., the Chairman of the Juanen ̃ o Band of Mission Indians 

in California. 

I am going to wait just a moment while the room clears. I will 

make a couple of comments, but let me call first on the Vice Chairman of the Committee, Senator Murkowski. 

STATEMENT OF HON. LISA MURKOWSKI, 

U.S. SENATOR FROM ALASKA 

Senator MURKOWSKI. Thank you, Mr. Chairman. 

I appreciate the short order that we have conducted the business 

meeting in. I think there were some good things on the agenda, 

certainly, the nomination of Mr. McSwain, good to get that 

through. 

I am pleased that we are holding the hearing this morning on 

the recommendations for improving the Federal acknowledgement 

process. I want to welcome you, Mr. Rivera, I know you have traveled some ways to be here. But also, your Tribe’s ongoing, truly 

decades-long experience with this administrative recognition procVerDate Aug 31 2005 11:28 Aug 25, 2008 Jkt 042660 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 S:\DOCS\42660.TXT JACK PsN: JACKF
2 

ess at the OFA, we appreciate your trials, if you will, and your willingness to be here this morning. 

Mr. Chairman, since 1978, the BIA Office of Federal Acknowledgement and its predecessor agency have reviewed and resolved 

over 60 petitions for Federal recognition. Unfortunately, this is only 

about 20 percent of the nearly 330 petitions that have been submitted by the tribal groups for Federal recognition. We know that 

the process takes just too long. And this is for almost every group 

that has been through the process. 

The current administrative recognition process is seen by many 

of our tribal applicants, as well as those of us here in Congress, as 

excessively burdensome. Given the current backlog of acknowledgment petitions at the Department, it is therefore hardly surprising 

that some groups seek the legislative recognition rather than the 

administrative route, just as we have seen with the Lumbee here. 

It is my hope that this hearing will provide us with some acceptable ways to improve the process. I think some of us feel that imposing specific deadlines and adopting standardized criteria to the 

OFA’s regulatory process would help things a great deal. 

I do appreciate that the Department has a difficult job when it 

comes to determining which groups should get recognized, which 

should not. I know it is often much easier for us to sit here and 

criticize a decision than it is to make one. So I am here with an 

open mind, especially to listen to our witnesses’ hopefully constructive recommendations and comments. Again, I appreciate the 

length that people have traveled to be here and your willingness 

to hold the hearing, Mr. Chairman. 

The CHAIRMAN. Thank you very much. 

Senator Tester? 

STATEMENT OF HON. JON TESTER, 

U.S. SENATOR FROM MONTANA 

Senator TESTER. Thank you, Mr. Chairman. Just a real quick remark. First of all, I appreciate the panelists being here today and 

appreciate your time. 

I would just say that, kind of dovetailing on the remarks that 

have already been made, at this point in time, I think the process 

is too long. I think when the Senator from Alaska talks about criteria and deadlines, I don’t think that is something any of us want 

to do. But the fact is, we need to do it to push the process along, 

I would certainly consider myself. 

But I think the bottom line is that we have to, you have to do 

a better job in making decisions in a timely manner. Whether those 

are yeses or noes, they have to be made. Delaying is not an option. 

We have a tribe in Montana that hopefully we will have a decision 

out on this summer. I look forward to that decision on the Little 

Shell. 

But the truth is, they have been at it for 30 years. That is a little 

too long. And that is an understatement, by a large margin. 

So thank you for being here, and I look forward to hearing what 

you are doing to improve the process and what you see in the future as the process entailing to expedite, and still do a thorough 

job, but just moving through the process in a timely manner, I 

guess is a better term. Thank you, Mr. Chairman. 

3 

The CHAIRMAN. Senator Tester, thank you very much. 

This is a very challenging area for this Committee and for the 

Congress, because we have a number of tribes coming to the Congress saying, give us recognition. Well, the fact is, this Congress, 

no Congress really, has the capability to do the kind of work and 

investigation that is necessary to make good decisions. 

That is why in 1978 there was a process established at the Department of the Interior, and it required a tribe to prove substantially continuous tribal existence since historical times. It sets out 

seven criteria they have to meet. I am told that petitioning groups 

have to put together material that sometimes fills an entire room, 

and at a great deal of cost. 

The frustration of the groups is something I understand. There 

are a good many tribes who have been at this 15, 20, 25 years, 

some longer, trying to work through the process at the Department 

of the Interior. My own view is the process at the Department of 

Interior doesn’t work. That is not a judgment of mine about the 

merits of the decisions. I don’t have a basis for deciding whether 

you make the right decisions or the wrong decisions. 

But I do think that there should be some capability for a tribe 

to make its case in a reasonable period of time. Is it five years? I 

don’t know. But it is not 30 years. So what we are trying to do 

today is to see how does this process work, how can it be improved, 

what has happened recently to improve it, and how can we rely on 

this process to take the burden off us of having tribes come to this 

Committee and say, we want recognition because the recognition 

process doesn’t work at Interior. We can’t allow this to continue 

any more. This has to work at Interior. 

The Lumbee Tribe was different. As you note, Assistant Secretary Artman, the Lumbee Tribe couldn’t go to Interior. It is the 

only tribe with a bill pending before the Senate that is prevented 

from going to Interior. My preference would be to say, let’s let it 

go to Interior and require you in two years to make a judgment. 

So we passed out the Lumbee bill. 

But this is a serious problem we have to correct. How do we 

make this system at Interior work? We are not going to force you 

to say yes or no; we shouldn’t do that. We shouldn’t involve ourselves in individual cases. That should be left to historians and anthropologists and genealogists, et cetera. We don’t have that in this 

Committee, but you do, or you have the capability of accessing 

these petitions. 

So I appreciate the three witnesses coming to our Committee. I 

am interested in hearing their testimony. We will ask some questions and my hope is that we will hear that there is some significant progress being made. 

Mr. Artman, we, Senator Murkowski; Senator Tester; myself and 

other members of this Committee, approved your nomination after 

that position had been empty, vacant, for over two years which is 

shameful in my judgment. I am glad you are there. Your leadership 

now has to give us the opportunity to make progress on these 

issues. So you have great opportunities and great challenges, and 

this Committee is partly responsible for your being there. We appreciate that you are there and that you come here today to describe those issues to us. 

4 

You may proceed. 

STATEMENT OF HON. CARL J. ARTMAN, ASSISTANT 

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

INTERIOR 

Mr. ARTMAN. Thank you, Senator Dorgan, members of the Committee. I am here to provide the Administration’s statement on the 

Federal acknowledgement process under 25 C.F.R. Part 83, and the 

changes we are undertaking to expedite that process. 

Acknowledgement of the continued existence of another sovereign 

entity is one of the most solemn and important responsibilities delegated to the Secretary of the Interior. Federal acknowledgement 

enables that sovereign entity to participate in Federal programs for 

Indian tribes and acknowledges a government-to-government relationship between an Indian tribe and the United States. 

Acknowledgment carries with it privileges and immunities. The 

Part 83 regulations require groups to establish that they have had 

a substantially continuous tribal existence and have functioned as 

autonomous entities throughout history until present. Under the 

Department’s regulations, petitioning groups must demonstrate 

that they meet each of the seven mandatory criteria. Since the promulgation of the Department’s Federal acknowledgement regulations, the Department has issued 101 decisions to date. 

The Department has taken several actions to expedite and clarify 

the Federal acknowledgement process. Some of these required 

changes to our internal workload process, and some will require 

changes to the regulations. Internal changes include OFA’s instituted changes in its review of a documented petition to help speed 

up the review process. 

We revised the FAIR computer data base, allowing OFA researchers to make efficient use of their time. OFA is revising its 

Guidelines for Petitioners and the Guidelines for Petitioner Reviewers. These guidelines will assist the petitioners, interested parties and the researchers to better understand what the Department 

expects and what the regulations require to provide more clarity in 

their submissions. 

Our goal is to continue to improve the process, so that all groups 

seeking acknowledgement can be processed and completed within 

a set time frame. We are considering various ideas for improving 

the Federal acknowledgement system, such as recommending a 

waiver of the recommendations to move to the front of the ready, 

waiting for active consideration list groups that can show residence 

and association on a State Indian reservation continuously for the 

past 100 years, or groups that voted on the Indian Reorganization 

Act in 1934, if the groups appear to have met subsections (e), (f) 

and (g) of the Part 83 regulations. 

Another is to limit the number of technical assistance reviews 

and impose a time period for petitioner response to a technical assistance review letter to move the petitions along at a faster rate; 

creating more concise decision documents to speed the process and 

improve the public’s ability to understand the decision; issuing negative proposed findings or final determinations based on a single 

criterion which would speed the work and maximize the use of researcher time; clarifying the ‘‘first sustained contact’’ provision to 

5 

ease the burden of petitioners and reduce time-consuming research 

into colonial histories. 

Reviewing the regulations to provide for a sunset provision of 15 

years for the Federal acknowledgment process. This 15-year sunset 

provision would include deadlines for groups to submit letters of intent, petitioners to complete the documented petitions, for the Department to issue technical assistance letters, petitioning groups to 

respond to technical assistance review letters, a deadline for the 

Department to issue proposed findings and a deadline for the Department to provide comment and response period and final determinations. 

The regulations are only under review now. If we go forward 

with those, they will of course go through with the process of consultation and comment period. This 15-year sunset provision would 

not include a post-final determination reconsideration process before the IBIA, the Interior Board of Indian Appeals, or litigation 

under the APA. 

I would like to thank you for the opportunity to speak to you 

today about our acknowledgement process and I look forward to 

your questions. 

[The prepared statement of Mr. Artman follows:] 

PREPARED STATEMENT OF HON. CARL J. ARTMAN, ASSISTANT SECRETARY, INDIAN

AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR

Mr. Chairman and Members of the Committee, I am submitting the Administration’s statement on the process that the Federal Government follows when it receives a petition from a group seeking federal acknowledgment as an Indian tribe 

under 25 C.F.R. Part 83 and changes we are undertaking to expedite this process. 

Implications of Federal Acknowledgment 

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

of the most solemn and important responsibilities delegated to the Secretary of the 

Interior. Federal acknowledgment enables that sovereign entity to participate in 

Federal programs for Indian tribes and acknowledges a government-to-government 

relationship between an Indian tribe and the United States. 

These decisions have significant impacts on the petitioning group, Tribes and the 

surrounding communities, and Federal, state, and local governments. Acknowledgment carries with it certain privileges and immunities, including a government-togovernment relationship with the federal government and partial exemptions from 

state and local government jurisdictions, and the ability of newly acknowledged Indian tribes to undertake certain economic opportunities. 

Newly acknowledged Indian tribes are eligible to receive Federal health and education services for its members, to have the United States take land into trust that 

will not be subject to state taxation or jurisdiction, and to operate a gaming facility 

under the Indian Gaming Regulatory Act once it has met the conditions of that Act. 

Background of the Federal Acknowledgment Process 

The Federal acknowledgment process set forth in 25 C.F.R. Part 83, ‘‘Procedures 

for Establishing that an American Indian Group Exists as an Indian Tribe,’’ allows 

for the uniform and rigorous review necessary to make an informed decision on 

whether to acknowledge a petitioner’s government-to-government relationship with 

the United States. The regulations require groups to establish that they have had 

a substantially continuous tribal existence and have functioned as autonomous entities throughout history until the present. Under the Department’s regulations, petitioning groups must demonstrate that they meet each of seven mandatory criteria. 

The petitioner must: 

(a) demonstrate that it has been identified as an American Indian entity on a 

substantially continuous basis since 1900; 

(b) show that a predominant portion of the petitioning group comprises a distinct community and has existed as a community from historical times until the 

present; 

6 

(c) demonstrate that it has maintained political influence or authority over its 

members as an autonomous entity from historical times until the present; 

(d) provide a copy of the group’s present governing document including its membership criteria; 

(e) demonstrate that its membership consists of individuals who descend from 

an historical Indian tribe or from historical Indian tribes that combined and 

functioned as a single autonomous political entity, and provide a current membership list; 

(f) show that the membership of the petitioning group is composed principally 

of persons who are not members of any acknowledged North American Indian 

tribe; and 

(g) demonstrate that neither the petitioner nor its members are the subject of 

congressional legislation that has expressly terminated or forbidden the Federal 

relationship. 

A criterion is considered met if the available evidence establishes a reasonable 

likelihood of the validity of the facts relating to that criterion. A petitioner must satisfy all seven of the mandatory criteria in order for the Department to acknowledge 

the continued tribal existence of a group as an Indian tribe. 

The Federal acknowledgment process is implemented by the Office of Federal Acknowledgment (OFA). OFA is currently staffed with a director, a secretary, three 

anthropologists, three genealogists, and three historians. A team composed of one 

professional from each of the three disciplines reviews each petition. Additionally, 

OFA has a contract that provides for three research assistants and three records 

management/Freedom of Information Act specialists, as well as one Federal acknowledgment specialist and one computer programmer for the Federal Acknowledgment Information Resource (FAIR) database system. 

OFA’s current workload consists of six petitions on active consideration and ten 

fully documented petitions that are ready, waiting for active consideration. OFA describes its workload according to when an application is ready for review and when 

it makes a proposed or final determination. 

Improvements to the Federal Recognition Process 

The Department has taken several actions to expedite and clarify the Federal acknowledgment process. Some of these required changes to internal workload processes to eliminate backlogs and delays and some will require amendments to the 

regulations. 

Since the last hearing before this Committee on Federal Acknowledgment in September 2007, the Department has made several decisions on petitions. 

• Around the time of the last hearing, the Department’s final determination to 

acknowledge the Mashpee Wampanoag Tribe had just become final and effective 

for the Department. 

• In October 2007, the Department made a final determination not to acknowledge the St. Francis/Sokoki Band of Abenakis of Vermont. This determination 

became final and effective for the Department on October 1, 2007. 

• On November 26, 2007, the Department issued two proposed findings for the 

Juanen ̃ o Band of Mission Indians, Achachemen Nation (Petitioner #84A), and 

the Juanen ̃ o Band of Mission Indians (Petitioner #84B) and published notice on 

December 3, 2007, starting 180-day comment periods for both of these California petitioners and interested parties. 

• On January 28, 2008, the final determinations to not to acknowledge the 

Nipmuc Nation (Hassanamisco Band) and the Webster/Dudley Band of 

Chaubunagungamaug Nipmuck Indians of Massachusetts became final and effective for the Department. 

• On March 12, 2008, the Department issued a negative final determination on 

the Steilacoom Tribe of Indians. 

The Department just conducted two day-long formal technical assistance meetings 

on April 17 and 18, 2008, for the Juanen ̃ o Petitioners #84A and #84B. 

OFA has instituted a change in its review of a documented petition in order to 

help speed up the review process. We have a genealogist review the petition first, 

followed by the historian and anthropologist. The genealogist’s advance work, prior 

to the petition going on the ‘‘active’’ list, prepares the way for the other professionals 

during the active review process. 

We revised the FAIR computer database. FAIR provides OFA researchers with 

immediate access to the records, and the revised version speeds up the indexing of 

7 

documents and allows for more data review capabilities, allowing OFA researchers 

to make efficient use of their time. 

OFA modified its contract to include a computer programmer to complete and to 

maintain FAIR and to design the final version of FAIR 2.0 to allow for electronic 

redaction of documents under the Freedom of Information and Privacy Acts. In addition, OFA has started the process to purchase a heavy duty scanner, new computers, printers, and software for faster scanning and work. 

The OFA is revising its ‘‘Guidelines for Petitioners’’ and the ‘‘Guidelines for Petitioner Researchers.’’ These guidelines will assist petitioners, interested parties, and 

researchers to better understand what the Department expects and what the regulations require in order to provide more clarity in submissions. Better prepared submissions will speed up the evaluations and prevent potential deficiencies in the petitions. 

In the ‘‘Guidelines for Researchers,’’ OFA will provide a recommended format for 

petitioners to use to point to the specific evidence in their submission that meets 

the criteria for specific time periods. OFA also will recommend that petitioners 

present their genealogies in a common format used by genealogists (GEDCOM) and 

provide membership lists in an electronic database. 

Our goal is to continue to improve the process so that all groups seeking acknowledgment can be processed and completed within a set timeframe. We are considering various ideas for improving the Federal acknowledgment system such as: 

• Recommending a waiver of the regulations to move to the front of the ‘‘Ready, 

Waiting for Active Consideration’’ list groups that can show residence and association on a state Indian reservation continuously for the past 100 years or 

groups that voted on the Indian Reorganization Act (IRA) in 1934, if the groups 

appear to have met subsections (e), (f), and (g) of 25 C.F.R. § 83.7. 

• Limiting the number of technical assistance reviews and imposing a time period 

for petitioner response to a technical assistance review letter to move petitions 

along faster. 

• Creating more concise decision documents to speed the process and improve the 

public’s ability to understand the decision. 

• Issuing negative proposed findings or final determinations based on a single criterion which would speed work and maximize use of researcher time. 

Clarifying the ‘‘first sustained contact’’ provision of 25 C.F.R. § 83.7(b) & (c) to 

ease the burden on petitioners and reduce time-consuming research into colonial 

histories. 

• Hiring additional professional researchers. 

• Revising the regulations to provide for a sunset provision of 15 years for the 

Federal acknowledgment process. This 15-year sunset provision would include 

deadlines for: (1) groups to submit letters of intent, (2) petitioners to complete 

their documented petitions, (3) the Department to issue technical assistance letters, (4) petitioning groups to respond to technical assistance review letters, (5) 

the Department to issue proposed findings, (6) the Department to provide comment and response periods, and (7) the Department to issue final determinations. This 15-year sunset provision would not include the post-final determination reconsideration process before the Interior Board of Indian Appeals or litigation under the Administrative Procedure Act. 

Thank you for the opportunity to provide my statement on the Federal acknowledgment process. I will be happy to answer any questions the Committee may have. 

The CHAIRMAN. Mr. Assistant Secretary, thank you very much. 

I am going to ask the other two witnesses to testify, and then 

we will have questions. 

Mr. Rivera, who is Chairman of the Juanen ̃ o Band of Mission Indians in California, as I understand it, you will provide recommendations. You have a petition that is under review and you 

are going to give us your perspective as someone who is going 

through this process. You may proceed, and your entire statement 

will be part of the record. 

8 

STATEMENT OF HON. ANTHONY RIVERA, JR., CHAIRMAN, 

JUAN ̃ ENO BAND OF MISSION INDIANS, ACJACHEMEN NATION 

Mr. RIVERA. Very well. [Greeting in native tongue.] 

Good morning, Chairman Dorgan, Vice Chairman Murkowski, 

and distinguished members of the Committee, I am Anthony Rivera and I am Chairman of the Juanen ̃ o Band of Mission Indians, 

Acjachemen Nation in California, petitioner on active status in the 

Office of Federal Acknowledgement. 

It is my honor to appear before you today to discuss the Tribe’s 

26-year experience with the administrative process in the Interior 

Department’s Office of Federal Acknowledgement. You do have my 

prepared statement, and I hope that you have an opportunity to review it. But I would like to spend just a few minutes to emphasize 

a couple of the major points relating to the acknowledgement process as far as our experience is concerned. 

The Acjachemen Tribe has been in the process for the last 26 

years, since 1982, of our letter of intent submission. We are one of 

about seven petitioners on the active consideration list. We are not 

talking 700, we are only talking 7 petitioners who are actively 

being considered by the Office of Federal Acknowledgement. 

In our case, an acknowledgement has been made and a proposed 

finding, which was issued, which demonstrates that there was in 

fact a historic Acjachemen Tribe in the area of San Juan 

Capistrano, California. That allows us to proceed forward with the 

evidence on the next stage. 

With this experience, this 26-year experience that we have in 

this process, we offer the following improvements and discussion 

points to the acknowledgement process. Two points, first of all, the 

delay issue. There are numerous delay issues, one of which takes 

place in the ‘‘ready’’ status portion. In our case, we had a removal 

from ready status which delayed our petition for moving into active 

approximately 13 years. The letter of intent assessment process, 

that means new petitioners who are submitting letters of intent to 

engage the process, needs some work on how you assess that these 

are capable and qualified petitioners, some of which compete with 

petitioners who have already sent in a letter of intent. 

And then of course, the active status movement, there has to be 

movement with those seven petitions in the active status. That 

leads to the second issue, and that is the petitioners, including 

ours, in the active status portion of the recognition process. 

The numerous extensions, which are granted in the active status 

portion of the acknowledgement process, need to be regulated a little bit more. The regulations state that after 12 months, a proposed 

finding is to be issued on the evidence which has been submitted 

up to that point, after which the Assistant Secretary has the discretion of an approximately 180-day extension if it is needed. 

Our petition and our case, we have experienced approximately 

seven extensions, not requested by the Tribe, but by the Department, which causes further and further delay of the process. We 

understand some of the reasons for the extension needs, many of 

which have to do with the need for resources and funding, to be 

able to concentrate on the various different elements of the process 

here. 

9 

The Tribe has experienced, since our proposed finding has been 

issued after seven extensions, we have been experiencing progress, 

which we are pleased with. We have conducted, with the Office of 

Federal Acknowledgement, technical assistance meetings which 

have been very beneficial to understanding what evidence is required, so that they can do their portion of the process. 

Finally, we would like to suggest that our petition particularly be 

a test case or a, we offer that we can assist in some of these recommendations a little further perhaps at another time or during 

our question and answer to help you understand what really needs 

to be done with this extensive experience we have. 

Finally, as the Committee has stated, the unnecessary delays 

need to cease and action needs to take place. These petitions need 

to move. Once the active petitions move, including ours, then the 

petitions that are ready for active can move and also take place. 

I am happy to take any questions that you have on that. 

[The prepared statement of Mr. Rivera follows:] 

PREPARED STATEMENT OF HON. ANTHONY RIVERA, JR., CHAIRMAN, JUANEN ̃ O BAND

OF MISSION INDIANS, ACJACHEMEN NATION

Good morning Chairman Dorgan, Vice Chairman Murkowski, and distinguished 

members of the Committee. My name is Anthony Rivera, Jr. and I am the Chairman of the Juanen ̃ o Band of Mission Indians, Acjachemen Nation. 

It is my honor to appear before you today to discuss the Tribe’s experience with 

the administrative process in the Interior Department’s Office of Federal Acknowledgment (OFA). 

At the outset I want to say that we have experienced real delays with the OFA 

that have prejudiced the Tribe and its members in a number of ways. 

We have lost many elders in the nearly three decades we have been in this process. We are not a wealthy people and we have had to scrape together enough money 

to locate documents, hire professionals, and do the necessary travel that this process 

requires. 

Our first contact with Europeans came in the 18th century when the Spanish occupied what they called ‘‘New Spain’’ in Alta California. Spanish missionaries went 

on to establish a series of mission churches along the west coast from San Diego 

to Monterrey. The historical lands of the Tribe are in and around what was and is 

the Mission San Juan Capistrano, located just south of Los Angeles and north of 

San Diego. 

My Tribe’s efforts to be recognized by the U.S. Government began many decades 

before there was an OFA. Indeed, throughout much of the 19th and 20th centuries 

my Tribe has worked hard to regain this status. 

However, since acknowledgment regulations were promulgated in 1978, my Tribe 

has pursued federal recognition through this administrative process. I would like to 

walk you through our progress since it illustrates areas that are in dire need of reform. 

1. In August 1982, our Tribe submitted its Letter of Intent for acknowledgment. 

We were designated Petitioner #84. 

2. The Tribe then worked hard to prepare and submit a fully documented petition that satisfied the evidentiary requirements of the regulations. We met with 

BIA staff and addressed the shortcomings it had identified in our petition. 

3. In 1993, after reviewing the thousands of pages of genealogical, anthropological, and historical evidence that we had submitted, the Branch of Acknowledgment and Research (BAR)—the predecessor to the OFA—determined that 

our evidence was sufficient and accordingly placed our petition on the ‘‘ready, 

waiting for active consideration’’ list. Up to this point, our progress in the acknowledgment process was not problematic. 

4. However, in May 1995, the BAR unjustifiably and without opportunity for appeal, removed our petition from the ‘‘ready, waiting for active consideration’’ 

list. 

10 

5. In February 1996, we were returned to the ‘‘ready, waiting for active consideration’’ list but a month later our petition was re-assigned #84A and another 

group which submitted a new letter of intent was assigned petitioner #84B. 

6. It would take my Tribe, the original petitioner 84, almost 10 years to regain 

our position at the head of the ‘‘ready, waiting for active consideration’’ list. 

7. My Tribe’s petition finally went on ‘‘active consideration’’ in September 2005. 

The Department treated the other group, #84B, in essence, as a co-petitioner 

and placed it on the ‘‘active consideration’’ list in September 2005 along with 

my Tribe. 

8. More than two years later, in November 2007, the OFA issued a Proposed 

Finding on our petition. We are currently preparing an evidentiary response to 

those areas in our petition which OFA considers deficient. 

Since the late 1980s, this Committee has reviewed a series of reforms to the acknowledgment process. Today I will focus on procedural difficulties the Tribe has 

experienced and want to state up front that I am limiting my comments to procedural deficiencies in the process, i.e. how petitioners and evidence are handled. I do 

not believe this hearing to be the appropriate forum for discussing the factual foundation of my Tribe’s history and continuity. 

Being Removed from ‘‘Ready’’ Status. OFA made a fundamental mistake by removing our petition from ‘‘ready’’ status and we are still feeling the impact of this decision 13 years later. The OFA received an application from a disgruntled member 

of the Tribe who disagreed with the results of the most recent tribal election. Rather 

than deferring to the Nation’s political process, the OFA chose to give legitimacy to 

the other group. Rather than spend time reviewing this application, which would 

have demonstrated its illegitimacy, the OFA insinuated it into the process and processed it in tandem with my Tribe’s petition. This has caused us severe problems 

that continue to this day. So while OFA routinely states that it defers to the internal political workings of petitioning groups, in fact it does get involved and often 

to the detriment of the group involved. 

Serial Extensions by OFA to Issue Proposed Finding (PF). The regulation at 25 

CFR 83 provides that one year after going on active status, the OFA is required to 

issue a Proposed Finding. The regulation authorizes an additional 180-day period 

of time which may be granted by the Assistant Secretary—Indian Affairs. In our 

case the OFA/AS–IA/Department granted to itself no fewer than 7 extensions before 

issuing a Proposed Finding. 

Most significantly, these procedural difficulties caused my Tribe to lose more than 

10 years, and we have had to spend considerable resources updating our petition, 

including additional documentation and evidence. The fact that the Department accorded a newly-created group co-petitioner status has meant that every step of the 

active consideration stage has taken longer because the Department is dealing with 

two petitioners, not one. We maintain that a factual finding on my Tribe’s governing 

procedures in 1995 could have quickly resolved the identity of the legitimate petitioner and saved the Department and all parties considerable time, effort, and expense. 

For this Committee it is indeed tempting to want to comprehensively reform a 

process it believes to be badly broken. I urge you to continue to focus on reform and 

to tackle those elements of the process that can be reformed and bring relief to other 

petitioners that find themselves in the same position we have been since 1982. I 

respectfully offer the following recommendations to improve the process. 

• Starting with this Committee’s recommendation, the Congress should provide 

the OFA with sufficient resources and funding to accomplish their mission, including informal technical assistance sessions with petitioners before any filing 

is made to guide them on the process. 

• Likewise, the Committee should require OFA to provide periodic progress reports on Active Status petitions and should hold OFA and the Assistant Secretary accountable for developing proper policy for Tribes to be treated fairly. 

• OFA should not be authorized to remove petitioners from the queue without 

procedural safeguards, including notice to the petitioner, an opportunity to comment on the proposed action, and some appeals process so that the removal decision can be reviewed by a higher authority. 

• OFA should formalize and promulgate a policy of non-interference in the internal political and electoral workings of petitioning groups. OFA’s decision in 

1995 that resulted in the insinuation of another group has caused years of 

delay, additional costs to the Nation and the U.S. government, and enormous 

administrative problems for us as the petitioner. 

11 

• OFA should have the decision-making flexibility to secure reasonable extensions 

of time within which to issue Proposed Findings. But that flexibility should not 

be open-ended and should not allow for the kind of delays we experienced in 

waiting for our Proposed Finding. 

I intend to submit for the record additional thoughts and recommendations based 

on our experience and thank you again for the opportunity to appear before you this 

morning. I would be happy to answer any questions you might have at this point. 

The CHAIRMAN. Mr. Rivera, thank you very much for your testimony. 

We will now hear from Patty Ferguson-Bohnee, Clinical Professor of Law and Director of the Indian Legal Clinic at the College 

of Law at Arizona State University. You may proceed. 

STATEMENT OF PATTY FERGUSON–BOHNEE, CLINICAL 

PROFESSOR OF LAW AND DIRECTOR, INDIAN LEGAL 

CLINIC, SANDRA DAY O’CONNOR COLLEGE OF LAW, 

ARIZONA STATE UNIVERSITY 

Ms. FERGUSON-BOHNEE. Thank you, Mr. Chairman. 

My name is Patty Ferguson-Bohnee, and I am the Director of the 

Indian Legal Clinic at the Sandra Day O’Connor College of Law at 

Arizona State University. 

The Clinic was requested by a staffer of the Senate Committee 

to analyze the Federal acknowledgement process and to provide 

some insights. I would like to recognize my students who are here 

today who prepared the preliminary analysis that I have attached 

as part of our testimony and hopefully can be submitted for the 

record. Those students are Alejandro Acosta, Jerome Clarke, Sebastian Zavala, Chia Halpern and Tana Fitzpatrick. This has been a 

great experience for them and we appreciate the opportunity to 

present the students’ analysis. 

I would like to touch on a few of the highlights in their analysis 

that focus on issues the students have identified in the process. 

The initial intent of the process was not to create an extremely 

burdensome requirement for petitioners, but to provide an avenue 

for unrecognized tribes to request official recognition. 

In 1978, the American Indian Policy and Review Commission 

identified 130 tribes that had not been recognized. The initial regulations were offered in an attempt to help those individual tribes 

through the process. 

The four issues that the students have identified should be addressed if there is any hope for meaningful reform. These issues include the lack of resources, timeliness, the increased burden on petitioners and the lack of access and transparency. 

The first issue of resources permeates the entire process. The resource issue includes both funding for the Office of Federal Acknowledgement and funding for petitioners. We understand that 

OFA’s efficiency, the Office of Federal Acknowledgement’s efficiency is impacted by the amount of resources that are allocated to 

the process. 

Without sufficient funding the Office is unable to employ the requisite number of staff and research teams to administer an efficient 

process. We have reviewed testimony and spoken to past researchers who were in the office, and a past assistant secretary, who have 

identified that yes, there is indeed a need to increase the staff 

12 

within the office and to employ more research teams if the petitions are able to be evaluated in a timely manner. 

The second resource issue is funding for the petitioners. Many of 

the petitioners lack necessary resources to complete petitions and 

to hire the necessary experts to compile the research and analyze 

the data. There are currently no funding mechanisms to assist petitioners in the process. Initially petitioners could submit petitions in 

any readable format, and now petitioners must analyze all data 

submitted, and it is a truly onerous burden for mostly poor, unfunded tribes. 

The second issue is the issue of timeliness which has been addressed. And this issue, we believe, also derives from the lack of 

resources. We believe that there should be realistic time lines for 

the petitioners and we also believe that the Office should follow 

these time lines that are identified in the process. 

In addition, the amount of time it takes to complete the process 

should not be as long as it currently is. I think that you have already identified this issue. 

The third issue is the increased burden for petitioners. Since its 

implementation there have been few petitioners who have actually 

completed the process. There seems to be an increased burden by 

requiring more evidence than was initially required for those petitioners who completed the process in the first five years. 

Also, there seems to be a change in the burden of proof. There 

seems to be a higher burden of proof than was required in the initial regulations, and the reasonable likelihood standard which indicates there should be a low burden and should allow for inferences 

has been interpreted to mean conclusive proof or a higher burden. 

In addition, there are some provisions within the acknowledgement 

process that are unknown to petitioners as to how they are to be 

interpreted. So there should be some clarity in that respect. 

The fourth issue is the lack of access to documents and the lack 

of transparency. I would like to note that now the Office has a 

website which is accessible to petitioners or any researchers or anyone who wants to review this information on the internet or online. 

This was previously unavailable for a number of years. This is now 

currently online and provides some information about petitioners. 

But one issue that we would like to point out is that FOIA requests that are submitted by petitioners are sometimes unnecessary. It seems that petitioners should not have to submit FOIA requests to obtain information that is contained in their files that the 

Department is reviewing, because these requests take a long time 

to receive a response to. 

The recommendations by the students are to identify a time 

frame by which petitions should be decided and then to provide 

sunset provisions for each stage of the process. The second recommendation is to assess the funding needs that correspond with 

this time frame that Congress or the Office may propose, so that 

petitions can be timely processed. Such funding needs would include the staff needed to administer the petitions, and funding for 

petitioners, so that the petitioners can provide the necessary information to be evaluated by the staff. 

Another recommendation would be to employ sufficient staff so 

that researchers can be assigned to regions and can develop familiVerDate Aug 31 2005 11:28 Aug 25, 2008 Jkt 042660 PO 00000 Frm 00016 Fmt 6633 Sfmt 6601 S:\DOCS\42660.TXT JACK PsN: JACKF
13 

arity in those regions. This may increase the efficiency of the process. 

Also, the students reviewed the possibility of implementing a 

commission or task force to either administer the process or to 

serve as a peer review or task force working in conjunction with 

the Office so as to lessen the burden of the administrative tasks 

that are undertaken during the petition processes. 

Most of the recommendations that the students identified are 

procedural and not substantive. There is one substantive recommendation which deals with 25 C.F.R. Part 83(b) and (c), proving social and political community from historical times to the 

present. The students identified that Congress should consider, or 

the OFA should consider changing the time period from either 1850 

to the present or from the time in which the petitioner’s State was 

admitted to the Union. This would reduce the burden on both the 

petitioner and the Office. The petitioners would still need to prove 

descent from historical tribe or tribes, but it would lessen the burden of all of the research that must be undertaken in order to provide information. 

I am happy to answer any questions that you may have. 

[The prepared statement of Ms. Ferguson-Bohnee follows:] 

14 

PREPARED STATEMENT OF PATTY FERGUSON-BOHNEE, CLINICAL PROFESSOR OF LAW

AND DIRECTOR, INDIAN LEGAL CLINIC, SANDRA DAY O’CONNOR COLLEGE OF LAW, 

ARIZONA STATE UNIVERSITY


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The CHAIRMAN. Thank you very much for your testimony. I 

thank all three of you for testifying about what is a complicated, 

challenging, and interesting issue. 

I will ask questions at the end. I am going to call on Vice Chairman Murkowski first, Senator Tester next, and then I will follow. 

Senator Murkowski? 

Senator MURKOWSKI. Thank you, Mr. Chairman, and thank you 

to the members of the panel for your willingness to provide us with 

some information here this morning. 

Listening to the specific examples that you are living, if you will, 

Mr. Rivera, and then hearing some of the recommendations that 

the students have proposed and you have presented, and recognizing the situation that the Department is in as they process 

these, I think we recognize that there are issues of timeliness. 

There are certainly issues of funding, staffing, and so perhaps the 

solutions are not so far away from this. Of course, it always comes 

down to a question of the adequacy of the funding. 

Assistant Secretary Artman, let me ask you first, in your testimony, you indicae that OFA currently employs about 20 staff, including those that are under contract with the Department. With 

the present number of employees that you have, how long do you 

figure that it would take to complete the remaining acknowledgment cases that are currently submitted to the Department? 

Mr. ARTMAN. With the current staff, right now probably the most 

important are the teams that we have that are made up of the historians and the anthropologists and the genealogists who look into 

the reams of materials that we receive. And assuming everything 

is complete, the entire package is complete, which does take up a 

lot of our time as well, we are doing on average, between one and 

two, each team is doing between one and two packages per year, 

being able to complete those. 


424p49.eps
63 

So at our current workload of approximately 260 applications, 

and by the way we are looking for a fourth team, with that fourth 

team in place we are still looking at somewhere between 50 to 60 

years to do this. That is a big number. 

But also it requires a little bit of explanation behind that. A lot 

of our time is also spent on fulfilling FOIA requests, preparing material for challenges in court. I think right now we have four ongoing court challenges for some of our most recent decisions. And almost every decision, it is almost a guaranteed court challenge by 

somebody, almost every one. 

Senator MURKOWSKI. Let me ask you on that line, then, Ms. Ferguson-Bohnee has indicated that it seems that there is just additional evidence, additional standards for interpreting the criteria 

that have come about over the years. Is some of this due to the fact 

that you anticipate legal challenges, so you need to make sure that 

you have more documentation than less? Is this what we are seeing? 

Mr. ARTMAN. I think if you look at our decisions, and being very 

familiar with the Juanen ̃ o decision, I think the Juanen ̃ o decision is 

a perfect example. We looked at, I think it was approximately 175 

pages, 190 pages long, it was a long decision. And there were two 

Juanen ̃ o decisions that were put out at the same time. For me, that 

was a culmination of where we had come from. That was a result 

of the litigation that we have had, things we have learned. But I 

also think, when I say the culmination, we certainly realize that 

has to turn around. One of the things that we are proposing in 

guidelines and how you do your works management guidelines, is 

to create shorter decisions. 

One of the big problems is, people who are receiving these, either 

the parties, the petitioners themselves, or the interested parties, 

have difficult times understanding where we are getting to. So we 

are trying to bring it down to the most core material and putting 

the additional substantiation elsewhere. I think that is going to be 

easier for the teams to develop those documents as well and create 

a reduction in time. 

But that is a result of all those court cases. But yet at the same 

time, I think we are going to be able to create documents and we 

are already starting to reduce the size of our documents but maintain the standards that have been put in place by the courts previously. 

Senator MURKOWSKI. You mentioned that to get through what 

you have current pending within the Department, it could be a long 

time, 50 to 60 years. But Mr. Rivera has indicated that the case 

with the Juanen ̃ o tribe has been under active consideration on that 

list for some years now. Is that correct, that there are only seven 

on the active consideration list? 

Mr. ARTMAN. There are six right now on the active consideration 

list. 

Senator MURKOWSKI. So once you get to the active consideration 

list, how long do you figure is a reasonable time to resolve a case 

that has made it that far in the process? 

Mr. ARTMAN. Through regulation, it should take about 25 

months. 

64 

Senator MURKOWSKI. From the time that it gets to active consideration? 

Mr. ARTMAN. Yes. That includes the time for developing the determination, going through the technical assistance, putting out the 

proposed findings. Then there is a review period of 90 days and additional technical assistance time. And then there is the final determination. So it is a lengthy time, once you make it to that point. 

Now, the ready list, that is where a team is assigned to you and 

all of your documents are reviewed. You have gone through your 

prior technical assistance, your documentation is considered complete and it is now, you now have the ability to have a team look 

at it. And that will vary, depending upon the size of the organization and also in certain situations, a tribe which may make it to 

the ready list or active list may split, may even split a few times. 

That can further delay the process, because then we have to look 

at where the membership is. And sometimes in those cases, those 

splits will create other entities which have parallel consideration, 

they are being considered at the same time out of necessity because 

of the way the membership has divided. 

Senator MURKOWSKI. So even though the goal would be that it 

is no longer than 25 months on this active consideration list, you 

are saying that there are circumstances that occur, Mr. Rivera has 

mentioned that there have been seven extensions since they have 

been on active consideration, not extensions that the Tribe has requested, but extensions that have come from the Department. So 

are we able to realistically look at 25 months and say that from 

a Department perspective, that is an achievable goal? 

Mr. ARTMAN. I think we are. But again, the 25 months is a perfect scenario. Everything is complete. And in addition, for example, 

in the Juanen ̃ o case, Juanen ̃ o is a good example of where there was 

a split. Part of those delays, part of those extensions that we were 

seeking was to consider the impact of the split in the membership 

or in the split of the entity. 

So those externalities do impact that time line I have given you. 

Senator MURKOWSKI. Then in your proposal that there be a sunset provision of 15 years for the Federal acknowledgement process, 

your comments here right now indicate to me that there are things 

that can happen that can delay a process. Is it fair to impose a 15 

year deadline on the petitioner when they may require more assistance to meet the requirements that you are imposing on them? 

Mr. ARTMAN. Along with that is the management guidance which 

we will be putting out shortly. In that, we are able to move up, we 

will be moving entities up the list if they meet certain requirements. We will be taking entities out of the list, and therefore they 

won’t be due to have consideration based on other factors, for example, immediately failing one of the seven criteria would take 

them out. 

One of the recommendations that Ms. Bohnee made about moving up the dates for historical consideration, we are looking at that 

as well. So we are already taking steps that don’t require regulatory changes to pull out the individuals who can move up more 

quickly through the list. 

Senator MURKOWSKI. Will these guidelines, one of the concerns 

that we have heard is that the rules seem to change on the petiVerDate Aug 31 2005 11:28 Aug 25, 2008 Jkt 042660 PO 00000 Frm 00068 Fmt 6633 Sfmt 6601 S:\DOCS\42660.TXT JACK PsN: JACKF
65 

tioners, and now all of a sudden this is required, or now we need 

to do this. By the revised guidelines that you are looking at, can 

you give me the assurance that they are not going to further complicate somebody that is in the process? 

Mr. ARTMAN. Yes, we have looked at that specific issue to make 

sure that isn’t the case. Usually when people say the rules are 

changed, when the petitioners claim the rules are changing, those 

changes are being caused by a recent court decision, most likely. 

We are making changes in our own system to adapt to that court 

ruling. 

So we don’t want to create additional work or create any changes 

that the petitioners may not have been aware about already that 

were in the rules. These really do clarify what the rules state, and 

provide management guidance. 

Senator MURKOWSKI. Can the Department do more to provide the 

technical assistance? Both Ms. Ferguson-Bohnee and Mr. Rivera 

have indicated that a level of technical assistance could help the 

petitioners. And if we are going to impose these deadlines, it seems 

to me there has to be a little bit of just technical assistance that 

might be provided. 

I am not suggesting that the answer has to be financial. But just 

in terms of working the process, is that something that could be 

made to happen? 

Mr. ARTMAN. Yes, ma’am. And for making our information available to the petitioners to clarify for them exactly what is expected 

to actually sitting down in the room and going through the documents at the various stages of the acknowledgement process and 

providing the technical assistance, those are all things we do strive 

to do. As Chairman Rivera noted, you just had a very successful 

technical assistance session, I believe two formal technical assistance sessions where we sat down and we worked through all of the 

issues that came up in the proposed findings. 

So we are taking strides to do just that. 

Senator MURKOWSKI. Mr. Rivera, what do you think of this proposed 15-year sunset? 

Mr. RIVERA. I think it is a very interesting and perhaps a 

thoughtful process to get through what needs to be done. Again, I 

would like to emphasize that nothing is going to happen in the 

ready list until the actives get decisions made. Assistant Secretary 

Artman is correct that the technical assistance has been very helpful for us, because that is a time that we can engage the Department to find out exactly what evidence is needed and required. We 

haven’t had that opportunity to do that until we are able to sit 

down and find out how the Office sees the evidence and how that 

takes place. 

So that part has been very helpful. It would be nice to have that 

part at the front end instead of at the back end. 

As far as the extensions on our case are concerned, and we will 

provide the Committee with copies of those letters, never once was 

it communicated to us that the reasons for extensions were because 

of another petition. It was always because of, more time is needed 

and resources are needed to examine the evidence and to work on 

the petition. So the communication part, getting up to the release 

of a proposed finding, is many times not quite as open as it should 

66 

be, so that we can know exactly what needs to be done. There 

needs to be a lot more cooperation between the various different 

parties. 

The way that we see it is the Committee oversees that the regulations are being followed properly. The Department enforces those 

regulations. And it is up to the Tribe to provide the evidence to 

comply with those regulations. But in order for us to do that, we 

have to have to have that kind of tripartite understanding and the 

communication with the Department. We realize that they are burdened because of resources. We realize that, but at the same time, 

with this 25 month period, according to the regulations, we feel 

that that is doable, when we comply with the regulations as far as 

providing our petition to be ready for active and inactive status. 

So all we are asking for is that those regulations are abided by, 

the communication and technical assistance is provided, and that 

the movement proceeds without unnecessary delay. 

Senator MURKOWSKI. Let me ask just one final question of you, 

Ms. Ferguson-Bohnee. You have indicated that in the recommendations from your students that a time frame is identified, and a sunset provision for each stage. Were the recommendations more specific than that in terms of suggested time frames? In other words, 

the Secretary has proposed 15 years for the entire process. But 

within the stages, did you identify what you felt to be sufficient 

time lines that could be shared with the Committee and with the 

Secretary? 

Ms. FERGUSON-BOHNEE. Yes, ma’am. I think to answer your 

question, the students reviewed identifying the time frame, but the 

time frame has to be dependent on funding, so that the time frame 

can be realistic. And we can’t assess what that realistic time frame 

will be, and we think that either Congress or the Department 

should identify what they think the time frame should be. 

Senator MURKOWSKI. Do you think 15 years is reasonable for the 

entire process? 

Ms. FERGUSON-BOHNEE. For each? 

Senator MURKOWSKI. For the entire process. 

Ms. FERGUSON-BOHNEE. For each petitioner? 

Senator MURKOWSKI. Yes, for each petitioner. 

Ms. FERGUSON-BOHNEE. I think that 15 years, if there are resources allocated, is a long time. But I think that 10 years or a 

shorter time period would probably be better, because a lot of these 

petitioners have been waiting on these lists and engaged in research for, some of them, 26 years, some of them longer. But the 

issue is, if the resources are allocated to them, and I think what 

the students identified is that perhaps Congress or the Office 

should look at how long should the process of Federal acknowledgement go on? 

For example, should we identify when all of the petitions should 

be assessed, and in that way, appropriate sufficient funding for all 

of the petitioners and for the Office, so that in 60 years, there 

aren’t still petitioners who are submitting letters of intent so that 

the sunset provisions relate to, by what deadline should a petitioner submit a letter of intent, and then start the time frame from 

there. 

67 

Senator MURKOWSKI. Thank you. Thank you, Mr. Chairman, I 

have gone over my time. 

Mr. RIVERA. Mr. Chairman, may I say one more thing on the 15- 

year item? 

The CHAIRMAN. Yes. 

Mr. RIVERA. I do think that it is sufficient as far as I am concerned. If a tribe has not provided the ample evidence to be ready 

for active within the next 15 years, then that is another issue that 

falls the burden on the tribe. There are only six tribes that are 

ready for active right now. There are only six tribes that are inactive. That is 12. So 12 to be completed within the next 15 years 

I think is sufficient time. 

The CHAIRMAN. Senator Tester? 

Senator TESTER. Thank you, Mr. Chairman. A couple of things. 

First of all, I want to thank the panelists for their testimony. I also 

want to thank Assistant Secretary Artman for making changes in 

the regulations. I hope they are not just changes for the sake of 

changes. I am sure they are not. But they are to help move the 

process along and streamline it and make it work better for everybody. 

Along those lines, as you were reviewing the regulations, is there 

anything we need to do at the Congressional level to make that 

streamlining better, or can you handle it within your regulations? 

Mr. ARTMAN. I think right now, though there may be disagreement from our point of view, we think we can handle it within the 

current regulations and the APA process. 

Senator TESTER. Okay. Thank you. And then there were, by your 

own answers to the questions here earlier, you said that it would 

take 50 to 60 years to take care of the current backlog. Is that correct? 

Mr. ARTMAN. That is correct. 

Senator TESTER. So how, let’s say you put your regulations into 

effect, are those folks grandfathered in? 

Mr. ARTMAN. A large part of that backlog, we have six on the active list, we have another ten on the ready list. Then there are 243 

on the waiting list. Now, that 243 is a very important number, because we don’t know how many of those could qualify in the acknowledgement process. Many of those 243 are made up solely of 

letters of intent and little documentation to support them otherwise. Many of those are made up of groups who are not tribes, and 

we know already that in a handful of cases, the FBI is looking into 

them because these are essentially confidence operations that are 

being set up for one purpose or another, either to get Federal funds 

or to help speed through the immigration process for people who 

go through them. 

So that is a mixed bag in there. We still have to deal with that, 

because they have set the marker in our organization, they have 

sent in the letter of intent. So we are looking at all 259 over the 

next 15 years. What that will do, I think, if we put the regulations 

up there, if they are put in place, you will see the 243, members 

of the 243, who feel that they can make it into the ready list quickly begin to compile their documentation in the correct order, within 

our guidelines and our handbooks, and submit that for consideration to make it onto the ready list. 

68 

Senator TESTER. Do you have the staffing to be able to handle 

that? 

Mr. ARTMAN. Not at the moment. But of course, if these regulations go in place, that is one of the things we will have to look at. 

Senator TESTER. So you will be asking us for an additional appropriation. 

Mr. ARTMAN. That may be the case. 

Senator TESTER. Do you have any idea how much that might be? 

Mr. ARTMAN. Not yet, Senator, and when I say these regulations 

are in the very beginning stages, we are still working with OMB 

on finalizing what these would say, for that reason. That is one of 

the many reasons. 

Senator TESTER. That is fine. So the clock starts ticking on the 

15-year sunset when you receive the letter of intent or when you 

receive the first documentation? 

Mr. ARTMAN. Well, it is broken down into different stages. As 

they are written right now, and that is to say that they haven’t 

gone through consultation yet, and they haven’t gone through the 

comment period, and we are still going through OMB review. So 

right now, in our head, we have set out a time line that we think 

would work, but it will go through quite a bit. 

There is a sunset of five years to get all the information in, and 

then there is an additional ten years for us to get, and the petitioners, to get through the next stages. 

Senator TESTER. I honestly don’t have any problem with putting 

out time lines. Self-imposed time lines work the best, because you 

guys should be able to determine how quickly you can run through 

it. But I didn’t hear the answer. Does the clock start ticking when 

you get the letter of intent? 

Mr. ARTMAN. Yes. That is when our tolling period starts. 

Senator TESTER. That is fine. 

Mr. ARTMAN. But we would essentially, the 15-year sunset is for 

OFA to sunset its process. 

Senator TESTER. Okay. I don’t know if you have any, but over the 

last, let’s say ten years, how many tribes have been denied recognition, how many have been accepted? Do you have those figures? 

Even the last five, I don’t care. I am just curious. 

Mr. ARTMAN. From 1978, when the regulations first began to 

present, we have 16 petitioners that became federally-acknowledged tribes. Twenty-eight have been denied. 

Senator TESTER. Of those 28, how many were challenged in 

court? 

Mr. ARTMAN. I don’t know. I would say probably a dozen of those. 

Senator TESTER. I don’t know if you can get that information, I 

would like to know that. I would also like to know how many were 

successful, what was done, were there damages awarded, what 

happened. 

Mr. ARTMAN. We can compile that for you. 

Senator TESTER. If you would. I am just really curious about 

that. 

I guess the last thing I want to say is the transparency issue. 

I just want to concur with Ms. Bohnee. The issue about transparency and making sure we have all our agencies as transparent 

as possible for information I think is critical. If in fact you are reVerDate Aug 31 2005 11:28 Aug 25, 2008 Jkt 042660 PO 00000 Frm 00072 Fmt 6633 Sfmt 6601 S:\DOCS\42660.TXT JACK PsN: JACKF
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sponsible for getting the website up and going, you need to be applauded for that and anything else you can do in that vein I think 

is positive. Because transparency is critically important, and I 

think we need to work at it. 

Thank you. 

Mr. ARTMAN. Thank you, sir. 

The CHAIRMAN. Mr. Artman, Mr. Assistant Secretary, review 

with me again some numbers here. How many petitions have been 

approved since 1978 in the recognition process? 

Mr. ARTMAN. Since 1978, there have been 16 petitioners that 

have become acknowledged through our process, or there have 

been, and 3 others whose status has been clarified through other 

means. 

The CHAIRMAN. How many of the 16 have been approved? 

Mr. ARTMAN. Those were the ones that were acknowledged. 

The CHAIRMAN. Those were approved. How many were denied? 

Mr. ARTMAN. There were 28 since 1978 that have been denied. 

The CHAIRMAN. Do you have material with you of how many tribal recognition actions have occurred as a result of legislative action? 

Mr. ARTMAN. Yes, we do, nine. 

The CHAIRMAN. Over what period of time? 

Mr. ARTMAN. Since 1978, there have been two through legislative 

restoration and seven through legislative recognition. 

The CHAIRMAN. Ms. Ferguson-Bohnee, you indicated that there 

are two approaches: one is to improve the current system, and the 

other is to create some sort of independent process outside of the 

system. Which do you prefer? What are the merits of each? 

Ms. FERGUSON-BOHNEE. I think if the current system as it rests, 

is not funded, then we are going to be at the same standstill and 

have the same burdens of not being able to evaluate the petitioners. I think that there is nothing inherently within OFA that 

is a problem. I don’t think the students identified anything with 

OFA as being a problem. 

But the thought was that if Congress wanted to create a commission that would expire, such as the Indian Land Claims Commission or something of that nature, which would provide a sufficient 

number of researchers, genealogists, historians, anthropologists 

and lawyers to administer the process, and fund that process, then 

the Congress has dedicated funds and noted it as a priority that 

it would sufficiently allow time for that process to occur. But nothing within the process is inherently a problem. 

The CHAIRMAN. I see. 

Mr. Rivera, you said that you filed the letter of intent 26 years 

ago? 

Mr. RIVERA. In 1982, August 13th. About August 13th. 

The CHAIRMAN. You know exactly, don’t you? 

Mr. RIVERA. Oh, yes. 

The CHAIRMAN. You indicated that there have been a number of 

delays as a result of the Interior Department, but you also excuse 

some of those delays, correct? But there was a 13-year period that 

you described, can you tell me again what the 13-year period was? 

Mr. RIVERA. In the ready status, when a petition has all the evidence provided that qualifies for a tribe to be ready for active, it 

70 

is kind of the waiting room, you sit there and you wait. We sat 

there and waited for it for a while, and moved up in the process 

as tribes moved into active. It is like taking a number. We moved 

up in the process to the point where we were in the first place, the 

next tribe to move into ready. 

We submitted our letter of intent in 1982. Another party, which 

was not affiliated as far as the membership of the Tribe, submitted 

a letter of intent approximately 14 years later under the same 

name as our Tribe. Because of that, and other issues surrounding 

that, and because the policy and procedures on how to deal with 

something like that were a little sketchy at the time, the Department decided under executive discretion to remove the Tribe from 

that first spot to sort things out, under our protest. 

The CHAIRMAN. Is that where the 13 years came in? 

Mr. RIVERA. A year later, when we were put back on the ready 

status, we were put back at the number six spot. And it took us 

ten years to get back. 

The CHAIRMAN. That didn’t happen under Mr. Artman’s watch, 

obviously. 

Mr. RIVERA. No. 

The CHAIRMAN. But that seems to me like an unfairness in the 

system. 

Let me ask Mr. Artman the other issue that has intervened since 

1978 which is the Cabazon decision. I assume that there is at least, 

not for all, and I am not suggesting this is across the board, some 

tribal recognition activities which are a result of an interest in 

being able to conduct gaming. Would that be the case? 

Mr. ARTMAN. I am sure there may be some motivation for that. 

The CHAIRMAN. We are talking about especially some of the letters of intent that are filed. I am not talking so much about the 

cases that have been going on for a long while. 

Mr. ARTMAN. And that may be some of the motivation for that. 

But when we looked at the numbers, since the Cabazon case, or 

since 1988 with the passage of IGRA, they stayed relatively consistent. We receive anywhere between 9 to 12 petitions a year. And 

that didn’t change after 1988 or after the Cabazon decision. 

The CHAIRMAN. That might answer my question. I am a little 

surprised by that, because I would have thought the opposite. That 

is good news, because that suggests those that are seeking recognition are doing it not with respect to gaming activities. The gaming 

activities can be very lucrative. 

My understanding, you might correct this, is that there is in one 

part of this Country a tribe with a membership of one that owns 

a gaming facility. Is that correct? 

Mr. ARTMAN. I don’t recall a membership of one. There are tribes 

and bands out there that have small memberships that may partake in gaming. I know there are many that don’t, small memberships that don’t partake in gaming as well. 

The CHAIRMAN. The process of seeking recognition is a very important process to the First Americans. Many of them were here, 

they had governments, they lived, they had territory. But we came 

along later and we even rewrote the history books. It is interesting, 

I grew up understanding the father of our Country was George 

Washington. I learned later, of course, there were some great InVerDate Aug 31 2005 11:28 Aug 25, 2008 Jkt 042660 PO 00000 Frm 00074 Fmt 6633 Sfmt 6601 S:\DOCS\42660.TXT JACK PsN: JACKF
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dian leaders out on the prairies in my part of the Country and 

throughout the rest of America who were providing leadership to 

their tribes long before George Washington was born. Yet we write 

the history books the way we want to write them. 

This acknowledgement process is an interesting process, because 

in many ways it is trying to right some wrongs by allowing tribes 

to achieve the proper recognition that they are entitled to, if they 

can demonstrate to you through this process and through the seven 

criteria that they have a historical culture in existence. 

I do think the frustration you are seeing from tribes and from 

the Congress is that the process takes a long, long time. I would 

not today suggest that somebody ought to be able to apply and in 

24 months get an answer from you. I think that is not realistic. 

This is about genealogy and historians, and so much goes into making the right decision here. So I am not suggesting that there has 

to be drive-by recognition or should be. I would not support that. 

But I think somewhere between 30 years and some more reasonable timeframe we should be able to achieve this. I assume there 

are people that have applied that are long since dead when the Department makes a decision, given the 20 and 30 year time frames. 

I note that the budget request that is submitted for this activity 

this year is identical to last year, I believe. It goes to Ms. FergusonBohnee’s point that this is a process that can work if it is properly 

funded. Why are we receiving a budget request that is flat if in fact 

we have these lengthy periods of delays? 

Mr. ARTMAN. One of our responsibilities is the Office of Federal 

Acknowledgement and overseeing the acknowledgement process. 

But also, in developing our budgets, there are a lot of inputs into 

the process, one of which is the tribal budget advisory committee 

that we work with, which is made up of tribal leaders from all the 

12 different regions of the Nation. As you can imagine, being made 

up of tribal leaders, their priorities are in other areas, oftentimes. 

And acknowledgement isn’t something that is often spoken about. 

So this is something that we have to work within to our other 

core responsibilities. This is part of our responsibility. But the majority of our budget we try to make sure is focused on, that we 

meet the trust responsibilities, be it enforcement, taking land into 

trust, education, law enforcement, what have you. It is difficult oftentimes to carve out anything more than that. Now, if we have 

something like regulations with a set time frame, where there is 

a cost benefit to that, perhaps that is a different formula then. 

The CHAIRMAN. Let me ask about regulations just for a moment. 

First of all, I appreciate the fact that today you talked about consultation in the development of these regulations. Consultation 

with tribes is very important; I know you know that since you are 

a tribal member. Our Committee emphasizes consultation. So I appreciate what you said today about that. 

Regulations sometimes have been pretty elusive in terms of getting them complete. We have hearings with this Committee on the 

subject of off-reservation gaming, the two-part determination, and 

other related issues. I think they have been writing regulations for 

17 years now on those subjects. What is your estimate of when you 

might complete your regulatory process, or the process of developing these regulations on this issue? 

72 

Mr. ARTMAN. At the moment, we have a draft. We are working 

with OMB on that draft and through our own internal processes. 

Then there will be the comment and consultation. 

I can say with some surety, it will be in the next Administration. 

We just don’t have the time this year to finish them up. 

The CHAIRMAN. I recognize it won’t happen in the coming couple 

of months. But is it reasonable for us to be expecting that this is 

not going to take four years or three years to do regulations? 

Mr. ARTMAN. I would hope not. Since at that time I won’t be Lee 

Fleming’s boss, I will say that he will get them done as quickly as 

possible. 

The CHAIRMAN. As you saw by this morning’s action with the 

Lumbee Tribe, this is a very important issue. This Committee is 

pressured, when I say pressured, that is the wrong word, this Committee is requested by a number of tribes to pass recognition bills 

for them, because they are frustrated that the acknowledgement 

process is too slow. It is my view that we not get involved, as a 

Committee, in addressing these individual pieces of legislation that 

require us to recognize tribes. 

I would much prefer they go through the acknowledgement process. That was not possible for the Lumbees, but it is for other 

tribes. The Virginia tribes, for example, have requests in front of 

us, and they make a pretty powerful case, as do some other tribes. 

But our hope is to work with you in the process with these tribal 

governments and get them in the process and get these issues resolved. 

I appreciate, Assistant Secretary Artman, your appearance today. 

Mr. Rivera, thank you for coming a good long distance. Ms. Bohnee, 

the same to you. Would you ask your students, who worked on 

these issues, to stand up, so that we can recognize them? And these 

are all Arizona State law students? 

Ms. FERGUSON-BOHNEE. Yes, sir, they are third-year law students in the Indian Legal Program. 

The CHAIRMAN. We thank you very much for your work and welcome your participation. Thank you very much for being here. 

This hearing is adjourned. 

[Whereupon, at 10:25 a.m., the Committee was adjourned.] 

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