19–010 

Calendar No. 488 

112TH CONGRESS REPORT " ! SENATE 2d Session 112–198 

TO EXTEND THE FEDERAL RECOGNITION TO THE LITTLE 

SHELL TRIBE OF CHIPPEWA INDIANS OF MONTANA, 

AND FOR OTHER PURPOSES 

AUGUST 2, 2012.—Ordered to be printed 

Mr. AKAKA, from the Committee on Indian Affairs, 

submitted the following 

R E P O R T 

together with 

ADDITIONAL VIEWS 

[To accompany S. 546] 

[Including cost estimate of the Congressional Budget Office] 

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

(S. 546) to extend the Federal recognition to the Little Shell Tribe 

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

considered the same, reports favorably thereon and recommends 

that the bill do pass. 

PURPOSE

The purposes of S. 546 is to extend Federal recognition to the 

Little Shell Tribe of Chippewa Indians of Montana, making its 

members eligible for all services and benefits provided by the 

United States to other federally recognized Indian tribes and to effect a transfer of 200 acres of land which the Secretary of the Interior shall acquire and place in trust for the benefit of the tribe. 

BACKGROUND AND HISTORY

History of recognizing Indian Tribes 

The recognition of an Indian group as a federally recognized Indian tribe is an important action. It is an affirmation by the United 


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1 73 Fed. Reg. 30146–48 (May 23, 2008). 

States of a tribe’s right to self-government and the existence of a 

formal government-to-government relationship between the United 

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

and its members have access to federal benefits and programs, and 

the tribal government incurs a formal responsibility to its members 

as the primary governing body of the community. 

Before Congress ended the practice of treaty-making with Indian 

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

an Indian tribe. Since the abolishment of treaty-making, the 

United States has recognized Indian tribes by executive order, legislation, and administrative decisions by the Executive Branch. Additionally, federal courts may clarify the status of an Indian group, 

though in many cases, the courts defer to the Bureau of Indian Affairs at the Department of the Interior. 

In order to provide a uniform and consistent process in which to 

recognize an Indian group, the Department of the Interior developed an administrative process in 1978 through which Indian 

groups could petition for acknowledgment of a government-to-government relationship with the United States. The standards for 

this process are set forth in Title 25 of the Code of Federal Regulations, Part 83, ‘‘Procedures for Establishing That an American Indian Group Exists as an Indian Tribe.’’ 

The regulations establish seven mandatory criteria, each of 

which must be met before a group can achieve status as a federally 

recognized Indian tribe. The criteria are as follows: 

(1) The petitioner has been identified as an American Indian 

entity on a substantially continuous basis since 1900; 

(2) A predominant portion of the petitioning group comprises 

a distinct community and has existed as a community from 

historical times until the present; 

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

(4) The group must provide a copy of its present governing 

documents and membership criteria; 

(5) The petitioner’s membership consists of individuals who 

descend from a historical Indian tribe or tribes, which combined and functioned as a single autonomous political entity; 

(6) The membership of the petitioning group is composed 

principally of persons who are not members of any acknowledged North American Indian tribe; and 

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

congressional legislation that has expressly terminated or forbidden the federal relationship. 

The regulations have remained essentially unchanged since 1978, 

with the exception of revisions clarifying the evidence needed to 

support a recognition petition (1994), updated guidelines on the 

process (1997), a notice regarding BIA’s internal processing of federal acknowledgment petitions (2000), and a notice to provide guidance and direction to make the process more streamlined and efficient (2008).1


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2See Pub. L. 106–568 (2000). 

3http://www.bia.gov/cs/groups/xofa/documents/text/idc013624.pdf 

4S. 546, 112th Cong. § 2(1) (2011) 

5 Id. 

6Legislative Hearing on S. 636, A bill to provide the Quileute Indian Tribe Tsunami and Flood 

Protection, and for other purposes; S. 703, the Helping Expedite and Advance Responsible Tribal 

Homeownership Act of 2011; and S. 546, the Little Shell Tribe of Chippewa Indians Restoration 

Act of 2011 Before the S. Comm. on Indian Affairs, 112th Cong. (2011) (statement of John Sinclair, President, Little Shell Tribe of Chippewa Indians of Montana). 7See S. 546, 112th Cong. § 2 (7) (2011) 

There have been numerous complaints about the process since 

1978, but the primary complaints have been about the high cost of 

gathering documentary evidence to meet the seven criteria and the 

length of time it takes the Department to review a petition. Since 

the Federal Acknowledgment Process (FAP) regulations were 

adopted in 1978, the Department has issued 49 decisions under the 

process. Of that number, 17 petitioners were acknowledged as Indian tribes, and 32 petitioners were denied acknowledgment. 

Due to the problems associated with the FAP, an increasing 

number of tribal groups have asked Congress to recognize or restore their status as federally-recognized Indian tribes. Congress 

retains the authority to recognize tribal groups, as Congress did 

with the Loyal Shawnee Tribe of Oklahoma and the Graton 

Rancheria of California in 2000 as a part of the Omnibus Indian 

Advancement Act.2 Since 1982, Congress has restored or recognized 

9 Indian tribes.3

History of the Little Shell Tribe 

The Little Shell Tribe of Chippewa Indians descends from the 

Pembina Band of Chippewa Indians in North Dakota.4 The 

Pembina Band was recognized by the United States in an 1863 

treaty that was ratified by the Senate (Treaty of October 2, 1863, 

13 Stat. 667).5 Many of the members of the Pembina Band settled 

on reservations in Minnesota, but the ancestors of the Little Shell 

Tribe moved westward, following the Buffalo herds. By the late 

1800s, the Little Shell Tribe had settled in Montana and in the 

Turtle Mountains of North Dakota. In 1892, a United States commission was formed to negotiate cession of land from the Turtle 

Mountain Chippewa and provide for their removal. Chief Little 

Shell and his followers refused to accept the terms of the agreement and walked out on the negotiations. He was followed by a 

group of supporters who would become known as the ‘‘Little Shell 

Band’’. 

The Little Shell Band has had numerous dealings with the 

United States government. Congress began work on recognizing the 

tribe in 1908 and had appropriated money that year and in later 

years to buy a land base for the tribe.6 Unfortunately, a land base 

was never acquired for the Little Shell Band with the appropriated 

funds. In 1935, following the enactment of the Indian Reorganization Act (IRA), the BIA attempted to aid the Little Shell Tribe in 

forming a government and establishing a relationship with the federal government. However, the BIA required that tribes have a secured land base before reorganizing under the IRA. Still lacking a 

land base, the Little Shell Tribe was unable to gain federal recognition under the IRA.7


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8Legislative Hearing on S. 636, A bill to provide the Quileute Indian Tribe Tsunami and Flood 

Protection, and for other purposes; S. 703, the Helping Expedite and Advance Responsible Tribal 

Homeownership Act of 2011; and S. 546, the Little Shell Tribe of Chippewa Indians Restoration 

Act of 2011 before the S. Comm. on Indian Affairs, 112th Cong. (2011) (statement of John Sinclair, President, Little Shell Tribe of Chippewa Indians of Montana). 9 Id. 

10Legislative Hearing on H.R. 1294, S. 514, S. 724, S. 1058 Before the S. Comm. on Indian 

Affairs, 110th Cong. (2008). 

Little Shell Tribe and the federal acknowledgment process 

The Tribe continued its efforts to obtain federal recognition 

through the Department of the Interior’s FAP. In 1978, the year 

FAP was created, the Tribe filed a letter of intent to petition for 

federal acknowledgment. After approximately 14 years of documenting their petition for acknowledgment, the Little Shell Tribe 

submitted their petition in 1992. In 1995, the BIA declared the 

Tribe’s petition was ready for active consideration. In 2000, the 

BIA issued a positive proposed finding on the Tribe’s petition, stating that the Tribe had met all seven mandatory criteria for federal 

acknowledgment. However, the decision was opened for a period of 

public comment and the Department’s Office of Federal Acknowledgement requested additional information from the Tribe. In response to this request, the Little Shell Tribe provided thousands of 

pages of additional material and no letters or comments opposing 

the acknowledgement of the tribe were received. 

After spending over thirty years in the process, the Department 

of the Interior issued a final determination not to acknowledge the 

Little Shell Tribe in 2009,8 reversing its proposed positive determination to a negative finding.9 Despite finding that 89 percent of 

their members descend from the Pembina Band of Chippewa Indians, the final determination stated that the Little Shell now met 

only four of the seven mandatory criteria for federal acknowledgment. The Little Shell Tribe has appealed its negative final determination to the Interior Board of Indian Appeals. 

The State of Montana, local municipal governments, and area 

tribes support the federal recognition of the Little Shell Tribe. 

LEGISLATIVE HISTORY

S. 546, the Little Shell Tribe of Chippewa Indians Restoration 

Act of 2011, was introduced on March 10, 2011, by Senators Tester 

and Baucus of Montana. On February 17, 2012, Senator Inouye of 

Hawaii joined as a co-sponsor. The Senate Committee on Indian Affairs held a legislative hearing on S. 546 on April 14, 2011 where 

the Administration testified that it ‘‘is not opposed to enactment of 

S. 546. We recognize that Congress has the authority to recognize 

American Indian groups as Indian tribes with a government-to-government relationship with the United States.’’ 

Senators Tester and Baucus introduced legislation to recognize 

the Little Shell Tribe in the 110th Congress (S. 724) and the 111th 

Congress (S. 1936). During the 110th Congress, the Senate Committee on Indian Affairs held a hearing on the Little Shell Tribe’s 

legislation. At that time, the Little Shell Tribe’s petition for recognition was on active consideration. The Administration testified 

in support of the FAP for tribes to obtain acknowledgment.10


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SECTION-BY-SECTION ANALYSIS

Section 1. Short title 

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

Shell Tribe of Chippewa Indians Restoration Act of 2011.’’ 

Section 2. Findings 

This section provides the Congressional findings, including that 

the Little Shell Tribe of Chippewa Indians is a political successor 

to signatories of the Pembina Treaty of 1863; that the Tribe had 

petitioned the federal government for reorganization under the Indian Reorganization Act (25 U.S.C. 461 et seq.) throughout the 

1930s and 1940s; and that in 1978 the Tribe submitted to the BIA 

a petition for federal recognition. 

Section 3. Definitions 

This section sets forth definitions of ‘‘member’’ as an individual 

enrolled in the Tribe pursuant to its membership roll; ‘‘Secretary’’ 

as the Secretary of the Interior; and ‘‘Tribe’’ as the Little Shell 

Tribe of Chippewa Indians of Montana. 

Section 4. Federal recognition 

This section formally extends federal recognition to the Tribe, 

making applicable to it all federal laws (including regulations) of 

general application to Indians and Indian tribes. 

Section 5. Federal services and benefits 

This section states that beginning on the date of enactment of 

this Act, the Tribe and each member shall be eligible for all services and benefits provided by the United States to Indians and federally recognized Indian tribes without regard to either the existence of a reservation for the tribe or the location of the residence 

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

establishes the Tribe’s service area as Blaine, Cascade, Glacier, and 

Hill Counties in the State of Montana. 

Section 6. Reaffirmation of rights 

This section makes clear that nothing in this act diminishes any 

right or privilege of the Tribe or any member that existed before 

the date of enactment of this Act. The section further states that 

legal or equitable claims of the tribe to enforce any right or privilege reserved by, or granted to, the Tribe that was wrongfully denied to, or taken from the Tribe before the date of enactment of 

this Act is preserved. 

Section 7. Membership roll 

This section mandates, as a condition of receiving recognition, 

services, and benefits pursuant to this Act, that the Tribe submit, 

within 18 months of the Act’s enactment, a membership roll and 

maintain such a roll, and that Tribal membership be determined 

in accordance with sections 1 through 3 of article 5 of the Tribe’s 

constitution. 


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Section 8. Transfer of land 

This section directs the Secretary of the Interior to acquire trust 

title to 200 acres of land within the service area of the Tribe which 

will be used as a tribal land base. This section also states that the 

Secretary may also acquire additional land for the benefit of the 

Tribe pursuant to the Indian Reorganization Act. 

COMMITTEE RECOMMENDATION AND TABULATION OF VOTE

The Senate Committee on Indian Affairs addressed S. 546 in a 

business meeting on July 28, 2011. The bill was ordered reported 

favorably without amendment to the full Senate (en bloc with S. 

379 and S. 1218) by voice vote. 

COST AND BUDGETARY CONSIDERATIONS

The following cost estimate, as provided by the Congressional 

Budget Office, dated January 17, 2012, was prepared for S. 546: 

S. 546—Little Shell Tribe of Chippewa Indians Restoration Act of 

2011 

Summary: S. 546 would provide federal recognition to the Little 

Shell Tribe of Chippewa Indians of Montana. Federal recognition 

would make the tribe eligible to receive benefits from various federal programs. CBO estimates that implementing this legislation 

would cost $81 million over the 2012–2017 period, assuming appropriation of the necessary funds. Enacting S. 546 would not affect 

direct spending or revenues; therefore, pay-as-you-go procedures do 

not apply. 

S. 546 would impose an intergovernmental mandate as defined 

in the Unfunded Mandates Reform Act (UMRA) by exempting some 

lands from taxation by state and local governments, but CBO expects the cost of that mandate to be small and well below the 

threshold established in that act ($73 million in 2012, adjusted annually for inflation). 

S. 546 contains no private-sector mandates as defined in UMRA. 

Estimated cost to the Federal Government: The estimated budgetary impact of S. 546 is shown in the following table. The costs 

of this legislation fall within budget functions 450 (community and 

regional development) and 550 (health). 

By fiscal year, in millions of dollars— 

2012 2013 2014 2015 2016 2017 2012– 

2017 

CHANGES IN SPENDING SUBJECT TO APPROPRIATION 

Bureau of Indian Affairs: 

Estimated Authorization Level ............................ 3 3 3 3 3 3 18 

Estimated Outlays .............................................. 2 3 3 3 3 3 17 

Indian Health Service: 

Estimated Authorization Level ............................ 11 11 11 12 12 13 70 

Estimated Outlays .............................................. 5 11 11 12 12 13 64 

Total Changes: 

Estimated Authorization Level ................... 14 14 14 15 15 16 88 

Estimated Outlays ..................................... 7 14 14 15 15 16 81 

Basis of estimate: For this estimate, CBO assumes that S. 546 

will be enacted in fiscal year 2012 and that the amounts necessary 

to implement the bill will be appropriated for each year. 


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The bill would provide federal recognition to the Little Shell 

Tribe of Chippewa Indians of Montana. Such recognition would 

allow members of the tribe, totaling about 4,300 people, to receive 

benefits from various programs administered by the Bureau of Indian Affairs (BIA) and the Indian Health Service (IHS). Based on 

the average per capita expenditures by those agencies for other Indian tribes, CBO estimates that implementing S. 546 would cost 

$81 million over the 2012–2017 period, assuming appropriation of 

the necessary funds. 

Bureau of Indian Affairs 

BIA provides funding to federally recognized tribes for various 

purposes, including child welfare services, adult care, community 

development, and general assistance. In total, CBO estimates that 

providing BIA services would cost $17 million over the 2012–2017 

period, assuming appropriation of the necessary funds. This estimate is based on per capita expenditures for other federally recognized tribes located in the central United States. 

Indian Health Service 

S. 546 also would make members of the tribes eligible to receive 

health benefits from the IHS. Based on information from the IHS, 

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

2,400 people—would receive benefits each year. CBO assumes that 

the cost to serve those individuals would be similar to funding for 

current IHS beneficiaries—about $3,500 per individual in 2011. Assuming appropriation of the necessary funds and adjusting for anticipated inflation, CBO estimates that IHS benefits for the tribes 

would cost $64 million over the 2012–2017 period. 

Other Federal Agencies 

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

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

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

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

from those departments. Thus, CBO estimates that implementing 

S. 546 would not add to the costs of those programs. 

Pay-As-You-Go Considerations: None. 

Estimated impact on state, local, and tribal governments: S. 546 

contains an intergovernmental mandate as defined in UMRA. The 

bill would authorize the Secretary of the Interior to acquire and 

take into trust 200 acres of land for the tribe. Because that land 

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

impose an intergovernmental mandate. Given the small amount of 

land to be taken into trust, CBO estimates that the forgone tax 

revenue to state and local governments would be small and well 

below the threshold established for intergovernmental mandates 

($73 million in 2012, adjusted annually for inflation). 

Estimated impact on the private sector: S. 546 contains no private-sector mandates as defined in UMRA. 

Estimate prepared by: Federal Costs: Martin von Gnechten—Bureau of Indian Affairs; Robert Stewart—Indian Health Service. Impact on State, Local, and Tribal Governments: Melissa Merrell; Impact on the private sector: Marin Randall. 


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Estimate approved by: Theresa Gullo, Deputy Assistant Director 

for Budget Analysis. 

REGULATORY AND PAPERWORK IMPACT STATEMENT

Paragraph 11(b) of rule XXVI of the Standing Rules of the Senate requires that each report accompanying a bill to evaluate the 

regulatory and paperwork impact that would be incurred in carrying out the bill. The Committee has concluded that the regulatory and paperwork impacts of S. 546 should be de minimis. 

EXECUTIVE COMMUNICATIONS

The Committee has received no communications from the Executive Branch regarding S. 546. 

CHANGES IN EXISTING LAW

If enacted, this bill would make no changes to existing law. 


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1Testimony of R. Lee Fleming, Director, Office of Federal Acknowledgment, U.S. Department 

of the Interior, before the Committee on Indian Affairs, September 25, 2008. 2 Id. 

ADDITIONAL VIEWS OF VICE CHAIRMAN BARRASSO 

I understand how important Federal recognition is for tribal 

groups and how difficult and challenging the administrative recognition process is for them. Nevertheless, it is my view that legislative recognition—legislation that deems a group or tribe to be 

federally recognized—is not the right way to decide which groups 

should be recognized and which groups should not be recognized. 

That is a function that can be best performed by the Executive 

Branch of the Government following the regulations that have been 

adopted for that purpose. Federal recognition of a group as an Indian tribe may have profound consequences for the group, its members, other Indian tribes, the general public, and the Federal Government. 

Just in terms of impact on the Federal Treasury alone, the Congressional Budget Office estimates that implementing S. 546 will 

cost $81 million dollars over a 5-year period, assuming appropriation of the necessary funds. Since most of that cost would be in the 

form of programs and services available through the BIA and IHS 

for which the Tribe and its members will become eligible, even if 

that additional money is never appropriated, recognition of the 

tribe will in and of itself place significant additional stress on the 

limited resources of both of these agencies, since they will not turn 

tribal members away from programs and services for which they 

are eligible. So tribal recognition is indeed a weighty decision, with 

real consequences. 

Testifying about an earlier version of this bill and three other 

recognition bills at a hearing before this Committee during the 

110th Congress, the Director of the Office of Federal Acknowledgement at the Department of the Interior stated— 

Legislation such as S. 514, S. 724, S. 1058, and H.R. 1294 

would allow these groups to bypass this [the Federal acknowledgement] process—allowing them to avoid the scrutiny to 

which other groups have been subjected. The Administration 

supports all groups going through the Federal acknowledgment 

process under 25 CFR Part 83.1

The Department’s witness went on to point out that, in light of 

the importance and implications of recognition decisions, the Department adopted its Federal acknowledgment regulations at 25 

CFR Part 83 in 1978 in recognition of ‘‘the need to end ad hoc decision-making and adopt uniform regulations for Federal acknowledgment.’’ 2

This bill represents a step away from a process that applies uniform, established acknowledgment criteria to the history of the 

group and in the direction of ‘‘ad hoc’’ recognition decisions. That 


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seems especially true in this case, where the Department has 

issued a decision in the administrative process denying the tribe’s 

petition for recognition, a decision when I believe is still pending 

on appeal within the Department. I do not think that Congress is 

in a good position to undertake the detailed historical, cultural, political and ethnographic analysis that should go into a recognition 

decision—much less second guess the Department’s analysis and 

conclusions. 

If a particular group has some unique historical or other barriers 

so that it cannot fairly access the administrative process, then perhaps it would be appropriate for Congress to consider whether 

those barriers should be removed or modified so that the group can 

have fair access to that process. However, I do not feel it is appropriate for Congress to simply deem a group to be a recognized Indian tribe. 

JOHN BARRASSO. 

Æ 


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