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[Senate Report 112-198]
[From the U.S. Government Publishing Office]

                                                       Calendar No. 488
112th Congress                                                   Report
                                 SENATE
 2d Session                                                     112-198

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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 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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    \1\73 Fed. Reg. 30146-48 (May 23, 2008).
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    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\
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    \2\See Pub. L. 106-568 (2000).
    \3\http://www.bia.gov/cs/groups/xofa/documents/text/idc013624.pdf
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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''.
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    \4\S. 546, 112th Cong. Sec. 2(1) (2011)
    \5\Id.
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    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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    \6\Legislative 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).
    \7\See S. 546, 112th Cong. Sec.  2 (7) (2011)
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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.
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    \8\Legislative 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.
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    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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    \10\Legislative Hearing on H.R. 1294, S. 514, S. 724, S. 1058 
Before the S. Comm. on Indian Affairs, 110th Cong. (2008).
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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.

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).

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                                                             By fiscal year, in millions of dollars--
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                                                   2012     2013     2014     2015     2016     2017   2012-2017
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                                  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
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    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.
    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.
    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.

               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\
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    \1\Testimony of R. Lee Fleming, Director, Office of Federal 
Acknowledgment, U.S. Department of the Interior, before the Committee 
on Indian Affairs, September 25, 2008.
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    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\
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    \2\Id.
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    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 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.

                                  
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