FEDERAL RECOGNITION OF INDIAN TRIBES 

HEARING 

BEFORE THE 

SrBCO:\L\liTTrJE 0~ ~ATIVE A:\IEHH'.A~ .AFFAIHS 

OF THE 

CO lVIlVIITrrEE 0 I\ 

NArrUHA.L HESOUHGES 

HOUSE 0:£1-, REPRESEN'r A'riVES 

ONE HUNDRED THIRD CONGRESS 

SECOND SESSION 

ON 

H.R. 2549 

A BILL TO ESTABLISH ADMINISTRATION PROC.t~DURES TO EXTEND 

FEDERAL RECOGNITION TO CERTAIN INDI&"' GROUPS 

H.R. 4462 

A BILL TO PROVIDE FOR ADMINISTRATIVE PROCEDURES TO EXTEND 

FEDERAL RECOGNITION TO CERTAIN INDIAN GROUPS, AND FOR 

OTHER PURPOSES 

H.R. 4709 

A BILL TO MAKE CERTAIN TECHNICAL CORRECTIONS, &"'D FOR OTHER 

PURPOSES 

8&-966 

JULY 22, 1994- WASEINGTON, DC 

Serial No. 103-104 

Printed for the use of the Committee on Natural Resources 

U.S. GOVER."'MENT PRINTING OFFICE 

WASHINGTON : 1995 

For sale hy the U.S. Gowrnmcnt Printing Office 

Superintendent of Documents. Congressional Sales Office. Washington, DC 20402 

ISBN 0-16-046717-9 
COMMITIEE 0:--1 NATURAL RESOURCES 

GEORGE MILLER, California, Chairman 

PHILIP R, SHAkP, Indiana DON YOCNG, Alaska, 

EDWARD J. MARKEY, Ma>sachusetts Rankwg Republican Member 

AUSTIN J. MURPHY, Pennsylvania JAMES V. HANSEN. Utah 

NICK JOE H.Al!ALL ll, West Virginia BARBARA F. VUCA."'OV!Cll. Nevada 

BRUCE F. VENTO. Minnesota ELTON GALLEGLY. California 

PAT WILLIA..r.JS, Montana ROBERT F. SMITH, Oregon 

RON DE LUGO, Virgin Islands CRAIG THOMAS, Wyoming 

SAM GEJDENSON, Connecticut JOHN ,J DUNCAN, JR., Tennessee 

RICHARD H. LEHMA..l\1, California JOEL HEFLEY, Colorado 

BILL RICHARDSON, :-lew Mexico .JOHN T. DOOLITTLE, California 

PEn;R A DEFAZIO, Oregon WAYNE ALLARD, Colorado 

ENI F.H. FALEOMAVAF~GA, American RJCH.A.RD H BAKER. Louisiana 

Samoa KEN CALVERT, California 

TIM JOHNSON, South Dakota SCOTT MciNNIS. Colorado 

LARRY LAROCCO, Idaho HIC!V\.RD W. POMBO, Cahforma 

NEIL ABERCROMBIE, Hawaii .JAY DICKEY, Arkansas 

CALVIN M. DOOLEY, California 

CARLOS ROMERO·BARCELO, Puerto Rico 

KARAN ENGLISH, Arizona 

KAREN SHEPHERD, Utah 

NATHAN DEAL, Georg;a 

.MAURICE D. Hl:'>ICHEY, New York 

ROBERT A. UNDERWOOD, Guam 

HOWARD L. BERMAN, Califorma 

LANE EVANS, Illinois 

PATSY T. MINK, Hawaii 

THOMAS J. BARLOW lll, Kentucky 

THOMAS M. BARRr;TT, Wisconsin 

.]OHS LAWRr.:-.:cr:, Staff Dmector 

RICHARD MELTZER, General Counsel 

DA:-.:IEL VAL KI~l!, Republican Staff Director 

SUBCOMMITTEE m-; NATIVE AMERrCAN AFFAIRS 

BILL RICHARDSON, New Mex1co, Chairman 

PAT WILLIAMS, Montana CRAIG THOMAS, Wyoming, 

SAM GEJDENSON, Connecticut Ranking R,•puhlican Member 

EN! F.H. FALEOMAVAEGA. American DON YOUNG, Alaska 

Samoa RICHARD H. BAKER, Lout~ian<.~ 

TIM ,fOHNSON, South Dakota KEN CALVERT, Californm 

NEIL ABERCROMBIE, Hawaii 

Kli.R4.N ENGLISH. A!'JZona 

TADD Joll~So~, StafT Director 

MARIE HOWARD, Professional Staff Member 

BARBARA RoBLES, Clerk 

RICI!AR!l HOCG!lTO:-.:, Republican Counsel on i\'atiue American Affairs 

1 IIi 
Hearing held: July 22, 1994 

Text of the bills: 

CONTENTS 

H.R. 2549 .......................................................................................................... . H.R. 4462 .......................................................................................................... . H.R. 4709 .......................................................................................................... . Section-by-section analyses: 

H.R. 2549 ......................................................................................................... .. H.R. 4462 .......................................................................................................... . H.R. 4709 ................................................................................................... ...... .. Background information: H.R. 2549 and H.R. 4462 ........................................... .. Member statements: 

Ron. Craig Thomas ......................................................................................... . Prepared statement of Mr. Thomas ........................................................ . Witness statements: 

Hon. John McCain, a U.S. Senator from the State of Arizona .................... . Prepared statement of Mr. McCain ....................................................... .. Hon. Michael J. Kopetski, a Representative in Congress from the State 

of Oregon ...................................................................................................... . Prepared statement of Mr. Kopetski ...................................................... . Panel consisting of: 

Hon. Less AuCoin, chair, Government Relations, Bogle & Gates ......... Mark Mercier, chairman, confederated tribe of the Grande Ronde 

Tribal Council ....................................................................................... . Prepared statement of Mr. Mercier ........................................... ., ... .. Michael D. Mason, Esq., Grand Ronde, OR ........................................... . Patrick A. Hayes, Acting Deputy Commissioner (\f Indian Affairs, Bureau 

of Indian Affairs, U.S. Department of the Interior, accompanied by 

Holly Reckord, Chief, Branch of Acknowledgment and Research, and 

~!~!:~c: ~~~~t~r~~d~~~~l~f~.~: .. ~~~~~ --~-~-~~-~.~~~~-e~-~.~~.~--~~~ Prepared statement of Mr. Hayes ........................................................... . Summary status of acknowledgment cases as of May 16, 1994 .......... .. Panel consisting of: 

Hon. Ed Tullis, chairman, Poarch Creek Indians of Alabama and 

president of United South and Eastern Tribes .................................. . 

Ho/r~~~d J~n~r:'encb~t~;-~zu ~I~i'P····Trib·~~ .. ··~r····v;;~~hi;;gt;;~: Marysville, WA, accompanied by Douglas L. Bell, Esq ..................... . Prepared statement of Mr. Jones ..................................................... . Philip Alexis, executive director, Confederated Historic Tribes, Inc., 

Lansing, MI, accompanied by Karl Funke, Karl Funke & Associates ........................................................................................................ .. Panel consisting of: 

Bud Shapard, retired, Bureau of Indian Affairs, former chief of the 

Branch of Acknowledgment ................................................................. . Prepared statement of Mr. Shapard ............................................... .. Christine Grabowski, Ph.D ................................... ................................... . Prepared statement of Ms. Grabowski ........................................... .. Karen Cantrell, Ph.D., J.D ..................................................................... .. Prepared statement of Ms. Cantrell ............................................... .. Jack Campisi, Ph.D., on behalf of the United Houma Nation of Louisiana, the Mashpee Wampanoag Tribe of Massachusetts, the S~in_n~ock Nation of New York, and the Pamunkey Tribe of 

VIrgtma .................................................................................................. . Prepared statement of Mr. Campisi ............................................... .. 

(III) 

Page 

2 

30 

61 

25 

57 

76 

29 

78 

80 

85 

86 

89 

91 

94 

94 

96 

105 

106 

109 

117 

126 

129 

134 

137 

151 

163 

165 

169 

171 

174 

177 

180 

182 
Witness statements~~ontinued 

Panel con"isting of--Continued 

IV 

Jack Campisi, Ph.D .. on behalf of the Cnited Houma Nation of Louisiana, the Mashpee Wampanoag Tribe of Massachusetts, the 

Shinnecock Nation of New York, and the Pamunkey Tribe of 

Virginia--Continued 

Prepared statement of Native American Rights Fund ................ . James Rasmussen, tribal councilman, Duwamish Indian Tribe on behalf of the Chinook, Cowlitz, Duwamish, Snohomish, Steilacoom, 

and Samish Indian Tribes, State of Washington .................... .. Prepared statement of Mr. Rasmussen and attachments .... .......... . 

APPENDIX 

July 22, 1994 

Additional matt~rial submitted for the hearing record from: 

Hon. Pat Williams, a Representative in the Congress from the State 

of Montana: 

Page 

185 

189 

191 

Prepared statement ...... ..... ..... ................................................... 219 

Hon. Eni F.H. Faleornavaega, a Delegate in the Congress from American 

Samoa: 

Prepared statement ... .. ... . ................. ................................ 225 

Sarnish Indian Tribe: Letter from Margaret Green dated August 3, 1994, 

regarding H.R. 4462 and H.R. 2549 .................. .... ............................ ... ...... 231 

Snohomish Tribe of Indians: Letter from William E. Matheson, tribal 

chainnan, and Alfred B. Cooper, project director, dated July 20, 1994, 

regarding H.R. 2549 and H.R. 4462 ............................................................ 239 

Pueblo of San Juan de Guadalupe, NM: Letter from Andrew J. Roybal, 

project director, dated June 8, 1994, regarding the Federal recognition 

process ..... ...... .. ..... ... . ...... ... ... ... ... ...... ...... .... .. .. .. . ....... ............... ... .. .. ...... 241 
FEDERAL RECOGNITION OF INDIAN TRIBES 

FRIDAY, JULY 22, 1994 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON NATIVE AMERICAN AFFAIRS, 

COMMITTEE ON NATURAL RESOURCES, 

Washington, DC. 

The subcommittee met, pursuant to call, at 9:45 a.m. in room 

1324, Longworth House Office Building, Hon. Bill Richardson 

(chairman of the subcommittee) presiding. 

Mr. RICHARDSON. Today we will be taking testimony on H.R. 

2549 and H.R. 4462, which are bills to establish administrative 

procedures to recognize Indian tribes. In this hearing, we will seek 

to find out whether the current system of recognizing Indian tribes 

in the BIA is sufficient, whether we need a new statute which 

keeps the acknowledgment process in the BIA, or whether we need 

a new separate commission to recognize tribes. We will also take 

testimony on H.R. 4709, a bill that makes technical corrections in 

restoring Indian laws. 

I ask all witnesses to summarize their statements. Your full written statement will be made part of the record which will be open 

for 2 weeks. I would ask unanimous consent that the bills, backgrounds, and section-by-section analyses be made a part of the 

record. 

[The information follows:] 

(1) 
103D CONGRESS 

1ST SESSION 

2 

H.R. 2549 

To establish administrative procedures to extend Federal recognition to 

certain Indian groups. 

IN THE HOUSE OF REPRESENTATIVES 

JUJ>."E 29, 1993 

Mr. FALEmL\VAEGA (for himself and Mr. ABERCROMBIE) introduced the 

following bill; which was referred to the Committee on Natural Resources 

A BILL 

To establish administrative procedures to extend Federal 

recognition to certain Indian groups. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. DEFlNITIONS. 

4 For purposes of this Act: 

5 (1) The term "Assistant Secretary" means the 

6 Assistant Secretary of the Interior for Indian M7 fairs. 

8 (2) The term "autonomous" means having its 

9 own tribal council, internal process, or other organi10 zational mechanism which the Indian group has used 
3 

2 

1 as its own means of making decisions independent of 

2 the control of any other Indian governing entity. Au3 tonomous must be understood in the context of the 

4 culture and social organization of that Indian group. 

5 (3) The term "Bureau" means the Bureau of 

6 Indian Affairs of the Department of the Interior. 

7 (4) The term "community" means any people 

8 living within such a reasonable proximity as to allow 

9 group interaction and a maintenance of tribal rela10 tions. 

11 (5) The term "continuously" means extending 

12 from generation to generation throughout the Indian 

13 group's history essentially \\ithout interruption. 

14 (6) The term "Department" means the Depart15 ment of the Interior. 

16 (7) The term "historical" means dating back to 

17 the earliest documented contact betweenIS (A) the aboriginal Indian group from 

19 which the petitioners descended; and 

20 (B) citizens or officials of the United 

21 States, colonial or territorial governments, or if 

22 relevant, citizens and officials of foreign govern23 ments from which the United States acquired 

24 territory. 

BB liMB m 
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3 

1 (8) The term "Indian group" means any Indian 

2 entity that3 (A) is located \vithin any of the States of 

4 the United States; and 

5 (B) is not recognized by the Secretary of 

6 the Interior to be an Indian tribe. 

7 (9) The term "Indian tribe" means any Indian 

8 entity that9 (A) is located ·within any of the States of 

10 the United States; and 

11 (B) is recognized by the Secretary of the 

12 Interior to be an Indian tribe. 

13 (10) The term "Indian tribe acknowledgment 

14 regulations" means part 83 of title 25, Code of Fed15 era! Regulations and former part 54 of title 25, 

16 Code of Federal Regulations. 

17 ( 11) The term "indigenous" means native to 

18 the area that constitutes the continental United 

19 States in that at least part of the group's aboriginal 

20 range extended into what is now the area that con21 stitutes the continental United States. 

22 (12) The term "member of an Indian group" 

23 means an individual who is recognized by an Indian 

24 group as meeting its membership criteria and who 

25 consents to being listed as a member of that group. 

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( 13) The term "member of an Indian tribe" 

2 means an individual who--

3 (A) meets the membership requirements of 

4 the Indian tribe, as set forth in its governing 

5 document or recognized collectively by those 

6 persons comprising the governing body of the 

7 Indian tribe; and 

8 (B) has continuously maintained tribal re9 lations with the Indian tribe or is listed on the 

10 tribal rolls of that Indian tribe as a member, if 

11 such rolls are maintained. 

12 (14) The term "other party" means any af13 fected person or organization other than the peti14 tioner who submits comments or evidence in support 

1 5 of, or in opposition to, a petition. 

16 (15) The term "a petition" means a petition 

17 submitted to the Secretary under section 3. 

18 (16) The term "petitioner" means any entity 

19 which has submitted, or submits, a petition to the 

20 Secretary requesting recognition that the entity is an 

21 Indian tribe. 

22 (17) The term "Secretary" means the Secretary 

23 of the Interior. 

HR 2M9 IH 
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1 SEC. 2. APPROVAL AND RATIFICATION OF PRIOR DECI2 SIONS. 

3 All final decisions made prior to the date of enaet4 ment of this Act under Indian tribe acknowledgment regu5 lations are hereby approved and ratified. Such approval 

6 and ratification shall not prejudice the rights of any peti7 tioner or other party in any judicial re·vicw of such final 

8 decision. 

9 SEC. 3. PETITIONS FOR RECOGNITION. 

10 (a) IN GENERAL.-Any Indian group that is indige11 nous and ethnically and culturally identitlable (including 

12 any Indian group whose relationship "·ith the Federal 

13 Government was terminated by statute) may submit to the 

14 Secretary, during the G-year period beginning on the date 

15 of enactment of this Act, a petition requesting that the 

16 Secretary recognize that the Indian group is an Indian 

17 tribe. The Secretary shall not reco!-,rnize as an Indian tribe 

18 any Indian group that does not submit such a petition 

19 during such time period. 

20 (b) .A.PPI,ICABILITY.-The pmvisions of this Act shall 

21 not apply to22 ( 1) any Indian tribe, organized band, pueblo or 

23 community which is already recognized by the Sec24 retary to be an Indian tribe and is receiving services 

25 from the Bureau; 

HR 2549 m 
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1 (2) any association, organization, corporation, 

2 or group of any character formed in recent times, 

3 except a group meeting the requirements of sub4 section (c) which has recently incorporated or other5 wise formalized its existing autonomous process; 

6 (3) any splinter group, political faction, commu7 nity, or group of any character which separates from 

8 the main body of an Indian tribe that, at the time 

9 of such separation, is recognized as being an Indian 

10 tribe by the Secretary, unless it can be clearly estab11 lished that the group, faction, or community has 

12 functioned throughout history until the present as 

13 an autonomous Indian tribal entity; 

14 ( 4) any Indian group that, in any action in a 

15 United States court to which the United States or 

16 any recognized Indian tribe was a party, has pre17 viously attempted to establish its status as an Indian 

18 tribe or as the successor-in-interest to an Indian 

19 tribe that was a party to a treaty with the United 

20 States; and21 (A) was determined by such court not to 

22 be an Indian tribe; 

23 (B) was determined by such court not to 

24 be a successor-in-interest to an Indian tribe 

HR 2649 m 
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1 that was a party to a treaty with the United 

2 States; 

3 (C) was the subject of a determination by 

4 such court that the group has not maintained 

5 an organized tribal structure in a political 

6 sense; or 

7 (D) was the subject of findings of fact by 

8 such court which, if made in the administrative 

9 recognition process, would prevent the group 

10 from satisfying one or more of the criteria for 

11 recognition in this Act; and 

12 (5) any Indian group that, prior to the date of 

13 enactment of this Act, petitioned for. and was denied 

14 or refused recognition or acknowledgment as an In15 dian tribe in a final determination made under In16 dian tribe acknowledgment regulations. 

17 (c) REQUIREMENTS OF PETITION.-Any petition sub18 mitted under subsection (a) by an Indian group shall be 

19 in a readable form which clearly indicates that it is a peti20 tion requesting the Secretary to recognize that the Indian 

21 group is an Indian tribe and shall contain each of the fol22 lowing: 

23 (1) A statement of facts establishing that the 

24 petitioner has been identified from historical times 

25 until the present, on a substantially continuous 

HR 2549 IH 
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1 basis, as Indian or aboriginal. A petitioner shall not 

2 fail to satisfy any requirement of this subsection 

3 merely because of fluctuations of tribal activity dur4 ing various years. Evidence to be relied upon in de5 termining the substantially continuous Indian iden6 tity of the petitioner shall include one or more of the 

7 following: 

8 (A) Repeated identification of the peti9 tioner by Federal authorities. 

10 {B) Longstanding relationships of the peti11 tioner with State governments based on identi12 fication of the petitioner as an Indian group. 

13 {C) Repeated dealings of the petitioner 

14 with a county, parish, or other local government 

15 in a relationship based on the Indian identity of 

16 the petitioner. 

17 (D) Identification of the petitioner as an 

18 Indian group by records in courthouses, church19 es, or schools. 

20 (E) Identification of the petitioner as an 

21 Indian group by anthropologists, historians, or 

22 other scholars. 

23 {F) Repeated identification of the peti24 tioner as an Indian group in newspapers and 

25 bOoks. 

BR IMII m 
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1 (G) Repeated ider,tiflcation of the peti2 tioner as an Indian group by, and dealings of 

3 the pe'itioner as an Indian group with, Indian 

4 tribes or recognized national Indian organiza5 tions. 

6 (2) Evidence that7 (A) a substantial portion of the memberS ship of the petitioner lives in a community 

9 viewed as Indian and distinct from other populO lations in the area; 

11 (B) all members of the petitioner are de12 scendants of an Indian group which historically 

13 inhabited a specific area and of which the peti14 tioner claims to be the successor-in-interest; 

15 and 

16 (C) the membership of the petitioner is 

17 composed principally of persons who are not 

18 members of any other Indian tribe. 

19 (3) A statement of facts which establishes that 

20 the petitioner has maintained tribal political influ21 ence or other authority over its members as an au22 tonomous entity throughout its history until the 

23 present. 

24 ( 4) A statement of facts establishing the spe25 ciflc territory over which the petitioner, throughout 

HR 2549 IH--2 
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1 its history until the present, has maintained tribal 

2 political influence. 

3 ( 5) A copy of the present governing document 

4 of the petitioner or, in the absence of a written docS ument, a statement describing in full the member6 ship criteria of the petitioner and the procedures 

7 through which the petitioner currently governs its 

8 affairs and members. 

9 (6) A list of all known current members of the 

10 petitioner and a copy of each available former list of 

11 members based on the petitioner's own defined cri12 teria. The membership must consist of individuals 

13 who have established, using evidence acceptable to 

14 the Secretary, descendancy from an Indian group 

15 which existed historically or from historical Indian 

16 groups which combined and functioned as a single 

17 autonomous entity. Evidence acceptable to the Sec18 retary of tribal membership for this purpose includes 

19 (but is not limited to)-

20 (A) descendancy rolls prepared by the Sec21 retary for the petitioner for purposes of distrib22 uting claims money, providing allotments, or 

23 other purposes; 

24 (B) State, Federal, or other official records 

25 or evidence identifying present members of the 

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petitioner, or ancestors of present members of 

the petitioner, as being an Indian descendant 

and a member of the petitioner; 

(C) church, school, and other similar enrollment records indicating membership in the 

petitioner; 

(D) affidavits of recognition by tribal elders, leaders, or the tribal governing body as 

being an Indian descendant of the Indian group 

and a' member of the petitioner; and 

11 (E) other records or evidence identifying 

12 the person as a member of the petitioner. 

l3 SEC. 4. NOTICE OF RECEIPT OF PETITION. 

14 (a) NOTICE AND PUBLICATION.-Within 30 days 

15 after a petition is submitted to the Secretary under section 

16 3(a), the Assistant Secretary shall17 (1) send an acknowledgment of receipt in writ18 ing to the petitioner; and 

19 (2) have published in the Federal Register a no20 tice of such receipt including21 (A) the name, location, and mailing ad22 dress of the petitioner and other information 

23 that identifies the petitioner; 

24 (B) the date the petition was received by 

25 the Secretary; and 
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1 (C) the location where a copy of the peti2 tion may be examined. 

3 (b) NOTICE TO STATE.-The Assistant Secretary 

4 shall notifY, in writing, the Governor and attorney general 

5 of any State in which a petitioner resides. 

6 (c) NOTICE TO TRIBES.-The Assistant Secretary 

7 shall notifY, in \vriting, all federally recognized tribes lo8 cated within the State in which a petitioner resides. 

9 (d) PUBLICATION IN NEWSPAPER.-The Assistant 

10 Secretary shall publish notice of receipt of the petition in 

11 a major newspaper of general circulation in the town or 

12 city nearest the location of the petitioner. 

13 (e) OPPORTUNITY FOR COMMENT.-(1) The noti<'.e 

14 described in subsection (d) shall include, in addition to the 

15 information described in subsection (a), notice of oppor16 tunity for other parties to submit evidence and factual or 

17 legal arguments in support of, or in opposition to, the peti18 tion. 

19 (2) Any submissions received by the Assistant Sec20 retary under paragraph (1) shall be made available to the 

21 petitioner and the petitioner shall be provided an oppor22 tunity to respond prior to a determination on the petition 

23 by the Assistant Secretary. 

HR~N&m 
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1 SEC. 15. PROCESSING. 

2 (a) APPLICABILITY OF ACT.-(1) Upon receipt of a 

3 petition, the Assistant Secretary shall conduct a review to 

4 determine whether, under the criteria set forth in section 

5 3(b), the provisions of this Act are applicable to the peti6 tioner. 

7 (2) If the Assistant Secretary determines that the 

8 provisions of this Act are not applicable to the petitioner, 

9 the Assistant Secretary shall, not later than 30 days after 

10 the receipt of a petitionIt (A) publish a summary of such determination 

12 in the Federal Register; 

13 (B) deliver a copy of such determination and 

14 summary to the petitioner; and (c) (see next page) 

15 (b) REVIEW.-(1) If the Assistant Secretary deter16 mines under subsection (a) that the provisions of this Act 

17 are applicable to the petitioner, the .Assistant Secretary 

18 shall conduct a review to determine whether the petitioner 

19 is entitled to be recognized as an Indian tribe. 

20 (2) The review conducted under paragraph (1) shall 

21 include consideration of the petition, supporting evidence, 

22 and the factual statements contained in the petition. 

23 (3) The Assistant Secretary may also initiate other 

24 research for any purpose relative to analyzing the petition 

25 and obtaining additional information about the petitionHR JMII m 
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1 er' s status and may consider any evidence which may be 

2 submitted by other parties. 

3 (c) NOTIFICATION OF OBVIOUS DEFICIENCIES OR 

4 OMISSIONS.-Prior to actual consideration of the petition 

5 and by no later than the date that is three months after 

6 the date on which the petition is submitted to the See7 retary, the Assistant Secretary shall notify the petitioner 

8 of any obvious deficiencies, or significant omissions, that 

9 are apparent upon an initial review of the petition and 

10 provide the petitioner "\\ith an opportunity to withdraw the 

11 petition for further work or to submit additional informa12 tion or clarification. 

13 (d) PRIORITY OF PROCESSING.-(1) Except as other14 wise provided in this subsection, petitions shall be consid15 ered on a first come, first served basis, determined by the 

16 date of the original filing of the petition with the Sec17 retary. The Assistant Secretary shall establish a priority 

18 register including those petitions pending before the De19 partment. 

20 (2) Petitions that are submitted to the Secretary by 

21 Indian groups whose relationship with the Federal Gov22 ernment was terminated by a statute--

23 (A) shall receive priority consideration over pe24 titions submitted by any other Indian groups; and 

25 (B) shall be considered on an expedited basis. 

HB 25491H 
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(C) send to petitioner 

(i) the date on which the petition was received; and 

(ii) the name, office address, and office 

telephone number of the primary Bureau staff 

member reviewing the petition, the backup to 

this staff member, and the supervisor of this 

8 staff member. 

9 SEC. 6. PROPOSED FINDINGS AND DETERMINATION. 

10 (a) PROPOSED FINDINGS.-(!) Not later than 1 year 

11 after the petition is filed the Assistant Secretary shall 

12 issue proposed findings on the petition and shall publish 

13 such proposed findings in the Federal Register. 

14 (2) The Assistant Secretary may delay making pro15 posed findings on a petition for 90 days upon a showing 

16 of due cause to the petitioner. 

17 (3) In addition to the proposed findings, the Assist18 ant Secretary shall prepare a report on each petition which 

19 summarizes the evidence supporting the proposed find20 ings. Copies of such report and supporting evidence shall 

21 be available to the petitioner and to other parties upon 

22 written request. 

23 (4) Upon publication of the proposed findings under 

24 paragraph (1), any individual or organization wishing to 

25 challenge the proposed findings shall have a response peHR JIWI m 
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1 riod of 120 days to present factual or legal arguments and 

2 evidence to rebut the evidence upon which the proposed 

3 findings are based. Upon a showing of good cause, the 

4 Assistant Secretary may extend such response period for 

5 not more than 30 additional days. 

6 (b) DETERMINATION.-(1) After consideration of any 

7 written arguments and evidence submitted to rebut the 

8 proposed findings made under subsection (a)(1), the As9 sistant Secretary shall make a determination, on behalf 

10 of the Secretary, of whether the petitioner is recognized 

11 by the Secretary to be an Indian tribe. 

12 (2) The determination required under paragraph (1) 

13 shall be made, a summary of the determination published 

14 in the Federal Register, and a copy of the determination 

15 and summary delivered to the petitioner and other in16 volved parties, by no later than the date that is 60 days 

17 after the close of the response period described in sub18 section (a)( 4). 

19 (3} A determination made under paragraph (1) shall 

20 become final on the date that is 60 days after the date 

21 on which the summary of the determination is published 

22 under paragraph (2) unless the determination is appealed 

23 under section 8. 

24 (c) RECOGNITION AS INDIAN TRIBE.-(1) In making 

25 the proposed findings and determination under this secHR 1548 m 
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1 tion with respect to any petition, the Assistant Secretary 

2 shall decide to recognize the petitioner on behalf of the 

3 Secretary as an Indian tribe only if the petition meets all 

4 the requirements of section 3. 

5 (2) A determination made under this Act to recognize 

6 an Indian group as an Indian tribe shall not7 (A) have the effect of depriving or diminishing 

8 the right of any other Indian tribe to govern and 

9 enjoy the benefits of its treaty reserved resources or 

10 its reservation and reservation resources as such re11 sources or reservation existed prior to such deter12 ruination; or 

13 (B) have the effect of depriving or diminishing 

14 any property right held in trust or recognized by the 

15 United States for such other Indian tribe prior to 

16 such determination. 

17 (d) DETERMINATION OF NONRECOGNITION.-If the 

18 Assistant Secretary determines under subsection (b)(1) 

19 that the petitioner should not be recognized to be an In20 dian tribe, the Assistant Secretary shall analyze and for21 ward to the petitioner other options, if any, under which 

22 application for services and other benefits of the Bureau 

23 may be made. 

HR 25411 m 
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1 SEC. 7. TIME LIMIT FOR DEPARTMENTAL ACTION. 

2 If the Assistant Secretary has not published a sum3 mary of a determination made under section 6(b) with re4 spect to a petition before the date that is 90 days after 

5 the date on which the petition was submitted to the Sec6 retary, the petitioner shall be entitled to mandamus relief 

7 requiring the Assistant Secretary to complete the review 

8 and determination required by this Act with due diligence. 

9 SEC. 8. APPEALS. 

10 (a) RECONSIDERATION AND FINAL DETER.MINA11 TION.-(1) The determination made by the Assistant Sec12 retary under section 5(a) and section 6(b) shall be final 

13 for the Department unless the Secretary requests the As14 sistant Secretary to reconsider such determination within 

15 60 days of publication of the decision. 

16 (2) If the Secretary recommends reconsideration, the 

17 Assistant Secretary shall promptly notify the petitioner 

18 and all other involved parties of such reconsideration and 

19 the reasons for such reconsideration. 

20 (3) In reconsidering a determination, the Assistant 

21 Secretary shall consult with the Secretary, review the ini22 tial determination, and, not later than 30 days after the 

23 request for reconsideration, make a final determination, 

24 a summary of which shall be published in the Federal Reg25 ister and a copy of which shall be delivered to the petiHR 2649 IH 
20 

19 

tioner. Sueh determination shall be final and effective 

2 upon publication. 

3 (b) IKF'OR:\IATION CoNSIDEHED.-'rhe Secretary 

4 may, when considel'ing the A'lsistant Secretary's deter5 mination, review any information available, whether for6 mally part of the record or not. In any case in which reli7 ance is placed by the Secretary on infm·mation not of 

8 record, such information shall be identified as to source 

9 and nature and inserted in the record. 

10 (c) RECO~SIDEHATION HEQUIHED.-Thc Secretary 

11 may request reconsideration of any decision by the Assist12 ant Secretary but shall request reconsideration of any de13 cision for which signifieant new evidence has been received 

14 subsequent to the publication of the decision. 

15 SEC. 9. JUDICIAL REVIEW. 

16 (a) I~ GENEHA!J.-By no later than 180 days after 

17 the date of a final determination by the Department on 

18 the merits of a petition for recognition, and not othenvise, 

19 the petitioner or any other party may petition for judicial 

20 review under chapter 7 of title 5, United States Code. 

21 (b) FEES fu"-m COSTS.-If the petitioner prevails in 

22 the judicial review of the final Department action on the 

23 petition, petitoner shall be eligible for an award of attor24 ney fees and costs under the provisions of section 2412 

25 of title ~8, United States Code. 

HRiMtm 
21 

20 

1 SEC. 10. IMPLEMENTATION OF DECISIONS. 

2 (a) ELIGIBILITY AND 0BLIGATIONS.-Upon recogni3 tion by the Secretary that the petitioner is an Indian tribe, 

4 the Indian tribe shall be eligible for services and benefits 

5 from the Federal Government that are available to other 

6 federally recognized tribes and entitled to the privileges 

7 and immunities available to other federally recognized ln8 dian tribes by virtue of their status as Indian tribes with 

9 a government-to-government relationship to the United 

10 States, as well as having the responsibilities and obliga11 tions of such Indian tribes. Such recognition shall subject 

12 the Indian tribes to the same authority of Congress and 

13 the United States to which other federally recognized 

14 tribes are subject. 

15 (b) No ENTITLEMENT CREATED.-While the Indian 

16 tribes that are newly recognized under this Act shall be 

17 eligible for benefits and services, recognition of the Indian 

18 tribe under this Act shall not create an immediate entitle19 ment to existing programs of the Bureau. Such programs 

20 shall become available upon appropriation of funds by law. 

21 Requests for appropriations shall follow a determination 

22 of the needs of the newly recognized Indian tribe. 

23 (c) BUDGET RECO.MMENDATIONS.-Within 180 days 

24 after an Indian tribe is recognized under this Act, the ap25 propriate area office of the Bureau shall consult and de26 velop in cooperation with the Indian tribe, and forward 

HR 21549 lH 
22 

21 

1 to the Assistant Secretary, a determination of the needs 

2 of the Indian tribe and a recommended budget required 

3 to serve the newly recognized Indian tribe. The rec4 ommended budget shall be considered along with other 

5 recommendations by the Assistant Secretary in the usual 

6 budget-request process. 

7 SEC. ll. UST OF RECOGNIZED INDIAN TRIBES. 

8 By no later than the date that is 90 days after the 

9 date of the enactment of this Act, and annually thereafter, 

10 the Secretary shall publish in the Federal Register a curl! rent list of all Indian tribes which are recognized by the 

12 Federal Government and receiving services from the Bu13 reau. 

14 SEC. 12. NOTICE. 

15 Any notice which by the terms of this Act must be 

16 published in the Federal Register, shall also be mailed to 

17 the petitioner, the governors and attorney generals of the 

18 States involved, and to other parties which have com19 mented on the proposed findings. 

20 SEC. 13. GUIDELINES AND ADVISEMENT. 

21 (a) GumELINES.-By no later than the date that is 

22 90 days after the date of enactment of this Act, the Sec23 retary shall make available suggested guidelines for the 

24 format of petitions, including general suggestions and 

25 guidelines regarding the mechanics of researching the inHR 2M9 m 
23 

22 

1 formation required to substantiate petitions. Such guide2 lines shall not preclude the use of any other format. 

3 (b) ADVISEMENT.-The Assistant Secretary shall, 

4 upon request by the petitioner, provide advisement regard5 ing research into such petitioner's historical background 

6 and Indian identity. The Assistant Secretary shall not be 

7 responsible for actual research on behalf of the petitioner. 

8 SEC. 14. ASSISTANCE IN PREPARING PETITIONS. 

9 (a) IN GENERAL.-(1) The Commissioner of the Ad10 ministration for Native Americans of the Department of 

11 Health and Human Services may award grants to Indian 

12 groups seeking Federal recognition to enable the Indian 

13 groups to14 (A) conduct the research necessary to substan15 tiate petitions under this Act; and 

16 (B) prepare documentation necessary for the 

17 submission of a petition under this Act. 

18 (2) The grants made under this subsection shall be 

19 in addition to any other grants the Commissioner of the 

20 Administration for Native Americans is authorized to pro21 vide under any other provision of law. 

22 (b) CRITERIA FOR AsSISTANCE.-Grants provided 

23 under subsection (a) shall be awarded competitively based 

24 on objective criteria prescribed by regulation by the Com25 missioner of the Administration for Native Americans. 

mt. 2&411 m 
24 

23 

1 SEC. 15. REGULATIONS. 

2 The Secretary is authorized to prescribe such regula3 tions as may be necessary to carry out the provisions and 

4 purposes of this Act. 

5 SEC. 16. AUTHORIZATION OF APPROPRIATIONS. 

6 (a) DEPARTMENT OF THE lNTERIOR.-There is au7 thorized to be appropriated to the Secretary $1,500,000 

8 for the fiscal year in which this Act is enacted and for 

9 each of the 12 succeeding fiscal years to carry out this 

10 Act. 

11 (b) DEPARTl\IENT OF HEALTH AND HUl\1AN SERV12 ICES.-There is authorized to be appropriated to the Sec13 retary of Health and Human Services for the Administra14 tion for Native Americans $500,000 for the fiscal year in 

15 which this Act is enacted and for each of the 12 succeed16 ing fiscal years to carry out section 14. 

0 

BR IMIIIH 
25 

Section 1 provides definitions for terms used in the bill. 

SBC'l'IOJI 2. APPROVAL AllD RA'l'IJ'ICA'l'IOJI OJ' PRIOR DBCISIOII'S, 

Section 2 provides that decisions on federal acknowledgement 

of tribes prior to enactment are approved and ratified, but any judicial review of decisions shall not be prejudiced by the 

ratification. 

SBC'l'IOJI 3, PBTI'l'IOJIS I'Oil llBCOGJII'l'IOJf, 

Subsection (a) provides that any Indian group may submit a petition to the Secretary during the 6 year period following 

enactment which requests that the group be recognized as an Indian 

tribe. 

Subsection (b) provides that 1;:he Act does not apply to 

recognized tribes, recently formed groups not meeting the 

requirements of Subsection (c), splinter groups from existing tribes, groups determined by courts not to be tribes, and groups found not to be tribes under acknowledgement regulations. 

Subsection (c) states the requirements for a petition which 

should include historical identification as a tribe, evidence that 

the group maintained political authority over its members 

throughout history, evidence.that the group maintained political influence over its territory throughout history, a governing 

document or statement, and a list of members based on evidence 

acceptable to the Secretary. 

SBC'l'IOJI 4. IIO'l'ICB OJ' JlBCBIP'l' OJ' PB'l'X'l'IOJI. 

Subsection (a) provides that within 30 days of the submission 

of a petition to the Secretary, the Secretary shall acknowledge receipt and publish the receipt in the Federal Register. 

Subsection (b) requires the Assistant Secretary to notify the 

Governor and the attorney general of the group's state as to the 

filing of the petition. 

Subsection (c) provides that the federally recognized tribes 

in the group's state be notified by the Assistant Secretary as to 

the filing of the petition. 

Sub-ction (d) provides that notice of receipt must be 

published in a aajor newspaper of general circulation in the town 

l 
26 

nearest the petitioner. 

Subsection (e) provides that the notice should allow other 

parties to aub•it co~D~Mnt and the petitioner to receive those 

co-ents. 

Subsection (a) provides that the Assistant Secretary must 

conduct a review of a petition on receipt, and if the Act does not 

apply to the petitioner, then within 30 days the deteraination must 

be published in the Federal Register and delivered to the 

petitioner. 

Subsection (b) provides that if the Act is found to apply, the 

Assistant Secretary is to conduct a review to deteraine whether 

federal recognition is appropriate. The review should include the 

consideration of evidence submitted and the initiation of research. 

Subsection (c) provides that within 18 months of submission, 

the Assistant Secretary is to notify the group of any obvious 

deficiencies or omissions from the petition. 

Subsection (d) provides that petitions are to be on a first co .. , first served basis, but tribes terainated by federal statute are to be considered on an expedited basis; and the petitioner and co ... nting parties are to be provided with the date the petition co-s under active consideration and the name of the BIA staff 

reviewing the petition. 

a•C'fiOJI I. PJIOi'08.D I'IIIDIH8 UD D.'l'.UID'l'IOM. 

Subsection (a) provides that within 1 year after active 

consideration has begun, the Assistant Secretary shall issue 

proposed findings and publish thea in the Federal Register. 

However, by showing due cause, the Assistant Secretary may delay proposed findings for 90 days. A report on the evidence is to be 

made available to the petitioner and other parties on request, and 

challenges to the propoaed findings •ust be .ade within 120 days of 

publication with a possible extension of 30 days upon a showing of 

good cause. 

Subaection (b) provides that the Assistant secretary shall 

make a <leteraination on recognition after reviewing evidence 

sub•itted to rebut the proposed finding within 60 days of the close 

of the co.a.nt period. The decision beco•e• final 60 days after 

the au..ary of the deteraination is published, unless the 

deteraination is appealed. 

Subsection (c) providea that the Assistant Secretary shall 

aake a determination only if the petition .. ets all the 

requireaents of Section 3. Recognition is not to affect any other 
27 

tribe's treaty or property rights. 

Subsection (d) provides that if a group is not recognized, the 

Assistant Secretary is to forward any other options in which BIA 

services may be obtained. 

SBC'l'IO. 7 • 'l'ID LIKI'l' I'OJl DBPARTMBliTAL AC'l'IOII', 

section 7 provides that if a petition is not considered within 

90 days after the date on which the petition was submitted the 

petitioner is entitled to mandamus relief. 

SBC'l'IOJl 8. APPBALS. 

Subsection (a) provides that the Secretary may request the 

Assistant Secretary to reconsider the petition within 60 days of 

publication of the decision. Within 30 days of the request, a final determination is made by the Secretary and published in the 

Federal Register and delivered to the Petitioner. 

Subsection {b) provides that the Secretary may rely on any information available in making the review. 

Subsection (c) provides that the Secretary may review any petition but must review petitions for which significant new evidence is received after publication of the decision. 

SBC'l':tOJl t. JUDICIAL JlBV:tD, 

Subsection (a) provides that within 180 days after final 

determination, the petitioner may petition for judicial review. 

Subsection (b) provides that prevailing parties are eligible 

for an award of attorney fees and costs. 

SBC'l'IOJl 10. IJlPL&KBB'l'ATIOJl or DBCIS:tOII'S, 

Subsection (a) provides that upon recognition, petitioners are eligible for all federal services provided to Indian tribes. 

Subsection (b) provides that federal recognition does not 

create an entitloent and funds are based on available 

appropriations. 

Subs~ion (c) provides that within 180 days of recognition, the BIA Area office of the petitioner shall determine tribal 

financial needs and recommend a budget. 

SBC'l':tOJI 11. L:tST OJ' JlBCOGII'IliBD I)IJ)l:AJl TJliBJ!S. 

Subsection 11 provides that within 90 days of enactment, the 

Secretary shall publish a list of recognized tribes in the Federal 

3 
28 

Register. 

SB~Io• 12. ~ICB, 

Section 12 provides that a notice under the Act published in 

the Federal Register are to be mailed to the petitioners, the 

governors and attorney generals of the states involved and to 

commenting parties. 

SB~IOM 13. QOIDBLIXBS AKD ADVISBXBWT. 

Subsection {a) provides that the Secretary must suggest 

guidelines for petitioners within 90 days of enactment. 

Subsection {b) provides that the Assistant Secretary shall 

provide advisement regarding research upon request but shall not be 

responsible for research for petitioners. 

8B~10• 14. ASSISTANCB I• PRBPARIMG PBTITIOWS. 

Section 14 provides that the Commissioner of the 

Administration for Native Americans may make grants to petitioning 

tribes to conduct research. 

SB~Io• 15. RZGULATIOM8. 

Section 15 provides that the Secretary is authorized to 

prescribe regulations for the Act. 

Subsection {a) provides an annual $1.5 million authorization 

to the Interior Department tor 12 years. 

Subsection (b) provides an annual $500,000 authorization to 

the Health and Human Services Department for ANA grants for 12 

years. 

4 
29 

BACKGROUND ON H.R. 2549 AND 4462 

H.R. 2549 and H.R. 4462 are bills to provide administrative procedures to extend 

Federal recognition to certain Indian groups. The process of recognizing Indian tnlJes is 

currently done in two ways. First, groups may petition the Bureau of Indian Affairs under 

25 CFR Section 83. The "procedures for establishing that an American group exists as an 

Indian tribe" were established in regulations after recommendations from the American 

Indian Policy Review Commission Report in !977. The Commission specifically identified 

133 unrecognized tribes. Under the "Federal Acknowledgement Process" (FAP) Indian 

tribes must satisfy certain criteria to prove that they are a group deserving Federal 

recognition. In recent years, this process has come under fire as lengthy and expensive. 

Critics of the process point out that since the FAP began in 1978, only 9 tribes have been 

recognized. The second manner of obtaining recognition is through the Congress. 

This method is often criticized as imprecise and overly politicized. 

H.R. 2549, introduced by Rep. Faleomavaega on June 29, 1993, establishes administrative 

procedures within the Department of Interior for recognizing tribes. The bill takes many 

of the resources and regulations already in place and provides a statutory basis for them. 

H.R. 4462 was introduced by Mr. Richardson on May 19, 1994, and the bill is co-sponsored 

by Mr. Thomas. The Richardson-Thomas bill would establish a new commission for 

recognizing Indian tribes. 
30 

103o CONGRESS 

2D SESSIO:-.; H.R.4462 

To provide for administrative proeedures to extend Federal reeognition to 

certain Indian !,'TOups, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

l\Lw 19, 1994 

Mr. RICHARDSOK (for himself and Mr. THO:.!AS of Wyoming) introduced the 

following bill; which was referred to the Committee on Natural Resources 

A BILL 

To provide for administrative procedures to e:l\.i:end Federal 

recognition to certain Indian groups, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the "Indian Federal Rec5 ognition Administrative Procedures Act of 1994". 

6 SEC. 2. PURPOSES. 

7 The purposes of this Act are8 (1) to establish an administrative procedure to 

9 extend Federal recognition to certain Indian groups; 
31 

2 

1 (2) to extend to Indian groups the protection, 

2 services, and benefits available from the Federal 

3 Government pursuant to the Federal trust respon4 sibility; 

5 ( 3) to provide clear and consistent standards of 

6 administrative review of recognition petitions for ln7 dian groups; and 

8 ( 4) to expedite the administrative review proc9 ess by providing definitive timelines for review and 

10 adequate resources to process recognition petitions. 

11 SEC. 3. DEFINITIONS. 

12 For purposes of this Act: 

13 (1) The term "aboriginal group" means any In14 dian entity whose members inhabited or whose range 

15 extended into any part of the area now constituting 

16 the United States of America, Canada, or the Unit17 ed States of Mexico prior to the first sustained con18 tact of such members with Euro-Americans. 

19 (2) The term "autonomous", in the context of 

20 decisionmaking, means having its own tribal council, 

21 internal process, or other organizational mechanism 

22 which the Indian group has used as its own means 

23 of making decisions independent of the control of 

24 any other Indian tribe, and in using such term for 

25 · pnr}JOSfS of this Act, such term must be understood 

•HR 4462 IH 
32 

3 

in the context of the culture and social organization 

2 of that Indian group. 

3 (3) The term "Bureau" means the Bureau of 

4 Indian Affairs of the Department of the Interior. 

5 (4) The term "Commission" means the Com6 mission on Indian Recognition established under sec7 tion 4. 

8 (5) The term "community" means any people 

9 li,ing within such a reasonable proximity as to allow 

lO group interaction and maintenance of tribal relall tions. 

12 (6) The term "continuous" means, with respect 

13 to any Indian group, extending from generation to 

14 generation throughout the Indian group's histOI)' es15 sentially \\ithout interruption. 

16 (7) The term "Department" means the Depart17 ment of the Interior. 

18 (8) The term "historical" means dating back to 

19 the earliest documented eontaet between20 (A) the aboriginal group from which the 

21 petitioners descended; and 

22 (B) citizens or officials of the United 

23 States, colonial or territorial governments, or 

24 citizens and officials of foreign governments. 

•HR «62 IH 
33 

4 

(9) The term "Indian group" means any Indian 

2 entity that3 (A) is located within any of the States of 

4 the United States; and 

5 (B) is not recognized by the Secretary to 

6 be an Indian tribe. 

7 (10) The term "Indian tribe" means any Indian 

8 entity that9 (A) is located within any of the States of 

10 the United States; and 

11 (B) is recognized by the Secretary to be an 

12 Indian tribe. 

13 (11) The term "Indian" means any individual 

14 who is a descendant of an aboriginal group. 

15 (12) The term "member of an Indian group" 

16 means an individual who---

17 (A) is recognized by an Indian group as 

18 meeting its membership criteria; 

19 (B) consents to being listed as a member 

20 of that group; and 

21 (C) is not a member of any Indian tribe. 

22 (13) The term "member of an Indian tribe" 

23 means an individual who---

24 (A) meets the membership requirements of 

25 the Indian tribe, as set forth in its governing 

•HR «62 IH 
34 

5 

document or recognized collectively by those 

2 persons comprising the governing body of the 

3 Indian tribe; and 

4 (B) has continuously maintained tribal re5 lations with the tribe or is listed on the tribal 

6 rolls of that Indian tribe as a member if such 

7 rolls are maintained. 

8 (14) The term "petition" means a petition sub9 mitted to the Commission under section 5 or trans10 ferred to the Commission under section 5 of this 

11 Act. 

12 (15) The term "petitioner" means any entity 

13 which has submitted, or submits, a petition to the 

14 Secretary requesting recognition that the entity is an 

15 Indian tribe. 

16 (16) The term "Seeretary" means the Secretary 

17 of the Interior. 

18 (17) The term "treaty·" means any treaty19 (A) negotiated and ratified by the United 

20 States with, or on behalf of, any Indian group; 

21 (B) made by any sovereign with, or on be22 half of, any Indian group from which the 

23 United States acquired territory by purchase, 

24 conquest, or cession; or 

•HR «62 IH 
35 

6 

1 (C) negotiated by the United States ·with, 

2 or on behalf of, any Indian group in California, 

3 whether or not the treaty was subsequently 

4 ratified. 

5 SEC. 4. COMMISSION ON INDIAN RECOGNITION. 

6 (a) EsTABLISmiENT.-There is established, as an 

7 independent commission, the Commission on Indian Rec8 ognition. 

9 (b) MEMBERSIIIP.-(l)(A) The Commission shall 

10 consist of three members appointed by the President, by 

11 and with the advice and consent of the Senate. 

12 (B) In making appointments to the Commission, the 

13 President shall give careful consideration to--

14 (i) recommendations received from Indian 

15 tribes; and 

16 (ii) individuals who have a background in In17 dian law or policy, anthropology, genealogy, or his~ 

18 tory. 

19 (2) ~o more than two members of the Commission 

20 may be members of the same political party. 

21 (3) Each member of the Commission shall be ap22 pointed for a term of four years. 

23 ( 4) Any vacancy in the Commission shall not affect 

24 its powers, but shall be filled in the same manner in which 

25 the original appointment was made. Any member ap-

•HR 4462 IH 
36 

7 

pointed to fill a vacancy occurring before the expiration 

2 of the term for which the member's predecessor was ap3 pointed shall be appointed only for the remainder of that 

4 term. A member may serve after the expiration of that 

5 member's term until a successor has taken office. 

6 ( 5 )(A) Each member of the Commission not other7 \\ise employed by the United States Government shall re8 ceive compensation at a rate equal to the daily equivalent 

9 of the annual rate of basic pay prescribed for level V of 

10 the Executive Schedule under section 5316 of title 5, 

11 United States Code, for each day, including traveltime, 

12 such member is engaged in the actual performance of du13 ties authorized b~· the Commission. 

14 (B) Except as provided in subparagraph (C), a mem15 ber of the Commission who is otherwise an officer or em16 ployee of the United States Government shall serve on the 

17 Commission "ithout additional compensation, but such 

18 service shall be without intermption or Joss of civil service 

19 status or privilege. 

20 (C) All members of the Commission shall be reim21 bursed for travel and per diem in lieu of subsistence ex22 penses during the performance of duties of the Commis23 sion while away from home or their regular place of busi24 ness, in accordance with subchapter I of chapter 57 of 

25 title 5, United States Code. 

•HR «82 IH 
37 

8 

1 {6) At the time appointments are made under para2 graph (1 ), the President shall designate one of such ap3 pointees as Chairman of the Commission. 

4 (c) MEETINGS AND PROCEDURES.-(1) The Commis5 sion shall hold its first meeting no later than 30 days after 

6 the date on which all members of the Commission have 

7 been appointed and confirmed by the Senate. 

8 (2) Two members of the Commission shall constitute 

9 a quorum for the transaction of business. 

10 (3) The Commission may adopt such rules (consistent 

11 with the provisions of this Act) as may be necessary to 

12 establish its procedures and to govern the manner of its 

13 operations, organization, and personnel. 

14 (4) The principal office of the Commission shall be 

15 in the District of Columbia. 

16 (d) DUTIES.-Thc Commission shall carry out the 

17 duties assigned to the Commission by this Act, and shall 

18 meet the requirements imposed on the Commission by this 

19 Act. 

20 (e) POWERS AND AUTHORITIES.-( I) Subject to such 

21 rules and regulations as may be adopted by the Commis22 sion, the Chairman of the Commission is authorized to23 (A) appoint, terminate, and fix the compensa24 tion ("without regard to the provisions of title 5, 

25 United States Code, governing appointments in the 

•HR «rut IH 
38 

9 

1 competitive service, and without regard to the provi2 sions of chapter 51 and subchapter III of chapter 53 

3 of such title, or of any other provision of law, relat4 ing to the number, classification, and General 

5 Schedule rates) of an Executive Director of the 

6 Commission and of such other personnel as the 

7 Chairman deems advisable to assist in the performS ance of the duties of the Commission, at a rate not 

9 to exceed a rate equal to the daily equivalent of the 

l 0 annual rate of basic pay prescribed for level V of the 

11 Executive Schedule under section 5316 of title 5, 

12 United States Code; and 

13 (B) procure, as authorized by section 3109{b) 

14 of title 5, United States Code, temporary and inter15 mittent services to the same extent as is authorized 

16 by law for agencies in the executive branch, but at 

17 rates not to exceed the daily equivalent of the annual 

18 rate of basic pay prescribed for level V of the Execu19 tive Schedule under section 5316 of such title. 

20 (2) The Commission is authorized to--

21 (A) hold such hearings and sit and act at such 

22 times; 

23 (B) take such testimony; 

24 (C) have such printing and binding done; 

HR 4462 IH---2 
39 

10 

1 (D) enter into such contracts and other ar2 rangements, subject to the availability of funds; 

3 (E) make such expenditures; and 

4 (F) take such other actions, 

5 as the Commission may deem advisable. Any member of 

6 the Commission may administer oaths or affirmations to 

7 witnesses appearing before the Commission. 

8 (3)(A) The Commission is authorized to secure di9 rectly from any officer, department, agency, establish-

! 0 ment, or instrumentality of the Federal Government such 

11 information as the Commission may require for the pur12 pose of this Act, and each such officer, department, agen13 cy, establishment, or instrumentality is authorized and di14 rected to furnish, to the extent permitted by law, such in15 formation, suggestions, estimates, and statistics directly to 

16 the Commission, upon request made by the Chairman of 

17 the Commission. 

18 (B) Upon the request of the Chairman of the Com19 mission, the head of any Federal department, agency, or 

20 instrumentality is authorized to make any of the facilities 

21 and services of such department, agency, or instrumental22 ity available to the Commission and detail any of the per23 sonnel of such department, agency, or instrumentality to 

24 the Commission, on a nonreimbursable basis, to assist the 

25 Commission in carrying out its duties under this section. 

•HR 4462 IH 
40 

11 

1 (C) The Commission may use the United States mails 

2 m the same manner and under the same conditions as 

3 other departments and agencies of the United States. 

4 (f) FEDERAL ADVISORY CmniiTTEE ACT.-The proS visions of the Federal Advisory Committee Act shall not 

6 apply to the Commission. 

7 SEC. 5. PETITIONS FOR RECOGNITION. 

8 (a) IN GEl\"ERAL.-(1) Any Indian group may submit 

9 to the Commission a petition requesting that the Commis10 sion recognize that the Indian group is an Indian tribe. 

11 (2) The provisions of this Act do not apply to the 

12 following groups or entities, which shall not be eligible for 

13 recognition under this Act14 (A) Indian tribes, organized bands, pueblos, 

15 communities, and Alaska ~atiw entities which are 

16 recognized by the Secretary as of the date of enact17 ment of this Act as eligible to receive services from 

18 the Bureau; 

19 (B) splinter groups, political factions, commu20 nities, or groups of any character which separate 

21 from the main body of an Indian tribe that, at the 

22 time of such separation, is recognized as being an 

23 Indian tribe by the Secretary, unless it can be clear24 ly established that the group, faction, or community 

•HR .u82 IH 
41 

12 

1 has functioned throughout history until the date of 

2 such petition as an autonomous Indian tribal entity; 

3 {C) groups, or successors in interest of groups, 

4 that prior to the date of enactment of this Act, have 

5 petitioned for and been denied or refused recognition 

6 as an Indian tribe under regulations prescribed by 

7 the Secretary; and 

8 (D) any Indian group whose relationship with 

9 the Federal Government was expressly terminated 

10 by an Act of Congress. 

11 (3) No later than 30 days after the date on which 

12 all of the members of the Commission have been appointed 

13 and confirmed by the S~mate, the Secretary shall transfer 

14 to the Commission all petitions pending before the Depart15 ment that request the Secretary, or the Federal Govern16 ment, to recognize or acknowledge an Indian group as an 

17 Indian tribe. On the date of such transfer, the Secretary 

18 and the Department shall cease to have any authority to 

19 recognize or acknowledge, on behalf of the Federal Gov20 ernmcnt, any Indian group as an Indian tribe. Petitions 

21 transferred to the Commission under this paragraph shall, 

22 for purposes of this Act, be considered as having been sub23 mitted to the Commission as of the date of such transfer. 

24 (b) PETITION FORM AND CONTENT.-Except as pro25 vided in subsection (c), any petition submitted under sub-

•HR «ez m 
42 

13 

1 section (a) by an Indian group shall be in a form which 

2 clearly indicates that it is a petition requesting the Com· 

3 mission to recognize that the Indian group is an Indian 

4 tribe and shall contain each of the following: 

5 (1) A statement of facts establishing that the 

6 petitioner has been identified from historical times 

7 until the present, on a substantially continuous 

8 basis, as an Indian entity, except that a petitioner 

9 shall not be considered as ha\ing failed to satisfy 

10 any requirement of this subsection merely because of 

11 fluctuations of tribal activity during various years. 

12 E'>'idence which can be offered to demonstrate In13 dian identity of the petitioner on a substantially con14 tinuous basis shall include one or more of the follow15 ing: 

16 (A) Repeated identification of the peti17 tioner as an Indian entity by Federal authori18 ties. 

19 (B) I.ongstanding relationships of the peti· 

20 tioner ''ith State governments based on identi21 fication of the petitioner as an Indian entity. 

22 (C) Repeated dealings of the petitioner 

23 with a county, parish, or other local government 

24 in a relationship based on the Indian identity of 

25 the petitioner. 

•HR «U IH 
43 

14 

1 (D) Repeated identification of the peti2 tioner as an Indian entity by records in private 

3 or public archives courthouses, churches, or 

4 schools. 

5 (E) Repeated identification of the peti6 tioner as an Indian entity by anthropologists, 

7 historians, or other scholars. 

8 (F) Repeated identification of the peti9 tioner as an Indian entity in newspapers, books, 

10 or similar media. 

11 (G) Repeated identification of the peti12 tioner as an Indian entity by, and dealings of 

13 the petitioner as an Indian entity with, Indian 

14 tribes, aboriginal groups or recognized national 

15 Indian organizations. 

16 (2) Evidence that17 (A) a substantial portion of the member18 ship of the petitioner lives in an Indian commu19 nity which is distinct from other populations in 

20 the area; and 

21 (B) members of the petitioner are descend22 ants of an Indian group or groups which his23 torically inhabited a specific area. 

24 (3) A statement of facts which establishes that 

25 the petitioner has maintained tribal political influ-

•HR 4462 IH 
44 

15 

l ence or other authority over its members as an au2 tonomous entity from historical times until the 

3 present. 

4 ( 4) A copy of the present governing document 

5 of the petitioner describing in the full membership 

6 criteria of the petitioner and the procedures through 

7 which the petitioner currently governs its affairs and 

8 members. 

9 ( 5) A list of all current members of the peti1 0 tioner and their current addresses and a copy of 

11 each available former list of members based on the 

12 petitioner's own defined criteria. The membership 

13 must consist of individuals who have established 

14 descendancy from an Indian group which existed 

15 historically or from historical Indian groups which 

16 combined and functioned as a single autonomous en17 tity. Evidence of tribal membership required by the 

18 Commission includes (but is not limited to)-

19 (A) descendancy rolls prepared by the Sec20 retary for the petitioner for purposes of distrib21 uting claims money, providing allotments, or 

22 other purposes; 

23 (B) State, Federal, or other official records 

24 or evidence identifying present members of the 

25 petitioner, or ancestors of present members of 

•HR 4462 IH 
45 

16 

l the petitioner, as being an Indian descendant 

2 and a member of the petitioner; 

3 (C) church, school, and other similar en4 rollment records indicating membership in the 

5 petitioner; 

6 (D) affidavits of recognition by tribal el7 ders, leaders, or the tribal governing body as 

8 being an Indian descendant of the Indian group 

9 and a member of the petitioner; and 

10 (E) other records or evidence identifying 

11 the person as a member of the petitioner. 

12 (c) A petition from an Indian group which can dem13 onstratc by a preponderance of the evidence that it was 

14 or is the successor in interest to--

15 (1) a party to a treaty or treaties with the Fed16 era! Government; or 

17 (2) a group acknowledged by any agency of the 

18 Federal Government as eligible to participate in the 

19 Indian Reorganization Act of 1934 (25 U.S.C. 461 

20 et. seq.), 

21 shall be required to establish the criteria set forth in sub22 section (b)( 1) only from the date of the treaty or acknowl23 edgement of eligibility to the present. 

•HR 44ft IH 
46 

17 

1 SEC. 6. NOTICE OF RECEIPT OF PETITION. 

2 (a) PETITIO!\'ER.-Within 30 days after a petition is 

3 submitted or transferred to the Commission under section 

4 5(a), the Commission shall send an acknowledgement of 

5 receipt in writing to the petitioner ,and shall have pub6 lished in the Federal Register a notice of such receipt, in7 eluding the name, location, and mailing address of the pe8 titioner and such other information that will identify the 

9 entity who submitted the petition and the date the petition 

10 was received by the Commission. The notice shall also in11 dicate where a copy of the petition may be examined. 

12 (b) OTHERS.-The Commission shall also notify, in 

13 writing, the Governor and attorney general of, and each 

14 recognized Indian tribe within, any State in which a peti15 tioner resides. 

16 (c) PuBLICATION; OPPORTUNITY FOR SUPPORTING 

17 OR OPPOSING SUBMISSIONS.-The Commission shall pub18 lish the notice of receipt of the petition in a major news19 paper of general circulation in the town or city nearest 

20 the location of the petitioner. The notice shall include, in 

21 addition to the information described in subsection (a), no22 tice of opportunity for other parties to submit factual or 

23 legal arguments in support of or in opposition to, the peti24 tion. Such submissions shall be provided to the petitioner 

25 upon receipt by the Commission. The petitioner shall be 

26 provided· an opportunity to respond to such submissions 

•HR 4462 IH 
47 

18 

l prior to a determination on the petition by the Commis2 sion. 

3 SEC. '1. PROCESSING THE PETITION. 

4 (a) REVIEW.-(1) Upon receipt of a petition, the 

5 Commission shall conduct a review to determine whether 

6 the petitioner is entitled to be recognized as an Indian 

7 tribe. 

8 (2) The review conducted under paragraph (1) shall 

9 include consideration of the petition, supporting evidence, 

10 and the factual statements contained in the petition. 

11 (3) The Commission may also initiate other research 

12 for any purpose relative to analyzing the petition and ob13 taining additional information about the petitioner's sta14 tus and may consider any evidence which may be submit15 ted by other parties. 

16 (b) NOTICE OF DEFICIENCIES.-Prior to actual con17 sideration of the petition and by no later than the date 

18 that is 12 months after the date on which the petition 

19 is submitted or transferred to the Commission, the Com20 mission shall notify the petitioner of any obvious defi21 ciencies, or significant omissions, that are apparent upon 

22 an initial review of the petition and provide the petitioner 

23 with an opportunity to withdraw the petition for further 

24 work or to submit additional information or a clarification. 

•HR 44.41 m 
48 

19 

(c) CONSIDERATION.-(1) Except as otherwise pro2 vided in this subsection, petitions shall be considered on 

3 a first come, first served basis, determined by the date 

4 of the original filing of the petition with the Commission, 

5 or the Department if the petition is one transferred to the 

6 Commission pursuant to section 5(a). The Commission 

7 shall establish a priority register including those petitions 

8 pending before the Department on the date of enactment 

9 of this Act. 

10 (2) Petitions that are submitted to the Commission 

11 by Indian groups that as set forth in subsection 5(e) 

12 shall13 

14 

15 

16 

(A) receive priority consideration over petitions 

submitted by any other Indian groups, and 

(B) be considered on an expedited basis. 

(d) NOTICE OF ACTIYE CONSIDERATION.-The Com17 mission shall provide notice of the date on which the peti18 tion comes under active consideration to the petitioner and 

19 other parties submitting comments on the petition. 

20 (e) \VITHDRAWAL Al'\'D RESt:BMITTAL.-A petitioner 

21 may, at its option and upon >\Ti.tten request, withdraw its 

22 petition prior to publication in the .r~ederal Register by the 

23 Commission of proposed findings under section 8(a) and 

24 may, if it so desires, resubmit a new petition. A petitioner 

25 shall not lose its priority date by withdrawing and resub-

•HR 4462 m 
49 

20 

1 mitting its petitions, but the time periods provided in sec2 tion 8(a) shall begin to run upon active consideration of 

3 the resubmitted petition. 

4 SEC. 8. PROPOSED FINDINGS AND DETERMINATION. 

5 (a) IN GENERAL.-(1) Within one year after notify6 ing the petitioner under section 7(d) that active consider7 ation of the petition has begun, the Commission shall 

8 make a proposed finding on the petition and shall publish 

9 the proposed finding in the F'ederal Register. 

10 (2) The Commission may delay making proposed 

II findings on a petition under paragraph (1} for 180 days 

12 upon a sho·wing of good cause by the petitioner. 

13 (3) In addition to the proposed findings, the Commis14 sion shall prepare a report on each petition which summaIS ri7.es the evidence for the proposed findings. Copies of such 

16 report shall be available to the petitioner and to other par17 ties upon request. 

18 ( 4) Upon publication of the proposed findings under 

19 paragraph (1), any individual or organization ·wishing to 

20 challenge the proposed findings shall have a response pe21 riod of 120 days to present factual or legal arguments and 

22 evidence upon which the proposed findings are based. 

23 (b) DETER~IINATION OF RECOGNITION.-(1) After 

24 consideration of any \vritten arguments and evidence sub25 mitted to rebut the proposed findings made under sub-

•HR 4462 IH 
50 

21 

1 section (a)(l), the Commission shall make a determination 

2 of whether the petitioner is recognized by the Federal Gov3 ernment to be an Indian tribe. Except as otherwise pro4 vided by this Act, the determination shall be considered 

5 to be a determination on such recognition by the Federal 

6 Government, and shall also be treated as a determination 

7 on such recognition by the Secretary, for all purposes of 

8 law. 

9 (2) By no later than the date that is 60 days after 

10 the close of the 120 day response period described in sub11 section (a)( 4}, the Commission shall12 (A) make a determination of whether the peti13 tioner is a federally recognized Indian tribe; 

14 (B) publish a summary of the determination in 

15 the Federal Register; and 

16 (C) deliver a copy of the determination and 

17 summary to the petitioner. 

18 ( 3) Any determination made under paragraph (]) 

19 shall become effectiw on the date that is 60 days after 

20 the date on which the summary of the determination is 

21 published under paragraph (2). 

22 (c) RECOG!'\ITIO!\ CRITERIA.-In making the pro23 posed findings and determination under this section with 

24 resped to any petition, the Commission shall recognize the 

25 petitioner as an Indian tribe if the petition meets all the 

•HR 4462 IH 
51 

22 

requirements of section 5(b). The Commission shall not 

2 make such findings or determination of recognition of the 

3 petitioner if such requirements have not been met by the 

4 petitioner. 

5 (d) NOTIFICATlON OF OTHER 0PTIONS.-If the 

6 Commission determines under subsection (b)(l) that the 

7 petitioner should not be recognized by the Federal Govern8 ment to be an Indian tribe, the Commission shall analyze 

9 and forward to the petitioner other options, if any, under 

10 which application for services and other benefits of the 

11 Bureau may be made. 

12 (e) SITUATIONS NOT AFFECTED BY DETERl\IINA13 TION.-A determination by the Commission that an In14 dian group is recognized by the Federal Government as 

15 an Indian tJ·ibe shall not have the effect of16 ( 1) depriving or· diminishing the right of any 

17 other Indian tribe to govern its reservation as such 

18 reservation existed prior to the recognition of such 

19 Indian group; 

20 (2) depriving or diminishing any property right 

21 held in trust or recognized by the United States for 

22 such other Indian tribe prior to the recognition of 

23 such Indian group; or 

24 (3) depriving or diminishing any previously or 

25 independently existing claim by a petitioner to any 

•HR «62 IH 
52 

23 

1 such property right held m trust by the United 

2 :-Jtates for sneh other Indian trihe prior to the rec3 ognition of snell 1 m!ian group. 

4 SEC. 9. APPEALS. 

5 (a) IN GENERAL-By no later than 60 days after 

6 the date on which the summary of the determination of 

7 the Commission with respect to a petition is published 

8 under section 8(b), tht~ petitioner, or any other party, may 

9 appeal the determination to the United States District 

10 Court for the District of Columbia. 

11 (b) ATTORNEY FEES AND COSTS.-The prevailing 

12 parties in the appeal described in subsection (a) shall be 

13 eligible for an award of reasonable attorney fees and costs 

14 under the provisions of section 504 of title 5, United 

15 States Code, or section 2412 of title 28 of such Code, as 

16 the case may be. 

17 SEC. 10. IMPLEMENTATION OF DECISIONS. 

18 (a) ELIGIBILITY FOR 8ERV1CES AKD BENEFITS.-(1) 

19 Subject to paragraph (2), upon recognition by the Com20 mission that the petitioner is an Indian tribe, the Indian 

21 tribe shall be eligible for the ser.'ices and benefits from 

22 the F'ederal Government that are available to other feder23 ally recognized Indian tribes by \irtue of their status as 

24 Indian tribes "ith a government-to-government relation25 ship with the United States, as well as luning the respon-

•HR 4462 HI 
53 

24 

1 sibilities and obligations of such Indian tribes. Such rec2 ognition shall subject the Indian tribes to the same au3 thority of Congress and the United States to which other 

4 federally recognized tribes are subject. 

5 (2) Recognition of the Indian tribe under this Act 

6 docs not create an immediate entitlement to existing pro7 grams of the Bureau. Such programs shall become avail8 able upon appropriation of funds by law. Requests for ap9 propriations shall follow a determination under subsection 

10 (b) of the needs of the newly recognized Indian tribe. 

11 (b) NEEDS DETERMINATION.-Within 6 months 

12 after an Indian tribe is recognized under this Act, the ap13 propriate area offices of the Bureau of Indian Affairs and 

14 the Indian Health Service shall consult and develop in co15 operation with the Indian tribe, and forward to the respec16 tive Secretary, a determination of the needs of the Indian 

17 tribe and a recommended budget required to serve the 

18 newly recognized Indian tribe. The recommended budget 

19 shall be considered along with other recommendations by 

20 the appropriate Secretary in the budget-request process. 

21 SEC. 11. LIST OF RECOGNIZED INDIAN TRffiES. 

22 By no later than the date that is 90 days after the 

23 date of the enactment of this Act, and annually thereafter, 

24 the Secretary shall publish in the Federal Register an up25 to-date list of all Indian tribes which are recognized by 

•HR .uG2 IH 
54 

25 

1 the Federai Government and receiving services from the 

2 Bureau. 

3 SEC. 12. ACTIONS BY PETITIONERS FOR ENFORCEMENT. 

4 Any petitioner may bring an action in the district 

5 court of the United States for the district in which the 

6 petitioner resides, or the United States District Court for 

7 the District of Columbia, to enforce the provisions of this 

8 Act, including any time limitations within which actions 

9 are required to be taken, or decisions made, under this 

10 Act and the district court shall issue such orders (includ11 ing writs of mandamus) as may be necessary to enforce 

12 the provisions of this Act. 

13 SEC. 13. REGULATIONS. 

14 The Commission is authorized to prescribe such regu15 lations as may be necessary to carry out the provisions 

16 and purposes of this Act. All such regulations must be 

17 published in accordance with the provisions of title 5, 

18 United States Code. 

19 SEC. 14. GUIDELINES AND ADVICE. 

20 {a) GUIDELINES.-No later than 90 days after the 

21 date of enactment of this Act, the Commission shall make 

22 available suggested guidelines for the format of petitions, 

23 including general suggestions and guidelines on where and 

24 how to research required information, but such examples 

25 shall not preclude the use of any other format. 

•HR 44412 m 
55 

26 

1 (b) RESEARCH A.DVICE.-The Commission, upon re2 quest, is authorized to provide suggestions and advise to 

3 any petitioner for his research into the petitioner's histori4 cal background and Indian identity. The Commission shall 

5 not be responsible for the actual research on behalf of the 

6 petitioner. 

7 SEC. 15. ASSISTANCE TO PETITIONERS. 

8 (a) GRANTS.-(1) The Secretary of Health and 

9 Human Services may award grants to Indian groups seek10 ing Federal recognition to enable the Indian groups to--

ll (A) conduct the research necessar:v to substan12 tiate petitions under this Act; and 

13 (B) prepare documentation necessary for the 

14 submission of a petition under this Act. 

15 (2) The grants made under this subsection shall be 

16 in addition to any other grants the Secretary of Health 

17 and Human Services is authorized to pmvide under any 

18 other provision of law. 

19 (b) Cm.rPETI1'IVE AWARD.-Grants provided under 

20 subsection (a) shall be awarded competitively based on ob21 jective criteria prescribed in regulations promulgated by 

22 the Secretary of Health and Human Services. 

23 SEC. 16. AUTHORIZATION OF APPROPRIATIONS. 

24 (a) CmnnssiON.-There are authorized to be appro25 priated for the Commission for the purpose of carrying 

•HR 4462 IH 
56 

27 

1 out the provisions of this Act (other than section 15), 

2 $1,500,000 for fiscal year 1995 and $1,500,000 for each 

3 of the 12 succeeding fiscal years. 

4 (b) SECRETARY OF HHS.-There are authorized to 

5 be appropriated for the Administration for Native Ameri6 cans of the Department of Health and Human Services 

7 for the purpose of carrying out the provisions of section 

8 15, $500,000 for fiscal year 1995 and $500,000 for each 

9 of the 12 succeeding fiscal years. 

•HR 4462 IH 
57 

SECI10N·BY-SEC110N ANALYSIS OF H.R. 4462 

SECTION 1. SHORT TITLE. 

Section l provides that the short title of the bill is the "Indian Federal Recognition 

Administrative Procedures Act of 1994." 

SECnON Z. PURPOSES. 

Section 2 provides the purposes of the Act which include the establishment of 

procedures, to extend services, to provide consistent standards and to expedite the 

administrative review process. 

SECTION 3. DEFINITION. 

Section 3 provides definitions for terms used in the Act. 

SECTION 4. COMMISSION ON INDIAN RECOGNITION. 

Subsection (a) provides that the Commission on Indian Recognition is 

established. 

Subsection (b) provides that the Commission shall consist of 3 members appointed 

by the President with the advice and consent of the Senate. Recommendations from Indian 

tribes and individuals with a background in Indian law or policy, anthropology, genealogy or 

history will be given consideration. No more than two members of the Commission may be 

a member of the same political party. Members are appointed for 4 years. Vacancies are 

filled in the same manner as the original appointments. Compensation for commissioners 

is provided for. Commissioners that are employees of the U.S. shall serve without 

compensation. Commissioners may be reimbursed for travel. The President may designate 

the Chairperson. 

Subsection (c) providea that the Commission shall hold its first meeting no later than 

30 days after aU members are confirmed. Two members shaU constitute a quorum. The 

Commission may adopt rules. The commission will be located in the District of Columbia. 

Subsection (d) provides that the Commission shall carry out the duties assigned 

it under this Act. 

Subsection (e) provides that the Chairman is authorized to hire an executive 

director, and procure services. The Commission is also authorized to hold hearings, to 

request facilities and services from other Departments, and to use the mail as do other 

Departments. 

Subsection (f) provides that the provisions of the Federal Advisory Committee 

Act shall not apply to the Commission. 
58 

SECI10N 5. PETITIONS fOR RECOGNITION. 

Subsection (a) provides that any Indian group may submit a petition to the 

Commission to request Federal recognition. The foUowing groups are not eligible for 

recognition: recognized tnbes, splinter groups, groups that have been denied recognition by 

the Secretary, and terminated tnbes. 

Subsection (b) provides that within 30 days of confirmation of the Commission, the 

Secretary shall transfer pending petitions to the Commission. 

Subsection (c) provides that an Indian group with a treaty or acknowledged under the 

Indian Reorganization Act is required only to submit the criteria contained in subsection (b). 

SECI10N 6. NOTICE OF RECEIPT OF PETITION. 

Subsection (a) provides that the Commission shall send an acknowledgement of 

receipt in writing to the petitioner and have it published in the Federal Register. 

Subsection (b) provides that the Commission shall notify the Governor, attorney 

general and other Indian tnbes in the state of the petition. 

Subsection (c) provides that the Commission shall publish the notice of receipt in 

newspapers. 

SECI10N 7. PROCESSING THE PETITION. 

Subsection (a) provides that the Commission shall review petitions as to whether the 

petitioner is to be recognized as an Indian tnbe. This review shall include consideration of 

facts and evidence. In addition, the Commission may initiate such other research as it deems 

necessary. 

Subsection (b) provides that within (12) months the Commission shall notify the 

petitioner of deficiencies and omissions. 

Subsection (c) provides that petitions are to be considered on a first come first served 

basis. 

Subsection (d) provides that the Commission is to provide notice of the date on which 

the petition comes under active consideration. 

Subsection (e) provides that the petitioner may withdraw its petition and resubmit it. 

SECI10N I. PROPOSED FINDINGS AND DETERMINATION. 

Subsection (a) provides that within one year after notifying the petitioner or active 

consideration, the Commission shall make a proposed finding. The Commission may delay 

2 
59 

making proposed finding for 180 days upon a showing of good cause. The Commission shaD 

summarize the evidence in the proposed finding and challenges to the finding may be filed 

within 120 days. 

Subsection (b) provides that after rebuttal evidence is submitted, the Commission 

shall make a determination as to whether or not the tnbe will be recognized. The 

determination shall be published in the Federal Register and delivered to the petitions. 

The determination becomes effective 60 days after the publishing of the determination. 

Subsection (c) provides that petitioners that meet all the requirements of .5(b) are to 

be recognized. 

Subsection (d) provides that the Commission shaD provide petitioners, who are denied 

recognition, with optiom under which application for services of the Bureau may be made. 

Subsection (e) provides that a determination that a group is recognized shall not 

deprive the right of any tnbe to govern its reservation, diminish any property right held in 

trust, or deprive or diminish any claim of any tnbe. 

SECDON '· APPEALS. 

Subsection (a) provides that 60 days after a determination, any party may appeal to 

federal court. 

Subsection (b) provides that prevailing parties shaD be awarded attorney fees. 

SEcnON 10. IMPLEMENTATION OF DECISIONS. 

Subsection (a) provides that recognized tnbes are elig~ble for federal services, but 

such services are not an entitlement. 

Subsection (b) provides that 6 months after recognition the BIA and the IHS are to 

determine tribal needs and a budget. 

SEcnON 11. UST OF RECOGNIZED TRIBES. 

Section 11 provides that 90 days after enactment and annually thereafter, the 

Secretary is to publiah a list of federally recognized Indian tnbes. 

SEcnON U. ACDONS BY PETITIONERS FOR ENFORCEMENT. 

Section 12 provides that any petitioner may bring an action in federal district court 

to enforce provisions of this Act. 

SEcnON 13. REGULATIONS. 

3 
60 

Section 13 provides that the Commission is authorized to promulgate regulations. 

SEcnON 14. GUIDEIJNES AND ADVICE. 

Subsection (a) provides that 90 days after enactment the Commissioner shall make 

guidelines for the format of petitions. 

Subsection (b) provides that the Commission is authorized to provide suggestions for 

petitioners. 

SEcnON 1.5. ASSISTANCE TO PETITIONERS. 

Subsection (a) provides that the Secretary of Health and Human Services may award 

grants to petitioners. 

Subsection (b) provides that grants are to be awarded competitively. 

SEcnON 16. AUTHORIZATION OF APPROPRIATIONS. 

Subsection (a) provides that $1.5 million is authorized for FY 95 and each succeeding 

fiscal year for 12 years for funding the Cotnnlisaion. 

Subsection (b) provides that $500,000 is authorized for FY 9S and each succeeding 

fiscal year for 12 years for funding petitioners under Administration for Native American 

grants. 

4 
103D CONGRESS 

2D SESSION 

61 

H.R.4709 

To make certain technical corrections, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

JUKE 30, 1994 

Mr. RICHARDSOK (for himself and Mr. THOMAS of Wyoming) introduced the 

following bill; which was referred to the Committee on Natural Resources 

A BILL 

To make certain technical corrections, and for other 

purposes. 

1 Be it enacted by the Senate and House of Representa2 ~ives of the United States of America in Congress assembled, 

3 SECTION 1. LEASING AUTHORITY OF THE INDIAN PUEBLO 

4 FEDERAL DEVELOPMENT CORPORATION. 

5 Notwithstanding the provisions of section 17 of the 

6 Act of June 18, 1934 (25 U.S.C. 477), the Indian Pueblo 

7 Federal Development Corporation, whose charter was is8 sued pursuant to such section by the Secretary of the Inte9 rior on January 15, 1993, shall have the authority to lease 

10 or sublease trust or restricted Indian lands for up to 50 

11 years. 
62 

2 

SEC. 2. GRAND RONDE RESERVATION ACT. 

2 (a) LANDS DESCRIBED.-Section 1 of the Act enti3 tied "An Act to establish a reservation for the Confed4 erated Tribes of the Grand Ronde Community of Oregon, 

5 and for other purposes", approved September 9, 19&8 

6 (102 Stat. 1594), is amended7 

8 

9 

lO 

11 

12 

"6 

6 

6 

4 

4 

8 

8 

7 

7 

7 

13 and 

(1) in subsection (c)-

(A) by striking "9,811.32" and inserting 

"10,239.65"; and 

(B) by striking all after "5 8 17 All 

5.55" and inserting in lieu thereof the following: 

swv.swv •• w•hSEv.swv. 53.78 

S1hElfo,SE'I.SW1f• 9.00 

8 Tax lot 800 5.55 

30 W1h 320.0 

30 SW'I.NE'I• 40.0 

Total ..................................... ....... 10,239.65."; 

14 (2) by adding at the end the following: 

15 "(d) CLAIMS E:A"'TINGUISHED; LIABILITY.-

16 "(1) CLAIMS EXTINGUISHED.-All claims to 

17 lands within the State or Oregon based upon recog18 nized title to the Grand Ronde Indian &servation 

19 established by the Executive order of June 30, 1857, 

20 pursuant to treaties with the Kalapuya, Molalla, and 

21 other tribes, or any part thereof by the Confederated 

•HR 4709 IH 
63 

3 

1 Tribes of the Grand Ronde Community of Oregon, 

2 or any predecessor or successor in interest, are here3 by extinguished, and any transfers pursuant to the 

4 Act of April 28, 1904 (Chap. 1820; 33 Stat. 567) 

5 or other statute of the United States, by, from, or 

6 on behalf of the Confederated Tribes of the Grand 

7 Ronde Community of Oregon, or any predecessor or 

8 successor interest, shall be deemed to have been 

9 made in accordance v.ith the Constitution and all 

10 laws of the United States that are specifically appli11 cable to transfers of lands or natural resources from, 

12 by, or on behalf of any Indian, Indian nation, or 

13 tribe of Indians (including, but not limited to, the 

14 Trade and Intercourse Act of 1790 (Act of July 22, 

15 1790; 25 U.S.C. 177, ch. 33, sec. 4; 1 Stat. 137)). 

16 "(2) LIABILITY.-The United States and the 

17 Tribe shall share equally liability for lost revenues, 

18 if any, to any county because of the transfer of 

19 revested Oregon and California Railroad grant lands 

20 in section 30, Township 4 South, Range 7 West.". 

21 (b) CIVIL AND CRIMINAL JURISDICTION.-Section 3 

22 of such Act (102 Stat. 1595) is amended by adding at 

23 the end the following: "Such exercise shall not affect the 

24 Tribe's concurrent jurisdiction over such matters.". 

•HR 4709 IH 
64 

4 

1 SEC. 3. CONFEDERATED TRffiES OF THE SILETZ INDIANS 

2 OFOREGON. 

3 Section 2 of the Act of September 4, 1980 (Public 

4 Law 96-340; 94 Stat. 1072) is amended5 (1) by inserting "(a)" after "SEC. 2."; and 

6 (2) by adding at the end the following: 

7 "(b)(l) The Secretary of the Interior, acting at the 

8 request of the Confederated Tribes of the Siletz Indians 

9 of Oregon, shall accept (subject to all valid liens, rightstO of-way, licenses, leases, permits, and easements existing 

11 on the date of such request) any deed or other instrument 

12 conveying to the United States in trust for the Confed13 crated Tribes of Siletz Indians of Oregon the follo\\ing 

14 parcels of land located in Lincoln County, State of Oregon: 

15 "(A) In Township 10 South, Range 8 \Vest, 

16 Willamette l\Ieridian17 "(i) a traet of land m the northwest and 

18 the northeast quarters of section 7 consisting of 

19 208.50 acres, more or less, conveyed to the 

20 Tribe by warranty deed from John J. Jantzi 

21 and Erma l\1. Jantzi on l\Iarch 30, 199.0; and 

22 "(ii) 3 tracts of land in section 7 consist23 mg of 18.07 acres, more or less, conveyed to 

24 the Tribe by warranty deed from John J. 

25 ,Jantzi and Erma l\I. ,Jantzi on l\Iarch 30, 1990, 

26 and 

•HR 4709 IH 
65 

5 

1 "(B) In Township 10 South, Range 10 West, 

2 Willamette Meridian3 "(i) a tract of land in section 4, including 

4 a portion of United States Government Lot 31 

5 lying west and south of the Siletz River, con6 sisting of 15.29 acres, more or less, conveyed to 

7 the Tribe by warranty deed from Patrick J. 

8 Collson and Patricia Ann Collson on February 

9 27, 1991; 

10 "(ii) a tract of land in section 9, located in 

11 Tract 60, consisting of 4.00 acres, more or less, 

12 conveyed to the Tribe by contract of sale from 

13 Gladys M. Faulkner on December 9, 1987; 

14 "(iii) a tract of land in section 9, including 

15 portions of the north one-half of United States 

16 Government Lot 15, consisting of 7.34 acres, 

17 more or less, conveyed to the Tribe by contract 

18 of sale from Clayton E. Hursh and Anna L. 

19 Hursh on December 9, 1987; 

20 "(iv) a tract of land in section 9, including 

21 a portion of the north one-half of Government 

22 Lot 16, consisting of 5.62 acres, more or less, 

23 conveyed to the Tribe by warranty deed from 

24 Steve Jebert and Elizabeth Jebert on December 

25 1, 1987; 

•HR 4709 IH 
66 

6 

1 "(v) a tract of land in the southwest quar2 tcr of the northwest quarter of section 9, con3 sisting of 3.45 acres, more or less, conveyed to 

4 the Tribe by warranty deed from Eugenic 

5 Nashifon July 11, 1988; and 

6 "(vi) a tract of land in section 10, includ7 ing United States Gove111ment Lot 8 and por8 tions of United States Government Lot 7, con9 sisting of 29.93 acres, more or less, conveyed to 

10 the Tribe by warranty deed from Doyle Grooms 

11 on August 6, 1992; and 

12 "(C) In the northwest quarter of section 2 and 

13 the northeast quarter of section 3, Township 7 

14 South, Range 11 West, Willamctte Meridian, a tract 

15 of land comprising Lots 58, 59, 63, and 64, IJincoln 

16 Shore Star Resort, IJincoln City, Oregon. 

17 "(2) The parcels of land described in paragraph (1), 

18 together "1\ith the follo,\1ng tracts of lands which have been 

19 conveyed to the United States in trust for the Confed20 erated Tribes of Siletz Indians of Oregon21 "(A) a tract of land in section 3, Township 10 

22 South, Range 10 West, Willamette Meridian, includ23 ing portions of United States Government !Jots 25, 

24 26, 27, and 28, consisting of 49.35 acres, more or 

25 less, conveyed by the Siletz Tribe to the United 

•HR 4709 IH 
67 

7 

1 States in trust for the Tribe on March 15, 1986, 

2 and 

3 "(B) a tract of land in section 9, Township 10 

4 South, Range 10 West, Willamette Meridian, includ5 ing United States Government Lot 33, consisting of 

6 2.27 acres, more or less, conveyed by warranty deed 

7 to the United States in trust for the Confederated 

8 Tribes of Siletz Indians of Oregon from Harold D. 

9 ABridge and Sylvia C. Alldridge on June 30, 1981; 

10 shall be subject to the limitations and provisions of sec11 tions 3, 4, and 5 of this Act. 

12 "(3) As soon as practicable after the transfer of the 

13 parcels provided in paragraphs (1) and (2), the Secretary 

14 of the Interior shall convey such parcels and publish a de15 scription of such lands in the Federal Register.". 

16 SEC. 4. TRANSFER OF PARCEL BY YSLETA DEL SUR 

17 PUEBLO. 

18 (a) RATIFICATION.-The transfer of the land de19 scribed in subsection (b), together with fixtures thereon, 

20 on July 12, 1991, by the Ysleta Del Sur Pueblo is hereby 

21 ratified and shall be deemed to have been made in accord22 ance with the Constitution and all laws of the United 

23 States that are specifically applicable to transfers of land 

24 from, by, or on behalf of any Indian, Indian nation, or 

25 tribe or band of Indians (including section 2116 of the 

•HR 4709 IH 
68 

8 

1 Revised Statutes (25 U .S.C. 177)) as if Congress had 

2 given its consent prior to the transfer. 

3 (b) l..ofu"DS DESCRIBED.-The lands referred to in 

4 subsection (a) are more particularly described as follows: 

5 Tract 1-B-1 (1.9251 acres) and Tract 1-B-2-A 

6 (0.0748 acres), Block 2 San Elizario, El Paso Coun7 ty, Texas. 

8 SEC. 5. AUTHORIZATION FOR 99-YEAR LEASES. 

9 The second sentence of subsection (a) of the first sec10 tion of the Act of August 9, 1955 (25 U.S.C. 415(a)), 

11 is amended by inserting "the Viejas Indian Reservation," 

12 after "Soboba Indian Reservation,".· 

13 SEC. 6. WIND RIVER INDIAN ffiRIGATION PROJECT. 

14 Funds appropriated for construction of the Wind 

15 River Indian Irrigation Project in fiscal year 1990 (Public 

16 Law 101-121), fiscal year 1991 (Public Law 101-512), 

17 fiscal year 1992 (Public Law 102-154), and hereafter 

18 shall be made available on a nonreimbursable basis. 

19 SEC. 7. REIMBURSEMENT OF COSTS INCURRED BY GILA 

20 RIVER FARMS FOR CERTAIN RECLAMATION 

21 CONSTRUCTION. 

22 The Secretary of the Interior is authorized to pay 

23 $1,842,205 to the Gila River Farms as reimbursement for 

24 the costs incurred by the Gila River Farms for construc25 tion allocated to irrigation on the Sacaton Ranch that 

•HR 4709 m 
69 

9 

1 would have been nonreimbursable if such construction had 

2 been performed by the Bureau of Reclamation under sec3 tion 402 of the Colorado River Basin Project Act ( 43 

4 U.S.C. 1542). 

5 SEC. 8. RECONVEYANCE OF CERTAIN EXCESS LANDS. 

6 (a) IN GENERAL.-The Congress finds that the Sac 

7 and Fox Nation of Oklahoma has determined the lands 

8 described in subsection (b) to be excess to their needs and 

9 should be returned to the original grantors or their heirs. 

10 The Secretary of the Interior shall convey, "'ithout consid11 eration, to the persons as specified in subsection (b), all 

12 right, title, and interest of the United States in and to 

13 the lands described in subsection (b). 

14 (b) PERSONS AND LANDS.-The lands and individ15 uals referred to in subsection (a) are as follows: 

16 (1) To Sadie Davis, now Tyner, or her heirs or 

17 devisees, the lands in Lincoln County, Oklahoma, de18 scribed as the SElf4SE%SE1

/4SE% of Section 28, 

19 Township 17 North of Range 6 East, containing two 

20 and one half acres, more or Jess. 

21 (2) To Mabel Wakole, or her heirs, the lands in 

22 Pottawatomie County, Oklahoma, described as the 

23 NE%NE% of I.ot 6 of NW% of Section 14, Town24 ship 11 North, Range 4 East, containing 2.50 acres. 

•tiR 4709 IH 
70 

10 

1 SEC. 9. TITLE I OF THE ACT OF JANUARY 12, 1983, PERTAIN2 lNG TO THE DEVILS LAKE SIOUX TRIBE. 

3 Paragraph (1) of section lOS( a) of title I of the Act 

4 of January 12, 1983 (96 Stat. 2515) is amended by strik5 ing out "of the date of death of the decedent" and insert6 ing in lieu thereof "after the date on which the Secretary's 

7 determination of the heirs of the decedent becomes final". 

8 SEC. 10. NORTHERN CHEYENNE LAND TRANSFER. 

9 (a) IN GENERAh-Notwithstanding any contrary 

lO provision of law, the Secretary of the Interior or his au11 thorized representative ("Secretary") is hereby authorized 

12 and directed to transfer by patent to Lame Deer High 

13 School District No. 6, Rosebud County, Montana ("School 

14 District"), all right, title, and interest of the United States 

15 and the Northern Cheyenne Tribe ("Tribe") in and to the 

16 lands described below ("Subject Lands"), to be held and 

17 used by the School District for the exclusive purpose of 

18 constructing and operating thereon a public high school 

19 and related facilities. The Subject Lands consist of a tract 

20 of approximately 40 acres within the Northern Cheyenne 

21 Indian Reservation, more particularly described as follows: 

22 A tract of land located in the Wlf2 SE% and the 

23 El/2 SW% of Section 10, Township 3 South, Range 

24 41 East, M.P.l:I., described as follows: Beginning at 

25 the south lf4 corner of said Section 10, thence south 

26 89 degrees 56 minutes west 393.31 feet on and 

•HR <l709 IH 
71 

11 

1 along the south line of said Section 10 to the true 

2 point of beginning, thence south 89 degrees 56 min3 utes west 500.0 feet on and along said Section line, 

4 thence north 00 degrees 00 minutes east, 575.0 feet, 

5 thence north 54 degrees 9 minutes 22 seconds east 

6 2382.26 feet, thence south 23 degrees 44 minutes 

7 21 seconds east 622.56 feet, thence south 51 de8 grees 14 minutes 40 seconds west 2177.19 feet to 

9 the true point of beginning, containing in all 40.0 

10 acres, more or less. 

11 (b) PATENT AND LEASE.-The patent issued under 

12 this section shall provide that13 ( 1) title to all coal and other minerals, includ14 ing oil, gas, and other natural deposits, within the 

15 Subject Lands shall remain in the Secretary in trust 

16 for the Tribe, as provided in the Act of July 24, 

17 1968 (82 Stat. 424); 

18 (2) the Subject Lands may be used for the pur19 pose of constructing and operating a public high 

20 sehool and related facilities thereon, and for no other 

21 purpose; 

22 (3) title to the Subject Lands, free and clear of 

23 all liens and encumbrances, shall automatically re24 vert to the Secretary in trust for the Tribe, and the 

25 patent shall be of no further force or effect, if, with-

•HR 4709 IH 
72 

12 

1 in eight years of the date of the patent, classes have 

2 not commenced in a permanent public high school 

3 facility established on the Subject Lands, or if such 

4 classes commence at the facility \\ithin such eight5 year period, but the facility subsequently perma6 nently ceases operating as a public high school; and 

7 ( 4) at any time after the conclusion of the cur8 rent litigation (including all trial ami, if any, appel9 late proceedings) challenging the November 9, 1993, 

10 decision of the Superintendent of Public Instruction 

11 for the State of Montana granting the petition to 

12 create the School District, and with the prior ap13 proval of the Superintendent of Public Instruction 

14 ("Superintendent's Approval''), the Tribe shall have 

15 the right to replace the patent •vith a lease covering 

16 the Subject Lands issued under the Act of August 

17 9, 1955, as amended (25 U.S.C. 415(a)) having a 

18 term of 25 years, with a right to 1·cnew for an addi19 tiona! 25 years. 

20 Under such lease, the Subject J.ands shall be leased rent 

21 free to the School Distriet for the exclusive purpose of con22 structing and operating a public high school and related 

23 faeilities thereon. The lease shall terminate if, within eight 

24 years of the date of the patent, elasses have not com25 menced in a permanent public high sehool facility estab-

•HR 4709 IH 
73 

13 

1 lished on the Subject Lands, or if such classes commence 

2 at the facility within such eight-year period, but the facil3 ity subsequently permanently ceases operating as a public 

4 high school. In the event the Tribe seeks and obtains the 

5 Superintendent's Approval, it may tender a lease, signed 

6 by the Tribe and approved by the Secretary, which com7 plies with the provisions of this subsection. Upon such ten8 der, the patent shall be of no further force or effect, and, 

9 subject to the leasehold interest offered to the School Dis1 0 trict, title to the Subject Lands, free and clear of all liens 

11 and encumbrances, shall automatically revert to the Sec12 retai-y in trust for the Tribe. The Tribe may at any time 

13 irrevocably relinquish the right provided to it under this 

14 subsection by resolution of the Northern Cheyenne Tribal 

15 Council explicitly so providing. 

16 (c) EFFECT OI<' ACCEPTANCE OF PATENT.-Upon the 

17 School District's acceptance of a patent delivered under 

18 this section, the School District, and any party who may 

19 subsequently acquire any right, title or interest of any 

20 kind whatsoever in or to the Subject Lands by or through 

21 the School District, shall be subject to, be bound by, and 

22 comply with all terms and conditions set forth in para23 graphs (1) through ( 4) of subsection (b). 

•HR 4709 IH 
74 

14 

1 SEC. 11. INDIAN AGRICULTURE AMENDMENT. 

2 (a) liEASING OF INDIAN AGRICULTURAL Ic<~ANDS.-

3 Section 105 of the American Indian Agriculture Resource 

4 Management Act (25 U.S.C. 3701 et seq.) is amended5 (1) in subsection (b)-

6 (A) by striking "and" at the end of para7 graph (3); 

8 (B) by striking the period at the end of 

9 paragraph (4) and inserting"; and"; and 

lO (C) by adding at the end the following: 

11 "(5) shall approve leases and permits of tribally 

12 O\vned agricultural lands at rates determined by the 

l3 tribal governing body."; and 

14 (2) in subsection (c), by amending paragraph 

15 (1) to read as follows: "(1) Nothing in this section 

16 shall be construed as limiting or altering the author17 ity or right of an individual allottee or Indian tribe 

18 in the legal or beneficial use of his, her, or its own 

19 land or to enter into an agricultural lease of the sur20 face interest of his, her, or its allotment or land 

21 under any other provision of law.". 

22 (b) 'l'RIBAL hi:t~WNITY.---The American Indian Agri23 culture Resource Management Act (25 U.S.C. 3701 et 

24 seq.) is amended by adding at the end the following: 

•HR 4709 IH 
75 

15 

1 "SEC. 306. TRIBAL IMMUNITY. 

2 "Nothing in this Act shall be construed to affect, 

3 modify, diminish, or otherwise impair the sovereign immu4 nity from suit enjoyed by Indian tribes.". 

5 SEC. 12. INDIAN HEALTH AMENDMENT. 

6 Section 4(n) of the Indian Health Care Improvement 

7 Act (25 U.S.C. 1603(n)) is amended to read as follows: 

8 "(n) 'Health profession' means allopathic medicine, 

9 family medicine, internal medicine, pediatrics, geriatric 

10 medicine, obstetrics and gynecology, psychiatry, osteop11 athy, optometry, pharmacy, psychology, public health, so12 cial work, marriage and family therapy, chiropractic medi13 cine, environmental health and engineering, allied health 

14 professions, and other health professions.". 

0 
76 

SECTION-BY-SECTION ANALYSIS OF H.R. 4709 

SEcnON 1. LEASING AUTHORI1Y OF THE INDIAN PUEBLO FEDERAL 

DEVELOPMENT CORPORATION. 

Section 1 provides that the Indian Pueblo Federal Development Corporation is to 

have the authority to lease Indian lands for up to 50 years. 

SEcnON 2. GRAND RONDE RESERVATION ACf. 

~/ 

Subsection (a) provides that certain parcels of land descnbed in the Bill ~-wMare to be added to the Act which established the Grand' Ronde 

reservation in Oregon. A new "subsection" is to be added to the Act which provides that all 

claims to the land are extinguished and the U.S. and the Tribe are to equally share the 

liability for any lost revenues to any county because of the land transfer. 

Subsection (b) provides that the concurrent jurisdiction of the Tribe is not affected. 

SEcnON 3. CONFEDERATED TRIBES OF THE SILETZ INDIANS OF OREGON. 

Section 3 provides that the Secretary of Interior shall aecept a parcel of land in trust 

for the Confederated Tnbes of Siletz Indians of Oregon in Lincoln County, Oregon. 

SEcnON 4. TRANSFER OF PARCEL BY YSLETA DEL SUR PUEBLO. 

Subsection (a) provides that the July 12, 1991 transfer of land by the Ysleta Del sur 

Pueblo is ratified. 

Subsection (b) sets out the land description. 

SEcnON S. AUTHORIZATION FOR 99-YEAR LEASES. 

Section 5 provides a 99 year lease for the Viejas Indian Reservation. 

SEcnON 6. WIND RIVER INDIAN IRRIGATION PROJECT. 

Section 6 provides that funds appropriated for the construction of the Wind River 

Indian Irrigation Project are to be made available on a nonreimbursable basis. 

SEcnON 7. REIMBURSEMENT OF COSTS INCURRED BY Gn.A RIVER FARMS FOR 

CERTAIN RECLAMATION CONS'TR.UcnON. 

Section 7 provides that the Secretary of Interior is authorized to pay the Gila River 

Farm for reimbursement of construction costs. 
77 

SECfiON 8. RECONVEYANCE OF CERTAIN EXCESS lANDS. 

Subsection (a) provides that the Congress finds that the Sac and Fox Nation of 

Oklahoma has determined certain lands to be excess and the lands should be returned to 

the original grantors or their heirs. 

Subsection (b) describes the lands and the grantors. 

SECfiON 9. TITLE I OF THE ACf OF JANUARY 12, 1983, PERTAINING TO THE 

DEVILS LAKE SIOUX TRIBE. 

Subsection 9 clarifies that the Secretary is to determine the "heirs of the decedent" 

under the Act of January 12. 1983 pertaining to the Devil's Lake Sioux Tribe. 

SECfiON 10. NORTHERN CHEYENNE LAND TRANSFER. 

Subsection (a) provides that the Secretary is authorized to transfer by patent to a high 

school district in Montana, the title to a parcel of land currently held in trust for the 

Northern Cheyenne Tribe. A public high school is to be constructed thereon. 

Subsection (b) provides that the mineral title remains in trust for the Tribe and the 

lands may be used only for a school. The land reverts to the U.S. if classes have not 

commenced within 8 years, and after the current litigation, the Tnbe shall have the right to 

replace the patent with a lease for 25 years. Under the lease, the land shall be leased rent 

free to the school. 

Subsection (c) provides that upon the school District's acceptance of a patent, it is 

bound by all terms and conditions of the Act. 

SECfiON 11. INDIAN AGRICULTURE AMENDMENT. 

Subsection (a) amends the American Indian Agriculture Resource Management Act 

by providing that the Secretary of Interior shall approve leases of tnbally owned agricultural 

lands at rates determined by the governing body. It further provides that nothing in the 

section is to be construed as limiting an allottee or tnbe in the legal use of their land or to 

enter into agricultural leases. 

Subsection (b) provides that the Act is amended to clarify that nothing therein is to 

affect, modify, diminish the sovereign immunity of Indian tnbes. 

SECfiON U. INDIAN HEALTH AMENDMENT. 

Section 12 clarifies the term "health profession" as used in the Indian Health Care 

Improvement act. 

2 
78 

Mr. RICHARDSON. I would like to welcome our first set of witnesses, the Hon. Mike Kopetski, U.S. Representative from Oregon, 

5th District, a dynamic Member of the House of Representatives, 

and we have asked the Hon. Leslie AuCoin, once a Member of Congress always a Member of Congress. We are delighted to see him 

again. We also have the Honorable Mark Mercier, chairman, Confederated Tribe of the Grande Ronde Tribal Council, and Mike 

Mason, their attorney, of Grande Ronde, OR. 

The gentleman from Wyoming. 

STATEMENT OF BON. CRAIG THOMAS 

Mr. THOMAS. Thank you, Mr. Chairman. I have been involved in 

this for some time. I do have a statement I would like to make. Mr. 

Chairman, I have long awaited the day that we would take up an 

overhaul of the BIA recognition process. 

Let me state at the outset that while I greatly appreciate the intent of the gentleman from American Samoa in introducing 2549, 

I do not believe that this bill, which merely codifies the existing 

process, goes far enough. We need to make some concrete and some 

substantial changes in the F AP process. 

Regardless of whether the problems with the F AP process are 

real or perceived, it is clear something needs to be done. While the 

alleged backlog of petitions at the BIA is not nearly as great as 

some would have us believe, the perception is that the process is 

overly cumbersome, political, and ineffective. We are faced with an 

ever-growing number of tribes that pursue congressional recognition as a result. 

As the chairman knows, I strongly believe that pursuing that 

course is disastrous and can only lead to the recognition of some 

groups based not on any Indian ancestry but solely on the power 

and the party affiliation of their sponsor-the Lumbee and Mowa 

come to mind. 

In order to bring some semblance of effectiveness to the process, 

I am pleased to support and cosponsor H.R. 4462. This is a very 

complex issue, and I know our staffs have worked hard on crafting 

legislation that is both workable and effective. Let me comment 

briefly on some of the more important changes that we propose to 

make. 

First, I believe that removing the process from the BIA is an important step. Although the BIA has done the best job it can with 

the resources it has to do it with, placing the process with an independent commission will insulate it from charges of antirecognition 

bias. 

I have long been troubled by the appearance, and I stress the 

word "appearance," of impropriety involved in allowing the same 

agency responsible for providing services to the tribes to make decisions regarding the recognition that would increase their service 

population, in some cases by many thousands. 

Second, one of the most important changes is that if a petitioning 

group can demonstrate its descendence from a treaty signatory or 

from a group that was found eligible to participate in the Indian 

Reorganization Act, it must then only establish the first three recognition criteria back to the date of the treaty or the IRA eligibility, and not all the way to precolonial days. This would cut down 
79 

on a substantial amount of paperwork and research for many 

groups, and eliminate one of the more prominent complaints about 

the present system. 

In that regard, I want to stress for our witnesses today that this 

is obviously not a polished product. There are several substantive 

changes that need to be made that are not included in the bill as 

introduced in the interests of getting the bill into the system and 

into the committee. 

For instance, as presently worded, it would seem the treaty signatory/IRA eligibility exemption of subsection 5(c) applies only to 

subsection (b)(l). This is an error, however; the bill is meant to 

make the exception applicable to all three of the first historical criteria. Our staffers are in agreement on these changes and I am certain that they will be made a part of the bill in markup. 

I am sure that we will hear complaints about this bill from all 

sides. I expect the BIA, like any bureaucracy, will complain that we 

are making a grave mistake by removing the process from their 

control. I am equally sure we will hear from some Indian groups 

who think we have not gone far enough. Mr. Chairman, this is the 

most workable solution I have seen yet. 

I look forward to the testimony today and want to stress to the 

chairman that swift passage of this bill is of highest importance to 

me, and I would hope we can move it through the committee and 

get it to the other body in time for the President's signature this 

year. 

We have been talking about this for 6 years and it is time that 

we do something about it. Thank you, Mr. Chairman. 

Mr. RICHARDSON. I thank the gentleman and I agree with his 

statement. I commend him for his efforts on this issue. He has devoted a lot of time to it. 

[Prepared statement of Mr. Thomas follows:] 
80 

OPENING STATEMENT 

OF 

THE HaN. CRAIG THOMAS 

ON 

HR 2549 & HR 4462: BILLS TO AMEND THE FAP PROCESS 

Mr. Chairman, I have long awaited the day that we 

would take up an overhaul the BIA recognition process. 

Let me state at the outset that while I greatly appreciate the intent of the. gentleman from American Samoa 

in introducing H.R. 2549, I do not believe that his bill --

which merely codifies the existing process -- goes far 

enough. We need to make some concrete and substantial changes in the FAP process. 

Regardless of whether the problems with the FAP 

process are real or perceived, it is clear that something 

needs to be done. While the alleged "backlog" of petitions at the BIA is not nearly as great as many would 
81 

have us believe, the perception is that the process is 

overly cumbersome, political, and ineffective. We are 

faced with an ever-growing number of tribes which seek 

to circumvent the process and pursue congressional 

recognition as a result. As the Chairman knows, I 

strongly believe that pursuing that course is disastrous. 

It can only lead to the recognition of some groups based 

not on any Indian ancestry but solely on the power and 

party affiliation of their sponsor - the Lumbee and Mowa 

groups come to mind. 

In order to bring some semblance of effectiveness to 

the process, I am pleased to support and cosponsor 

H.R. 4462. This is a very complex issue, and I know our 

staffs have worked hard to craft legislation that is both 

workable and effective. Let me comment briefly on some 

of the more important changes we propose to make. 
82 

First, I believe that removing the process from the BIA is 

an important step. Although I feel that the BIA has done 

the best job it can with the resources available to it, 

placing the process with an independent commission will 

insulate it from charges of anti-recognition bias. I have 

long been troubled by the appearance - and I stress the 

word appearance -- of impropriety involved in allowing 

the same agency responsible for providing services to 

the tribes making decisions on recognition that would 

increase their service population, in some cases by many 

thousands. 

Second, one of the more important changes is that if 

a petitioning group can demonstrate its descendence 

from a treaty signatory or from a group that was found 

eligible to participate in the Indian Reorganization Act, it 

must only establish the first three recognition criteria 
83 

back to the date of the treaty or IRA eligibility, and not all 

the way to precolonial days. This should help cut down 

on a substantial amount of paperwork and research for 

many groups -- and eliminate one of the more prominent 

complaints about the present system. 

In that regard, I want to stress for our witnesses 

today that this bill is obviously not a polished product. 

There are several substantive changes that need to be 

made that were not included in the bill as introduced in 

the interests of getting the bill into the system and into 

committee. For instance, as presently worded, it seems 

that the treaty signatory/IRA eligibility exemption of subsection 5(c) applies only to subsection 5(b)(1 ). This is 

an error, however; the bill is meant to make the exemption applicable to al three of the first historical criteria. 

Our staffs are in agreement on these changes, and I'm 
84 

certain that they will be made a part of the bill at markup. 

I am sure that we will hear complaints about this bill 

from all sides. I expect that the BIA, like any bureaucracy, will complain that we are making a grave mistake 

in removing the process from their control. I am equally 

sure that we will hear from some Indian groups who 

think that we have not gone far enough. But Mr. Chairman, this is the most workable solution I have seen yet. 

I look forward to the testimony today. I want to 

stress to the Chairman that swift passage of this bill is of 

the highest importance to me. I would hope that we can 

move this through committee and get it to the other body 

in time for the President to sign it into law this year. We 

have been talking about this for the last six years; it is 

high time we actually did something about it. 
85 

Mr. RICHARDSON. Let me mention that the distinguished vice 

chairman of the Senate Indian Affairs Committee, the Honorable 

John McCain, has arrived and has a companion bill on the Federal 

acknowledgment process, and the Chair will now recognize him for 

his opening statement. Welcome, Senator. 

STATEMENT OF HON. JOHN McCAIN, A UNITED STATES 

SENATOR FROM THE STATE OF ARIZONA 

Senator McCAIN. Thank you, very much, Mr. Chairman and Congressman Thomas. Thank you. I would be very brief, Mr. Chairman, because I think Congressman Thomas and you have covered 

most of the points. 

I just would like to emphasize the compelling reason for legislation and that is that the system today is unfair. It is not fair for 

Indian tribes that are seeking recognition to have powerful friends 

in Congress, either in the House or in the Senate, and thereby get 

recognition. Other tribes who do not, then languish for years and 

years and years and years and years in the process. It needs to be 

addressed-there is a compelling reason for this issue to be addressed for that reason alone, in my view. 

Second of all, obviously in my view, Mr. Chairman, it should not 

be an open-ended process. There are a limited number of people 

seeking recognition and I am very pleased to see that our legislation in both bodies is nearly identical and it seems to me that we 

have an opportunity this year to get it passed. 

I think we need one process with fair standards and firm time 

lines to ensure impartiality. In my view, the process should be 

managed by an independent Federal commission rather than Congress or BIA. 

There is one difference between the two bills, Mr. Chairman, and 

I would urge your consideration, and that is the Senate bill requires all petitions to be filed within 6 years after enactment and 

the review of all petitions would have to be completed no later than 

12 years after enactment. I would urge your consideration, especially since the tribes themselves are strong supporters of some 

kind of an ending to this process. · Mr. Chairman, I want to thank you for everything you and Congressman Thomas are doing on native American issues. We have 

seen a degree of cooperation and a degree of effort that I think is 

really very significant, and I want to express my personal appreciation for the relationship that we have, Senator Inouye and yours 

and my staff, and we appreciate it very much. And this legislation 

you are taking up is just another sign of the commitment that you 

have to Indian country, and I thank you, Mr. Chairman. 

Mr. RICHARDSON. I thank the gentleman and I know he has to 

return to the Senate. 

[Prepared statement of Senator McCain follows:] 
86 

STATEMENT 

OF 

SENATOR JOHN McCAIN 

FOR THE HEARING ON 

H.R. 4462, THE INDIAN FEDERAL RECOGNITION 

ADMINISTRATIVE PROCEDURES ACT OF 1994 

BEFORE THE 

SUBCOMMITTEE ON NATIVE AMERICAN AFFAIRS 

OF THE 

COMMITTEE ON NATURAL RESOURCES 

UNITED STATES HOUSE OF REPRESENTATIVES 

' 

JULY 22, 1994 

Mr. Chairman and Members of the Committee, I appreciate 

the opportunity to appear before you today to offer a few 

comments on H.R. 4462, the Indian Federal Recognition 

Administrative Procedures Act of 1994. I commend Chairman 

Richardson and Representative Thomas for their leadership in 

bringing this issue before the subcommittee. 

H.R. 4462 is very similar to S. 1844 which I introduced in the 

Senate on February 10, 1994. S. 1844 was cosponsored by Senator 

Inouye and Senator Cochran and it reflects over sixteen years of 

work by the Senate Committee on Indian Affairs to find a sensible 

way to reform the process by which the Federal government 

extends recognition to Indian tribes. With the introduction of 

H.R. 4462, for the first time we now have legislation pending in 

both the House and Senate which, if enacted, would lead to the 

necessary reform of the process. 

As the members of this subcommittee know all too well, we 

currently have two processes by which an Indian tribe can be 

federally recognized. One of those is right here in the Congress. 

It involves little or no application of objective standards or criteria 
87 

and relies almost exclusively on the political strength of the 

congressional delegation of the state in which the Indian tribe 

happens to be located. There are six recognition bills currently 

pending in Congress and it is fair to assume that at least a few of 

these will be enacted before the adjournment of this Congress. We 

have legislatively recognized at least 14 Indian tribes since 1978. 

The Department of the Interior also has a process for Federal 

recognition. In 1978, regulations were promulgated by the 

Department to govern that process. Earlier this year those 

regulations were revised and updated in an effort by the 

Department to respond to criticism from Indian tribes and the 

Congress. Since 1978 the Department has received 147 petitions 

from Indian groups seeking recognition. Of those, 29 have been 

resolved and 75 are letters expressing an intent to petition. Seven 

petitioners have been deemed by the Department to require 

legislative authority to proceed through the Department's review 

process. The remaining 35 petitions are in various stages of review 

by the Department. 

In hearings held by the Senate Committee on Indian Affairs 

in 1978, 1983, 1988, 1989 and 1992 we have repeatedly heard that 

the recognition process in the Department is time consuming and 

costly. Some tribal groups allege that it leads to unfair and 

unfounded results and that the criteria for recognition are not 

applied in a consistent manner. Until very recently, the 

Department's process has often been hindered by a lack of staff and 

resources. When this situation is combined with the fact that the 

Congress often extends recognition with little or no reference to 

the legal standards and criteria included in the Department's 

regulations, we get a predictable result--unfairness for most 

petitioners. 
88 

H.R. 4462, like S. 1844, would correct this situation by 

establishing one process for all petitioners. Every petition would 

be evaluated by the same criteria. Firm timelines would be applied 

to ensure that reviews do not drag on for ten or more years, as 

they currently do. Appropriations are authorized to ensure that 

the necessary staff and resources are available to review petitions. 

Appropriations are also authorized to assist petitioners in the 

development and presentation of the evidence necessary to reach a 

determination of whether recognition should be extended. Both 

bills would establish an independent three member Federal 

commission to evaluate petitions and make final determinations. 

While there are some differences"between S. 1844 and H.R. 

4462, I believe that they are minor with one exception. S. 1844 

would establish a firm timeline of six years from the date of 

enactment for all petitions to be submitted for review and a 

deadline of twelve years from the date of enactment for all reviews 

to be completed by the Commission. I believe that these provisions 

of S. 1844 are extremely important. Everyone involved in this 

process needs finality. The Indian tribes need to know if they are 

going to be recognized and when. The Congress and the Executive 

Branch agencies need certainty as to the number of Indian tribes 

requiring federal assistance and services. I do not believe that 

there are an infinite number of Indian tribes to be recognized. It 

seems reasonable and consistent with sound public policy to insist 

that there be an end point for the recognition process. 

Accordingly, I urge the members of this subcommittee to consider 

including the provisions of S. 1844 in H.R. 4462 to establish firm 

deadlines for the submission of all petitions and the completion of 

this process. 

I thank you for your consideration. On behalf of Chairman 

Inouye and the members of the Senate Committee on Indian 

Affairs, I want to assure you that we are prepared to work closely 

with you to secure enactment of this legislation this year. 
89 

Senator McCAIN. At least I am not going to Haiti. Thank you, 

Mr. Chairman. 

Mr. RICHARDSON. I thank the gentleman and I wish him the best 

and thank him for his testimony. 

Mr. RICHARDSON. The Chair will now recognize the dynamic 

Member from Oregon, Mr. Kopetski, who has provided leadership 

on so many issues, defense, trade, and many other issues, and 

today would testify to views of his constituents. The Chair recognizes the Honorable Mike Kopetski. 

STATEMENT OF HON. MICHAEL J. KOPETSKI 

Mr. KOPETSKI. Thank you, Mr. Chairman, and thank you for 

those kind words, and if you need assistance in going to Haiti, I 

would be glad to help. It is an important issue. 

Mr. Chairman, Mr. Thomas, thank you for the opportunity to testify before the subcommittee today. I want to discuss the Grand 

Ronde tribes section of the native American technical corrections 

bill. About 99.9 percent of the Grande Ronde is in my congressional 

district. The one-tenth of 1 percent lies in Representative Furse's 

district. She is unable to attend today but wished to express her 

support for this section as well. 

In the late 1800's, the Grand Ronde reservation was surveyed 

improperly, and, as a result, 84 acres of reservation lands were unaccounted for. This parcel was sold mistakenly by the Federal Government-as unallotted lands within the original reservation in 

1904. The tribe has never received compensation for the value of 

this land, or for the value of the timber harvested from the land. 

In fact, the tribe was not informed of its legal rights to this land 

until November of 1988. 

Today, parts of the land are owned by three private timber companies and the Bureau of Land Management. To alleviate the obvious legal and management problems that arise from the rightful 

reclaiming of its land, the tribe has proposed a land swap. Under 

this bill, the tribe will relinquish its claim to the 84 acres in exchange for a parcel of 360 acres of BLM land which is adjacent to 

the tribe's current reservation. 

There are representatives from the tribe and the administration 

here who can address the settlement in further detail. However, it 

is important to note that both the tribe and the Oregon office of 

the BLM determined the parcels of land to be roughly equal in 

value in terms of compensation due to the tribe. 

When the tribe brought this issue to my attention, we agreed 

that the easiest solution would be to approach the Department of 

Interior to establish a procedure to resolve this issue. The Department of Interior instructed the tribe to negotiate a settlement with 

the State BLM office. It was at Washington, DC's insistence that 

any settlement be adopted legislatively rather than through the administrative process. This is why I sought to include the agreement 

reached by the tribe in consultation with the State BLM and the 

area BIA in this technical corrections bill. 

It is my understanding the Department of Interior informed the 

committee on June 29 that it was not in agreement with the settlement reflected in the bill. Since that time, the tribe, Representative 

Furse and myself have repeatedly asked the Department of Interior 
90 

to articulate specifically its specific concerns with the proposed settlement. Interior waited until yesterday to respond and to make a 

counteroffer to the compromise the State BLM authorities had already agreed to. 

I submit that the tribe has worked in good faith with the Department of Interior in order to resolve this issue. It is unconscionable 

to me that Interior has withheld until this late date, this last hour, 

its disruptive designs revealing its intentions only after State BLM 

broke historic ground in forging a compromise with the tribe. 

Mr. Chairman, the tribe has been forthright and flexible in their 

efforts to resolve this issue to the satisfaction of all parties. The 

President has opened a new era in native American relations by directing government agencies to work cooperatively with tribal governments to resolve disputes. The tribe has worked closer with the 

State BLM than ever before in drafting this proposal. This settlement compensates the tribe for a mistake made by the Federal 

Government and it avoids a legal battle which could cost the taxpayers and the three timber companies involved and that cost 

would be more than twice the value of the settlement. 

I ask the subcommittee to honor the cooperative effort that went 

into the settlement and answer the President's call to treat this 

Nation's native American people fairly and honestly. 

Thank you, Mr. Chairman. 

[Prepared statement of Mr. Kopetski follows:] 
91 

Congressman Mike Kopetski 

Testimony before the 

Subcommittee on Native American Affairs 

Friday, July 22, 1994 

Mr. Chairman, Mr. Thomas, thank you for the opportunity to testify before 

the Subcommittee today. I want to discuss the Grand Ronde section of the Native 

American Technical Corrections bill. My good colleague Elizabeth Furse is unable to 

be here today, but she wished to express her support for this section as well. 

In the late 1800's, the Grand Ronde reservation was surveyed improperly, 

and, as a result, 84 acres of reservation land were unaccounted for. This parcel was sold 

mistakenly by the Federal Government -- as unalloted lands within the original 

reservation in 1904. The tribe has never received compensation for the value of this 

land, or the value of the timber harvested from the land. In fact, the tribe was not 

informed of its legal rights to this land until November of 1988. 

Today, parts of the land are owned by 3 private timber companies and the 

Bureau of Land Management. To alleviate the obvious legal and management problems 

that arise from the rightful reclamation of their land, the tribe has proposed a land 
92 

swap. Under this bill, the tribe will relinquish their claim to the 84 acres in exchange 

for a parcel of 360 acres of BLM land which is adjacent to the tribe's current 

reservation. 

There are representatives from the tribe and the administration here who 

can address the settlement in further detail. However. it is important to note that both 

the tribe and the State BLM have determined the parcels of land to be roughly equal in 

value in terms of compensation due to the tribe. 

When the tribe brought the issue to my attention, we agreed that the 

easiest solution would be to approach the Department of the Interior to establish a 

procedure to resolve the issue. The Department of the Interior instructed the tribe to 

negotiate a settlement v.ith the State BLM office. It was at Interior's insistence that any 

settlement be adopted legislatively rather than through the administrative process. This 

is why I sought to include the agreement reached by the tribe in consultation with the 

State BLM and area BIA in this Technical Corrections bill. 

It is my understanding the Department of the Interior informed the 

Committee on June 29th that they were not in agreement with the settlement reflected 

in this bill. Since that time, the tribe, Representative Furse and myself have repeatedly 

asked the Department of the Interior to articulate their specific concerns with the 

proposed settlement. Interior waited until yesterday to articulate their concerns and 

make a counter offer to the compromise the State BLM authorities already agreed to. 

submit that the tribe has worked in good faith with the Department of the Interior in 

order to resolve this issue. It is unconscionable to me that Interior has withheld, until 
93 

this late date, its disruptive designs, revealing their intentions only after the State BLM 

broke historic ground in forging a compromise with the tribe. 

Mr. Chairman, the tribe has been forthright and flexible in their efforts to 

resolve this issue to the satisfaction of all parties. TI1e President has opened a new era 

in Native American relations by directing government agencies to work cooperatively 

with tribal governments to resolve disputes. The tribe has worked closer with the State 

BI M than ever before in drafting this proposal. This settlement compensates the tribe 

for a mistake made by the Federal Government while avoiding a legal battle which 

cou!d cost the taxpayers mcne than twice the value of this sertlemenL I ask that the 

Subcommittee honor the cooperative effort that went into this settlement and answer the 

President's call to treat this nation's Native American people fairly and honestly. 

Mr. Chairman, thank y~>u. 
94 

PANEL CONSISTING OF RON. LES AuCOIN, CHAIR, GOVERNMENT RELATIONS, BOGLE & GATES; MARK MERCIER, CHAIRMAN, CONFEDERATED TRIBE OF THE GRANDE RONDE TRIBAL COUNCIL; AND MICHAEL D. MASON, ESQ., GRANDE 

RONDE, OR 

Mr. RICHARDSON. The gentleman from Oregon, Mr. Les AuCoin, 

if he wishes to go next or introduce the Chairman or whatever. The 

Chair recognizes the gentleman from Oregon. 

STATEMENT OF RON. LES AuCOIN 

Mr. AuCOIN. Thank you, Mr. Chairman. I want to just express 

my own appreciation for your good work and the work of this committee, not only during the 18 years I served as a Member of Congress from Oregon's 1st District, which includes the territory and 

reservation of the Grand Ronde, but also since I left the Congress. 

Now that I am formerly an important public person, I want to 

tell you that my continuing admiration pertains and obtains to the 

work of this committee. 

I appreciate very much what Congressman Kopetski has stated, 

and I think he has outlined the case of the Grand Ronde very, very 

well. It is not my purpose to testify today, except perhaps to augment, Mr. Chairman, the statement that the tribal chair wishes to 

make. So thanks to you for letting us testify and thanks to you for 

inclusion of our provision in your bill. 

I would like to turn the microphone over to Mark Mercier the 

chair of the Confederated Tribe of the Grand Ronde. 

Mr. RICHARDSON. I thank my colleague. 

Mr. Mercier, you could not have had a better introduction. 

STATEMENT OF MARK MERCIER 

Mr. MERCIER. Mr. Chairman, appreciate the opportunity to be 

here today. My oral testimony, I lost an awful lot of thunder I had 

to the two very eloquent speakers preceding me here. 

We are here today to say more or less, or we are here to let you 

know, that this effort is not to demonstrate that the tribe comes 

in shooting from the hip, so to speak. It was in the summer of 1988 

when we originally learned of this record land survey on the tribe's 

original reservation. 

Since then, the tribe has worked on the local level with both the 

congressional delegation and the administration to see if we could 

come up with some kind of an equitable settlement to both parties. 

It was 2 days prior before the introduction of this particular bill 

that we found out the administration had some concerns. Tribal 

representatives then came back to meet with them to see what 

they were. And one of their very first questions was did the tribe 

work on the local level with the BLM. \\lhich we replied, well, yes, 

since about the last 4 years we have done exactly that. 

Now, just yesterday, we met with the Interior legislative counsel 

office to see if we could come to some sort of agreement just to see 

if we could bypass this particular effort. We will still continue to 

work with them prior to markup, if they continue to have concerns 

with this bill. But what we are really here to urge the Congress 

is that we feel that the tribe has made a good faith effort to resolve 
95 

this particular situation, and this is why we are here today and ask 

you for your consideration. 

Thank you once again for the opportunity to testify. 

Mr. RICHARDSON. Thank you. 

[Prepared statement of Mr. Mercier follows:] 
96 

TESTIMONY DELIVERED BY MARK MERCIER 

Chairman, Conferederated Tribes of the Grand Ronde, 

to the 

UNITED STATI:S HOUSE OF REPRESENTATIVES 

NATURAL RESOURCES COMMITTEE 

SUBCOMMITTEE on NATIVE AMERICAN AFFAIRS 

Friday, July 22, !994 
97 

Mr. Chairman, other distinguished members of the committee, my name is Mark 

Mercier. I am chair of the Confederated Tribes of Grand Ronde. We are a tribe of 

nearly 3100 members located in the Coast Range of Oregon, about 1 1/2 hours south of 

Portland. I'd like to thank you for the opportunity to address the Technical Corrections 

Bill before your committee -- and in particular the provision dealing with the land 

exchange involving the Grand Ronde. This committee, and you in particular, Mr. 

Chairman, have been exceptionally responsive and helpful to the Confederated Tribes 

the Grand Ronde. We appreciate all your efforts on behalf of Native Americans and 

look forward to continuing to work with you. 

I'd like to begin by giving you a little background on why we are here today. In 1881, 

David Thompson, a U.S. Deputy Surveyor, was marking the east boundary of the Grand 

Ronde Reservation. I don't know what he was doing that day maybe he was a little 

sleepy eyed after a nap beneath one of our majestic Douglas Fir trees, perhaps he was 

overwhelmed by the beauty of Oregon's Coastal Mountains, or possibly, he had a long 

lunch and an extra pull from his flask -- whatever the reason, he put the southeast 

corner of our reservation in the wrong place. He put it inside the original and correct 

corner that had been established in 1856. 

In 1904, as part of the failed allotment policy, the United States Government sold most 

of the land within the Grand Ronde Reservation. The land was sold based on 

Thompson's incorrect boundary. The BLM detected Thompson's survey error was in 

1988, shortly after Congress restored a portion of the reservation. The result was 84 

acres of land was not sold and is therefore still held in trust for the tribe by the United 

States. 

On November 1, 1988, Bureau of Indian Affairs notified the tribe that because of this 

survey error, these 84 acres of land were never sold or conveyed by the U.S. 

Government as trustee for the tribe. Because of the Claims Court statute of limitations, 

the tribe has until November 1st of this year to settle any claims resulting from this 

error. 

Existing reservation lands are managed for timber harvest, the main source of revenue 

for the tribe. The shape and location of the 84 acres (see attached map) make it 

impossible to work into current management plans. In addition, the BLM, believing the 

Thompson Strip to be Oregon and California Railroad Grant Lands because of the 

survey error, has allowed timber harvesting to occur in part by three large, private 

timber companies occupying the land. 

Reclaiming these 84 acres would put the tribe in an explosive position with these 

important job providers at a time of great local controversy over the President's 

Northwest Forest Plan. Rather than do that, the tribe would much prefer to relinquish 

any claim in exchange for a different parcel of land. 
98 

Working with the local BLM authorities in Oregon, we have identified a BLM parcel 

that is adjacent to our existing reservation and of comparable worth to the value of the 

Thompson Strip. 

Such an exchange cannot be handled administratively -- we need your a~sistance to pass 

legislation granting us title to this BLM parceL The bill before you today would do just 

that. 

This bill amends the Grand Ronde Reservation Act by adding the new parcel to the 

existing reservation and relinquishes any claim that the Grand Ronde may have to the 

land that was incorrectly surveyed. Another section clarifies responsibility for payments 

to the O&C Counties. By agreement with the U.S. Government, these counties receive 

50% of the value of timber harvested on the O&C grant lands. Because the parcel we 

are attempting to acquire is a part of the O&C lands, we are currently negotiating 

compensation for the lost future revenues with the O&C County Association. I should 

add that the counties are supportive of our claim and the proposed exchange. Our bill 

splits responsibility for payment to the O&C Counties 50-50 between the federal 

government and the tribe. In discussions with the Interior Department, we have come 

to an agreement that another section should be added providing a process to survey the 

Thompson Strip in order to correct the patents and give dear title to the current 

occupants. The cost of the survey would he split equitably between the federal 

government and the current occupants. 

Throughout the entire valuing and identification process, we have made every effort to 

negotiate and work with the proper administrative authorities. In March of this year the 

Interior Department's Counselor's office referred us to the BLM here in Washington, 

D.C. We met with an official, described our problem and were instructed to negotiate 

with Elaine Zidinsky, the new state BLM Director in Oregon. We have had excellent 

meetings with Ms. Zielinsky and her staff and want to complement them all for their 

willingness to meet and desire to resolve this claim. They have worked well within the 

spirit of the President's Executive Order to remove impediments to tribal self 

determination. Once we had worked out a settlement, the Grand Ronde Tribe and BIA 

drew up draft legislation which has turned into the hill provisions you see before you 

today. 

If everything here is so cut and dried, then you may be wondering why it is that we are 

here. Frankly, we're wondering the same thing. Two days before IIR 4709 was 

introduced, the Office of Legislative Council of the Department of Interior told us they 

had concerns. We have continued our discussions with administration officials here in 

D.C. in an attempt to answer any concerns that they might have, but so far we have 

been frustrated by the lack of a resolution. 

The objections raised by the Counselor's office revolve around the value of our claim. 

Our claim is determined by an appraisal of the 1\4 acres of incorrectly surveyed land, the 

value of the timber on the land and compensation for the timber harvested from that 

land between 1904 and 1994, while the land remains in trust for the benefit of the tribe. 

As your committee knows, Mr. Chairman, proper value cannot he determined without 

including existing timber stands, because it is part and parcel of the land. To our 
99 

surprise, the Interior Department is not recognizing our claim of compensation for 

haiVested timber. By failing to do so, they establish a precedent that says the Federal 

Government has no compensable trust duty for the management of tribal timberlands. 

Such precedent is unfair, unjust and just plain wrong. 

The U.S. Supreme Court has consistently recognized the trust duty to protect and obtain 

fair value for timber on Indian trust lands. In the case United States vs. Mitchell, the 

Court says: 

[E]ven in its earliest regulations, the Government recognized its duties in 

'managing the Indian forests so as to obtain the greatest revenue for the 

Indians consistent with a proper protection and improvement of the 

forests ... [A) fiduciary relationship necessarily arises when the Government 

assumes such elaborate control over forests and property belonging to 

Indians. 

In that decision, Justice Marshall understood clearly the risk of leaving consequences out 

of the trust equation. He wrote: 

It would be anomalous to conclude that these enactments create a right to 

the value of certain resources when the Secretary lives up to his duties, but 

no right to the value of the resources if the Secretary's duties are not 

performed. Absent a retrospective damages remedy, there would be little 

to deter federal officials from violating their trust duties ... 

So, Mr. Chairman, the Mitchell decision confirms that the United States bears a 

responsibility for lost trust timber on Grand Ronde lands. That responsibility includes 

compensation for the value of the timber of the Tribe. 

We have heard the Interior Department's counter offer to the parcel we identified with 

the Interior Department's regional offices. It simply does not recognize what the tribe 

rightfully deseiVes. If the committee were to agree with the agency, it would set an antiIndian precedent of sweeping significance. We cannot believe that this distinguished 

committee, with its record of defending the treaty rights of Native Americans, would 

support such a policy. 

Therefore, with all due respect for the spokesperson for the Department of Interior, who 

has testified today, we ask you, Mr. Chairman, and the members of the committee, to do 

the right thing and correct this wrong. We seek to punish no one. An honest mistake 

was made. We just ask for an honest settlement. Thank you. 
..... 

g 

Original Reservation Bound

1988 Reserv ation (9,811 ac

Thompson Error 

A-1 
101 

Mr. RICHARDSON. The gentleman from Oregon. 

Mr. AuCOIN. Thank you, Mr. Chairman. I just wanted to add a 

couple of points. I know time is limited this morning. 

I want to indicate for vou and for the committee and for the 

record that during the nine terms I did represent Oregon's 1st District, two of the major pieces of legislation I authored and moved 

through the Congress were, first, the legislation restoring this 

tribe's Federal recognition; and, second, in 1983, I authored the legislation, along with the senior Senator from Oregon, Senator Hatfield, the reservation legislation. 

Mr. Chairman, had we known at the time the Reservation Act 

was being legislated that there was an error in the survey going 

back so many years, I am here to stipulate and testify for you it 

would have been corrected under the Reservation Act. There is absolutely no question about that. 

It was only some years later in terms of, actually in October 

1988, when the survey error was noticed, that denied us a chance 

to make the correction. But after receipt of that letter and notification to the tribe that the survey error was committed, the tribe did 

negotiate at the State level in good faith. A .... "ld the values, the ap- praisal has been achieved, has been worked out with the State 

BLM, and so we have--this is a product, this proposal that has 

been put before you, is a product of extensive work and cooperation 

and collaboration at the State level. 

Finally, let me just state this. It is tn1e that there is some degree 

of disagreement or absence of agreement thus far here in Washington, DC, but we will continue the discussions to try to resolve that 

before your markup. But I would implore the committee that if we 

fail to come to terms, that the committee look not just on the absence of an agreement in making a decision as to whether to include this provision in the bill, but look at the merits of the case. 

And with regard to the merits of the case, I would like to submit 

for the record a letter dated October 28, received by the tribe October 28, 1988, written by Charles Lusher, the State director of the 

BLM, to Mr. Stanley Speaks, the area director of the BIA. 

The third paragraph of that letter says it all, Mr. Chairman. Mr. 

Lusher says to Mr. Speaks, quote, "we feel you should be made 

aware of, parentheses, the survey error, and advised that under the 

1904 act, the United States is obligated to sell all such land and 

disburse the proceeds received therefrom onto the Grand Ronde Indians." 

He was referring to the Thompson strip which was left out of the 

sale in 1904, and clearly reflects an obligation on the part of the 

United States to make the tribe whole for that error. 

I hope the committee, following its highest traditions, will base 

its decision on the merits of this case. 

[The information follows:] 
102 

~ru/ \ .:c;; 

United States Department of the In tenor mv15!!E" BUREAU OF LAND MANAGEMENT 

P.O. BOX 

OREGON 

29GS (H2S NE 

STATE 

MULTN

OFFICE 

OMAH STREED --- . PORTL\ND. OREGON 97208 

2530 (942) 

Mr. Stanley Speaks 

Area Director 

Bureau of Indian Affairs 

P.O. Box 3785 

Portland, OR 97208 

Dear Mr . Speaks : 

ocr 2 s t988 

C!CT :\ I. t9U8 

iJ.) 

::;: 

'"(' 

§ 

r-

.. 

. ._

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= 

"" 

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w ;-: .., 

~ ,.,, . 

9 

This past s ummer , the Branch of Cadastral Survey was contacted by a priva te 

land sUrveyor who had found an error in a 1957 Bureau of Land Management (BLM) 

resurvey of the boundary between Tps. 6 a nd 7 S., R. 7 W., Willamette 

Meridian, Oregon. During our field investigation of this problem, we 

discovered errors in 1871, 1881, 1884, a nd 1887 s u rveys which ha ve r esulted i n 

a reas of land along the boundary never being s urveyed (such areas are referred 

to as hia tuses) and l and in T. 6 S., R. 7 W., which is unpatented. The 

complexities of the erroneous surveys are too technical to explain in this 

memorandum, but basically what happened is the s u rveyors did not use or find 

corners established in prior surveys and set new corners. 

Our reason for informing you of this situation is that the l and in T. 6 S. , 

R. 7 W., which was thought to be patented but isn't because of the erroneous 

surveys , is within the former Grand Ronde Reservation. Under the· Aet of 

April 28, 1904, a copy of which is enclosed, the Un ited States supposedly sold 

all unallo t ed reservation land excep t for one allotment. This sale included 

that portion of the reservation loca ted in T. 6 S., R. 7 W. Howeve r, because 

of the erroneous surveys, there exi sts a parcel of land which was neve r sold 

and the refore remains property of the Grand Ronde Indians·. This pa rce l, 

comprising approximately 87 acres, is depicted on the enclosed diagram. We 

emphasize that the location and configuration of the property as s hown on the 

diagram a nd the acreage sta ted are derived from prelimi nary data and could 

change as a result of a n accurate, contempora ry dependent resurvey. 

Since the Indian title to this prope rty ha s only r ecently come to light, we 

feel that you should be made aware of its e xistence, and advised that under 

t he 1904 Act, the United States is obligated to sell all such land and 

dis perse the proceeds received therefrom to the Grand Ro nde Indians . Before 

t hi s ca n be done, howe ver, .<\ r esurvey would be r eq uired to prope rly id en t ify 

ATTACHMENT A 
103 

the land and detenlline its area. Lands adjacent to the subject parcel are in 

private ownership, and may. in all likelihood, be thought by the landowners to 

be part of these patented lands. 

The discovery of this onalloted and unsold parcel leads to certain questions: 

W'ho would pay for the resurvey? Does the 1904 Act still apply-as_ to disposal 

of the land~ and what other legal issues might be involved? Our im~m~e-dra-te~ 

purpose is to notify you of the existence of the land found during our field 

investigation and start a dialog between our offices with the objective of 

solving the various problems which are raised. 

BU! \rill proceed with a resurvey of the boundary between Tps. 6 and 7 S., 

R. 7 W., and certain sections containing BLM lands in both townships. We will 

not do any survey work involving the former reservation in T. 6 s .• R. 7 W. at 

this time, 

Please contact our Braneh of Cadastral Survey or Rranch of Lands and Minerals 

Operations for any additional information you may need or regarding any 

questions you may have on this matter. 

2 Enclosures (as stated) 

cc: District Manager, Salem 

OR 943 

Sincerely, 

H~ Cha;les II. Luscher 

State Director 
104 

Mr. RICHARDSO~'- Well, let me say I know Mr. Hayes from the 

BIA will be testifying next. Could you tell me, maybe the chairman, 

how does the amendment affect your land base? How would the 

amendment affect their land base? What is your current land base? 

Mr. MERCIER. The current land base is 9,800 acres of 

timberlands. Now, what this particular amendment, what it will do 

is to resolve any outstanding claims the tribe may have against the 

Federal Government as a result of this errant survey. The errant 

survey itself is in a mountainous terrain and it is in the shape of 

an inverted "L," therefore management practices would be literally 

impossible. 

So if this untenable amendment goes through, it will more or less 

turn the land over to the people who originally purchased the land 

thinking that the survey was correct in the first place; then it 

would also take some lands under the BLM management designation and turn it into lands to be held in trust for the tribe under 

the BIA and it will be--they are contiguous to the tribe's current 

reservation as welL 

Mr. RICHARDSON. I will turn to the gentleman from Wyoming for 

questions and ask the gentleman from Montana to take the chair 

temporarily. 

Do you think you can work these differences out before Friday? 

I would like to mark up this bill by next Friday. And just on an 

examination, a personal examination of the case involved, it is my 

view that the merits are on your side. Now, I think it is easier to 

work these differences out. Is there anything you would like to discuss in terms of the negotiations? 

Mr. AuCOIN. Well, Mr. Chairman, I hope that the negotiations 

will go in good faith. We had a productive meeting yesterday, but 

it would not be accurate to say we have reached a conclusion with 

the Department. I am encouraged by your analysis of the justification of our claim. 

We will promise you this. We will negotiate in good faith and entertain all reasonable proposals to try to come to an agreement 

with the Department. 

This tribe does not want a fight. If it did want to fight, it would 

have been in court already. Its inclination all through the years 

has been to try to cooperate and we will continue in that spirit up 

to the time of markup. 

Should we fail, however, Mr. Chairman, I hope that you would, 

and the committee would, look at our proposals on their merits because we really have to put ourselves on the mercy of this committee particularly for this reason. And it needs to be stated in this 

hearing, the statute of limitations will run out on this claim by November of this year; and, therefore, we do not want a situation, I 

am sure the Chair does not or the committee, where the absence 

or the inability to come to an agreement denies this tribe its right, 

what it rightly deserves. 

We need to have the impetus and the onus and incentive for people to come to agreement, and the Chair and the committee can 

help us by voting on this issue. 

Mr. RICHARDSON. Mr. Kopetski was quite insistent on the floor 

last week about this and I pledged to him we would make every 

effort. 
105 

Mr. WILLIAMS. Mr. AuCoin, did you say this November or next 

November? 

Mr. AuCOIN. This November, Mr. Williams. 

Mr. WILLIA.\18. Thank you. So that does speak to the necessity 

to---

Mr. AuCOIN. Absolutely. In the absence of an agreement, this 

committee is the only place where we can get the relief in time. 

Otherwise this tribe's claim will be abandoned and forgotten, and 

I think the equities of that speak for themselves. I think that 

would be a catastrophe. 

Michael Mason, the tribal attorney, would like to add a couple 

of points, Mr. Chairman, and then we will be finished. 

STATEMENT OF MICHAEL D. MASON, ESQ. 

Mr. MASON. Very briefly, thank you again, Mr. Chairman and 

members of the committee, for giving us an opportunity to testify 

on this bill, which is a very significant one to the Confederated 

Tribes of Grande Ronde, or rather insignificant one we submit to 

the Department of Interior especially on a national level. 

You asked, Mr. Chairman, the question about how this would affect the tribe's land base. It would add the 360 acres directly adjacent to the tribe's current reservation, which would enhance the 

management capability on that land. That would be-it is just the 

opposite of the current situation. For us, it is a very manageable 

parcel. Our road network through the reservation is the only way 

you can reach this land. And for the BLM, on the other hand, it 

is an unmanageable, isolated land-locked parcel of 360 acres that 

I think from the management side, as we have been informed by 

the State director of BLM, is not valuable to them at all. 

So I just want to emphasize that. 

Mr. RICHARDSON. I thank the gentleman. I am going to excuse 

myself briefly and recognize the gentleman from Wyoming. 

Before I do that, I want to say I received a phone call from Senator Claiborne Pell last night. He asked me also to look into a bill 

that affects his tribes in Rhode Island, and I told him we could not 

at this hearing but we will examine his concerns in the next few 

days and deal with them. 

After the gentleman is recognized, I would ask the gentleman 

from Montana to Chair. The gentleman from Wyoming. 

Mr. THOMAS. Thank you. I just wanted to observe that I have 

long continued to stress the opportunities to trade some lands and 

to block up lands so that they can be managed better. This is an 

occasion that quite often happens, and I have to tell you, in my experience, Interior resists that for some reason or another and it is 

very difficult to do this. 

My understanding is that there is no controversy over the entitlement; that you do recognize the claim, isn't that correct? It is 

just simply how you handle it, isn't that the controversy? 

Mr. KoPETSKI. That is correct. 

Let me just say, Mr. Thomas, that this is a land management 

issue, but as you are well aware, BLM lands in the West, we have 

this checkerboard configuration that makes it even more difficult 

to manage generally, and this sort of fixes part of that problem. 1 
106 

think long term, it will save the Federal Government some money, 

and so it just makes sense. 

The BLM people on the ground in Oregon are very sensitive to 

land values, especially with the spotted owl controversy, et cetera, 

we have going on right in this area. Believe me, they are going to 

understand land values. And on the face you might say, well, it is 

360 acres. They know the values and they are saying this is equal 

value. 

They had struck this deal and then all of a sudden we have the 

people in Washington, DC, who have never walked on this land, 

they are saying, wait a minute, this is not a fair deal. We have had 

months and months of negotiations out there on this, and there is 

just no reason, no reason whatsoever, why this deal should not 

have been consummated. It is unfortunate we are even having to 

sit at this table today. 

I understand that, Congressman, and I appreciate the situation 

and look forward to helping to solve it. Thank you. 

Thank you. Thank you very much. 

Mr. WILLIAMS [presiding]. Gentlemen, thank you all very much 

for being with us. Nice to see you all. 

Mr. MERCIER. Our thanks to the committee. 

Mr. WILLIAMS. Mr. Mason, the committee does want to make the 

point that, and Mr. Richardson would say this were he here, this 

is not an insignificant under this committee. We want you to know 

that we are attended to it and we do want to help. 

Mr. MASON. We certainly appreciate that, and I didn't mean to 

indicate that it was. 

Mr. WILLIAMS. I know that. I was not responding to that; I was 

just giving you a positive response that we are as concerned about 

it as you are and we are determined to help. 

Mr. MASON. Thank you again. 

Mr. WILLIAMS. Now, going to what was listed originally as panel 

one, Mr. Patrick Hayes, Acting Deputy Commissioner for Indian 

Affairs. I believe, Mr. Hayes, you are accompanied by some folks. 

If you will bring them up and introduce them to the committee and 

then please proceed. 

Fire away, Mr. Hayes. Introduce your two colleagues and then 

proceed. 

STATEMENT OF PATRICK A. HAYES, ACTING DEPUTY COMMISSIONER OF INDIAN AFFAIRS, BUREAU OF INDIAN AFFAIRS, 

U.S. DEPARTMENT OF THE INTERIOR; ACCOMPANIED BY 

HOLLY RECKORD, CHIEF, BRANCH OF ACKNOWLEDGMENT 

AND RESEARCH; AND GEORGE ROTH, CULTURAL ANTHROPOLOGIST, BRANCH OF ACKNOWLEDGMENT AND RESEARCH, BUREAU OF INDIAN AFFAIRS 

Mr. HAYES. Good morning, Mr. Chairman and members of the 

committee. I am pleased to be here this morning to present the 

views of the Department of the Interior on H.R. 4462 and H.R. 

2549. 

I am accompanied today by Ms. Holly Reckard, who is the Chief 

in our Branch of Acknowledgment and Research and Mr. George 

Roth, who is a long-time employee of the Branch of Acknowledg-
107 

ment and Research. George has been a member of that branch almost since its inception back in the late 1970's. 

We have also in the room but not at the table, Mr. Scott Keep, 

who is an attorney with the Division of Indian Affairs in our Solicitor's office at the Department of the Interior. The individuals accompanying me today will provide assistance to me in answering 

any questions that the committee may have. 

First off, Mr. Chairman, I would like to thank the Chair as well 

as all members of the committee for your long-standing concern for 

and support of our acknowledgment process. I provided a written 

statement to the committee and I would urge its inclusion in the 

record. I have a summary of that statement, Mr. Chairman. 

We are both committed to assuring fair, thorough, and expeditious review of petitions from currently non-federally recognized 

groups; at the same time, this process must protect the sovereignty 

of existing recognized tribes. In order to better fulfill our commitment, the chairman is aware that we have recently published a 

new rule to govern this administrative process which we are confident will improve matters. Plus, we are devoting double the personnel resources for this process from that which was available 

even up to about a year-and-a-half ago. For those reasons, Mr. 

Chairman, we are of the opinion that H.R. 4462 and H.R. 2549 are 

not necessary at this time. 

We are confident that our new rule will improve the recognition 

process and will lessen the concerns which led to the introduction 

of these bills. I would like to make a few comments on each of the 

bills specifically. 

H.R. 4462 proposes to establish an independent commission in 

charge of the acknowledgment responsibility, while removing that 

responsibility from the Department of the Interior and the Bureau 

of Indian Affairs (BIA). It is commonly understood that the Department of the Interior, and BIA in particular, is the agency looked 

to for all matters of Indian affairs except health. While that is not 

to say that this same expertise could not be acquired by this commission, we believe it more logical to keep it within the agency 

charged with that responsibility. 

Also, we have concerns about lost time. It will no doubt take a 

significant amount of time to get the commission created once authorized. Getting a budget and selecting commissioners are big 

ticket items and do not come easy. We have concerns about the 

adequacy of the technical staff provided for within the bill and 

other matters within that bill. We doubt that the review and evaluation done by the commission would be anything less than what 

we perform. We both would be very concerned about conveying the 

impression that our professional review of the petitions rests on 

anything but solid ground both factually and legally. 

Once the suspicion arises either in the minds of the public, and 

certainly in the view of the Congress, that something less than a 

thorough professional analysis was done on one or a number of petitions, then the whole process becomes suspect and flawed. While 

H.R. 2459, or excuse me, H.R. 2549, adopts many rules from the 

old regulations but adds a new requirement, that of demonstrating 

control over a specific territory. This may present some difficulty 

in that these petitioning groups are not recognized governmental 
108 

bodies and would have no authority to control any territory. There 

are a few other minor concerns with that legislation or with the 

bill. 

Having expressed these concerns with both bills, let me say that 

we are not opposed to some form of legislation and would be 

pleased to work with your staff to craft legislation which this administration could fully support. We like the sunset provisions, the 

ratification of previous acknowledgment decisions and other items. 

We also believe that a specific confirmation of the Secretary's authority to extend recognition and establish standards would be 

most helpful. 

We believe, however, that neither bill by itself goes as far to help 

the process as does our revised rules. These rules have been operational for only 3 or 4 months and we should be given a chance to 

see how they will work. 

Before closing, I would like to thank the committee for inviting 

us to present our views on H.R. 4 709. This bill is still under review 

and discussion within the Department of the Interior and OMB. I 

am hopeful that we will reach resolution on any remaining unresolved issues very soon. 

Mr. Chairman, that concludes my testimony. I will be pleased to 

respond to any questions you or the committee may have. 

Mr. WILLIAMS. Thank you. 

[Prepared statement of Mr. Hayes follows:] 
109 

STATEMENT OF PATRICK A. HAYES, ACTING DEPUTY COMMISSIONER OF INDIAN 

AFFAIRS, DEPARTMENT OF THE INTERIOR, BEFORE THE HOUSE NATURAL 

RESOURCES SUBCOMMITTEE ON NATIVE AMERICAN AFFAIRS HEARING ON H.R. 

4462, THE "INDIAN FEDERAL RECOGNITION ADMINISTRATION PROCEDURES ACT 

OF 1994" AND H.R. 2549, A BILL "TO ESTABLISH ADMINISTRATIVE 

PROCEDURES TO EXTEND FEDERAL RECOGNITION TO CERTAIN INDIAN GROUPS." 

JULY 22, 1994 

Good Morning, Mr. Chairman and Members of the Committee. I am here 

to present the views of the Department of the Interior on H.R. 

4462, a bill "To provide for administrative procedures to extend 

Federal recognition to certain Indian groups, and for other 

purposes" and on H.R. 2549, a bill "To establish administrative 

procedures to extend Federal recognition to certain Indian groups." 

I would like to thank the Chairman for nis continuing concern and 

support for the Administration's Federal Acknowledgment Process. 

The Department is committed to providing a fair and speedy process 

to acknowledge unrecognized tribes or groups while protecting the 

sovereignty of recognized Tribes. A$ you may know, under the 

direction of Assistant Secretary Qeer, the Bureau of Indian Affairs 

recently promulgated new regulations to improve the administrative 

recognition·process and has significantly increased the resources 

in the. Branch of Acknowledgment and Research. 

we believe that the review and evaluation process must be researchbased and objective in order to evaluate each case on its merits. 

Th• sovereignty of all recognized Tribes coul<l be derogate<! if 

citizens and lawmakers believed that the sovereignty of certain 

Tri~s di~ not rest on firm legal and hiatorical foundations. 
110 

2 

As a result, Mr. Chairman, we believe that enacting either H.R. 

1462 or H.R. 2549 is unnecessary at this ti~e. H.R. 44&2 largely 

adopts the old regulations. We are certain that our new 

regulations will show improvement in the recognition process and 

will help alleviate your concerns. Specifically, we are certain 

that under our new regulations the process will be less costly, 

more timely, and fair. 

H.R. 4462 also proposes to remove the function of recognition from 

the Department of the Interior and the Bureau of Indian Affairs and 

to establish an independent commission. As you know, the 

Department and the Bureau are charged with the requisite expertise 

to deal with issues affecting all Tribes, especially issues as 

complex as the recognition issue. From past experience, we know 

that it may take years just to establish such commissions, and they 

have proven to be very expensive to sustain. The Administration is 

attempting to reduce the number of independent commissions, and 

objects to language setting up new commissions. 

While the other bill, H.R. 2549, also adopts many rules from the 

old regulations, it also contains a requirement that would be new 

to the administrative recognition process, requiring the petitioner 

to demonstrate control over a specific territory. Because the ' . 

pet.itioners are not politically recognized, they do not have 

legally recognized and enforceable jurisdiction over any territory. 
111 

3 

Therefore, while we do not entirely disagree with the concept, the 

territory of an unrecognized tribe or group must be defined by the 

demographics of the tribe's or group's population. 

Also, for tribes or groups with whom the United States has 

terminated its political relationship, H.R. 2549 requires that a 

petition be reviewed under the same acknowledgment Procedure and 

meet the same criteria as tribes or groups that have never been 

politically recognized by the United States. This would be a 

higher and more difficult standard than in the past for tribes or 

groups whose relationship has been terminated. 

The Department could support certain provisions in both bills. For 

example, H.R. 4462 provides for taking into account some forms of 

previous recognition, a sunset rule for both the petitioners and 

the Department, and ratification of previous acknowledgment 

decisions under the regulations. However, as a whole, neither bill 

goes as far as the revised rules and regulations for acknowledgment 

which became effective only three months ago, to make the kind of 

in-depth changes which will greatly reduce the work and cost to the 

petitioner and significantly speed up the process. 

The Department would also support legislation which would confirm 

the Secre·tary' s authority to extend political recognition to tribes 

or groups on behalf of the United states and to establish standards 

and procedures for doing so. We believe that such legislation 
112 

4 

would be advantageous to the United States and the petitioners. 

We would be happy to work with the Committee on such legislation. 

This concludes my prepared statement. I would be happy to answer 

any questions the Committee may have on these bills. 
113 

Mr. WILLIAMS. Mr. Hayes, how would you respond to the question should the Congress recognize tribes? 

Mr. HAYES. Mr. Chairman, I would respond by saying that Congress certainly has the authority to do so. But I would add to that 

response, that the administrative process provides a thorough administrative analysis. It provides a historical analysis. It provides 

a genealogical analysis of the petitions that come in from these 

nonrecognized groups, and I am not sure that the Congress has either the staff or the time to give to that type of detailed analysis 

to assure that these petitioning groups are, in fact, eligible and entitled to recognition. 

Mr. WILLIAMS. The tribes that are recognized today, do you think 

they could meet the current Federal acknowledgment process if 

they were trying to become recognized? 

Mr. HAYES. Could I ask Ms. Holly Reckord to respond to that? 

Ms. RECKORD. Yes, I do think they could. 

Mr. WILLIAMS. In California, treaties were negotiated with tribes 

but never ratified. What is the status of tribes who sign an 

unratified treaty? 

Ms. RECKORD. In the case of the California tribes, our new regulations take into consideration the fact that they signed a treaty. 

We assume that that indicates previous recognition, even though 

the treaty was not ratified. 

Our reasoning is that the Government would not have been dealing with a group that was not a tribe. So in our new regulations, 

the requirements would be greatly reduced for such groups. They 

would only have to show that they have continued to exist politically since the point of last recognition. This is a great reduction 

in the requirements that the old regulations and the bill before you 

would require of such groups. 

Mr. WILLIAMS. Mr. Hayes, let me use the Lumbee as an example. 

If they were not precluded by statutory bar and they petitioned the 

Federal acknowledgment process, what would be the deadline for 

their consideration under current regulation? 

Ms. RECKORD. Could you repeat the question? 

Mr. WILLIA.\-18. Sure. If the Lumbee were not precluded by the 

statutory denial, statutory bar, and they petitioned the Federal acknowledgment process, under Federal regulations what would be 

their deadline for consideration? How good a shot would they have 

to put it in simpler language? 

Mr. HAYES. Mr. Chairman, as you are aware, the Lumbees represent a large group of people. I have heard estimates as high as 

40,000 people as potential enrolled members of that tribe. The size 

alone would indicate that you were looking at a substantial process 

in terms of time. 

In terms of there being a time limit within the existing regulations, there is no time limit. We would begin to review their petition when the documentary petition was ready for review, as is defined within the regulations. 

Mr. WILLIAMS. Would you share with the committee what you believe to be a few of the most important changes that have been 

made in the new regulations? 

Mr. HAYES. Mr. Chairman, could I ask Ms. Reckord or Mr. Roth 

to respond to your question? 
114 

Mr. WILLIAMS. Yes, either of them. Mr. Roth, we have not heard 

from you. Would you like to respond? 

Mr. RoTH. OK Well, we have gone thoroughly over these regulations and made many large and small changes. One of the biggest 

ones has to do with groups that can show previous acknowledgment. We take previous acknowledgment to mean not just treaties 

but any clear Federal action. Such groups would only have to show 

tribal existence from the last point of acknowledgment. Say, not 

when the treaty was signed but perhaps 100 years later, would 

have to show less evidence to do that than other groups would have 

to show. 

We have also gone to great lengths to revise the definitions of 

community and political organizations which have been the subject 

of great controversy, and we have specified specific kinds of evidence that petitioners can use to show tribal existence, because 

that has also been a major question. 

In particular, we have specified what we call high levels of evidence which would basically mean a group could show prima facie 

existence as a tribe, such as living in a separate community. Those 

are two of the major things. There are others I could describe as 

well. 

Mr. WILLIAMS. My time has expired. 

Mr. Thomas, questions? 

Mr. THOMAS. Thank you, Mr. Chairman. 

I appreciate your being here to discuss this. One of the continuing difficulties, it seems to me, is this question of time. This process, at least in the view of many people, has not been satisfactory. 

You suggest that we should not change, should not move it and 

should not do something very significant about it, but the fact is 

it has not been satisfactory. 

One of the problems has been the petitioner asks or is told that 

a decision will be made on their case in a month and a month goes 

by and there is no decision and several months go by. The Jena 

Band was told recently that the decision would come by the end of 

April, but there is still no decision. 

Is this going to continue? 

Mr. HAYES. Mr. Thomas, I think that the criticism about the 

process, about the length of time that it takes has been an ongoing 

criticism, almost since the time that the office was established back 

in the late 1970's. While unnecessary and undue extensions of time 

and delays are unwarranted and uncalled for, I think that the process is of such importance that it should not be unduly rushed. 

The decision made by the Secretary of the Interior, a positive decision, or for that matter, an unfavorable decision, is significant. It 

carries with it some fairly significant consequences. To respond to 

your question, I think that the regulations and the improvements 

in the process, as were enumerated by Mr. Roth just a minute ago, 

will speed up that process. 

In addition, I testified to the fact that we have doubled that staff 

as recently as a year-and-a-half ago. We had four professional people working on these petitions, and they can only do so much. We 

have doubled that staff. We have doubled the amount of professional people, and hopefully, that is going to move these petitions 

more expeditiously. 
115 

Mr. THOMAS. I hope that is the case. It is not comforting to think 

that problem has been going on for a very long time, and so when 

we get around to introducing the bill to change it here in the Congress, then suddenly you all make some changes. That sort of indicates that there is resistance to change and that you are not going 

to make changes unless they are forced by the Congress; is that a 

fair analysis at all? 

Mr. HAYES. Mr. Thomas, the proposal to amend or modify our 

regulations started about 3 or maybe 4 years ago, and the process--

Mr. THOMAS. I rest my case. 

Mr. HAYES. The process took an extended period of time. 

Mr. THOMAS. That is the problem. How many are there piled up 

now to come to the Congress, because at least their claim is that 

they are not at all timely in being considered. Let me tell you that 

it is not just the fact that it takes the time; it is the fact that you 

say there is going to be a time and you don't meet your own deadline. 

Mr. HAYES. I would have to defer to Ms. Reckord in terms of how 

many petitioners are awaiting some action. 

Mr. THOMAS. I will withdraw it. What I am saying to you isyou know, I feel very strongly about it, because I think tribes 

should go through this administrative process, because the Congress is not in a position to do it. As I said earlier, the decision is 

made in the Congress because somebody has a strong advocate 

here, and it is made politically. That is wrong in my judgment. But 

right or wrong, people seem to be--tribes seem to be forced around 

your process, because your process is not timely, and I just think 

you have to deal with that. And quite frankly, the evidence is that 

you don't. You are an Acting Director, for one thing. Why is that? 

Mr. HAYES. Well, the reason--

Mr. THOMAS. That really doesn't matter. But you know, you have 

got to get organized sometimes. I know it matters to you. 

I don't mean to be difficult, and I don't really have a strong feeling of where it rests. What I am interested in is performance, and 

what I am bothered about is that these things keep coming to us 

as a result of their-and I am not talking about what the decision 

is. I don't question the decision; I question the process, and that 

is what is troublesome. 

Mr. HAYES. I can understand your frustration and your desire to 

get this thing moving along. I, for a period of time back in the early 

1980's, was associated with the acknowledgment process, in that I 

was a Division Chief for Tribal Government Services, and this acknowledgment group was under my area of responsibility. And I, 

too, at the time, as well as the staff, wanted to be timely; we wanted to move things along. We are not in the business of foot-dragging. We want to move this along; but at the same time, we want 

to do a good job, and we want to assure that that recognition is 

righteous and it goes to the right groups. 

Mr. THOMAS. Sure. I understand that. 

Mr. HAYEs. With the new regulations, I hate to say, trust us, but 

we have only had them for 3 or 4 months, sir, and I would certainly 

like to have a chance to try to operate under them. 
116 

Mr. THOl\1AS. When do you expect a decision on the Jena question? 

Ms. RECKORD. Right now on .Jena, we have compieted the research for the genealogist and the anthropologis'.:s, and the historian is now finishing the research. Then we will make a decision 

and write the summary. So it should be out soon. 

One of the problerns that we are now finding, a<> we finally have 

the resonrces and the regulatiOns in place, is that we are having 

trouble producing reports. We basically have a large research capacity and we are doing a lot of resear-ch, but we need to upf:,rrade 

our ability to put out what are rather lengthy and complicated reports. We are looking into that, makmg that sort of change right 

now. 

Mr. THOMAS. Well, let me just--

Ms. RECKORD. We have had good relations with the Jena on this. 

We have been talking to them about some of the issues that involve 

getting an anthropologist to work on their case. We have good relations with them now. 

I know that it is frustrating to us, as well, that many of the reports do not get out on time. One of our major problems is that the 

petitions we receive often are not really complete, and rather than 

sending it back and sending it back, we often end up doing the research ourselves. 

We had a very large case of almost 20,000 people that really had 

a very incomplete genealogy. We have had to sit down and do a lot 

of that research ourselves, which makes the report very late. 

Mr. THOMAS. Well, I understand that, and I will not take any 

more of your time. But I have to tell you-and I guess as I haveI am getting frustrated at trying to stand at the gate and keep 

these recognitions from coming through the congressional route. 

And the argument that members make persuasively is that, look, 

we have tried to go the other way and it has been a very, very long, 

tedious time, and they don't feel-I understand some probably say 

I am going to get a negative response perhaps and don't like that. 

But most of them are genuinely saying, look, we have tried to go 

the route, the administrative route doesn't work very good. And 

so-at any rate, I thank you for being here. 

Let me, Mr. Chairman, submit for the record a copy of BIA's 

most recent summary of the status of acknowledgment cases in 

which it lists those that are pending. 

Mr. WILLIAlviS [presiding]. Without objection, the gentleman from 

Wyoming's material will be included in the record. 

[The information follows:] 
117 

SUMMARY STATUS of 

ACKNOWLEDGMENT CASES 

(cts ot May 16, 19941 

PETITIONS ON ACTIVE STATUS 

MR' s Action Items 

Proposed findings 1n Progress: 

Final Determinations Pending: 

Petitioner's Action Items 

Commenting on Proposed Finding 

PETITIONS READY FOR ACTIVE 

OTHER PETITIONS 

Incomplete Pet1t1ons (not ready) Letters of Intent to Petit 100 

IN LITIGATION 

CASES RESOLVED 

By Department 

Through ~cknowledgment Process: 

Acknowledged 

Denied Acknowledgment 

Status Clarified by ~egislation 

at Department's Request 

Status Clarified by Other Heans 

By Cong!'ess 

Legislative Restorat1on 

Legislative Recogition 

By Ot11er Heans 

Merged vith another petitioner 

LEGISLATIVE ACTION REQUIRED 

Ito permit processing under 25 CFR 83J 

HISTORICAL NOTil : 

9 

l3 

6 

0 

26 

14 

Petitions on Active 

Petitions Readv 

Other Petitions 

Cases being litigated 

22 

Cases Resolved 

25 

cases requiring legislation • 

40 petitions on hand when Acknowledgment staff organized Oct 1978 110 ne~ petitioners since Oct 1978 

150• Total Petitions received to date 

9 

100 

30 

includes 8 groups that initially petitioned as part of other groups but have 

s1nce split off to petit1on separately. 

-1-
118 

PETITIONS ACTIVE, READY 

OR IN LITIGATION 

(as o! ~a\ 16, 199,)) 

ACTIVE STATUS 

Proposed Finding in Progress - 6 

~etoe:s 

17616 

356 

c250 

313 

c2500 

United Houma Nat1on, Inc., LA (#Obi (ActHe 5/20/91; in draft) 

Du'o'amish Indian Tnbe, WA (#251 (ActlVe 5/l/92; In draft) 

Huron Pota,.atomi Band, MI (#91 (Actlve 7/27/931 

Jena Band ot Chocta'o's, LA (#.J51 (Actne 7/27/931 

Chuwok Indian Tnbe, Inc., WA (#571 (Actne l/28/941 

Pokagon Pota'o'atomi Ind1ans o! Indiana & ~Ichigan, IN (#}21781 

(ActIve l/28/9,) I 

Petitioner Commenting on Proposed Finding - 3 

836 Snohomish Tnbe of Indians, WA (#121 (ActlVe 117/81; proposed negative 

l!nding pub'd 4/ll/83; edited staff notes pronded 3/25/91; comment 

period reopened 12/1/91, extended Indefinitely at petitioner's request 

pending resolution of Sarnish litigation) 

313 Snoqualmie Indian Tribe, WA (#201 (Active 5/21/90; proposed positive 

finding pub'd 5/6/93; comment period extended to 9/30/941 

c2500 Ramapough Mountain Indians, Inc., NJ (#581 (Actlve 7/14/92; proposed 

negattve finding pub'd 12/8/93, comment period extended to 10/7/941 

Final Determination Pending - 0 

READY STATUS 

Ready, Waiting for Active Consideration - 4 

Petitioners have corrected deticiencies and/or stated their petition should 

be considered ''ready'' for active consideration. Priority among ''ready'' 

petitions is based on the date the petition is determined "ready" by the 

Branch of Ackno,.ledgment and Research (BAR). 

~.:: d 1 :,dt e 

ll/19/91 

4/23/93 

9/24/93 

J/04/94 

~OWA Band of Chocta'o', AL (#861 (doc'n recv'd ~/28/88; OD 1tr 

2/15/90; rspns recv'd ll/8/91; complete 11/19/91) 

Yuch1 Tribal Organization, OK (#1211 (doc'n recv'd 9/9/91; 

OD ltr 9/J.l/92; partial rspns 3/23/93; complete 4/23/93) 

Juaneno Band of Mission Indians, C.1. (#84} (doc'n recv'd 

2/24/88; OD ltr l/25/90; rspn recv'd 9/24/93, complete) 

Cowlitz Tribe of Indians, wA (#161 (doc'n recv'd 2/1/83; OD 1tr 

6/15/83; rspn recv'd 2!10/87; 2nd OD ltr 10/21!88; rspns 

recv'd 2/24/94, complete) 

IN LITIGATION 

Sdmish Indian Tribe, ~A (#141 (Denied ~cknowledgment eff. 5/6/87) 

~Iam1 Nation of Indians of IN (~661 (Denied ~ckno'o'ledgment eft. 8/17/921 

-2-
119 

PETITIONS RESOLVED 

(as of !'lay 16, 19941 

RESOLVED BY DEPARTMENT - 25 

Acknowledged through 25 CPR 83 - 9 

~.~~lli 

297 

175 

200 

199 

1170 

1470 

521 

188 

972 

pen ted 

1041 

2696 

34 

324 

1530 

!321 

823 

609 

87 

304 

190 

275 

1381 

Grand Traverse Band of Ottawa & C!uppe~a. MI {#Jl (eff. 5/27/801 

Jamestown Clallam Tribe, WA (#191 leff. 2/10/81) 

Tunica-Blloxl Indian Tribe, LA {#!) (eff. 9/25/81) 

Death Valley Tlmbi-Slla Shoshone Band, CA (#51) (etf. 1/3/83) 

Narragansett Indian Tribe, RI {#59) (eff. 4/11/81) 

Poarch Band of Creeks, AL (#13) (efL 8/10/841 

Wampanoag Trlbal Council of Gay Head, MA (#76) (eff. 4/11/87) 

San Juan Southern Paiute Tribe, AZ 1#71) left. 3/28/90) 

,'!ohegan Indian Tnbe, CT liiJSl (eft. 5/14/941 

ac~nowledqment through 25 CFR 83 - 13 

Lower Muskogee Creek Tribe-East of the ~s. GA (#8) (eft. 12/21/81) 

Creeks East of the ~tsstssippt, FL (#10) (eft. 12/21/81) 

Munsee-Thames River Dela,..are, CO ln26l (eff. 1/3/83) 

Principal Creek Indian Nation, AL {#71 (eft. 6/10/85) 

Kaweah Indran Nation, CA IU70al (eft. 6110/85) 

UnHed Lumbee Nation of NC and America, CA (#70) (eft. 7/2!85) 

Southeastern Cherokee Confederacy (SECC), GA (#29) (eft. 11/25/85) 

Xcrthvest Cherokee Wolf Band, SECC. OR (#29a) (eff. 11/25/85) 

Red Clay Inter- tribal Indian Band, SECC, TN (#29b) (eff. 11/25/85) 

rchmouk Indians, OR (#52) (etf. 3/17/86) 

Sam1sh Indian Tribe, Inc., WA (8141 (eff. 5/6/871 

:1aChis Lower AL Creek Indian Tribe, AL (#87) (eft. 8/22!88) 

Miami Nation of Indians of IN, Inc., IN (#66) (eff. 8/17/92) 

Status Clarified by Legislation at Department's Request- l 

c224 Lac Vieux Desert Band of Lake Superior Chippewa Indians, MI (#61 

(legis clarification of recog'n status 9/8/88) 

Status 

~ 

Clarified by Other Means - 2 

Texas Band of Traditional K1ckapoos, TX (n54) (Determwed part 

ot recognized tribe 9/14/81; petition withdrawn) 

32 lone Band of Miwok Indians, CA (#2) (Status confirmed by Ass1stant 

Secretary 3/22/94) 

RESOLVED BY CONGRESS - 4 

Legislative Restorati~ 

328 Confederated Tribes of Coos, Lo~er Umpqua and Siusla~ Indians, OR 

(#17) (legis restoration 10/17/84) 

Legislative Recognition - 3 

651 Cow Creek Band of Umpqua Indians, OR (#72) (legis recogn 12/29/82) 

55 Western (Mashantucket) Pequot Tribe, CT (#42) (legis recogn 10/18/83 

in dssoeiation vi th eastern land claims suit} 

611 Aroostook Band o[ Micmacs, ME (#lOJ) (legis recog'n 11/26/91) 

-3-
120 

Petitions Resolved, cont. 

RESOLVED BY OTHER ~EANS -

Pet1tion w1thdrawn (merged with another pet1t1onJ - 1 

Potawatomi Ind1ans of IN & ~I. Inc., .~1 (#751 and Potawatom1 Ind1an 

Natlon, Inc. (Pokaqonl, ~I (#'/61 merged; now Pokagon ... (#781 

LEGISLATIVE ACTION REQUIRED 

Cases requiring legislation to permit processing under 25 CFR 83 - 7 

[,umbee Regional Development .~ssoctatwn ILRDA/Lumbeel 1#651 

Hatteras T'Jsr:arora Ind~ans, \C (#34) 

Cherokee Indians of Robeson and AdJOining Counties, NC (#4~1 

Tuscarora Ind1an Tribe, Drown1ng Creek Res., NC 1#73) 

Waccamaw Siouan Development Assoc1at1on, Inc., NC (#881 

Cherokee Indians of Hoke County, Inc., NC 1#91) 

Tuscarora Nation of North Carolina, NC (#1021 

HISTORICAL NOTE: 

40 pet1t1ons on hand when Acknowledgment staff organ1zed Oct 1978 

llQ new petitwners since Oct 1978 

150' Total Petitions rece1ved to date las of ~/29/941 

Includes groups that initially petitioned as part of other groups but 

have s1nce split off to petition Independently. 

Prepared by: 

-4-

Bureau ot Indian Affairs 

Branch ot Acknowledgment & Research 

1849 C Street, 'iW (MS-2611-MIBI 

Washington, DC 20240 

(202) 208-3592 
121 

REGISTER 

of 

DOCUMENTED. READY PETITIONS 

(as ot ~ay 16, 1994) 

NO'TE: Priority among pet1t1ons t hat <~re documented and 

''ready'' for active considerat1on is based on the date the 

pet i tlon is determined complete and "ready" by the Branch 

of Acknowledgment and Research (BAR). 

1~/19/1991 

4/23/1993 

9/24/l99J 

4/0!/1994 

MOw!\ Band of Choctaw, AL (~86) 

Yuchi Tribal Organization, OK 1n1211 

Juaneno Band of ~l&SlOD Indians, CA ("841 

Cowl i.tz Tnbe of Indians, WA lnl6) 

REGISTER 

of 

INCOMPLETE PETITIONS & LETTERS OF INTENT TO PETITION 

(as of May 16. 1994) 

AD~I~ISTRATIYE ~OTE: 

Priority numbers assigned to petit1ons under the "old regs" 

have been reta1ned to avoid the contusion that n~numbering 

would be likely to create. for the purpose of this Register, 

petil1oners ar e listed in numer1cal sequence based on the 

chronological orde r in which the Branch ot Acknowledgment and 

Research (BAR) received the petition and/or letter of intent 

to petit1or1. Gaps in numbering represent petitions that have 

alre;1dy been resolved or are now in actl\•e status, 

J' Shtnnecock Ttlbe, NY (Z/8/781 

'l Piro/'1anso/Ttwa Indian Tribe ot the Pueblo ot San Juan de 

Guadalupe (formerly T1wa Indian Tnbe), NM (doc'n recv'd 

J/24/92; OD ltr 8/25/93) 

9a' GunLake Village Band & Ottawa Colony Band of Grand River Ottawa 

Indians, t!I (6/2·U921 

Ll Steilacoom Tribe, WA (doc'n recv'd 10/27/84; OD ltr ll/30/87; 

response 3/25/94) 

15 Mashpee Wampanoag, MA (doc • n recv 'd 8/16/90; OD ltr 7 /30/91) 

lS' Little Snell Band of Nortu Dakota, ~D (#18, 11/ll/75) 

21' ~ono Lake Indian Community, CA (7/9/76) 

22' iiasboe/Pa lUte ot Antelope Valley, CA ( 7/9176) 

- 5-
122 

:Jtcomplete Pet1t1ons & Letter!; ut Intent Pet1t1on, conr'd: 

22a* 1\ntelope Valley Paiute Tnbe, 17/9/761 

23 four Hole Indian Orgn/Edisto TLbe, SC lpartlal doc'n recv'd 198)) 

24 MaidU Nation, CA (partial doc'n recv d 5/l0/90) 

27• Cherokee Indians of Georgia, Inc., GA 18/8/771 

28' Piscataway-Conoy Confederacy & Sub-Tribes, Inc., MD (2/22/78) 

JO Clifton Choctaw, LA (doc'n recv'd c.9/28/90; OD 1tr 8/13/911 

Jl Little Shell Tribe ol Chippewa Indians of ~~ (OD ltr ~/18/85; 

partial response 11/2/87, 10/26/89; "not B/17/90) 

J2* Florida Tribe of Eastern Creek Indians, FL 

33* Delaware-Muncie, KS (#JJ, 6/19/781 

J~ Eastern Pequot Indians of Connecticut, CT ldoc'n recv'd 5/5/89; 

OD 1 tr 3/13/90) 

36' Tsimshian Tribal Counc1l, AK (7/2/78) 

37* Chocta•-Apache Community ot Ebarb, LA (7/2/781 

J9* Coret> ldka faHTlothJ Indlans, NC' {8/S/78) 

40~ NanticoKe Ind1an Assoc1at1on, DE {8/8/78/ 

41 Georgia Tribe of Eastern Cherokees, Inc. (aka Dahlonega). GA 

(doc'n recv'd 2/S/80; OD ltr 8/22/801 

~la• Cane Break Band of Eastern Cherokees, GA 11/9/79) 

43' Tuscola United Cherokee Tnbe of H & AL. FL I l/19179 I 

46* Kah-Ba\"-Kah-Nong (warroad Chlppe•a), 'IN 

47* Kern Valley Indian Community, CA 12/27/79) 

48* Shawnee Nation U. K.B., IN (formerly Sha•nee NatiOn, United Remnant 

Band, OHJ (3/13/79) 

49' Hattadare Indian Nation, NC (3/16/791 

50* North Eastern U.S. '11ami Inter-Tribal Counc1l, OH (4/9/79) 

53• Santee Tribe, White Oak Indian CommunJtY, (6/V79) 

55 Delawares of Idaho (doc'n recv'd 6/14/7~; OD ltr 9/24/79; partial 

response 12/10/791 

60• Alleghenny Nation (Ohio Band), OH 111/3/79) 

61• United Rappahannock Tnbe, Inc,, VA (ll/16/79) 

62' Opper Mattapom Indian Tnbal .~ssoc1ation. Inc., V.~ (11/26/79) 

63 Hall•a-Saponl, NC ldoc'n recv'd 10/19/89; OD ltr 1/20/90) 

6•• Consolidated Bahwetig Ojib•as and Mack1nac Tribe, HI (12/4/79) 

67• Brotherton Indians of Wisconsin, WI 14/15/80) 

69 St. Franc1s/Sokoki Band of Ahenakis ot VT [OD ltr 6/14/83; ''ready'' 

8/ 1/86; petitioner says "not ready" 9/18/90) 

69a :'ilpmuc Tribal Council of MA (Hassanam1sco Band) (doc'n recv'd ')/20/8-!; 

OD ltr 3/1/85; response 6/12/87; 2nd OD 1tr 2/5/881 

69b Nipmuc Tribal Council of MA I Chaubunagungamaug Band) I doc' n recv · d 

7/20/84; OD ltr l/1/85; response 6/12/87; 2nd OD ltr 2/5/88) 

74' Coharie Intra-Tribal Councll, Inc., NC (l/ll/81) 

77* Cherokees of Jackson County, Alabama, AL (9/23/811 

79• Schaghticoke Indian Tribe, CT (12/14/811 

80* Coastal Band of Chumash Indians, CA [J/25/82) 

81 Golden Hlll Paugussett Tribe, CT (doc'n recvd 4/12/93; OD ltr 8/26/93; 

reoponse 4/1194) 

82 Amer1can Indian Councll of ~ariposa County (aka Yosemite), CA ldoc'n 

recv'd 4/19/84; OD ltr 5/1/85; rspn 12/12/86; 2nd 00 ltr 4/11/88) 

-6-
123 

Incomplete Petitions & Letters of Intent to Petition, cont'd: 

83 

85 

89 

90 

92' 

93 

94* 

95* 

96* 

97 * 

98 '' 

99* 

100* 

lOOa• 

lOOb* 

101* 

104 

105* 

106* 

107• 

108 

109* 

110* 

111• 

112 

113* 

114* 

115* 

116* 

117 

118* 

119• 

120• 

122' 

12)• 

124' 

125* 

126 ·* 

127* 

128* 

129* 

130* 

131 * 

Shasta Nation, CA (doc 'n recv'd 7/24/84; OD ltr 5/30/85; response 

6/8/86; 2nd OD ltr 10/22/87) 

Tol owa Nation, CA (doc'n recv ' d 5/12/86; OD ltr 4/6/88) 

Seminole Nation of FL (aka Traditional Seminole) (doc'n recv'd 

11/10/82; OD ltr 10/5/83, l acks genealogy; prtl rspn 12/7/83) 

~orth Fork Band of Mono Indians, CA (doc'n recv'd 5/15/90; OD ltr 

10/28/91) 

Dunlap Band of Mono Indians, CA (1/4/84) 

Ha yfork Band of Nor-El-Muk Wint u Indians, CA (doc'n recv'd 9/27/88; 

oo ltr 2/26/90) 

Christian Pembina Chippewa Indians, NO (6/26/84) 

Cherokee-Powhattan Indian Association, NC (9/7/84) 

San Luis Rey Band of Mission Indians, CA (10/18/84) 

wintu Indians of Central Valley, California, CA (10/26/84) 

liintoon Indians, CA (10/26/84) 

Chukchansi Yokotch Tribe of Coarsegold, CA (5/9/85) 

Northern Cherokee Tribe of Indians, MO (7/26/85) 

Chickamauga Cherokee Indian Nation of AR & MO (9/5/91) 

Northern Cherokee' Nation of Old Louisiana Terr, MO (2/19/92) 

Burt Lake Band of Ottawa & Chippewa Indians, Inc., MI (9/12/85) 

Yokayo, CA (doc'n recv'd 3/9/87; OD ltr 4/25/88) 

Pahrump Band ot Paiutes, NV (11/9/87) 

Wukchumni Counci l, CA (2/22/88) 

Cherokees of SE .Uabama, AL (5/27/88) 

Snoqualmoo of Whidbey Island, WA (docn recvd 4/16/91; OD ltr 8/13/92) 

Choinumni Council , CA (7/14/88 ) 

Coastanoan Band of Carmel Mission Indians, CA (9/16/88) 

Ohlone/Coastanoan Muwekma Tribe , CA (5/9/89) 

Indian Canyon Band of Coastanoan/Mutsun Indians of CA (doc ' n recv'd 

7/27/90; oo ltr 8/23/91) 

Paucatuck Eastern Pequot Indians of CT (6/20/89) 

Canoncito Band of Navajos, NM (7/31/89) 

Littl e Traverse Bay Bands of Odawa Indians, MI (9/27/89) 

Salinan Nation , CA (10/10/89) 

Oklewaha Band of Seminole Indians, FL (doc'n recv'd 2/12/90; OD ltr 

4/24/90) 

Revived Ouachita Indians of AR & Ameri ca (4/25/90) 

'1eherrin Indian Tribe, NC (8/2/90) 

Amah Band of Ohlone/Coastanoan Indians, CA (9/18/90) 

Etowah Cherokee Nation, TN ( 1/2/91) 

lpper Kispoko Band of the Shawnee Nation, IN (4/10/91) 

Piqua sept of Phio Shawnee Indians, OH (4/16/91) 

Little River Band of Ottawa Indians, MI (6/4/91) 

Lake Superior Chippewa of Marquette, Inc . , MI (12/31/91) 

~anticoke Lenni-Lenape Indians, NJ (1/3/92) 

Tsnungwe Council , CA (9/22/92) 

'1ohegan Tribe and Na tion, CT (10/6/92) 

waccamaw-Siouan Indian Association, SC (10/16/92) 

Esselen Tribe of Monterey County, CA (11/16/92) 

-7-
124 

Incomplete Petitions & Letters ot Intent to Petition, cont ' d: 

132* Ohlone/Costanoan-Esselen Nation, CA (1 2/3/92) 

133* Council for the Benefit ot Co lorado Winnebagos, CO (l/26/93 ) 

134* Chi cora- Siouan- Indian- People, SC (2/10/93) 

135* Swan creek Black River Confederated Oj i bwa Tribes, MI (5/4/93) 

136• Chukchansi Yoko t ch Tribe of Ma riposa , CA (5 / 25 /93) 

137 Wintu Tribe, CA (doc'n r ecv'd 8/25/93; OD ltr 12/8/93) 

138* Caddo Adais Indians, Inc., LA (9/13/93) 

139* Salinan Tribe ot Monterey County, CA (11 / 15/93) 

140* Gabrielino/Tongva Tribal Counci l , CA (3/21/94) 

141* Langley Band of the Chickamogee Cheroke e Indians of the 

Southeastern U.S., AL (4/15/94 ) 

Prepared by: 

-8-

Bureau ot Indian Affairs 

Branch of Acknowledgment & Research 

1849 C Street, NW (MS-2611-MIB) 

Washington, DC 20240 

( 202) 208- 3592 
125 

Mr. WILLIAMS. I want to note that I share the gentleman from 

Wyoming's concern about the politics that would ensue if this process became simply that of appealing to Members of Congress for 

recognition. While there is obviously great value in the peculiarly 

American rough-and-tumble. wide-open political style of appealing 

to your Member of Congress, it does not always lend itself to the 

most thoughtful of considerations, although quite often it does. But 

it does seem to me that in the instance of tribal recognition, we are 

better off to try to keep that at least a step removed from that 

wide-open, American-style, :rough-and-tumble, write-your-Congressman politics. 

I do want to note that it is important that appropriate research 

be conducted when determining this critical matter of recognition. 

But I also want to note that nobody believes that more strongly 

than the people appealing for recognition. Government is not ahead 

of them on wanting to be right and correct and assure that the 

proper people are being recognized. The people that believe that 

most deeply are those appealing for recognition. And we are herein 

only trying to find a way to make more efficient the final answer, 

yes or no. 

You remember the case of the Miamis, who, as I recall, spent 6 

or 8 years and $500,000 to get the answer no. Now, should they 

have been told yes? I don't know that. But it does seem to me the 

answer no may have just as easily come under a different system 

3 months and $250,000 earlier. 

And so I would think that we ought to have a system that 

achieves fail-safe points along the way, saves hundreds of thousands of dollars for financially strapped people, and saves the 

stress of year upon year upon year of wait in triplicate and one 

more letter and five more visits to Washington and three more attorneys, and hiring one more genealogist. 

I have followed a couple of these sagas, and it seems to me there 

ought to be a better way. But there is no question but that we 

want to do it right, and I am a believer, Mr. Hayes, that under the 

current process, you and your staff are struggling mightily to do it 

correctly. 

The gentleman from Hawaii. 

Mr. ABERCROMBIE. No statement. Your sentiments are mine. 

Mr. WILLIAMS. You have been very helpful. Thank you. 

Mr. HAYES. Thank you, Mr. Chairman. 

Mr. Chairman, before I depart the table, I would like to reiterate 

the offer to work with your staff in trying to find some means to 

improve upon our process. 

Mr. WILLIAMS. Thank you very much. And we and the staff will 

take you up on that. We appreciate your kind and generous offer, 

and we will accept it. 

Mr. HAYES. Thank you, sir. 

Mr. WILLIAMS. I will ask the gentleman from Hawaii to assume 

the Chair of the committee. 

Mr. ABERCROMBIE [presiding]. Thank you, Mr. Chainnan. 

We will move to panel two then, Chairman Tullis, Honorable 

Stan Jones, and Mr. Philip Alexis. 

Aloha, aloha. Good morning. Delighted to have you all here. 

Thank you very much for coming. Maholo Nui Loa for coming. As 
126 

affirmative act ion representative of the Hawaiian people here in 

Washington, I am delighted to make your acquaintance and welcome you to, perhaus for more than the fir::;t time, to Washin~:,:rton, 

DC, but certainly to this committee. 

PANEL CONSISTING OF HON. ED TULLIS, CHAIRl\tA.l\1, POARCH 

CREEK INDlAJ\IS OF ALAB,\i,1A AND PHESIDENT OF UNITED 

SOUTH Al'llD EASTERN TRIBES; HON. STAll\/ JO!\'ES, CHAIRJUAN, TULALIP TRIBES OF WA....;.;HINGTON, l\1ARYSVILLE, WA; 

ACCOMPANIED BY DOUGLAS L. BELL, ESQ. All\ID PHILIP 

ALEXIS, EXEClJTIVE DIRECTOR, CONFEDEHATED HISTORIC 

TRIBES, INC., LANSING, MI; ACCOMPANIED BY KARL FUNKE, 

KARL FUNKE & ASSOCIATES 

Mr. ABERCR0:-.1BIE. As you know, we are dedicated to making 

sure that all of the elements of your presentation are recorded for 

the record and given full consideration. And with that, [ would like 

to start with Chainnan Tullis for your presentation. 

STATEMENT OF HON. ED TULLIS 

Mr. TlJLLIS. Thank you, Mr. Chairman. To begin with, 1 would 

like to request that my comments or my prepared printed statement be entered into the record, and I be given permission to summarize my statement, my oral statement, so that we can have time 

for discussion. 

Mr. AmmcHOMBIE. That permission is granted with alacrity; and 

without objection, everything will be entered. 

Mr. TuLLIS. Thank you. 

I am Eddie Tullis; I am Tribal Chairman of the Poarch Creek Indians of Alabama, and I also have the honor of serving a,; the 

President of the United South and Eastern Tribes. 

The Poarch Cre<c'k Indians is a segment of the original Creek Nation, and despite the policy of the removal of Southeastern Indians 

to the State of Oklahoma or to the Territory of Oklahoma, my ancestors avoided that removal and have survived and continue t.o 

live in their original or their aboriginal homelands. Today, there 

are 2,100 members of the Poarch Creek Indians with about L400 

of us living in the vicinity of Poarch, AL. 

USET is an intertribal organization that consists of 21 of the federally recogniz.(~d tribes in the south and eastern United States, 

from the State of Florida to Maine and as far west to East Texas. 

I am here m both of those capacities toda,v and appreciate the opportunity to do that. 

First, I would like to compliment Mr. Richardson and Mr. Thomas for their introduction of H.H. 4462; and the other colleal-,'lleS for 

their introduction of 2549. We believe that these are excellent 

pieces of legislation that should be con::;olidah:d into one bill and 

passed into law during the 103d Congress. We ''trongiy believe that 

there must be a process and an institutionalized ll1L'thod to which 

groups seeking recognition must adhere. One of the reasons that 

the F.L\P process was initially established v.:as to create a uniform 

method where petitioners could he eYamined in a more academic 

setting. 

The Poarch Band of Creek Indians achieved their status as a federally recognized tribe on Aul-,'l.l!"t 11, 1984, as a result of a policy 
127 

finding by the Bureau of Indian Affairs. We petitioned through the 

BIA's Federal Acknowledgment Process and were successful. 

In addressing the specifics of this legislation, there are a number 

of items that I would like to make comments on so that we can 

have a discussion of them before this legislation becomes final. One 

of those items that we have concern about is the establishment of 

the Commission on Indian Recognition. We believe that there is 

only one real reason that would justify the expenditure of funds 

and the time and money involved in setting up a new Federal commission. That is, if there is evidence to show that the existing F AP 

office has been pressured to either deliberately slow down the process of petitionings, or if they have been pressured by any agency 

of the Interior Department to make negative findings. 

Clearly, the process that is in existence now has been slow, and 

I don't think anyone would defend the amount of time it has taken 

to process certain petitions. And I support provisions in the bill 

that will implement time frames and require the BIA and/or the 

commission, if created, to respond by dates certain. 

Similarly, this process should not be continued forever. We 

strongly support the provisions in the bills which would create a 

time limit for this entire process to be completed within a 6-year 

time frame. 

As indicated above, we are not necessarily opposed to creating a 

commission, if the Congress is truly convinced that the only way 

for petitioning groups to get a fair shake is through the establishment of such a commission. However, we would urge you to consider how long it took to create the National Indian Gaming Commission, get it up to speed and running, to begin to perform the 

functions for which it was created. 

We agree with the provisions in both of these bills which essentia"Ily mirrors the actual criteria used by the present FAP office. 

These criteria have been in place since 1978, and are well accepted 

by most impartial archeologists, historians, genealogists-and I 

might add, very definitely-as well as by most tribes, as being reasonable expectations of criteria that a petitioning group should 

meet. We are just less convinced than certain critics that F AP is 

as broken as some allege. We do not believe that it is a dismal failure. 

By means of example, let us examine the most used argument 

of the critics. They contend that there are over 100 petitions pending and that the BIA has only taken action on a very small number 

of them. Mr. Chairman, let me point out that 75 of those so-called 

petitions are nothing more than an undocumented letter of intent 

to petition. Some of those have been here since 1984-or 1978 

when the process was started. And I certainly don't believe that 

any member of this committee or even the most severe critics of 

F AP would want the BIA to afford Federal recognition to a group 

based only on an undocumented letter of intent. There are groups 

that have filed a letter of intent and never again responded to the 

request from the F AP office. 

I can personally-! personally know of three groups which were 

very correctly denied recognition. These included the Lower 

Muskogee Creek Tribe of Georgia, the Creeks east of the Mississippi and Florida, and the Principal Creek Nation of Alabama, 
which are in fact and fm· all pr-actical purposes the same group of 

people. The leaders of these group:; continue to change the addres::-; 

of this group or to chang(' tbe;r address. apply for Federal money 

to go through the proc(•ss and ctmtinup to try to convince the FAP 

process that they are in fact a tribe. \Ve know thi;; is not the case. 

The way you should judge an FAP process is in regards to how 

many pet itinns they have nt>ver responded to. how backlogged they 

are in relation to tlw petition;-; that art> ready for active consider 

at ion. 

There are other areas of both bills th<tt we find quite positive. 

For instance, we concur that groups that have been previously 

turned down should not lw eligible to participate and petition 

again We agree that splinter groups or groups of existing tribes 

should not be allowed to petition. as well as groups which the 

courts have dNermined are not suc('essors in interest to treaty 

tribes. 

We also concur with the provisions of the bill that essPntially 

treats a final determination as a final agency action and that allows the petitioner to sel'k judicial revit>w in the U.S. District Court 

for the District of Columbia. This will help a pPtitioner by not requiring that they must go thmugh an cxtPnsive agency review 

process before challenging a finding in couri 

We also would request that one part of these bills be made a lit· 

tie bit clearer. and that is. we believe that when groups endeavor 

to secure financial assistance from the Federal Government, or 

those agencies that fund the t>f1'orts of groups to acquire Federal 

recognition, that they he required to present a list of the members 

of that group in its entirety. We have found in the past that groups 

provide one list of members and then, as they prO!,'Tess through the 

process, all of a sudden those lists of nH·mbers change. We feel this 

would also certainly help in the point of not having a group move 

from one location to others to petition from a different group. 

Mr. Chairman, I thank you f(n· the opportunity to present the 

views of the Poarch Creek Tribe and the United South and Eastern 

Tribes. We applaud the committeP and the sponsors for the introduction of these excellent bills and again urge enactment before 

time runs out on this Congress. · 

Thank vou. 

I Prepared statement of Mr. Tullis follow:;: I 
129 

TESTIMONY OF EDDIE TULLIS, CHAIRMAN OF THE POARCH CREEK TRIBE OF 

INDIANS AND PRESIDENT OF THE UNITED SOUTH AND EASTERN TRIBES, ON HR 

2549 AND HR 4462, LEGISLATION TO PROVIDE FOR ADMINISTRATIVE 

PROCEDURES TO EXTEND FEDERAL RECOGNITION TO CERTAIN INDIAN GROUPS. 

Chairman Richardson, Congressman Thomas, Congressman Faleomavaega and other distinguished 

members of the Native American Affairs Subcommittee, my name is Eddie Tullis. I am here today 

in a dual capacity as both the Chairman of the Poarch Creek Tribe of Alabama and as President of 

the United South and Eastern Tribes, Inc., (USET). 

The Poarch Band of Creek Indians is a segment of the original Creek Nation. Despite the policy 

of removal of southeastern Indians to Oklahoma, my ancestors avoided and survived the disastrous 

removal era and have continued to live together as a tribe since that time. Today, there are 2,100 

members of the Poarch Creek Tribe of which over 1,400 live in the vicinity of Poarch, Alabama. 

USET is a non-profit inter-tribal organization now consisting of 21 tribes from the south and eastern 

United States. We represent the federally recognized tribes from Maine down to Florida and as far 

west as eastern Texas. Our organization was founded in 1969 by four tribes and we have grown to 

where we now have tribal members in 12 states. I have not had the opportunity to run this testimony 

by every member tribe of USET but based on previously adopted resolutions of the Board, I am 

confident that my words today will be generally representative of the views of the majority of our 

membership. 

I want to start my testimony by commending Congressmen Richardson and Thomas for introducing 

HR 4462 and to commend Congressmen Falgeomavaega and Abercrombie for introducing HR 2549. 

We believe these are excellent pieces of legislation which should be consolidated as one bill and 

passed into law during the 103rd Congress. We strongly believe that there must be a process and 

an institutionalized method to which groups seeking recognition must adhere. We would hope that 

the establishment of such a congressionally sanctioned and established process would result in that 

process being the only one used by groups seeking recognition. As things presently stand, some 

groups go through the FAP process whereas other groups are going to Congress for legislative 

recognition. As a result, things have become very arbitrary. One of the reasons the F AP was 

initially established was to create a uniform method where petitions could be examined in a more 

academic setting rather than the arbitrariness of simply allowing the Congress or the Commissioner 

of the BIA to make the decision. Groups with powerful Congressman or Senators (or in the preFAP days, those with a good rapport with the Commissioner of the BIA) have/had a better chance 

of circumventing the FAP by congressional recognition than do those with junior Congressmen and 

Senators. 

There are components of each bill that we prefer, and I will address the specifics of the bills shortly; 

but first, I want to tell you why I may bring a unique perspective to this hearing and why tbe 

Director of USET asked ifi could represent the organization. The Poarch Band of Creek Indians 

achieved our status as a federally recognized tribe on August 11, 1984 as a result of a positive 
130 

finding by the Bureau of Indian Affairs. We petitioned through the BIA's Federal Acknowledgement 

Process (FAP) and were successful. I was involved in working with the BIA on our FAP petition 

and I was the first Chairman of the Tribal Council after we reorganized with a constitution and have 

been honored to be re-elected as Chairman in each election since. I therefore have a somewhat 

intimate and personal knowledge of the issues being discussed at today's hearing. 

In addition to addressing the specifics of the legislation, I want to make a few observations on the 

introductory comments of both Congressman Richardson and Thomas which appeared in the 

Congressional Recoz:Q, in conjunction with the introduction of HR 4462, on May 19 of this year. 

Congressman Richardson's comments, which seem intended to help justify the idea of creating the 

new federal Commission on Indian Recognition, indicate that the B!A presently has an "inherent 

disincentive to recognize new tribcs ... since new tribes would mean a greater strain on an already 

overstretched budget." In my thinking about the pros and cons of establishing this new Commission, 

I believe that there is only one real reason that would justify the expenditure and the time and money 

involved in setting up a new federal Commission. That is if there is evidence to show that the 

existing FAP office (or Branch of Acknowledgement and Research [BAR] to he precise) has been 

pressured to either deliberately slow down the processing of petitions or if they have been pressured 

by any agency of the Interior Department to make negative findings. Congressman Richardson's 

comments indicate that the disincentive is inherent but I am just not sure that is the case. In my 

discussions with the FAP staff, I have never gotten the impression that they arc pressured, even 

remotely, to take actions that arc injurious to petitioning groups. If the Committee has collected 

evidence to the contrary, I believe you should share it with Indian country. While I am not 

necessarily disagreeing with the idea of separate C.ommission, I do want to point to one positive 

finding made by the F AP when they were clearly being pressured to make a negative finding and 

that is when they recognized the San Juan Paiutes over the strong objections of the largest and most 

powerful tribe in the country, the Navajo Nation. In that case the integrity and independence of that 

office prevailed against such pressure. 

Clearly, this process has been slow and I don't think anyone would defend the amount of time it has 

taken to process certain petitions, and [ support provisions in the proposed bills that would 

implement time-frames and require the B!A and/or the Commission to respond by dates certain. 

Similarly, this process should not continue forever. We are hopefully dealing with tribal groups that 

have existed for hundreds or thousands of years and not groups that are created tomorrow or two 

years from now. To that end, we strongly suppmt the provisions in the Falcomavacga/Abcrcrombie 

bill that this process be complete within a six year time period. We note that in the 

Richardson/Craig proposal, the Administration for Native Americans is authorized to give grants to 

help petitioning Indian groups for a 12 year period, but the bill itself docs not limit the tenure of the 

new Commission. We think six years is sufficient time for each. 

As indicated above, we arc not necessarily opposed to creating a O:.>mmission if the Omgress is truly 

convinced that the only way for petitioning groups to get a fair shake is through the establishment 

of such a C'..ommission. However, we would urge you to consider how long it took to create the 

2 
131 

National Indian Gaming Commission and get it up and running. The Indian Gaming Regulatory Act 

was enacted in 1988, and it took the Bush Administration three years to appoint the Commissioners, 

and it took another year or two to get the regulations implemented. I am not sure anyone is served 

if the entire F AP process were to come to screeching halt for three or four years. If you do set up 

this Commission, you should endeavor to get it set up quickly. Additionally, if there is going to be 

a new Commission created, there should be a provision added to the bill that a majority of the three 

Commissioners should be Indian people and that Indian preference in hiring be applied to staff for 

the Commission. We agree with the provisions in both bills which essentially mirror the actual 

eriteria used by the present F AP office. Those eriteria have been in place since 1978 and are well 

accepted by most impartial anthropologists, historians, and genealogists, as well as by most tribes, 

as being reasonable expectations of criteria that a petitioning tribal group should meet 

I must also respectfully express some disagreement with Mr. Richardson's introductory statement that 

federally recognized tribes prefer the status quo over an improved administrative process, and that 

we really don't want to see any more tribes recognized because it will split the federal pie even more 

thinly than it already is. Fiist of all, there presently are over 500 federally recognized tribes and 

Alaska Native Villages. We get so little from the BIA now that if a few more, or even a few dozen 

more, tribes became recognized, it is unlikely to have any major impact on our budgets. 

Additionally, we would hope, and the pending legislation envisions, that the Congress would 

appropriate additional money for newly recognized tribes anyway. On the question of our preferring 

a broken system to an improved system, we would clearly like to see the system improved. We are 

just less convinced than certain critics that F AP is as broken as some allege. To that end, I do not 

really agree with Congressman Thomas' introductory comments wherein he describes the FAP as a 

"dismal failure." 

By means of example, let us examine the most used argument of the critics. They contend that there 

are over 100 petitions pending and that the BIA has only taken action on a very small number of 

tbem even though the F AP has been in existence for a decade and a half. Mr. Chairman, let me point 

out that 75 of these so called petitions are basically nothing more than letters of intent. These are 

typically undocumented letters from groups that would like to be designated as tribes. Let me repeat 

because eritics and members and congressional staff intent on attacking F AP have continuously 

overlooked this critical point. 75 OF TilE PENDING FAP PETITIONS ARE IN A CATEGORY 

ACCURATELY ENTITLED "LEITERS OF INTENT TO PETITION". Through the FAP 

regulations, the BIA is required to assign such letters with a number and they get added to the list 

but they really should not be counted. I don't believe that any member of this Committee or even 

the most severe critic of F AP would want the BIA to afford federal recognition to a group that has 

no documentation of its claim. Any person who would want to see such a group recognized has 

either no respect for, nor any understanding of, the sanctity of the concept of tribal sovereignty and 

the nature of the fiduciary government-to-government relationship that exists between tribal 

governments and the United States government. Of the 75 groups in this category, 11 have not 

responded to written inquires of the FAP, and the FAP has literally been unable to make any contact 

with four ( 4) groups. I personally know that three groups which were correctly denied recognition, 

3 
132 

the so called Lower Muskogee Creek Tribe-East of the Mississippi in Georgia, the Creeks East of 

the Mississippi in Florida, and the Principal Creek Indian Nation of Alabama, are, in fact, ail one 

and same. The same particular individual who has moved the offices of this so called tribe to three 

different states and gotten money from the federal government to petition three different times. The 

so called leader of this group has a direct blood relative who is heading up the efforts of yet a fourth 

group also petitioning the BIA for recognition. 

Above and beyond the 75 petitions described above, there are 27 petitioners who the FAP 

staff are awaiting to hear back from before they can continue to process their petitions. Of these, 

24 have received have received letters and phone calls from the F AP office indicating that their 

petition contained a deficiency. In many of these the petitioner has not responded to the deficiency 

letter or has indicated that they arc not ready to proceed. We assume that critics of PAP would not 

want to see these groups recognized without further action either. The combination of these two 

categories already exceeds 100 petitions. The way you should judge the F AP is in regard to how 

many petitions they have never responded to, how backlogged they are relative to processing 

petitions wherein the petitioner has indicated that they wish to be placed on "active consideration" 

(waiting) status, and how many are under active consideration but not yet ruled on. It is also my 

understanding that for the first time since it was started, the F AP office now has all of its FTE 

positions filled. 

There are other areas of both bills that we find quite positive. For instance, we concur that 

groups that have been previously turned down should not be eligible to participate and petition again. 

We agree that splinter groups of existing tribes should not be allowed to petition as well as groups 

which the courts have determined are not successors in interest to treaty tribes. We do believe that 

preferential or expedited treatment should be given to groups who can clearly demonstrate that they 

are the successors in interest to treaty tribes. Such a provision is contained in the HR 4462 but not 

in HR 2549. HR 4462 seems to require the new Commission to notify petitioners within one year 

of the receipt of a petition whether it contains any obvious deficiencies; and, then within one year 

after notifying a petitioner that its petition is in "active consideration", the new Commission shall 

make its finding. If all of the 100+ pending petitions that are in the PAP now are transferred 

simultaneously to the new Commission, you need to determine if letters of obvious deficiency can 

realistically be sent to all these groups within one year and whether, a year after that, proposed 

findings can be made. This does not even include new groups that might petition the Commission 

within its first year of existence. While we do believe in time frames, we don't think anyone will 

be served by codifying time frames that the Commission can't meet We also concur with the 

provisions of the bills that essentially treat a fmal determination as a final agency action and allow 

the petitioner to seek judicial review in the United States District Court for the District of Columbia. 

This will help a petitioner by not requiring that they must go through extensive agency appeal 

processes before challenging a fmding in court. 

We believe that, when groups endeavor to secure financial assistance from the Administration 

for Native Americans for petitions, they must be required to submit membership lists. This will 

4 
133 

prevent the same groups from petitioning in different areas using slightly different sounding tribal 

names, as I described above. Petitions to the BIA should also be required to contain membership 

lists. 

The changes recommended in my testimony are really minor in nature because we strongly 

support the enactment of this type of legislation. Out of fairness to non-recognized tribes and to 

protect the sanctity of the unique federal/tribal relationship, a process as envisioned by these bills 

is needed. In closing, let me quote from a section of Omgressman Thomas' introductory comments 

that r fully agree with. These are the reasons why tribes feel strongly that an equitable system with 

uniform criteria is needed, not because of any selfish need to protect what little we now have. 

"Recognized" is more than a simple adjective; is a legal term of art. It means that the 

government acknowledges as a matter of law that a particular native American group is a 

tribe by conferring a specific legal status on that group, thus bringing it within Congress' 

legislative powers. This Federal recognition is no minor step. A formal, political act, it 

permanently establishes a government-to-government relationship between the United States 

and the recognized tribe as a "domestic dependent nation," and imposes on the Government 

a fiduciary trust relationship to the tribe and its members. Concomitantly, it institutionalizes 

the tribe's quasi- sovereign status, along with all the powers accompanying that status such 

as the power to tax, and to establish a separate judiciary. Finally, it imposes upon the 

Secretary of the Interior specific obligations to provide a panoply of benefits and services to 

the tribe and its members. In other words, unequivocal Federal recognition of tribal status 

is a prerequisite to receiving the services provided by the Department of the Interior's Bureau 

of Indian Affairs [BIA ], and establishes tribal status for all Federal purposes. 

I thank you for this opportunity to present the views of the Poarch Creek Tribe and of the 

United South and Eastern Tribes. We applaud the Committee and the sponsors for the introduction 

of these exce!lent bills and again urge enactment before time runs out in this Congress. 

5 
134 

Mr. ABERCROMBIE. Thank you, Mr. Chairman. 

I think if it is all right with everybody, we will go through all 

of the testimony before we get to the questions. I do have a couple 

of things I want to ask you, but others may illuminate the same 

points that I want to raise. 

So then if that is okay, we will move to Chairman ,Jones as your 

next participant. 

STATEMENT OF HON. STAN JONES 

Mr. JoNES. Thank you, Mr. Chairman. 

My name is Stanley G. Jones, and I am Chairman of the Tulalip 

Tribes of Washington. I am accompanied by the tribe's general 

counsel, Doug Bell. We appreciate the opportunity to comment 

upon H.R. 2549 and H.R. 4462. 

The Tulalip Tribes are the successors of the Snohomish, 

Snoqualmie and Skykomish Tribes, who honored the Treaty of 

Point Elliott, and came to the Tulalip Reservation. In 1935, we became a single reservation tribe under the IRA. 

The Tulalip Tribes are adjudicated to hold entitlement to the 

treaty fishing rights of these treaty tribes. Our members are heavily dependent upon the exercise of those rights for their livehhood. 

We are also very proud of our heritage and birthright as the historical successors of these aboriginal tribes. This is our cultural identity. 

We have taken very seriously and opposed the efforts of five nonreservation groups, whose members are widely scattered in western 

Washington, and who have no distinct geographical Indian communities, to lay claim to a share of the already scarce, and dwindling, 

treaty fishing as alleged treaty successors. Two of these groups, the 

Snohomish and Snoqualmie claims organizations, contend that 

they are the very treaty tribes that are included within the Tulalip 

Tribes. 

After great efforts and expense, we won a hard-fought lawsuit 

brought by these five groups in United States v. Washington, establishing that th~'.Y are not Indian tribal organizations, are not treaty 

successors, and do not have treaty fishing rights. This jud~-,:rrnent is 

a treaty property rights adjudication that these five groups arc not 

entitled to participate in the limited treaty fishery. The United 

States has a tmst responsibility to protect the Tulalip Tribe's treaty fishing rights established by this judgment. 

When the groups continued to pursue petitions for Federal acknowleds:rrnent as the treaty tribes that the judf,TJnent held them 

not to be, the Tulalip Tribes asked the Branch of Acknowledg-ment 

and Research to honor and give binding effect to the final Federal 

court judgment that they were not the tribes they claim to be, by 

dismissing their petitions. And BAR refused, BAR refused. 

As a result, the Tulalip Tribes have directly pari.icipated in the 

acknowledgment proceedings in opposition to the groups' petitions 

and have testified in House and Senate oversight hearings to urge 

that the criteria for the acknowledgment not be relaxed to permit 

recognition of marginal claims groups of this nature, which are not 

bona fide Indian tribes, to urge the BAR be required to honor Federal court decisions and give binding effect to Federal court Judg-
135 

ments, and to seek protection for the treaty and reservation rights 

of recognized tribes. 

We are hopeful that the acknowledgment regulations would continue to be interpreted and implied in a stringent fashion, denying 

acknowledgment to groups that have no geographically distinct 

community and settlements, and are not by any stretch of the 

imagination, within the common understanding of the meaning of 

the term "Indian tribe." 

My detailed statement for the record describes our outrage and 

dismay. In May 1993, the Assistant Secretary proposed acknowledgment of the Snoqualmie group after, for nearly 2 years, refusing 

to consider the voluminous historical record that we submitted 

showing that the Snoqualmie Tribe came to the Tulalip Reservation and is now part of the Tulalip Tribes, and that the Snoqualmie 

petitioner was created in this century to pursue claims, and is not 

the successor of the Snoqualmie treaty tribe, as the executive 

branch, the Congress, the Indian Claims Commission, and the 

United States v. Washington court have recognized and acted upon. 

We regard this proposed decision as a true slap in the face and 

insult to our tribe, our cultural identity, and the cultural identity 

and birthright of the approximately 2,000 Tulalip members who 

are of Snoqualmie descent. 

Needless to say, this proposed decision has increased our concerns about BAR's relaxation of the test for acknowledgment, now 

codified in the new regulations that become effective March 28, 

1994. 

As set forth in detail in my statement for the record, the BAR 

proposed Snoqualmie decision expressly acknowledges the petitioning group's population is dispersed; 

There are no distinct settlement areas of the group's members. 

By way of comparison, Mr. Chairman, approximately 2,000 

Snoqualmie descendents are members of the real Snoqualmie tribe 

at the Tulalip Reservation. The Tulalip Tribes of Washington and 

a substantial portion of these members are settled in the reservation tribal community. 

Sixty percent of the petitioning group's 313 members live within 

a 50-mile radius, scattered over a large area of western Washington. The others are more widely scattered. 

I would add that this area includes the greater Puget Sound metropolitan area, which is populated by millions of non-Indians. 

The group's scattered membership interacts extensively with 

non-Indians, living in white neighborhoods, going to white schools, 

etcetera. 

Yet the proposed decision would recognize this group as a sovereign Indian tribe on the basis that, despite its 313 members 

being widely scattered amongst millions of non-Indians over a 50-

mile radius, the group is within close enough proximity to have 

maintained a social community and social interaction among the 

group's members. 

We respectfully urge Congress to adopt legislation which would 

deny acknowledgment of mere social community groups that do not 

have a distinct geographical community in the form of distinct settlement areas. Acknowledgment of such groups is an affront to the 

sovereignty and dignity of every bona fide Indian tribe. 
1~)6 

As set forth in my statement for the record, the law has long recognized as a requirement that Indian tribes be distinct Indian communities includes an element of geographical concentration and 

distinctness from other populations in the area. By the amendments we propose, we urge Congress to dearly assure that such a 

requirement will be a condition of the Federal acknowledgment as 

an Indian tribe. 

The watering-down of the acknowledgment criteria to extend sovereignty to mere social community groups, with no geographical 

concentration and distinctness, will eventually lead to a public perception that sovereign Indian tribes are nothing more than voluntary social organizations. Ultimately, the public will lose respect 

for the sovereignty, dignity and authenticity of bona fide Indian 

tribes. The proliferation of social community tribes will also create 

a serious drain on scarce Federal services and benefits sorely needed bv real tribal communities. 

As set forth in mv statement for the record, BAR has also declined to give binding effect to tlw United States v. Washington decision that the Snoqualmie group is not a successor of the 

Snoqualmie treaty tribe, despite the fact that courts require that 

such effect be given an acknowledgment process concerning the 

Samish group. The provisions of HJ{. 2fi49 , which we recommend 

be added to H.R. 4462. would correct this problem and require BAR 

to honor Federal court decisions. 

\Ve also propose amendments to improvt• the provisions of the 

bill that protect the rights of existing tribes from claims of newly 

recognized groups, and remove any implication that such groups 

have claims to the rights of existing tribes. Finally, we propose an 

amendment to assure that group;; that have been the subject of 

ambiguous or erroneous determinations of eligibility to participate 

in the IRA, not be relieved of proving their historical existence before such determination. 

This completes my statement, Mr. Chairman. 

Mr. ABERCROMBIE. Excuse me. 

Mr. Chairman, could you read that last sentence agam, please? 

I didn't quite get it. 

Mr. ,JoNES. Finally, we propose an amendment to assure that 

groups that have been the subject of ambiguous or erroneous determination of eligibility to participate in the IRA, not be relieved of 

proving their historical existence before such detennination. 

Thank you, Mr. Chainnan. 

I Prepared statement of Mr. ,Jones follows: l 
Board of Olrecior•: 

Stanley G. Jones. Sr., Chlmm•n 

Donald C. Hatch. Jr .• V!CB·Chalfman 

MarieM. Zackuse. Treasurer 

Harman Williams. Jr .. Secretary 

Raymond L. Frybarg. $1 . Boarcl Member 

Dawn E. Simpson. &ard Member 

Calvin L. Taytor, Bc<Jrd Member 

Christina W. Henry. Ch1ef Executrve Offteer 

137 

6700 TOTEM BEACH ROAD 

MARYSVILLE, WA 98271·9715 

(206) 653·4585 

FAX (206) 653·0255 

OF TilE 

TIJVJ.IP TRIBES OF WASHINGTON 

CONCERNING 

H.R. 2549 AND H.R. 4462 

BEFORE TilE 

SUBCOMMITTEE ON NATIVE AMERICAN AFFAIRS 

OF TilE 

COMMITTEE ON NAnJRAL RESOURCES 

U.S. HOUSE OF REPRESENTATIVES 

JULY 22, 1994 

TheTulahpT"oesaretnesuccossors 

'" '"tercsttomcSnonom.sn 

Snoa~..1 e ;1nd S~y omosi'II<•Oes 

~nd otner !r•bes ,1nc oands S•9natory 

to the Trcatyol Poont EII•Otl 
138 

The Tulalip Tribes of Washington appreciates the opportunity to present the following 

statement concerning H.R. 2549 and H.R. 4462. 

The Tulalip Tribes support legislative reform of the federal acknowledgment process to 

address two underlying concerns that, in our view, were not satisfactorily resolved in the 

revised acknowledgment regulations that became effective on March 28, 1994. 59 Fed. Reg. 

9280. The first concern arises from a recent interpretation of the original acknowledgment 

regulations, as codified in the revised regulations, that an Indian group may satisfy the 

"community" criteria for acknowledgment as an Indian tribe on the basis of maintaining a 

distinct "social community, ' even though a substantial portion of the group is not concentrated 

in distinct geographic settlement areas. The second concern arises from the failure of the 

original and the revised acknowledgment regulations to properly afford preclusive effect to 

prior federal court decisions that an Indian group is not an Indian tribe or the successor of an 

Indian tribe that was a party to a treaty with the United States. The Tulalip Tribes recommend 

that H.R. 2549 and H.R. 4462 be amended to address these concerns, as discussed in sections 

I and II below, and set forth upon Attachment "A''. The Tulalip Tribes also recommend the 

additional technical amendments discussed in section lii below, and set forth upon Attachment 

"A." 

I. A disbursed Indian group with no distinct geographic settlement area(s) should not be 

aclmowledged as a sovereign Indian tnbe. 

The Tulalip Tribes urge that the acknowledgment criteria of H.R. 2549 and H.R. 4462 

be revised to clearly assure that Indian groups with no distinct geographic settlement areas may 

not be acknowledged. 
139 

Tribes are "distinctly Indian communities." United States v. Sandoval, 231 U.S. 28, 46 

(1913). They are a "people distinct from others." The Kansas Indians. 72 U.S. (5 Wall) 737, 

755-56 (1867). Such distincmess has a territorial component: 

"By a 'tribe' we understand a body of Indians of the same or similar race, united in a 

community under one leadership or government, and inhabiting a particular through 

sometimes ill-defined territory." 

In United States v. Washington, 641 F. 2d 1368, 1373-74 (9th Cir. 1981), cen. den., 454 U.S. 

1143 (1982), the Ninth Circuit recognized that maintenance of settlements in distinctively 

Indian residential areas is an element of an Indian tribe surviving as a distinct community: 

"When assimilation is complete, those of the group purporting to be the tribe 

cannot claim tribal rights. * * * To warrant special treatment, tribes must survive as 

distinct communities. [citations omitted] 

The appellants point to their management of interim fisheries, pursuit of 

individual members' treaty claims, and social activities as evidence of tribal organization. 

But the district court specifically found that the appellants had not functioned since 

treaty times as continuous separate, distinct and cohesive Indian cultural or political 

communit[ies]." 476 F. Supp. at 1105, 1106, 1107, 1109, 1110. 

After dose scrutiny, we conclude that the evidence supports this finding of fact. 

Although the appellants now have constitutions and formal governments, the 

governments have not controlled the lives of the members. Nor have the appellants 

clearly established the informal cultural influence they concede is required. 

The appellants' members are descended from treaty tribes, but they have 

intermarried with non-Indians and many are of mixed blood. That may be true of some 

members of mbes whose treaty status has been established. But unlike those persons, 

those who comprise the groups of appellants have not settled in distinctively Indian 

residential areas." (emphasis added) 

This analysis was in the context of a specific inquiry as to whether the appellants had 

historically maintained the required "organized tribal structure" in order to establish the right 

to exercise treaty rights. 641 F. 2d at 1372. 

2 
140 

The requirement of a distinct geographic community was implied by the language of the 

original acknowledgment regulations (25 C.F.R. §54.7(b), which was recodified as 25 C.F.R. 

§83.7(b)): 

Evidence that a substantial portion of the petitioning group inhabits a specific 

area or lives in a community viewed as American Indian and distinct from other 

populations in the area, and that its members are descendants of an Indian tribe which 

historically inhabited a specific area. 

However, on April 26, 1993, the Assistant Secretary published a Proposed Finding (58 

Fed. Reg. 27162) to acknowledge the "Snoqualmie Indian Tribe," one of the groups that was 

specifically the subject of the above-quoted Ninth Circuit language, and a group which the 

proposed finding and supporting technical reports also acknowledge has no distinct Snoqualmie 

settlement areas. The Summary of Evidence supporting the proposed finding indicates: 

"By 1914, the population of geographically distinct off-reservation Snoqualmie 

settlements had largely disbursed." (p. 8) 

"There are no distinctly Snoqualmie settlement areas. About 70 percent lives within a 

SO mile radius of Tolt/Camation, most between Marysville and Monroe on the north 

and Auburn on the South, a distance of about SO miles. This is not close enough to 

raise any presumption of significant social interaction, but is dose enough that social 

interaction at a significant level is easily possible." (p. 15) 

The anthropological report supporting the proposed finding describes the petitioner Snoqualmie 

group, as follows: 

"There are no distinct Snoqualmie settlement areas." (p. 7) 

"The Snoqualmie are not so concentrated, i.e., living in exclusive or nearly exclusive 

settlement areas, that the geographic patterns are evidence in themselves of a significant 

degree of interaction." (p. 64) 

"60 percent of the total membership list, have addresses in towns within SO air miles 

of Tolt!Camation." (p. 66) 

"Enrolled Snoqualmie members resided in the following western Washington ~owns in 

1990: Arlington (11), Auburn (7), Darrington (7), Duvall (14), Everett (23), lssaguah 

3 
141 

(9), Monroe (10}, Renton (9}, Seattle (26), Snohomish (10), Snoqualmie (7), Tacoma 

(11) and Woodinville (6)." (p. 66) 

"Because of the scattered nature of the population, few live near traditional areas of 

settlement and it is difficult to determine the likelihood that individual Snoqualmie 

living elsewhere are identified by their specific tribe by non-Indians." (p. 92) 

''The Snoqualmie interact extensively with non-Indians. This in part is a result of their 

scattered residence pattern. The [group's] petition states that: 

'the Snoqualmie generally live in white neighborhoods, attend mostly white 

schools, play with white children and establish ties with many white families. 

Geographical distances prohibit the Snoqualmie people as a tribe from 

interacting with the same degree of intensity and frequency as they do with their 

closer relatives." (pp. 92-93) 

Nevertheless, the proposed finding concludes that the group should be recognized as an Indian 

tribe on that basis that it has maintained a "social community:" 

"Although they no longer had separate settlements, there is strong evidence that the 

tribe maintained a distinct social community during this period." (p. 1) 

The Summary of Evidence explains: 

''The regulations require that a distinct social community be maintained within which 

substantial social interaction and social relationships are maintained and which is 

distinct from other populations in the area. They do not require that the group or 

substantial portions of it live in a geographic area which is exclusively or almost 

exclusively occupied by members, e.g. a village or neighborhood." {p.8) 

As explained in their preamble, the new acknowledgment regulations published on 

February 25, 1994 (59 Fed. Reg. 9280), effective March 28, 1994, which have been determined 

to apply to the Snoqualmie group's petition, revise the language of the regulations to eliminate 

any implied requirement under the language of the original regulations that a group live in a 

geographical community in order to be acknowledged: 

"Criterion (b), demonstration of community, and the associated definition of community 

in §83.1, were substantially revised in the proposed revised rule. The revision omitted 

an apparently implied requirement that a group live in a geographical community in 

order to demonstrate that this criterion was met. * * • The omission of a geographical 

4 
142 

requirement reflects current practices 1 in interpreting the regulations and recognizes 

that tribal social relations may be maintained even though members are not in close 

geographical proximity." (59 Fed. Reg. 9286-87) 

The preamble to the new rules also explains: 

"Several individuals pointed out that retention of the language 'distinct from other 

populations in the area' implied a geographical requirement • • * We agree, so this 

language has been eliminated." CW.) 

The new regulations define the term "community" as: 

" ... any group of people which can demonstrate that consistent interactions and social 

relationships exist within its membership and that its members are differentiated from 

and identified as distinct from non-members." (59 Fed. Reg. 9293) 

The new regulations revise the mandatory "community" criteria to read: 

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

and has existed as a community from historical times until the present." (59 Fed. Reg. 

9295) 

The new rules also describe a variety of"social community" evidence that may be used to satisfy 

such criterion. (!g.) 

It is apparent that the Department has abandoned any requirement that a substantial 

portion of a petitioners' membership be concentrated in distinctively Indian geographic 

settlement areas. In the case of the Snoqualmie group, this relaxation of the common 

understanding of the term "Indian tribe" has resulted in a proposal to acknowledge a group of 

313 Indian descendants that the Assistant Secretary and BAR concede is widely dispersed over 

a three county area within 50 miles of Carnation, Washington (i.e. over a SO mile radius), and 

scattered through a number of non-Indian cities in the greater Puget Sound metropolitan area 

(which includes millions of non-Indians), occupying no distinctively Snoqulamie settlement 

areas. BAR notes the difficulty of determining, and does not purport to determine, "that 

1

E.g. the proposed finding concerning the Snoqualmie group. 

5 
143 

individual Snoqualmie living elsewhere are identified by their specific tribe by non-Indians." 

Although there is no place where the Snoqualmie petitioner group has a distinctive geographic 

settlement presence, where the members live a daily tribal life together and are viewed as a 

geographic tribal community by other populations in the area (e.g. such as an Indian 

reservation), the proposed finding would acknowledge the group as an Indian tribe, "considered 

eligible for the services and benefits from the Federal government that are available to other 

federally recognized tribes," 25 C.F.R. §83.12 (59 Fed Reg. 9300), on the basis that the group 

has a "social community." 

This result is not only contrary to the specific decision in United States v. Washington 

mentioned above, but is also contrary to specific legal positions taken, and decisions made, 

concerning the group by the Executive Branch and Congress. For example, in its Indian Claims 

Commission brief, the United States represented to the Commission that the petitioner was not 

an Indian tnbe or a treaty successor. The Indian Claims Commission found that the petitioner 

was not the successor of the Snoqualmie tribe. The Department of the Interior reported to 

Congress that the petitioner was merely a claims organization, not an Indian tribe or treaty 

successor, and Congress concurred in this view in enacting Pub. L 92-30 (85 Stat. 83), which 

funded the Indian Claims Commissions award on a descendency basis, rather than to the 

petitioner as a Tribe. In House Report 92·148 and Senate Report 91·1144, the legislative 

history of Pub. L. 92·30, Congress incorporated the Depanment's report. House Report 92-148 

(p.22) and Senate Report 91-1144 (p. 24) indicate that the Snoqualmie petitioner "was 

established for the purpose of prosecuting claims against the United States and has maintained 

itself solely for that purpose. The group has ... not been recognized as an organized tnbe by 

the Federal Government, and individuals are considered descendants, rather than present-day 

6 
144 

members of a successor tribe." The House Report (p. 9) and Senate Report (p. 3) also indicate 

that the Snoqualmie petitioner is "organized for claims purposes only. * * * Members are 

scattered throughout the State of Washington." The House Report (p. 11) and Senate Report 

(p. 13) describes the Snoqualmie petitioner group as: 'Widely scattered in Pacific Northwest 

area ... Indians have not retained distinctly Indian culture traits. Generally integrated into nonIndian community and appear to utilize services available to them as citizens." 

The Tulalip Tribes acknowledge their opposition to the recognition of this particular 

Snoqualmie petitioner. As the successor of the Snoqualmie Indian tribe that was a party to the 

Treaty of Point Elliott, United States v. Washington, 626 F. 2d 1405, 1527 (W.D. Wash. 

1985),2 the Tulalip Tribes also wish to express their outrage and dismay at this proposed 

finding, issued nearly two years after BAR's refusal to even consider the voluminous evidence 

submitted by Tulalip in 1991 that reflects (1) the substantial historical record, from treaty-times 

to date, that the Snoqualmie tribe has been at (and recognized by the U.S. to be at) the Tulalip 

Reservation, and is now part of the Tulalip Tribes; and (2) that the Snoqualmie petitioner was 

established, and has existed, only as a claims group, and has been so regarded by the Executive 

Branch and Congress. In proposing to acknowledge this claims group petitioner as the 

Snoqualmie Indian tribe, the proposed finding ignores the historical record submitted by the 

Tulalip Tribes, and constitutes a slap in the face to the very cultural identity and birthright of 

approximately 2,000 Snoqualmie descendants who are members of the real Snoqualmie tribe, 

now part of the Tulalip Tribes, at the Tulalip Reservation. 

1-he Tulalip Tribes of Washington is also the successor of the Snohomish and Skykomish rreaty tribes. 

!lj. The practical effect of the reorganization under the IRA in the 1930's was to combine the historical allied 

rribes and bands signatory to the rreaty, who kept their rreaty promise to remove to the Tulalip Indian 

Reservation, into a smgle reservation tribe named after Tulalip Bay. 

7 
145 

However, the Tulalip Tribes concern with BAR's abandonment of 'illY requirement of 

distinct geographical settlement areas is broader than just its opposition to, and outrage over, 

the particular Snoqualmie proposed finding. Acknowledgment of mere "social cornmunily" 

groups is an affront to the sovereignty and digniry of e·;ery bona tlde Indian tribe that bas 

achieved federal recognition. 

Recognition of an Indian group as a sovereign Indian tlibt• is a serious marter with 

serious consequences. Waterirtg·down the criteria for acknowledgment to indude groups 

without any distinct geographical settlement areas. will serve to uivialize nibal sovereignty by 

opening the flood.gates to recognition of groups that do not fall within the common public 

understanding and legal definition of "!ndian tribes." hut ratlwr have become assimihned into 

non·lndian society, living widely scattered among non indian populations. The public -will come 

w perceive that, under this m•w relaxed test, groups rhar have survived as no more than priv«te 

voluntary social organizations, are purporting to exercise ''tribal sovereignty." Ultimately, the 

public respect for the soverei,;nty and dignity of genuine Indian tribes, v.ill be diminished, and 

federal services and benetlts sorely needed by real tribal communities will be significantly 

diluted. 

For these reasons, the Tulalip Tribes urge Congress to soundly reje•:t the notion that 

mere "social community" groups. with no distinct geographical settlement areas, constitute 

Indian tribes. An Indian tribe "must be something more" that a private voluntary social 

organization. United States v. Mazurie, 419 U.S. 544, 557 (1975). We urge that H.R. 2549 

and H.R. 4462 be revised to include the amendments to the set forth in §§ 1.1 and 2.1 of 

Attachment "A," to clearly reinstate a requirement of geographical distinctness--i.e. distinct 

geographical settlement areas .. as a criterion for acknowledgment. The Tulalip Tribes also urge 

8 
146 

the prompt enactment of limited legislation ro address this specific concem if general 

acknowledgment legislation is nor adopted by Congress. 

II. The acknowledgment process should afford preclusive effect to prior federal court 

decisions that Indian groups are not Indian ttibes or tteaty successors. 

The Tulalip Tribes support the provisions of section 3(b)(4) of H.R. 2549, and, as set 

forth in §2.2 of Attachment "A," urge that similar provisions be included as a new section 

5(a)(2)(E) of H.R. 4462. Groups which have been the subject of final federal court 

determinations that they lac.k either tribal, or treaty successor, status, should not be allowed 

to relitigate such claims in the federal acknowledgment process. The legal principles of res 

judicata and collateral estoppel require that judicial decisions have finality. Futher, BAR 

resources should not be devoted to re-examination of issues resolved by the federal courts. 

In United States v. Washington, 476 F. Supp. 1101 (W.D. Wash. 1979), affd 641 F. 2d 

1368 (9th Cir. 1981), cert. den. (1982), as referenced above, five Washington non-reservation 

Indian groups (Snoqualmie, Snohomish, Samish, Duwamish and Steilacoom) sought to 

adjudicate their status as historical successors to parties of the same names that were signatory 

to the treaty of Point Elliott, and their consequent entitlement to exercise the treaty fishing 

rights of such aboriginal tribes. The Tulalip Tribes were among the parties who opposed the 

claims of these groups through a full-hearing before a Master, a full district court trial de novo, 

an appeal and an unsuccessful effort to obtain certiorari review. The courts held that the 

groups were not historical successors of the aboriginal treaty tribes and, accordingly, were not 

entitled to exercise their treaty fishing rights. This conclusion was based, in parr, upon an 

inquiry and determination as to whether the groups had historically maintained organized tribal 

structures. It was determined that they had not. 

9 
147 

Notwithstanding the federal court decision that the groups were not historical treaty 

successors, each of the groups have pursued petitions for federai acknowledgmem ~, the 

successors of the aboriginal tr£..aJy_Uibes which the final court decision holds them not tc be. 

fheir petitions assert no other basis for satisfying the historic1l wminuity requirements for 

acknowledgment other than alleged successorship to the treaty tribes. BAR has declined to 

afford preclusive effect to the court decision, and engaged in independent inquiry as to whether 

the groups have the treaty successor status they allege. 

In Greene v. Babbitt, No. C89-645Z (W.O. Wash), the district court determined that the 

same evidence underlies both the treaty successorship claims of the Samish group in United 

States v. Washington and the Samish group's administrative acknowledgment claims. Order, 

September 29, 1990 (CR 102, at 12). The court also determined that the rights sought robe 

enforced by the Samish in both forums "are those secured to the historic Samish tribe as a 

sovereign entity. This ne<essarily requires proof of tribal succession." (!g, 12-'13) The court 

also held that the underlying issues pertaining to both claims was the same--whether the group 

had maintained an organized tribal structure, and that the Samish group "is not entitled to 

litigate anew this claim." (!Q., at 13) In determining that the Samish group was entitled to a 

further hearing on its acknowledgment claim before the Department, the court ruled that the 

Samish were precluded by the United States v. Washington decision from relitigating its status 

as political successor to the Samish treaty tribe and entitlement to treaty fishing rights: 'The 

issue of whether [SamishJ plaintiffs are successors :o the Treaty of Point Elliott has already 

been resolved ... Tllis Coun, in an earlier order, held that plaintiffs are barred under the 

doctrine of res judicata fmm relitigating its status as the political successor to the aboriginal 

Samish Indian tribe." Order, February 25, 1992 (C~ 169. at 4-S) Ruling that ''Plaintiffs, 

10 
148 

therefore, have no rights under the Treaty of Point Elliott" and that the case deals "solely with 

acknowledgment as it penams to eligibility for Government benefits" (JQ., ar 4·5), the court 

held that the adrnini,rrative law judge on the temand hearing concerning acknowledgment 

"should be infonned that the Samish are barred from enforcing treaty rights and that the legal 

effect of the treaty on the Samish should not be considered." Transcript, September 18, 1992, 

at 45-46. In affuming the district court's denial of the Tulalip Tribes' intervention on tht! 

grounds that its treaty interests were no longer implicated in the case as a result of these res 

judicata rulings limiting the scope of the acknowledgment proceedings, the Ninth Circuit noted 

that the district court had ruled expressly that "the AlJ 'VIIill not consider' treaty rights 

established by the Boldt decision," Greene v. United States, 996 F.2d 973, 977 (9th Cir. 1993), 

holding that "[a]ny attempt to relitigate treaty fishing rights would occur in the separate, 

ongoing [United States v. Washington] forum" (lQ.), "where the Tulalip and all other interested 

parties can have their say." (lQ., at 978). 

Notwithstanding the fact that the rationale of the district court's holding in Greene, that 

the res judicata effect of the judicial decision bars the Satnish group from relitigating treaty 

successor status and fishing rights in the acknowledgment process, is equally applicable to the 

other groups that were subject to the United States v. Washington decision, the Assistant 

Secretary proposed on April26, 1993 to acknowledge the Snoqulamie group as the Snoquahnie 

Indian tribe that was a party to the Treaty of Point Elliott. fn lengthy reports, BAR experts 

engage in lengthy reanalysis of the same treaty successor issue that was before the United 

States v. Washington court, as well as a discussion of perceived deficiencies in the decision. 

The Tulalip Tribes strongly urge Congress to intervene and require that BAR give preclusive 

11 
149 

effect to final federal court decisions, rather than setting itself up as a "Super-Court" to review 

and overturn the decisions of federal courts. 

lit Other recommended amendments. 

The Tulalip Tribes recommend that section 6(c)(2)(A) and (B) ofH.R. 2549 and section 

8(e)(l) and (2) of H.R. 4462, be amended as set forth in §§ 1.2 and 2.3 respectively of 

Attachment "A" to strengthen the protection of the treaty, reservation, and property rights of 

existing tribes by clarifying that acknowledgment of an Indian group v..'ill not have the effect 

of diminishing such rights, both as the same exist prior to the acknowledgment determination, 

and as the same may exist subsequent to such detennination. 

Additionally, as set forth in §2.4 of Attachment "A," the Tulalip Tribes urge that 

subsection 8(e)(3) of H.R. 4462 be deleted to avoid an unwarranted implication that 

unrecognized groups have valid claims to property held in trust by the United States for 

existing tribes. 

Finally, as set forth in §2.5 of Attachment "A," the Tulalip Tribes recommend that section 

5(c)(2) of H.R. 4462 be deleted. This provision would open recognition eligibility to claims 

or descendency groups that are not bona fide Indian tribes and have never organized under the 

IRA, but which may have been the subject of ambiguous or erroneous determinations by 

different agencies or officials, made without serious examination of whether the group 

constituted an Indian tribe, and without consideration of the views of affected Indian tribes, 

regarding eligibility to "participate" in some fashion in the IRA, or benefits thereunder (e.g. local 

agency acknowledgment of eligibility of a group for land acquisition). 

12 
150 

ATTACHMENT "A" 

1.0 Tulalip Tribes' Recommended Amendments to H.R. 2549 

1.1 Insert the following new provision after Section 3{c)(2)(A), and renumber 

existing subsections {B) and {C) accordingly: 

"(B) that a substantial portion of the petitioner's members live concentrated in 

a specific geographic settlement area, distinct from other populations in the area, 

and viewed by other populations in the area as an American Indian tribal 

community;" 

1.2 Revise §6(c)(2)(A) of H.R. 2549 by adding at the end thereof the following 

phrase: "or as the same may exist thereafter." Revise §6(c)(2)(B) of H.R. 2549 

by changing the phrase "prior to such determination" to read "prior or 

subsequent to such determination." 

2.0 Tulalip Tribes' Recommended Amendments to H.R. 4462 

2.1 Insert the following new provision after Section 5(h)(2)(A), and renumber 

existing subsection (B) accordingly: 

"(B) a substantial portion of the petitioner's members live concentrated in a 

specific geographic settlement area, distinct from other populations in the area, 

and viewed by other populations in the area as an American indian tribal 

community;" 

2.2 Insert the provisions of section 3(b)(4) of H.R. 2549 as a new section S(a)(2)(E) 

of H.R. 4462. 

2.3 Revise §S(e)(l) of H.R. 4462 by adding at the end thereof the following phrase: 

",or as the same may exist thereafter." Revise §8(e)(2) of H.R. 4462 by revising 

the phrase "prior to the recognition of such Indian group" to read: "prior or 

subsequent to the recognition of such Indian group." 

2.4 Delete section 8(e)(3) of H.R. 4462. 

2.5 Delete section 5(c)(2) of H.R. 4462. 

13 
151 

Mr. ABERCROMBIE. Mr. Alexis, you are next and the last member 

of this panel. 

STATEMENT OF PHILIP ALEXIS 

Mr. ALEXIS. Thank you, Mr. Chairman. I have asked Karl Funke 

to assist me in our presentation here, who is our contact here in 

Washington, DC. 

Mr. ABERCROMBIE. How do I spell that last name please, Mr. 

Funke'? 

Mr. FUNKE. F-u-n-k-e. 

Mr. ABERCROMBIE. Thank you. 

Mr. ALEXIS. I would like to apologize to the committee and also 

the staff for not being able to submit written testimony. 

Mr. ABERCROMBIE. You will have an opportunity to do that, 

should you desire to do so, for 2 weeks. 

Mr. ALEXIS. I am aware of that. I got delayed in DC, and when 

I got here our computers weren't compatible, so I wasn't prepared 

to print out the report. We will do that shortly after the hearing. 

Mr. ABERCROMBIE. Fine. 

Mr. ALEXIS. I would like to begin then and address this committee. 

My name is Philip Alexis. I am the executive director of the Confederated Historic Tribes. I am the former chairman of the Pokagon 

Band of Potawatomi Indians, and also the former chairman of 

Michigan's Commission on Indian Affairs. 

We have been asked to come in to testify on the existing process 

that everyone, including this committee and also the Senate Indian 

Affairs Committee, agrees doesn't work-it is the Federal Acknowledgment system-because it is arbitrary, costly, unfair, and contrary to existing law. 

I have given my presentation a little title, and I am going to title 

it, "What Is Wrong with This Picture'?" 

We strongly object and vehemently oppose both bills, because 

they do not address the concerns of Michigan's treaty tribes. They 

simply codify something that we know doesn't work, and Congress 

needs to get serious. 

Confederated Historic Tribes is made up of five tribes. We are all 

treaty tribes. We are all State-recognized tribes, and we are also 

all nonfederally recognized. We have signed over 14 treaties; my 

tribe, the Pokagon Band of Potawatomis have signed over 12. We 

have given up millions of acres of land in Illinois, Indiana, Ohio, 

Michigan. 

It all began in 1795 with the Treaty of Greenville and continued 

through the 1800's and into relocation treaties. We signed these 

treaties in exchange for promises which were never fulfilled. Our 

treaty reservation lands that we treatied for had shrunk in size, 

and eventually they were taken away from us under the guise of 

tax purposes or some other problems. 

An example of this is the Burt Lake Band of the Ottawa Indians 

in the northern part of Michigan, who had over 400 acres and who 

were burned off their land, and their land taken away from them 

for tax purposes. 

My tribe, the Pokagon Potawatomis, we were promised land in 

Labre Croche, land that we never received. We were also promised 
152 

in the Treaty of Chicago t') remain in Michigan because of our religious creed. We have a lot of these things that concerned us. 

My tribe also purchased land in Silver Creek and the Rush Lake 

area, and presently we have 1 acre of land in Silver Creek and 10 

acres of land in Rush Lake. 

Land was an issue in 1934; when they talked about reorganizing 

tribes because of lack of land ways, many tribes were denied the 

right to reorganize under the 1934 Indian Reorganization Act. The 

Confederated Historic Tribes' members were treated as tribes all 

the way up until 1934, and the IRA, and then they were arbitrarily 

denied the services. We have come before Congress many times and 

testified on these same issues. 

Presently, two tribes of Michigan are in the acknowledgment 

process. We have heard the Bureau people speaking earlier about 

whether one of them is the Huron Potawatornis located in Athens, 

who have an active consideration. 

In my tribe, the Pokagon Bands, who were also placed on active 

consideration, the Bureau of Indian Affairs carne in and testified 

before this committee on some of the legislation that we had proposed and promised a decision by July. They have since asked the 

Huron Potawatornis for an extension of time under the active consideration clause. 

My feeling is that they are going to presently ask the Pokagons 

for an extension of time on a decision on them through the BAR 

process. We feel that the BIA should identify when, how, and by 

whom our status as Indian nations has legally been terminated. 

The other thing that we want to talk a little bit about is H.R. 

4462, and it acknowledges treaty tribes in some of the language, 

and it talks about a priority and an expedited basis. We don't understand what that means, to CHTI and to my member tribes, and 

we would like to have some input into determining whatever this 

expedited and priority basis is in relation to treaty tribes. 

The other concern I have is in regards to the proposed funding 

in both bills. The funding, we would recommend that for petitioners 

there be at least $3.5 million, and probably for the entity reviewing 

the petitions, at least $5 million annually. 

I guess the last thing I would do is-in closing, is mention that 

CHTI is willing to work with the committee on any corrections that 

we can bring these situations to a successful conclusion. 

Thank you, Mr. Chairman. 

Mr. ABERCROMBIE. Thank you very much, Mr. Alexis. 

I am going to go back and ask some questions, and then I will 

start in the order of appearance. But if any of the others have a 

statement that you think is pertinent or an observation you think 

is pertinent, don't hesitate to enter into the discussion. Fair 

enough? 

And if Mr. Funke or Mr. Bell, if you think you have something 

to add in the process, that is fine with me, if you would like to do 

so, OK? 

Mr. FUNKE. Thank you. 

Mr. BELL. Thank you. 

Mr. ABERCROMBIE. Chairman Tullis, you mentioned the time 

limit factor, and with regard to that, you mentioned the difficulties 

of starting up the Gaming Commission. But the Gaming Cornrnis-
153 

sion is an ongoing institution or the attempt to establish an institutional process which would be ongoing; whereas the proposed legislation really has a time limit factor-at least one of them has a 

time limit factor. the one that I and Mr. Faleomavaega have put 

forward has a time limit. 

Would you see then perhaps less difl:1culty if there was a definite 

time limit? 

Mr. TuLLIS. Certainly if the legislation carried with it some very 

precise time lines, it would correct a lot of the situations that happened with the Gaming Commission. 

Mr. ABERCROMBIE. Implied in that then would be, if there was 

a time limit, that certain things had to be done in an expeditious 

way; it wouldn't just be wide open and say at the end of 6 years, 

gosh, we have only got 6 months to go, I guess we better get started. I mean, I am being explicit rather than implicit, saying that if 

we put in the time limit, we also have, legislatively speaking, then 

some very distinct processes that had to be undertaken, time limits 

for application, et cetera. 

Mr. TuLLIS. Certainly. And I think we all ought to be conscious 

of the fact that you are involving a number of entities when you 

start creating the new commission and when you talk about the appointment of the commissioners and the clearance and everything 

else. So it does create a real need for there to be some very specific 

time lines if we go to a separate commission. 

Mr. ABERCROMBIE. Part of the reasoning there it is hard for 

me to believe, at least personally, and I expect the committee that 

by this time, those wishir;.g recognition aren't aware of the fact that 

a process, as flawed as it might be, exists, and that it would come 

as a great surprise to anybody within the boundaries of the country 

now that if they are going to get recOf::,'11ized, they had better get 

started. 

Mr. TuLLIS. Certainly. sir, that is one of the real concerns of an 

awful lot of people in Indian country, and the fact that we are talking about groups that should have existed for the last 100 years 

or 200 years or so. You cannot grow an Indian tribe overnight. And 

so those that are out there that would be participants of this pro· 

gram should already be there, and it is not something that 2 years 

down the road we ought to find a new Indian tribe somewhere with 

the capacity we have in this country today to communicate. So I 

think that there very definitely need to be some very strict time 

lines if we go to a new commission. And even if we don't go to a 

new commission, there should be some strict time lines on the Bureau to complete its work. 

Mr. ABERCROMBIE. OK That leads me to another question with 

respect to membership lists that you mentioned. 

Mr. ALEXIS. Mr. Chairman, can I speak a little bit on this issue? 

Mr. ABERCROMBIE. Yes. 

Mr. ALEXIS. I think we have to understand the tribes and their 

positions and their opinions. Some of the Indian tribes become really confused, especially the treaty tribes who have signed treaties 

and have for years been denied services. There is a real hesitancy 

on their part to make overtures to Congress or make overtures or 

to become Bureau of Indian 1\ffairs Indians. In the community, 

there may be communities-! am not speaking so much for Michi· 
154 

gan, but there may be some Indian tribe in the country who has 

a right, but doesn't want to do it yet. 

Mr. ABERCROMBIE. I understand. 

Mr. ALEXIS. I don't think it would be just to put a limit on that 

and deny them their right. 

Mr. ABERCROMBIE. Well, I was going to get to that. I have some 

other questions that I think will get to that. There is a series of 

these questions; they are not distinct and separate. I have a method to what I am trying to get at, and I am trying to get at some 

answers; and I assure you, Mr. Alexis, I intend to get to that point. 

Let me proceed with that by asking-! will ask you again, Chairman Tullis, because it came up first in your testimony, but others 

may wish to comment. The question of membership lists-that is 

to say, how people are regarded; and I might say also that Mr. 

Jones brought up the point--Chairman Jones, about group versus 

tribe. 

It was mentioned, at least in passing in previous testimony the 

difficulties about genealogy, establishing genealogy. Now, membership list may not so easily be construed; isn't that correct? My experience on the committee has led me to believe that there was, 

throughout Indian country, the same kind of thing that has happened to Hawaiian, native Hawaiians in many instances; for some 

periods of time in their history, they tried to suppress the fact that 

they were native Hawaiians, or that-or ignore or obscure their ancestral heritage because of social and economic forces which were 

in play at that time. So I need a little bit more illumination here 

about the question of membership lists. 

Let's leave aside for the moment the question of group versus 

tribe or scattered individuals. Isn't it fairly difficult in some instances to put membership lists together, particularly in the light 

of, say, Mr. Alexis's last comment? 

Mr. TULLIS. Certainly, sir, it is a major problem to do that, if you 

talk about the genealogy of it. I think the point that we are concerned about is not so much that a petitioning group has to provide 

that genealogy along with that list, but one of the things that we 

see happening is a group of people put together a group, and if 

they don't make it through the recognition process, or in particular, 

that whenever they want to start a process and particularly when 

they go to Congress to try to get congressional people to give some 

credence to their efforts, they will list people or they will include 

people who are in fact Indians, but they are members of other 

tribes, or they are people who have, quote, "Indian names," so 

therefore, they give some credibility to it. 

We have even had a situation in my part of the country where 

people who were actually listed on a petition from some people did 

not know their names were on that list. So there is a real distinction between just a list of names or a list of members and a list 

that includes genealogy work to it. I understand that the major 

problem with genealogy--

Mr. ABERCROMBIE. So would you all agree, there has to be more 

than just a list presented; there has to be some evidence that an 

active effort has been made in the process of accumulating that list 

of interaction and contact and discussion and an attempt to try and 

find out some of the historical circumstances that took place, say, 
155 

with respect to dispersement, et cetera; there has to be more than 

just names on a paper. 

Mr. TuLLIS. Absolutely. 

Mr. ABERCROMBIE. That takes me to Mr. Jones to the next area. 

What about those dispersernents? I mean, I hope you will understand that much of my reference then comes from what happened 

to Hawaiian people, and by extension, some of the things I have 

heard in committee and read about here on the mainland with respect to native Americans. 

What about those dispersed by the social and economic forces I 

mentioned before, social and economic forces not of their making? 

There are many Hawaiians-for example, we have an Office of Hawaiian Affairs under the State constitution in the State of Hawaii 

which has autonomy, voted into the constitution by all of the voters 

in Hawaii. 

I think it is one of the first-! think it is unique. I think it is 

the only circumstance in the history of the world where a sovereign 

people under a constitution deliberately and with complete foreknowledge voted to limit the sovereignty which they were able to 

exercise, legally or not-I mean, historically, legally or not--over 

another people; and in recognition of the fact that they-that their 

status had significantly altered, this having to do with the overthrow of the queen and the Hawaiian kingdom, reestablished, if 

you will, in a contemporary setting, the capacity for Hawaiian people to govern themselves. 

Now, that is all being worked out in the process. But only Hawaiians can vote, can exercise a franchise in that, and that is the--

forgive me if I go into all of this, but I think it is pertinent--there 

is a parallel to be drawn here. Anyone who can trace their ancestry 

to the arrival of Captain Cook in 1778 to the Hawaiian kingdom 

is eligible to participate in the activities of the Office of Hawaiian 

Affairs up to and including running for trustee and to be elected 

as a trustee and to exercise full authority over the trustee's capacities, which include money, the income that comes in from lands, 

et cetera, and what to do with it. 

Now, many Hawaiians don't live in Hawaii any more. If you 

want to talk about dispersement, try being dispersed 2,500 miles 

over the sea to the mainland; maybe in your communities there are 

Hawaiians. They vote in the Hawaii elections, despite the fact that 

they are maybe 2,500 or more--they may be 10,000 miles away 

from horne, but they-because ancestry is the criterion here, they 

are able to do that. 

Now I am not suggesting to you that you have to follow that 

model; I am merely suggesting that dispersement from a distinct 

geographic area does not necessarily mean that people have given 

up their self-concept, their allegiance; and very frankly, over and 

above the psychological and emotional parts have given up very 

real questions concerning what shall be done with land, what shall 

be done with income, what shall-what rights and responsibilities 

and authority may we exercise. 

I am sorry to take up so much time, but it is clear to me that 

part of the confrontation, if you will, that might take place here 

has to do with more than merely historical, philosophical discus-
156 

sions; it has to do with rights and privileges and obligations and 

authority that have real social and economic consequences. 

So my bottom line question then is, while I understand very 

clearly from the testimony of all of you that there may be questions 

about groups versus tribes and distinct geographic residences and 

community that can be properly defined as a community or well 

understood as a community, nonetheless, there has been dispersement, there have been people literally driven out. 

Mr. Alexis talks about people literally being burned out of their 

land, driven away. How do we deal with that consequence, assuming that there is goodwill, for the moment, and not some scam or 

somebody trying to get in on a gravy train? 

Mr. ALEXIS. Mr. Chairman, can I speak--

Mr. ABERCROMBIE. Could I ask Mr. Jones first, Mr. Alexis, on 

that? 

Mr. JONES. Mr. Chairman, if I could say a few words on that and 

then I would like to have Mr. Bell answer. But our tribes in that 

area-the Snoqualmie, Snohomish, Skykomish and allied bandswere ordered to come to the reservation, and we--and that was a 

requirement of those tribes to get to that reservation. Our tribes 

came to that reservation, Tulalip Reservation, and whoever-the 

chiefs came there, and we have documentation of the chiefs there, 

and there is-we have them right at Tulalip Reservation; that is 

where their graves are. 

But one of the chiefs, one of the Snoqualmie chiefs, and that was 

my great-grandfather's brother. So three of us from that family are 

still on the Tulalip board of directors. So that line is continuous, 

right onto our reservation. But we were required to meet the requirements of a treaty, and our tribes met the requirement. 

Mr. ABERCROMBIE. I don't dispute that. But what happenedwhat do you do about someone who left-say, was drafted into the 

Army, and left the area and perhaps settled-married someone else 

and settled-and now would like to reestablish his or her relationship? 

Mr. Bell, do you see what I am tr.ting to get at here? I am trying 

to be fair, but at the same time I don't want to get off into something where somebody clearly has not had any interest in being associated with their roots previously, but perhaps may see some advantage now and maybe just want to slip into the process. 

Mr. BELL. I think you have to be able to distinguish between a 

person's eligibility for membership in a tribe as opposed to whether 

they have Indian descendency. 

Mr. ABERCROMBIE. OK. That is a good point. Can you amplify on 

that? 

Mr. BELL. And, thus, they may be eligible to be in. But then by 

the same token that they are free to move and travel and come 

back and become a member if they qualify. A group of people is 

likewise free to disperse and assimilate into society and lose what 

tribal status they may otherwise historically have had. 

Mr. ABERCR0~1BIE. What was the basis for your determination 

that someone who was qualified to be in the tribe may not be now? 

Mr. BELL. Well, you have to have the tribe first. 

Mr. ABERCROMBIE. I under:;;tand. 
157 

Mr. BELL. And the tribe has to have been an entity that existed 

historically, with continuity, over time, and Federal policy is to 

deal with tribes, and that is what this legislation is attempting to 

seek to do, not to bring together people who lost tribal status or 

identify, yet have some quantum-and some of these groups have 

members who have no quantum of Indian blood-and blend them 

back together and make a 1994 tribe, when this tribe unfortunately, as a result of U.S. policy, ceased to exist. But that is the 

historical fact. 

Mr. ABERCROMBIE. OK. I think I have it. 

Mr. Alexis, you were going to make a point then in this regard? 

Mr. ALEXIS. Yes. To respond to your question on membership, 

and also Mr. Jones' comment on the groups must be geographically 

concentrated, and again, the people from Michigan in my tribe and 

the member tribes of the Confederated Historic Tribes for numerous reasons have been scattered throughout the State of Michigan, 

whether it was economics in employment and job situations. We 

see a lot of them around the industrial and metropolitan areas, but 

that doesn't say that they have lost their right to remain members 

of our tribe, and they continue to be members of our group. And 

for those reasons, being burned out or whatever reason of losing 

the tribal land all added to the reasons why we were dispersed. 

In relation to membership, I guess we in Michigan are kind of 

unique in that my ancestors, my great-great-grandfather signed 

treaties, my uncles and other family members have come before 

Congress and testified on land claims issues. We have, in our 

groups, all of our groups participating in land claim payments, 

areas and dockets, and treaty rights. We also have membership criteria for our organizations that we follow. 

We work with the Bureau of Indian Affairs area office in Sault 

Ste. Marie. They know who we are and what our membership criteria is. We also know that we can't have members who are members of recognized tribes. I doubt if you will see many of our people 

listed on recognized tribal lists; but they will-they have an opportunity to make a decision whether they want to be a member of a 

federally recognized tribe or whether they want to be members of 

the Pokagon Potawatomis or one of the other historical tribes in 

Michigan. 

Mr. ABERCROMBIE. So is it a fair statement then that what we 

are trying to do here is get beyond what would-for lack of another 

tenn, would be a voluntary social·organization, and to get down to 

the nitty-gritty of what constitutes a real tribal commitment. 

You are all maintaining, are you not, then, that-for example, I 

belong to the Caledonian association because I have Scottish ancestry, but I am not kidding myself that the Caledonian Society is 

more than-and I appreciate it, and I enjoy it, and it has been a 

great source of inspiration and comfort in some respects to me, but 

it is a social organization. It very clearly is a social organization 

to me. 

I don't have the same kind of obligations. If I was back with the 

Abercrombie clan in a particular section of Scotland, I would be in 

a much different situation and under much different obligations. 

It is not the entire thing, but that is what we are trying to do 

is get beyond the social recognition. 
158 

There are people who I know, for example, who claim Hawaiian 

ancestry, but having done that, it is for them principally an historical element that becomes a conversation piece as opposed to meeting oblig~tions and exercising responsibilities with respect to that 

ancestry that other people have clearly undertaken in Hawaii. 

Mr. BELL. Mr. Chairman, I would suggest to you that inasmuch 

as we are both Scots, that under the new regulations that BAR 

touts as being the end of this problem, they say that any group of 

people which can demonstrate consistent interactions and social relationships exist within its membership is enough. So I guess you 

and I can form a tribe. 

Mr. ABERCROMBIE. Well, I would; yes. 

Mr. BELL. We are not under BAR. 

Mr. ABERCROMBIE. That is why we are having the hearings. You 

know, that could end up being people who have an interest in falconry or something like that. 

Mr. BELL. Absolutely. You would have tribes of fraternity brothers. 

The legal test today that BAR is running slipshod over is that 

a substantial portion of a petitioner's members must live in an area 

concentrated within a specific geographic area distinct from other 

populations in the area and viewed by the other population in the 

area as an American Indian tribal community. 

With that latter definition, that is the existing state of the law 

today, that we in our comments, the written form, attachment A 

proposes you put into the bill, then you can start to determine 

what a historical continually existing Indian tribe is. 

If you go back to where BAR is, then you are right; you are taking a look at what is your blood quantum: Are you related to 

whomever, where are you dispersed, and you have nothing. And 

when you start to recognize nothing as something, then you derogate from the dignity and the sovereignty of the existing federally 

recognized tribal nations. 

Mr. ABERCROMBIE. On the other hand, if someone did have the 

blood quantum, for example, literally in Federal law now a native 

Hawaiian is that person who has 50 percent blood quantum? That 

is under a big strain now because of outmarrying. So what I am 

driving at is that if you did start with that, then, if you added inthen the person would have to make a decision as to whether as 

a result of that blood quantum they wanted to make a change in 

literally not only the way but perhaps even the place that they 

were living; right? 

Mr. BELL. That is correct. That would be an individual's decision, 

but the issue here is the existence or not of a government-to-government relationship between the United States and an Indian 

tribe. 

Mr. ABERCROMBIE. Got it. 

One last thing, Mr. Jones. I asked you to repeat it before but I 

still have some difficulty. What would constitute-maybe your 

counsel is the best one to answer this-what precisely did you 

mean by an ambiguous or erroneous determination? 

Mr. BELL. That it is mistaken. But what we are----

Mr. ABERCROMBIE. It could be big, would you say but not erroneous among other things? 
159 

Mr. BELL. What we are specifically referencing is section 5(c)(2) 

of H.R. 4462. 

Mr. ABERCROMBIE. OK. 

Mr. BELL. And what that states is that a petition from an Indian 

group that can demonstrate by a preponderance of evidence that it 

either is a treaty successor or it is a group acknowledged by a Federal agency, it goes into acknowledgment on a stepped-up basis. 

Otherwise, if they were not able to show by a preponderance some 

prima facie case of treaty successorship, they start at the bottom. 

If they make a prima facie that they were a treaty successor, they 

are on a stepped-up basis. 

We do not think that stepped up basis should be afforded as a 

result of a Federal agency's determination that that person or 

group of persons is otherwise qualified or eligible for programs on 

an ethnicity test as opposed to a tribal test. 

And I might say-I didn't have an opportunity to comment earlier, when you were asking about timeliness. Maybe it is not so 

much an issue as to whether or not there are time lines, but that 

BAR, if they continue in the business to devote their time to those 

organizations, groups or org~nizations that are deserving of it-and 

our comment specifically references the agreement of time--at least 

on the five groups from western Washington, the Snoqualmie, Snohomish, et cetera-and members of those groups will be testifying 

later-that has been devoted and the resources that have been expended, when all five of those groups have been subject to and determined not to be either tribes or successors-in-interest to existing-or, pardon me, preexisting treaty tribes by Federal court judgments, that should be the end of it. That issue should be precluded. 

Anything that goes to a final nonappealable court decision, as set 

forth in H.R. 2549, should preclude that group. That provision 

should be in 4462, if that is to be the survivor of whatever consolidation occurs. But if the Federal judiciary has determined it is not 

a tribe, why should BAR be able to reverse that administratively? 

Particularly in the issue of the Snoqualmie group, where it not only 

has the judiciary make that determination but the executive and 

the Congress has similarly made that determination in the resolution of those groups before the claims commission. That ought to 

be it. They have had their three strikes. 

There must be preclusion for those groups that are deserving of 

the attention of the United States for acknowledgment that they 

can qualify or will be put to the bottom of the pile and an administrative agency will try to second-guess some circuit court and that 

is not right and that is not fair. 

Mr. ABERCROMBIE. That is very clearly stated. Thank you. 

Mr. Alexis, I had just one other point, and, Mr. Funke, you mentioned from $3 million to $5 million and I didn't understand the 

basis for your citing of those figures. 

Mr. ALEXIS. They are written in both pieces of legislation as 

funding for Health and Human Services for ANA grantees to put 

together in answer, in responseMr. ABERCROMBIE. I didn't understand your citation. It was not 

clear whether you were agreeing or disagreeing. 

Mr. ALEXIS. I agree there should be funding but I am saying 

there should be additional and more moneys. I am saying $3.5 mil-
160 

lion for petitioners where you are recommending $500,000 a year, 

which is, to me, a joke. And that is what my recommendation 

would be, is $3.5 million for the petitioning groups, and roughly $5 

million for the entity that reviews the petitions. That would be my 

recommendation. 

I base that on some of the discussions I have had with previous Al~A directors on the amount of monies they are expending with 

tribes to document their petitions. 

Mr. ABERCROMBIE. That is what I needed to get in here. In other 

words, you are basing your recommendation on the historic record 

of what it takes to make this thing work. 

Mr. ALEXIS. That is right. 

The other thing I would like to-I think is a concern of mine and 

the attorney for-the Talalip tribe brought it up, was there was opposition to a Federal agency determining certain issues. I think 

that is an issue that Michigan tribes keep coming in here and saying to Congress, we don't believe that the BAR, which is an administrative process, has the legal right to determine whether we are 

treaty tribes or federally recognized tribes. That is a responsibility 

of Congress and we do not want to give up our right to be able to 

come to Congress to seek justification for that right that we feel is 

the responsibility of our Congressmen and our Congress people. 

We are not in a-and I don't appreciate people saying we are 

powerful and influential. We are a small tribe who has limited 

funds. We do have Congress people who we have educated. We 

have submitted our testimony. We have submitted our petition documentation to the Bureau. Our groups from CHTI are doing that. 

We are tired of sitting around and not getting answers. 

The BAR said there is a fast track, and they mentioned going 

back to previous contact if they could agree on that. Well, we have 

approached BAR to try to resolve an issue from one of our bands, 

which is the Burnt Lake band, and trying to get BAR to tell us 

what it means by unambiguous contact. \:Vnat does that mean? 

What does it mean? What is unambiguous--

Mr. ABERCROMBIE. Apparently it is a bit ambiguous. 

Mr. ALEXIS. Yes, it is, and that is what bothers us and it concerns me. The Burnt Lake land band in 1905, I believe it was, the 

Justice Department sought in Federal Court, and I think Karl can 

speak to this, to represent this tribe in Federal Court to try to restore its lost land, and because of that, because of losing that court 

and not appealing it, what do you call that, the res judicata took 

place. We cannot go anyplace now to get compensation or get an 

unjust act corrected except to come to Congress. And here we are 

and here I am, again. 

Mr. ABERCROMBIE. Let me put this in and then I will cede to Mr. 

Thomas if he would have any questions to ask. I am well familiar 

with that, and that of course is a right that needs to be protected. 

Legal action was taken in Hawaiian lands where people did not 

clearly understand what the implication of the imposition of western land title activity was, and what clearly ended up happening 

was, is lands were stolen. 

You can steal with a gun or you can steal with a pen. I have discovered that stealing with a pen tends to be a lot more final than 

stealing with a gun. Sometimes people are able to take a gun and 
161 

get it back, but it is pretty tough to get it back when the pen has 

been used, particularly if it is recorded somewhere in a courthouse. 

So I quite understand that element and we are going to try to address it. 

Mr. Thomas, I was so intent on my questioning I may have taken 

longer. 

Mr. THOMAS. I noticed that you ignored me. 

Mr. ABERCROMBIE. Yes. 

Mr. THOMAS. Not at all. I am kidding. I was called away and did 

not hear the testimony, but Mr. Alexis, I heard your comment just 

now and I am not quite sure I understand. Are you saying that you 

think there should not be an administrative process but indeed all 

this should be a congressional process? 

Mr. ALEXIS. I am not saying that. I am saying that part of the 

reason I am saying this is we started back probably in 1978. I have 

sat on numerous task forces. We came into Congress in the early 

times and the House committee people said, Phil, there is this process, it is an administrative process, you have to go through it. 

The Senate Committee on Indian AiTairs, used to be the Senate 

Select Committee, told us, Phil, legislate it. Well, there has been 

a flip-flop here recently and now all of a sudden we are getting 

from the Senate committee that there is a process, and the House 

Committee has said, let's legislate it. 

What the hell is going on here? That is what I am saying. 

The administrative process, and I think Congress made a mistake and I want to see it, I want to try and work and see that it 

is corrected. They let that administrative process dictate t0 them 

what you do as far as Federal recognition for Indian groups. And 

I hate to see you give that right up. 

If I were a Congressman, I would be really concerned about that 

issue. They have, in my estimation, maybe I am wrong, but they 

have no right to determine that. But if you give them that right, 

which they have taken and you have understood it and have acknowledged it, they are exercising it and we are caught in a position where we cannot get justice. 

I say we--I am talking about my tribes-we have alternatives. 

The alternatives are to go through the process, which we are doing. 

We do not agree with it because that is what my testimony is saying, but we are submitting petitions. We are submitting genealogists. We have submitted documentations. We have responded to 

obvious deficiencies. We have membership criteria. We have elections. We are tribes. We are recognized in the State of Michigan 

as tribes. We are recognized indirectly by the Bureau of Indian Affairs because they deal with us. Our people have received land 

claims payments. The Bureau has all of us listed. I am P-1215. 

You can go up to the Bureau and you will find who I am. They 

know. We cannot get this settled. 

Mr. THOMAS. Well, my concern of course is whether there is a 

flaw or weakness, which I think there is, in the process. It is not 

unusual for the Congress to set forth that an administrative procedure is used. That is not an unusual process. The Congress does 

not decide every detail. 
162 

Mr. ALEXIS. I know, but we are trying to get Congress to take 

a position and make, and have some control on that agency. I think 

that is what we are trying to tell you. 

Mr. THOMAS. Sure, and I understand that. 

Mr. ALEXIS. One of the things that also concerns me now that we 

have brought it up and I will mention it, and Karl will know, there 

is this process for acknowledgment, but then in the Federal Register in October 21, 1993, there was a list printed that acknowledged the Alaskan natives in Alaska and added over 200 other 

tribes for Federal recognition. They did not go through the process. 

And that would, if I was in Congress, I would be concerned about 

that. I am concerned about that. 

Mr. THOMAS. Well, I guess my dedication is to the proposition 

that there be, number one, a system which everyone is referred to 

and treated fairly and equally. 

Mr. ALEXIS. I agree. 

Mr. THOMAS. Then on top of that, you might argue there ought 

to be some kind of appeal process, and I have no objection to that 

particularly. But I do think that it is really difficult, and I am sure 

you would agree that here is one group who goes through the process and takes a very long time to do that, another group sort of 

does an end run and comes here and that is not fair. 

Mr. ALEXIS. But we have not done that. We have presented our 

testimony. Our groups have. And we do not want you to take away 

our right to come to Congress for legislative recognition. We do not 

want Congress to even think of that. That is our right, and I think 

it is our Congressman's right to help us with that, whether it is 

the House of Representatives or whether it is the Senate. And I 

hope that you do not take that right away from us. 

I have said this at other meetings, I have said this at the National Congress of American Indians. It is an avenue for an unrecognized group and I think it should be left there for them to exercise that opportunity should it come to that. 

Mr. THOMAS. Thank you. 

Mr. ABERCROMBIE. Thank you very much, this panel. We have 

learned a lot. 

PANEL CONSISTING OF BUD SHAPARD, RETIRED, BUREAU OF 

INDIAN AFFAIRS, FORMER CHIEF OF THE BRANCH OF AC· 

KNOWLEDGMENT; CHRISTINE GRABOWSKI, PH.D.; KAREN 

CANTRELL, PH.D., J.D.; JACK CAMPISI, PH.D., ON BEHALF OF 

THE UNITED HOUMA NATION OF LOUISIANA, THE MASHPEE 

W AMPANOAG TRIBE OF MASSACHUSETTS, THE SHINNECOCK 

NATION OF NEW YORK, AND THE PAMUNKEY TRIBE OF VIRGINIA; AND, JAMES RASMUSSEN, TRIBAL COUNCILMAN, 

DUW AMISH INDIAN TRIBE ON BEHALF OF THE CHINOOK, 

COWLITZ, DUW AMISH, SNOHOMISH, STEILACOOM, AND 

SAMISH INDIAN TRIBES, STATE OF WASHINGTON 

Mr. ABERCROMBIE. We will move to our final panel, then. Mr. 

Bud Shapard; Christine Grabowski; Karen Cantrell; Jack Campisi, 

and James Rasmussen. 

I know that we are going to probably be called on to be voting 

fairly soon. So I would appreciate it, because of the number of people that we have on the panel, five, if you could summarize your 
163 

statements, and I assure you your full statements will be entered 

in the record, but if you can summarize, I think perhaps we can 

get an exchange that will be fruitful in terms of establishing a 

clear record and assisting us in getting a good legislative outcome. 

I will simply take people in the order in which their names appear on the panel and, as a result, I will start with Mr. Bud 

Shapard. Am I pronouncing that correctly? 

Mr. SHAPARD. That is close enough. I answer to just about anything. It is Shapard. That is my name. 

Mr. ABERCROMBIE. Mr. Shapard. All right, very good. Thank you. 

STATEMENT OF BUD SHAPARD 

Mr. SHAPARD. I am Bud Shapard. I am retired from the Bureau 

of Indian Affairs where I was employed for almost 25 years, 24¥2 

years. The last 10 years of my career, I was the branch chief for 

the Branch of Acknowledgment and Research. I wrote the original 

regulations. I was the primary author. I retired in 1988, and I presently operate a little martial arts school in Lewisburg, WV. 

I suppose that I would be redundant in saying that the regulations do not work. I think they have never worked. Even during my 

tenure in office, we realized that there were problems with the regulations. 

I might say at this point that the Department of Interior's statement this morning may have added new dimensions to the meaning of the word "poppycock." The revised regulations are almost a 

mirror of the original regulations, with the exception they have 

added some criteria or added some elements to some of the criteria 

that make it more difficult for the petitioner. 

If you count the months involved in the new regulations, they are 

3 months longer, if you follow them, but they also have six spaces 

in the regulations that would allow the Bureau to unilaterally or 

with some negotiation essentially stop the time frame from running. And so, therefore, there is no time frame on the new regulations. 

Both the bills that we are looking at today also have problems, 

in my opinion, although I certainly appreciate the efforts that went 

into drafting them. They essentially, as one witness has already 

said, mirror the current criteria with some changes here and there. 

I promise you that they will not work either. Neither of the-the 

proposed regulations nor the bills have resolved the core problem, 

which I will tell you about in a minute and then I will tell you how 

to solve all this mess. 

The present regulations are costing the United States Government, just to evaluate cases, roughly $1 million a year, because the 

petitioners are generally funded by another Federal agency in the 

Bureau of Indian Affairs. The cost of the Bureau of Indian Affairs 

in the process, I believe that can be reduced, and I certainly do not 

believe that we need to add more money. I do believe we need to 

have a separate commission or a separate staff. I think a commission may be a little grandiloquent and is probably expensive. 

Adding more money or more staff to the process will not help. I 

cite in the first 10 years of the process, before I retired, the BIA 

processed 21 petitions. In the next 6 years of the process, the staff 

has more than quadrupled. I understand they have 20 positions 
164 

now. I like to think of that as eight more than Jesus had, and they 

have doubled the amount of money that-does that mean I have to 

quit? No, OK 

Mr. ABERCROMBIE. You are on your way. I hope you can get to 

the solution part. 

Mr. SHAPARD. I have the solution real quick here. 

But they have doubled the staff, I mean doubled the amount of 

money and yet they have only turned out three petitions in the last 

6 years. The production has dropped, not increased. Now that tells 

you it is not money or people. We do not need to spend more money 

or hire more people to do this. 

You have basically, if you are going to fix these regulations, you 

have three separate kinds of problems to face. One is the administrative problem. And this is what everybody rushes to fix. You run 

to change how you do it or when you do it or add time frames or 

delete time frames, and this is sort of fluffing the pillow without 

making the bed. 

In my opinion, the key problem in the regulations and in the proposed, revised regulations, and in the bills, is that there is no definition of what you want, no clear definition of what we are seeking 

here. And if you do not know where you are going, any road will 

get you there, and this is essentially what we have going here. 

The petitioners do not know what BIA is asking for. The BIA is 

unable to tell them because everything is so vague and subjective, 

and so petitioners turn in what they think is an adequate petition, 

the BIA says, no, that is not enough, that does not answer our 

questions. They say, what do you want, the BIA says, we do not 

know but give us more, and this is a continuing, ongoing process 

that never seems to end. 

The regulations are also--well, so the first point I need to make 

here is that you need to have a clear-cut, defined or definition of 

what the United States or who or what the United States wants 

to serve as an Indian tribe. Now, this is not defining an Indian 

tribe, it is defining who the United States will serve as an Indian 

tribe. If you do not have that, you will end up with the same mess 

you have now no matter what you do. 

The second thing is you have to get objective, simpler criteria 

that do not reach back into premortal times. If you had simple objective criteria that went back to when Indians were unequivocally 

Indians, say as late as the 1930s, where did they come from? If 

they were Indians in 1930s, they did not invent anything then, 

they did not become Indians then, they had to be evolved so take 

it back to then. There is no need to go back to the 1700s. That is 

ridiculous. I admit to drafting this stuff up; it is just our lack of 

knowledge at the time and the lack of the problems. 

If you have a definition of what you want and simple objective 

criteria, you can solve the entire process, handle all the petitions 

in 5 years, and you can do it at one-half the cost that is proposed 

in the bills. That is my solution. 

[Prepared statement of Mr. Shapard follows:] 
165 

STA TI.~l\fENT OF BUD SHAP ARD, RETIRED BUREAU OF INTI IAN AFF AlRS 

El'v!PLOl:'EE, FORMER CHJEF OF THE BRAl'iCH OF ACKNO\VLEDG?I.fENT, AND 

RETIRED PRIVATE CONSULT ANT TO PETI11C '<1NG GROUPS REGARDING 

fLR. 2549 AND H.R 4462 

.n.JL y 23, 1994 

Thank you, ~lr. Chairman and members of the Committee. I appreciate this opport.un.ity to 

di&:uss the Federal Acknowledgment Process and the possible ways to ixnprove it. My name is Bud 

Shapa:rd. I retired from the Bur~au of Indian Affairs in 1978, after 24\"i years of service. I was the 

primary author of the original acknowledgment regulations (25 CFR Part 83), and the Branch Chief 

of the Bureau's Acknowledgment branch during the first 10 years of its existence. 

After my retirement from the Bureau, several unrecognized groups approached me with 

requests for help in the preparation of their petitions for federal acknowledgment I subsequently 

wollied v.ith five groups in the petitioning process. I retired from consulting in 1993. I have seen the 

acknoorledgment process from its innermost worl<ings as an employee of the BIA and from the outside 

as a consultant to petitioning groups. I presently own and operate a small martial arts school in 

Lewisburg, West Virginia and currently I am not employed by any Indian tribe, recognized or 

unrecognized, nor am I employed by representatives of any Indian tribe, nor by outside concerns 

interested in any Indian tribe. 

Regarding HR. 2549 ANTI HR. 4462, I sincerely appreciate the efforts and thought that went 

into the development of both bills. Both have commendable points. I especially like the filing limit in 

H.R. 2549 and the concept of the independent commission located outside the Department of the 

Interior in HR 4462. Wtth all ~ respect however, it is my opinion that bot.'l bills are fataUy flawed. 

These bills, if passed, would legislatively adopt essentially the same general administrative process and 

the specific criteria for acknowledgment that have been the souree of so much bitter turmoil. 

The Bureau published revised regulations on February 25, 1994, ( 25 CFR Part 83). By the 

Bureau's own admission, the revised regulations also embody the same criteria as the original 

regulations. These revised regulations have reduced some of the administrative problems that the 

Bureau had with the process. They have done nothing to resolve the substantive complaints of the 

petitioners. They have lengthened the time to process a petition in most cases. They have increased 

the amount of time and the expense to the petitioner for preparing a petition. The w.ision has more 

than doubled the number of subjective determinations that must be made by the staff. The most 

serious problem with the new regulations, however, is they continue to use virtually the same criteria 

as the original regulations. -

As I have mentioned previou.~ly, these regulations do not work. I have spent almost 16 years 

trying to make them wolli from both inside the Bureau and as an outside consultant The regulations 

actually present two different problems for anyone trying to revise them. The lesser and more easily 

corrected problem is found in the convoluted administrative process. The second and more critical 

problem i<l '1'1-ilh the specific criteria used to evaluate a petitioning group (25 CFR Part 83.7 a-g). If you 
166 

eliminate these criteria and establish simpler, more objective ones, I believe the problems with the 

administrative process will be easily resolved. 'The present criteria cannot be revised, modified, or 

altered in any way that will make them work. They must be abandoned in their entirety and replaced 

with new, more sensible requirements if you cver intend to make this process work. What is needed 

at this point is some common sense and original thinking. Jiggering around 1vith the process and 

ignoring the criteria v,iiJ doom any effort to improve the process to failure. Clearly, in my opinion. 

betore any of this is done. there needs to be a dclinitivc statement of whom the criteria 3.!"C intended 

to apply. 

The present criteria (as incorporated in both the origin.:J and revised regulations) 1\erc 

dt.,·veloped using, in part, Lite writings of Felix Cohen, a 1930s legal guru with the Department of the 

Imerior. He discussed his ~onccpls of Indian tribe in his book. Feder!! I Indian L&"" Since Cohen's 

wori<. wa.~ published. the concepts of Indian tribe, tribal relations. tribal community and even of who 

is Indian have changed. During the eJrly 1980's the Department of Health, Education and Welfare 

spent roughly a half million dollars attempting to det!ne India., for the purposes of the Title rv 

education program because of the absence of a Congressional definition of the people the "Inidan 

program" intended to serve. I believe HEW ev,-ntually gave up the effort and never published its 

report wben I left the Bw-eau, lhere were 39 operating definitions of Indian within that agency alone. 

Because there is no clear definition of what the petitioners are attempting to prove and what 

the BIA is attempting to veril)', the regulations require nonsensical levels of research and 

dixumentation, in some cases reaching back into the l8LS, centnry. "This results in regulations full of 

\ague phrases requiring subjective interpretations. l3y my count the I 978 original regulations contained 

35 phrases that required a subjective determination by the evaluator and the petitioner. "The 1994 

revised and streamlined regulations not only doubled th~ length of the regulations they more than 

doubled the areas that required a subjective determination. B~cause of this subjectivity, petitioners are 

in 3 quandary as to how much irtformation is enough to ~;stab !ish their case. Conversely evaluators in 

th..: lJlA arc unable to explain how much e"idencc they need to make a decision. Consequently 

throughout the process, the evaluators are repeatedly requesti.'1g more and more research and 

infonnation from the petitioner. Some petitioners have told me that they have learned that no matt<.'f 

how much information they giYe, the BIA will request more. I am told some deliberately hold back 

information when submirlint~ -~ p;:titwn. so thev will have something to give when the BIA stat! 

requests mor-~. All of this li."!J oi ga;ue playing a11d nonsense can be eliminated "ith the definition 

and dear, simple standards r am proposing. 

It is not swprising that the subjective and complicated nature of the criteria has resulted in what 

appears to be decisions based on the inconsistent interpretation of the data. What seems to be used as 

relevant evidence for a positive decision in one case is the basis for a rejection in another. This leads 

to the appearance and the probability that some incorrect decisions have been and will be made. For 

this reason, I think it is not a good idea to unequivocally ratify the previous decisions ofth~ BIA as 

suggested in H.R. 2549 and H.R. 4462. 

The vague and subjective roture of the regulations has directly resulted in need for massive 

amounts of time and money to prepare and evaluate a petition. 1be current process is impossibly slow. 

The acknowledgment regulations have been in place for 16 years this coming October. During that 

period, the BIA has resolved a tot.:J of 24 cases. That works out statistically to be 1.3 cases per year. 

2 
167 

At that rate it will take 110 years to complete the process or until the year 2078 AD. Of the 21 cases 

completed by the BIA, 18 were completed during the finrt 10 years of the existence of the 

acknowledgment staff Only three cases have been completed in the last six years. Of the nine groups 

that are in the "active" stage of the process, one was in the process for six years before a final 

determination was issued; one group has been waiting for a proposed finding for three years and 

another for two years despite the regulatory requirement that such a decision be rendered within one 

year. One group, the Snohomish have been enmeshed in the process for 13'1:. years at this writing. Of 

the four groups waiting for the Bureau to start working on their petition, one has been waiting for 11 

years, two for six years and one for three years. The Samish tn'be of Washington State has been 

involved in the process and subsequent litigation for 16 years. 

1bo times mentioned above are the time it takes to Bureau to complete a petition and do not 

reflect the time that it takes for the petitioner to find finances, locate and employ professional 

researchers, to research and prepare an adequate petition and then respond to requests for information 

from the BIA AD of this will take the most efficient and organized of the petitioners no less than three 

years. For most groups it takes from four to six years. The Bureau's estimate of eight months for a 

petitioner to complete a petition is a ludicrous attempt to avoid the provisions of the Paperwork 

Reduction Act. 

The last I heard, the BIA budget for acknowledgment was $500,000. It may be more 

than that now. This is roughly double what it was when I retired in 1988. Over the last 16 years, it 

has cost the Bun:au about $285,000 to take a petition through the process. Viewing the last six years 

separately in which only three cases have been completed, it is costing the BIA about one million 

dollars to evaluate a single case. 

As for the petitioners, the estimated cost for producing an average petition is from 300 to 500 

thousand dollars. Some acknowledgment petitioners are known to have spent more than one million 

dollars on a single petition. 1bo preponderance of funds used to finance a petition in the past has been 

Federal money. Several private financiers have recently become involved and this may change the 

picture in the future. 

Over the past 16 years, the Bureau has spent approximately six million dollan; to evaluate 

acknowledgment petitions. The unrecognized tribes have spent somewhere between six and eight 

minion dollars. Most of this expense is unnecessary and wasted. Unfortunately H.R. 2549 and H.R. 

4462 would raise the amount spent annually to two million for a total of twelve years. I respectfully 

submit wi1h a clear definilion of •an Indian tribe eligible for acknowledgment," coupled with objective, 

simpler requirements could redoce this amount by V, and I believe all petitions could be processed 

in five years or less. 

To illuls1m!e my point that more m.onc:y and more staff are not needed and will not help resoive 

the problems with the acknowledgment process, just consider the last six years. After my retirement 

in 1988, the staff has quadrupled and the budget has doubled. Despite this, the case production has 

dramatically dropped from 1.3 cases a year to one case every two years. The problem is in the 

conwluted administrative process, the subjectivity of the criteria, and the lack of a clearly defined goal. 

3 
168 

Finally, I like the idea in H.R. 4462 of removing the process from the Department of the 

Interior and establishing a separate forum to review petitions and make determinations regarding 

aclmov.iedgment. There has been and continues to be within the Department of the Interior and the 

Bureau of Indian Affairs a low level but pervasive bias against the recognition of additional Indian 

tribes. I doubt the need to have something so grandiloquent as a Presidential Commission. If Congress 

clarifies who the United States will serve as an Indian tribe and sirnpli.ties the regutltions, a smalL 

independent staff located outside the department would do the job about as well as a high paid 

commission sta.!I. 

\\'h.ile H.R. 2549 and H.R. 4462 represent a great deal of thought and efrort, I respectfully 

suggest that neither have dealt with the primary problems caused by the present regulatiom. I 

recommend the one or both be amended in their entirdy to include the follov.ing: 

1. A ~1se detinition of the groups with which the Cnired States intends to deal as :\mcrican Indian 

hased on modern legal and social concepts. 

2. A clear set of simple, objective cnteria bv which tt can be determined if a group meets the 

legislative definition of Indian tribe. 

3. An independent commission to rc,.icw and evaluate petitioning groups. 

4. An appeal process that docs not impede the work of ~vJluating the petitions. 

Tite thing that \\ill resol'l.e the i.~sue quickly, cut the outlandi'ih costs. and end the controversy 

forever is a clear legislative definition by the lJnites States Congress of what constitutes an Indian tribe 

tar the purposes of establishing a special relationship with the United States. Without a clear legislative 

definition of Indian and Indian tribe for federal purposes, bureaucrats and Indians alike will be forced 

w continue wallowing in the spongy morass of criteria that include such phrases as "significant social 

interaction," "substantially continuous external identification," and "political influence which controls 

the behavior of its members in significant respects." ..\gam l reiterate. do not spend more money. It 

v.ill not solvt: the problem Completely abandon the old regulations, the preset process and the criteria. 

Plea."' do not make them a part of any legislation. Use the experience of the last 16 years and some 

innovative thinking to develop an entirely new system. 
169 

Mr. ABERCROMBIE. You said three. Did I miss the last one? 

Mr. SHAPARD. The first is the administrative process. The second 

one is the definition of Indian. And the third is simpler and more 

objective criteria. 

Mr. ABERCROMBIE. Oh, OK. Definition of Indian. All right. I had 

that linked in with the first. Okay, thank you very much. We will 

be back. 

Mr. SHAPARD. OK I did not want to sound like Arnold 

Schwarzenegger when I said that. 

Mr. ABERCROMBIE. Dr. Grabowski. Maybe before you start, your 

reputation has preceded you and the committee would like your 

dissertation to be a part of the record, if that is all right, your 

work. 

Ms. GRABOWSKI. I would be happy to submit it. 

Mr. ABERCROMBIE. Now, if it is extensive and expensive for you 

to do that. 

Ms. GRABOWSKI. It is 600 pages, yes. 

Mr. ABERCROMBIE. We will take care of that. Can you make arrangements with the committee staff? We would like to have your 

dissertation as part of the record for reference sake. 

Ms. GRABOWSKI. OK. 

Mr. ABERCROMBIE. Go ahead now then. 

STATEMENT OF CHRISTINE GRABOWSKI 

Ms. GRABOWSKI. Thank you, committee chairman. I thank you 

for the opportunity to present my views on Federal acknowledgment policies as they pertain to the two legislative initiatives before you. 

My experience with FAP spans some 12 years of anthropological 

research, initially for the Gay Head Wampanoags, who successfully 

were accorded Federal acknowledgement in 1987, subsequently for 

my doctoral dissertation on the petitioning process and most recently for First Computer Concepts, which was contracted by BAR 

to review petitions. 

Based upon this div(;rse experience, I have come to the conclusion that the present process administered under the Bureau of Indian Affairs does not, and indeed cannot, fulfill its original mandate; namely, that of providing an objective, consistent, and equitable procedure for definitively resolving the status of federally recognized tribes. 

While I have submitted more detailed testimony for the record 

for FAP, inasmuch as they bear directly upon the legislation, the 

proposed legislation, I will outline several fundamental problems 

with the petitioning process. 

One, while the regulations purportedly outline an impartial and 

fair means of determining which groups are to be federally acknowledged as tribes, in fact the objectivity of the entire petitioning process is severely compromised by the Bureau's administration 

of it and has been since the very beginning. In the mid 1970s, the 

solicitor's office successfully argued why five intervenor tribes in 

U.S. v. Washington were unrecognized and therefore not the political successors-in-interest of the tribes which had signed treaties in 

the mid 19th Century. 
170 

It was the same office with many of the same personnel which 

was intimately involved in drafting the FAP regulations in 1978. 

And it is the same office with many of the same personnel which 

is currently responsible for reviewing BAR decisions before they 

are published in the Federal Register as well as for litigating cases 

arising from contested final determinations. 

In short, the solicitor's office first crafted the legal rationale for 

denying treaty rights to the five intervenor tribes in US. v. Washington. It then codified the rules by which the unrecognized tribes, 

the five intervenors, could petition the Bureau for Federal acknowledgment and now the office has a legal authority to determine 

which petitioners in fact make it through the process. That this environment which BAR decisions are made is less than objective is 

an understatement. This is not a case of the fox guarding the 

chickens but of devising the very recipe for cooking them and then 

judging the result. 

I am sure that you, Mr. Chairman, and the other committee 

members, would not knowingly or willingly submit yourself and 

your family and your descendants to such a biased process. 

In addition to the inherent conflict of interest which I attained 

from the Bureau's administration of BAR, the Federal acknowledgment process also fails to provide a sound ethnological foundation 

for acknowledging tribes. To begin with, the actual wording of criterion (b) stands in stark contrast to how BAR has interpreted it 

in its decisions to date. The branch has consistently required petitioners to provide evidence of a quote-unquote cohesive community 

over time even when this is not required by the regulations. 

Indeed, criterion (b), petitioners need only provide evidence of 

group interaction and the maintenance of tribal relations among a 

substantial portion of the group's members during the contemporary period. We are not talking about over time. Those are issues 

in criteria (a) and (c) but they are not specified insofar as group 

interaction in (b). Nevertheless, this is the standard applied by the 

BIA. 

In addition to applying for stringent standards that are required 

by the plain meaning of criterion (b), BAR's analysis of group interaction is ethnologically problematic. Typically, BAR's anthropological reports do not address how the Indians themselves conceive 

of their tribal identity and affiliation. Yet if one does not understand the norms, values, and symbols of group membership then 

how can one evaluate whether or not the group constitutes a group, 

never mine add cohesive co:nmunity? The answer is simple, one 

cannot. 

Methodologically, there are also serious problems. The BAR staff 

has said to me on numerous occasions that they evaluate the petitioner, not the petition. Not only is this contrary to the regulations, 

but insofar as criterion (b) is concerned, it is belied by their limited 

field work. 

[Prepared statement of Ms. Grabowski follows:] 
171 

Oral Testimony Before the 

Subcommittee on Native American Affairs 

of the Committee on Natural Resources 

July 22, 1994 

Christine Grabowski, Ph.D. 

Honorable committee members, I thank you for the opportunity 

to present my views of federal acknowledqlllent policy as these 

pertain to H.R. 2!49 and H.R. 4462. 

MY experience with PAP spans some 12 years of anthropological research, initially for the Gay Head Wampanoaqa, who successfully were accorded federal acknowledgment in 1987, subsequently for my doctoral dissertation on the petitioninq process and most recently for First computer concepts, Inc., which was contracted by BAR to 

review petitions. Based upon this divarea experience, I have coma to the conclusion that the present process, administered under the 

Bureau of Indian Affairs, does not, and indeed cannot, fulfill its 

original mandate: namely, that of providinq an objective, consistent and equitable procedure for definitively resolving the 

status of federally unrecognized tribes. While I have sUbmitted mora detailed written testimony for the raeor~, I would like to 

hiqhliqht for you two major deficiencies of FAP inasmuch ar. they bear directly on the leqislative initiatives before you. These 

deficiencies have to do (l) with the inherent conflict of interest 

which obtains from the Bureau's administration of the process and 

(2) with the flawad ethnological assumptions and methodology guidin9 BAR's deciaionmakin;. 

(1) Objaotiyity: While the regulations purportedly outlin~ 

an impartial and fair means of determining which greupa are to be 

federally acknowledged as tribes, in fact the objectivity or the 

entire petitioning process is severely co~promised by the aureau•s administration of it and has been since the very beginning. In the mid 1970's the Solicitor's office successfully argued why five intervenor tribes in u.s. v. Washingtcn were unrecoqnizeo 

ana ther•fore not the political succeslilors-in-interest or the 

tribes which had signed treaties in the mid 19th century. It was the same office, with many of the same personnel, which was intimately involved in drafting the PAP r~~ulations in 1978. And, 

it is the same office, with many of tho same personnel, which is 

currently responsible for reviewinq BAR decisions before they are published in the Federal Register as well as for litigating cases arising from contested Final Determinations. 

In short, the Solicitor's office first crafted the leqa.l rationale for ~enying treaty rights to the five intervenor tribes 

in u.s. y. Washington; it then codified the rule& by whicb 

unrecoqnized tribes (includinq the five intervenors) could petition the Bureau for federal aoknowladgmantr and now ~•e office has the 

legal authority to dete=ine which petitioners in fact make it 

through the FAP process. That the environment in which BAR 

Cleciaions are made is less than "objective" is an unGterstatement. 

This is not a case of the fox guarding the chic:kena, but of 

devising the very recipe for cooking them ~ :tWm judqinq the 
172 

rasultl I am sure that none of you gentlemen would knowingly and 

willingly submit your family and descendants to such a biased 

process. 

(2) Ethnological Foundations In addition to the inherent 

conflict of interest which obtaina from the Bureau's administration 

of BAR, tha federal acknowledgment process also tails to provide a sound ethnological foundation for acknowledging tribes. 

The actual wording of criterion 83,7 (b) stands in ~tark 

contra5t to how BAR has interpreted it in its decisions to date. 

The Branch has consistently required petitioners to provide evidenc~;~ of a "cohesive community" over time even when this is D.Q.t 

required by the regulations. Indeed, for criterion (b), 

petitioners need only provide evidance of group interaction and the 

maintenance of tribal relations amonq a substantial portion of the 

qroup' s lnam.bers during the gontempora;y ptriod --that is, during the 

last lS years or so. In addition to applying more stringent standards than are required ~y the plain meaning or criterion (b), BAR's analysis of 

qroup interaction is ethnologically problematic. Typically, BAR's 

Anthropological Reports do not address how the Indians themselves 

conceive of their tribal identity and affiliation. Yet, if one does not understand the norms, valuea and &ymbols of group membership, then how can one evaluate whether or not the qroup conatitutes a group, never mind a "cohesive community?" The answer is simple--one cannot. 

Methodologically, there are also serious problems. The BAR 

staff has said to me on numerous occasions that they evaluate the 

petitioner, not the petition. Not only is this contrary to the 

regulations, bu.t, insofar as criterion (b) is concerned, it is 

balie4 by their limited fieldwork. 

When I worked for FCCI I prepared a rasearch proposal for 

fialdwork which I estimated would take three weeks. BAR accepted it. It was not until I arrived on site that I was told I could 

only stay two weeks because this was standard for BAR staffers. 

What can one accomplish in such a short period of time? Not much. 

It i& not possible to do thorouqh and extensive new ethnoqraphic research. One can only corroborate that a particular informant di~ 

in fact say "x" to the patitioner•s researcher. Because o! very limited sample size and because one could only interview each 

informant once, it is virtually impossible to determine to what 

extent that person's views and experiences are ahared by others in 

the ~roup. Yet BAR repeatedly evaluates the patitionar basad on such. superficial and limited interview data. This necessarily undermines the ethnological foundations upon which the federal 

acknowledqment process purportedly rests. 

I would like to conclude by notinq that these deficienc:ies 

have not be rectified in the present regulations. In tact, greater subjectivity and discretionary power !or the Bureau and BAR has 

been codified in the revised requlations precludinq an objective, oonaistent and equitable evaluation or each petition tor federal 

ac:knowledqment. This deplorable situation should not be allowed to 

continua. Thank you. 
173 

Mr. ABERCROMBIE. Excuse me, Doctor, as I am reading through 

I see many of the points that you are raising and they are valid 

and I can assure you they will be taken into account, but for our 

purposes today, if you could focus on the legislation in terms of 

what you recommend to help deal with these, all the points that 

you are raising, I will grant you that for conversation and testimony sake, every point you have raised, I will grant you. What 

would you do about it with respect to this legislation? If you could 

summarize that, it would help us today. 

Ms. GRABOWSKI. Well, first, I think there has to be to address--

Mr. ABERCROMBIE. By the way, I assure you all of your points 

will be taken into account in detail and in total. 

Ms. GRABOWSKI. OK. 

First of all, the conflict of interest issue, I heartily support Mr. 

Richardson's bill because it does address one of the most I think 

egregious problems of the present process; namely the conflict of interest that arises in the process staying within the Bureau of Indians Affairs and that is quite laudable, and the time constraints are 

also laudable. 

There are, however, I think other considerations; namely, that 

given BAR's historically inaccurate interpretation of the regulations, one cannot merely recodify or codify again the existing regulations and be assured that they are not going to be misinterpreted 

again. 

Now, one of the ways to do this is to assure that there would be 

something like cross-examination. One of the problems that I have 

with the bill proposed with the commission is that it is unclear to 

me who is going to do the research. I certainly would support and 

move where there is a separation of function, that is if the people 

who are doing the research are not making the decisions. 

One of the problems with the materials involved, as I have seen, 

is that the data that one collects is extremely complex. The issues 

are complex. This is not cut and dry. You do not go into the field 

and automatically see a community. This is something which is 

very difficult to ascertain even for the most accomplished of researchers. 

The information is certainly subject to different interpretations. 

It has to be reliable. Unless there is a way to corroborate, verify, 

and open that data to corroboration, we have no idea how the BIA 

makes its determinations. I know, for example, in the Gay Head 

case they included much information in their summaries of evidence and then when the petitioner went back and said but this 

information is wrong and there is an alternative explanation for it, 

then the BIA said, well, you know that information was not really 

part of our decision. Well, if it is not part of the decision, then why 

was it in the summary of evidence? It is prejudiciaL 

The Gay Head case, I document in my dissertation up to 1870. 

They constantly talk about Indians. After 1870, on every page, they 

mention Indian descendants. This is prejudicial. There has to be a 

way of making sure that the evidence that is relied upon for decision-making is reliable. It is probative and it is, in fact, materiaL 

The way that it is now is that the decision-making on the part 

of BAR is, in effect, hidden. You do not know what they use, you 
174 

do not know what they are looking for, and so this is why you also 

have extensive periods, you have numerous, numerous OD reports 

because no one knows what they are looking for and they can always pull out something and say, well, this does not fit our notion 

of community. 

The entire-their entire standards are subjective and I would 

argue that the present standards are even more subjective. Go 

through the regulations, look at them, look how many significant--

Mr. ABERCROMBiE. I have it clear in mind what you are objecting 

to and at least this area of the--

Ms. GRABOWSKI. I think criterion for (b) would be more like an 

Indian claims commission, where you have a group of experts or an 

administrative judge who would sit and hear testimony from both 

sides. It is ludicrous to think that the Government does not have 

a vested interest; that the evidence that they are presenting is 

somehow clear and unbiased. That may have been the original intent of the regulations, but that is clearly not the case. Someone 

has to listen to both sides, there has to be cross-examination, and 

then we can come up with a decision which is, in fact, objective, 

consistent, and I think equitable for the tribes involved. 

Mr. ABERCROMBIE. OK. 

Ms. GR:\BOWSKI. Thank you. 

Mr. ABERCROMBIE. Anything else with respect to either bill? 

Ms. GRABOWSKI. The second bill, the one by Mr. Faleomavaega, 

I have several reservations about. 

The first one is that one of the provisions that tribes must have 

demonstrated tribal political authority over a specific territory I 

think is extremely onerous. And given the ethno-history of these 

tribes, the Federal Government itself in many cases had a hand in 

preventing these tribes from exercising tribal political influence. 

This is merely blaming the victim, in my opinion. 

The second provision I would object to in that bill is the one 

where you are going to restrict applicability to tribes which have 

been determined, which have not been determined in previous 

cases to be successors-in-interest. 

The objection I have in that regard is that the information collected, first of all, was in different cases for different legal situations and claims cases are not necessarily recognition cases. 

Mr. ABERCROMBIE. I see. 

Ms. GRABOWSKI. The points of law are different and I d.o not 

think they are analogous. Again, it would preclude many of the 

tribes, including one that they just passed through the system, 

which was the Snoqualmie. I do not think that is a sound provision. 

Thank you very much. 

[Brief recess.] 

Mr. ABERCROMBIE. I will move to Dr. Cantrell. 

I appreciate your being here, Doctor. Thank you very much. 

STATEMENT OF KAREN CANTRELL, Ph.D., J.D. 

Ms. CANTRELL. Thank you, Mr. Chairman. 
175 

My name is Karen Cantrell, Placitas, NM. I am an anthropologist and a lawyer. I do not work for any group or entity involved 

in the Federal recognition process. I appear today because I have 

worked with the Federal acknowledgment process, and I believe 

the process as administered by the BIA is flawed and unfair. I 

would like to thank the committee for inviting me to testify. My 

oral complements my written testimony. 

From July 1991 through September 1992, I worked as an anthropologist for first computer concepts, a company contracted by BAR 

to review petitions. Because one of the petitions I reviewed is 

awaiting final action, I cannot comment on substantive concerns I 

have with the process, but I can comment on two procedural concerns: the failure of BAR to determine reliability of evidence upon 

which decisions are based, as required by the regulations; and the 

standardless interpretation of the criteria, specifically the anthropological criteria. 

My concerns about the reliability of evidence arose when I was 

with FCC. BAR delivered to me a statement of work which detailed 

my duties and tasks as I reviewed petitions. This implied contract 

required me to examine petition materials to quote, "verify reference," end quote, and, quote, "validate factual evidence," end 

quote, within these materials. 

As I read through the petition materials, I noted that they contained factual evidence that was uncorroborated hearsay. But I had 

to validate that evidence. 

Because I wanted to follow BAR procedures so that my work 

would be consistent within BAR standards for determining reliability of evidence, I sent a memorandum to BAR asking for directions 

on how to verify references and validate factual evidence. My memo 

was not answered. I waited. I called BAR and repeated my request 

for guidance. BAR had lost my memo. 

I sent another memo, appending my original memo. I waited and 

waited. I called BAR. BAR had received my memo, but it was not 

at hand. I sent another memo and I called. I was told BAR had decided not to provide an answer. The contract deadline for my report 

drew near. My employer sent them out. 

BAR called and asked, what did I want to know? I wanted to 

know how to verify references and validate factual evidence so that 

my work would conform to standard BAR procedures for determining reliability of evidence as required by the regulation. 

Eight months after my initial memo, I received instructions, a 

memo detailing how to handle interview data. I was told to use my 

best professional judgment. But my question was about all factual 

evidence and the answer outlined a subjective procedure. 

Two weeks later, during a meeting, a BAR staff member told me 

that the question of validity and reliability of facts had never come 

up before. 

In 1992, BAR had been evaluating petitions for 14 years, but had 

never developed a procedure to determine the reliability of evidence 

upon which decisions were based. How can these decisions be consistent or fair when BAR's view of evidence is standardless? 

BAR's interpretation of criteria is also standardless because BAR 

ignores the canons of construction and adds elements to criteria at 

will. 
176 

The Interior Board of Indian Appeals held in 1993 that department regulations are interpreted in accordance with traditional 

principles of statutory construction which means, if terms are defined in the regulation, that definition is binding, so for criterion 

(b), the regulation reads that people must live in a specific area or 

a community, and those terms are defined in the regulations as 

group interaction and the maintenance of tribal relations, and if 

words are not defined, they are given their plain and ordinary 

meaning. So in (b), or is or, and the present tense is the present 

tense; (b) does not require a social community throughout history, 

but BAR has clearly misinterpreted criterion (b) according to the 

canons of construction, and has now codified their misinterpretation in the 1994 regulation. 

BAR also adds requirements to the regulations at will, requirements not in the regulations. For example, in the Miami final determination, published in the Federal Register on June 18th, 1992, 

BAR found that Miami failed subsection (c) because Miami failed, 

quote, "to meet the requirements of the regulations for a bilateral 

political relationship," end quote, but the words "bilateral political 

relationship" do not appear in the regulations. They appear in case 

law, not cited in the Federal Register or reports. The case is 

Masayesva v. Zah at 792 Fed. Supp. 1178, decided on March 13th, 

1992, where the court upheld the BIA's interpretation that a tribal 

role under criterion 83. 7(D must demonstrate a bilateral political 

relationship. It is interesting to note here that the BIA applied the 

criteria to the Navajo Nation, a recognized tribe. 

So BAR took the ruling and Masayesva, which defined a tribal 

role in criterion (f) as requiring a bilateral political relationship 

and attributed this requirement to criterion (c), requiring political 

influence and other authority to reflect a bilateral political relationship. This is clearly not required by the plain meaning of (c). BAR's 

interpretation of (c) in the Miami decision is clearly ultra vires. 

For these reasons and many others, I believe the process in the 

BIA is fatally flawed and unfair. I urge the subcommittee to work 

toward removing the Federal acknowledgment process from the 

BIA as suggested in H.R. 4462. I also urge the committee to refine 

and examine the mandatory criteria, especially the anthropological 

criteria upon which everyone seems to rely, because this process is 

inconsistent, inequitable and should not be allowed to continue. 

Thank you. 

Mr. ABERCROMBIE. Thank you very much. I want to ask you 

something more about 4549 and some of the deficiencies you see 

there later, OK? 

Ms. c~~TRELL. Thank you. 

Mr. ABERCROMBIE. Thank you. 

[Prepared statement of Ms. Cantrell follows:] 
177 

ORAL TESTIMONY OF KAREN CANTRELL 

Anthropologist, Attorney at Law 

Star Route Box 349A 

Placitas, New Mexico 87043 

In Conjunction with H.R. 2549 and H.R. 4462 

Before the subcommittee on Native American Affairs 

of the Committee on Natural Resources 

JUly 22, 1994 

GOod morning Mr. Chairman. My n~~e is Karen Cantrell. I live in 

Placitas, New Mexico. I am an anthropologist and a lawyer. I do not work 

for any group or entity involved in the federal recognition process. I 

appear today because I have worked within the federal acknowledgment 

process and I believe the process as administered by the Bureau of Indian 

Affairs is flawed and unfair. r would like to thank the subcommittee for 

inviting me to testify and voice my concerns. 

From July, 1991, through september, 1992, I worked as an anthropologist 

for First Computer concepts, Inc., a company contracted by the Branch of 

Acknowledgment and Research, BIA, to review federal acknowledgment 

petitions. Because one of the petitions I reviewed is awaiting final 

action, I cannot comment on substantive concerns I have about the process, 

but I can comment on two procedural concerns, (l) the failure of BAR to 

determine the reliability of evidence as required by the regulations and 

(2) the interpretation of the mandatory anthropological criteria 83.7 (b) 

and (c). 

My concerns over the reliability of evidence arose when ! was with FCC! 

and BAR delivered a •statement of Work" which detailed my duties and tasks 

as I reviewed petitions. This implied contract required me to examine 

petition materials to •verify referenc~s· and •validate factual evidence• 

within these materials. As I read through the petition materials I noted 

that they contained "factual evidence• that was uncorroborated hearsay, I 

had to validate this evidence. 

Because I wanted to follow BAR procedures so that my work would be 

consistent with BAR standards for determining reliability of evidence as required by 83.lO(c)(2)(1978), t sent a memorandum to BAR asking for 

direction on how to verify references and validate factual evidence. My memo was not answered; I waited. I called BAR and repeated my request for 

guidancer BAR had lost my memo. 

I sent another memo, appending my original memo, and waited. I called 

BAR; BAR had received my memo, but it was not at hand. r sent another memo~ called. I was told BAR had decided not to provide an answer, 

The contract deadline for my report drew near, My employer sQnt memos. 
TESTIMONY OF KAREN CANTRELL 

H.R. 2549, H.R. 4462 

178 

Subcommittee on Native American Affairs 

JUly 22, 1994 

!?age Two 

BAR called and asked what I wanted to know. I repeated my request for 

directions on the standard BAR procedures for verifying references and 

validating factual evidence. Eight monthS after my initial memo I 

received instructions, a memo detailing how to handle interview data. I was to use my "best professional judgment.• This reply did not answer my 

question, which was about all factual evidence, and the answer outlined a subjective procedure and standard for determining reliability of 

evidence. Two weeks after receiving the memo, during a meeting, a BAR 

staff member told me that the question of validity/reliability of facts 

had •never come up• before. 

In 1992, BAR had been evaluating petitions for acknowledgment for fourteen 

years, but had never developed a procedure to determine the reliability of 

evidence upon which decisions are based. How can decisions be consistent, or fair when BAR's review of evidence is standardless? 

BAR's interpretation of the criteria is also standardless because BAR 

ignores the canons of construction and adds elements to the criteria at 

will. 

The Interior BOard of Indian Appeals held in 1993 that "regulations are interpreted in accordance with traditional principles of statutory 

construction.• If terms are defined in regulations, that definition is 

binding, so, in 83.7(b)(l978l, •specific area• cr •community• are defined 

in the regulations as group interaction and a maintenance of tribal 

relations. Words not defined are given their plain and ordinary meaning, so in 83,7(b)(l978), •or• means or, and the present tense is the present 

tense. The BAR interpretation of 63.7(bl(l976) as requiring groups to 

exhibit a •social community• throughout history is clearly erroneous. aAR 

has now codified this misinterpretation in the 1994 regulations. 

BAR also adds requirements to the regulations, For example, in the Miami 

final determination, published in the Federal Register June 18, 1992, BAR 

found that the Miami had failed mandatory criterion B3.7(c) because the 

Miami failed to •meet the requirements of the regulations far a bilateral 

political relationship.• The term "bilateral political relationship" does 

not appear in the regulations. The term appears in a case not cited in 

the Federal Register, the Summary Under the criteria, or the accompanying 

technical reports. The case, Masayesva v. Zah 792 F.Supp. 1178 (D. Az. 

1992}, upheld the BI~'s interpretation that a tribal roll required 

evidence of a bilateral political relationship and in so doing applied 

83.7(!)(1978) to a recognized tribe, the Navajo Nation, and found that 

tribe's membership list to not meet the criterion. 

BAR then took the ruling in Masayesva, which defined a tr1bal role and 

tr1bal membership under criterion 83.7(f)(1978) as requiring a bilateral 

political relationship and attributed this requirement to criterion 

83.7{c)(1978), requiring political activity to reflect a bilateral 
TESTIMONY 0!" KAREN CANI'RELL 

H.R. 2549, H.R, 4462 

179 

SUbcommittee on Native American Affairs 

J'Uly 22, 1994 

Page Three 

political relationship. This is clearly not required by the plain meaning 

of 83.7(c)(l978) a~d BAR's interpretation of this sUbsection is clearly 

erroneous, The Miami petition failed to meet the requirerneots of this 

mandatory criterion based on an erroneous interpretation of the criterion 

by BAR, 

For these reasons, and many others, I believe the FAP process as administered by BAR/BIA to be fatally flawed and unfair. l urge the 

Subcommittee to wotk toward rernov1ng FAP from the BIA as is done in H.R. 

4462. I also urge the Subc~~ttee to examine and refine the mandatory 

criteria, especially the •anthropological" criteria. This inconsistent, 

inequitable process, as administered by the BIA, should not be allow~d to 

continue, Thank you. 
180 

Mr. ABERCROMBIE. Let's move to Dr. Campisi now. Thank you 

very much for your patience. 

STATEMENT OF JACK CA1\1'PISI, Ph.D. 

Mr. CAMPISI. Thank you. I will attempt to be brief. 

The present legislation or propoc;eJ legisl:'ltion will not solve the 

problem of this process. It has been made eminently clear through 

a series of hearings, both in the House and in the Senate, and from 

today's testimony, that the problem is the process; it is the criteria 

thnt are weak, the definitions that are faulty. If you imbed these 

in law, you will sustain the problem. 

My suggestion is that the criteria must recognize the history of 

Indian colonial and U.S. relations over the course of up to 500 

years. You must understand, the criteria must fit the evidence, not 

the other way around. We must look at what the history of relations have been, not just for tribes who have-who were contacted 

or had sustained contact in the late 19th century, but for tribes 

that had sustained contact in the 16th century. And if the rules 

don't fit them, then they are imperfect rules. 

It must take into account the impact of that contact, the destruction of tribal groups, the mislabeling of tribal peoples, the misunderstanding of tribal relationships. It must take into account the 

impact of racism on tribes. 

Why is it that so few tribes, nonrecognized tribes, have records 

of their existence? One has to look to the keeper of the records, the 

maker of the records; and there you find it is a function, very often, 

of racism. 

We must take into account what native people believe, not just 

what non-native people write down. These regulations lean so 

heavily upon the written document that groups that were illiterate, 

or maintained-{)r were kept illiterate for hundreds of years have 

virtually no records, and having the absence of records works 

against them. 

I believe that your iuea of a separate agency is a good idea. I 

think you need to get it out of the Bureau, just to give it some sem· 

blance of fairness. I don't think that can happen any longer with 

regard to the Bureau. 

I think you have to scrap some of these criteria. I think Bud 

Shapard's suggestion that you begin in the 1930s is a reasonable 

suggestion. The Branch has accepted 1900 as proof of tht? existence 

of an Indian entity, from 1900 on. But at the same time, the 

Branch requires the same group to prove a tribal identity from the 

time of sustained contact. 

Well, what is the sense of proving from 1900 if you are going to 

have to go back to 1600 to prove tribal identity? 

It is those kinds of inconsistencies that l think you need to get 

out, need to get away from. You need to define the terms carefuily. 

Under the new regulations, under criterion (b), the word significant is used seven times. I asked the people at the Branch, how 

do you define that word? \\'nat constitutes a significant relationship? They refused to answer. 

Mr. ABERCROMBIE. Now you know how I feel about legisiation 

that talks about lobby reform. Thank you. 
181 

Mr. CAMPISI. Well, I don't know how you feel, but I guess I am 

getting a sense of it. 

But these are the problems we have with the regulations, and by 

putting them in whole hog, as you have, I think you would just 

continue the damage. 

I would urge the committee to revise the regulations, keep in the 

separate agency, but look more carefully at the data about these 

nonrecognized groups to make sure that you will not exclude people 

who have been excluded all their time from the historical record. 

Thank you. 

Mr. ABERCROMBIE. Thank you. 

[Prepared statements of Mr. Campisi and Native American 

Rights Fund follow:] 
182 

Hearing on H.R. 2549 and H.R. 4462 

Before the Subcommittee on Native American Affairs 

of the Committee on Natural Resources 

July 22, 1994 

Statement Submitted By 

Dr. Jack Campisi 

Department of Anthropology 

Wellesley College, Wellesley, Massachusetts 

Mr. Chairman, Members of the Committee: 

Thank you for affording me this opportunity to submit this statement. 

Since 1978, I have worked with nearly two dozen non-recognized tribes on 

petitions for recognition or legislation to achieve the same end. The United Houma 

Nation's petition is now on active status, the Mashpee Wampanoag tribe is responding to 

its obvious deficiency letter, and the petitions for the Shinnecock and Pamunkey tribes 

are in preparation. These efforts have afforded me an excellent opportunity to evaluate 

the system of recognition. 

The two proposed pieces of legislation take the language of the 1978 regulations 

(25 C.F.R. Part 83) and make them law, despite the fact that these regulations were 

replaced by the Department of the Interior, a tacit, if belated, acknowledgment by the 

Department of the inadequacies of its regulations. l11e replacement regulations are but 

small improvement because they, like the former regulations, fail to define key terms, 

are loaded with subjective phrases and do not take into account the experiences faced by 

non-recognized tribes. 

The same criticisms apply to the biils, the subjects of this hearing. Adopting 

either set of regulations as law does not cure the inequities in the present situation; if 

anything, it would exacerbate the problems. The burdens set by the regulations and the 

proposed legislation are simply too exhausting for most non-recognized tribes to meet. 

The legislation does not take into account the mass destruction of American Indian 

societies in the early days of our colonial history or the pernicious impact of racism on 

the identity of the tribes in question. If applied to presently recognized tribes, I fear that 

many would have difficulty in satisfying the criteria. 

I believe that the regulations and bill start with a false premise. I do not 

understand why the criteria for federal recognition today should be more stringent than 

it was before the promulgation of the acknowledgment regulations in 1978. Why should 

the petitioners today be required to meet standards that are much more stringent than 

those outlined by Felix Cohen? How can we expect populations that were deliberately 

kept illiterate and whose existence was denied by the federal, state, and local 

1 -
183 

governments over the course of two hundred or more years to present documentation of 

their existence, viability and ancestry? 

The establishment of the regulations in 1978 has done little to clear up the status 

of the vast majority of the non-recognized tribes. It has increased the bureaucracy in the 

Bureau of Indian Affairs and resulted in a cottage industry for social scientists. It would 

be to the benefit of all if both could be reduced, and that can occur onlv if the 

regulations embodied in both bills are discarded and a more rational approach to 

determining which groups have a government-to-government relationship with the United 

States. 

The idea of an independent commission as provided for in H.R. 4462 is a good 

start, but only if the criteria are more carefully and realistically crafted. That 

commission should have limited life; it should furnish its work by some date certain. 

H.R. 4462 allows for the appointment to the commission of government employees. I do 

not think that this is wise, since it could result in a domination by the bureaucracy the 

legislation seeks to remove from control. I would also suggest five commissioners 

appointed for five year staggered terms. 

I applaud the Committee's efforts to unravel this Gordian knot and solve a 

problem that has consumed more time and energy than anyone would have imagined 

fifteen years ago. Unfortunately, I do not believe that enacting a solution that has not 

worked is the answer. I urge the Subcommittee to focus on the criteria for federal 

recognition, for there is where the problem, frustration and costs lie. 

Thank you 

-2-
184 

'D1e foregoing statement was submitted by: 

DL Jack Campisi 

Department of Anthropology 

Wellesly College 

cfo RD. 2, Box 492 

Red Hook, N.Y. 

(914) 758-6183 

(914) 758-3312 FAX 

-3 
185 

Hearing on H.R. 2549 and H.R. 4462 

statement Submitted on Behalf of the Mashpee Wampanoag 

Indian Tribal council, the United Houma Nation, the 

Shinnecock Nation, and the Pamunkey Tribe 

by the Native American Rights Fund 

Mr. Chairman, Members of the Committee; 

Thank you for the opportunity to submit this statement. 

The Native American Rights Fund is representing the Mashpee 

Wampanoag Tribe, the United Houma Nation, the Shinnecock Nation, 

and the Pamunkey Tribe in recognition matters. NARF also 

represents the Miami Nation of Indiana in litigation challenging 

an adverse decision under tl1e 1978 acknowledgment regulations. 

Miami Nation of Indiana et al. v. Babbitt, No. S92-586M (Filed 

September 1992). This statement is, in large part, based on the 

our experience representing the Miami Nation in seeking 

recognition through the administrative process and then 

challenging the Department of the Interior's decision against 

recognition. 

H.R. 2549 and H.R. 4462 are both similar to the Department's 

acknowledgment regulations (originally promulgated in 1978 and 

amended in February 1994). The recognition criteria in the bills 

track the criteria in the regulations. The process for 

submission and review of petitions for recognition is also 

comparable to the present administrative practice. 

1. H.R. 4462 does make a significant change in the identity 

of the decision-maker. 'l'he use of a commission that is 

independent of the Bureau of Indian Affairs is a needed change in 

present practice. There is a widespread concern that the Branch 

of Acknowledgment and Research and the Bureau of Indian Affairs 

are subject to inappropriate political influence in making 

recognition decisions. ~~ the Statement of Raymond D. 

Fogelson, Dept. of Anthropology, University of Chicago on S.6ll_Q 

Bill to Establish Administrative Procedures to Determine the 

Status of Certain Indian Groups Before the Senate Select 

committee on Indian Affairs, lOlst Cong., 1st sess. 177 (May 5, 

1989) ("While I respect the individual conscientiousness, 

competence, and integrity of members of B.A.R., I believe that an 

office separate from B.I.A. will be more immune to possible 

allegations of conflicts of interests or to the potential 

influence of Bureau policy and attitudes .••. It seems to me 

that the B.I.A. has enough to do in administering Federal Indian 

programs and serving the needs of the Indian clientele without 

also assuming the additional role of gatekeeper."); Deposition of 

John A. Shapard, Jr., former chief of the Federal Acknowledgment 

Project which is now the Branch of Acknowledgment and Research, 

in Greene et al. v. Babbitt at 33 ("there's a general, all 

persuasive attitude throughout the bureau that they don't want 

anymore tribes") ; see also the Statement of Allogan Slagle in 

1 
186 

Oversight Hearing on Federql Acknowledgment Process Before the 

Senate Select Committee on Indian Affairs, lOOth Cong. , 2nd Sess. 

198 (May 26, 1988) ("No matter how fair the BIA/BAR staff attempt 

to be, and no matter how they try to see that their decisions 

reflect a common standard, the perception of many tribes is that 

there are inequities in the way that the requirements are 

enforced.") Indeed, even before the present acknowledgment 

process was established in 1978, concern was expressed about the 

ability of the Department to deal fairly with the recognition of 

tribes. 

The second reason for Interior's reluctance to 

recognize tribes is largely political. In some areas, 

recognition might remove land from State taxation, 

bringing reverberations on Capitol Hill. There also is 

the problem of funding programs for these tribes. 

Interior has denied services to some tribes solely 

on the grounds that there was only enough money for 

already-recognized tribes .... Already-recognized 

tribes have accepted this 'small pie' theory and have 

presented Interior with another political problem: The 

recognized tribes do not want additions to the list if 

it means they will have difficulty getting the funds 

they need. 

Final Report American Indian Policy Review Commission 476 (May 

17' 1977) . 

2. As to the recognition criteria, the information 

generated in the Miami litigation indicates that there have been 

three "eras" in administrative recognition practice. The first 

is the pre-1954 time period which is roughly summarized in Felix 

S. Cohen's original treatise on Indian law. 

The considerations which, singly or jointly, have been 

particularly relied upon in reaching the conclusion 

that a group constitutes a "tribe" or "band" have been: 

(1) That the group has had treaty 

relations with the United States. 

(2) That the group has been denominated 

a tribe by act of Congress or 

executive order. 

(3) That the group has been treated as 

having collective rights in tribal 

lands or funds, even though not 

expressly designated a tribe. 

(4) That the group has been treated as 

a tribe or band by other Indian 

tribes. 

(5) That the group has exercised 

political authority over its 

members, through tribal council or 

other governmental forms. 

2 
187 

Other factors considered, though not conclusive, 

are the existence of special appropriation items for 

the group and the social solidarity of the group. 

Felix s. Cohen's Handboo]:< of Federal Indian Law, (Reprinted 

University of New t1exico Press) at 271 (footnotes omitted). The 

second is the 1954-1978 time period which is summarized in a 

letter from Commissioner of Indian Affairs LaFollette Butler to 

senator Henry Jackson. Commissioner Butler cites the passage 

from Cohen set out abo•;e, lists the recognition decisions from 

1954 to 1974, and concedes that "[c]onsistency in practice in 

giving "Federal recognition• is difficult to discern". And, the 

third "era" is the pract.ice under the acknowledgment regulations 

published in 1978 (and amended this year). The criteria in the 

regulations are set out at 25 C.F.R. §83.7. We believe that 

there have been about 20 decisions under the regulations. 

Whatever the criteria decided upon, we feel it is important 

to explain how and why the criteria were chosen and how the 

criteria should be applied. In particular, petitio~ers should 

know whether past practice and decisions will be relevant to 

decisions under the new criteria. It is also important to 

explain in more detail the terms used i n the criteria. All of 

this will hel p petitioners understand what is expected of them 

and will provide guidance to the decision-maker in reviewing 

petitions. 

3. Under the present administrative practice, final 

determinations are made by the Assistant Secretary for Indian 

Affairs. However, the actual review of petitions and the 

preparation of the extensive reports justifying proposed 

decisions are carried out by the Branch of Acknowledgment and 

Research (BAR). The BAR staff includes historians, 

anthropologists, and genealogists. The review of petitions and 

the preparation of proposed decisions done by BAR involves years 

of work and results in extensive written reports. Because of 

that, we believe that the decisions that have been made under the 

acknowledgment regulations are essentially those of the BAR 

staff. A recognition bill should strictly demarcate the role of 

the staff that will provide technical support to the Commission or Assistant Secretary. 

4. The funding level for the Commission (or the Department 

of the Interior in H.R. 2549) is much too low given the number of 

petitions presently under consideration and the number expected 

to be filed. In addition, the funding level for the provision of 

grants to petitioners is much too low given the number of groups 

expected to petition and the cost of going through the process. 

3 
188 

The foregoing statement was submitted on behalf of the Mashpee 

Wampanoag Indian Tribal Council, the United Houma Nation, the 

Shinnecock Nation, and the Pamunkey Tribe by the Native American 

Rights Fund. 

Richard Dauphinais 

Native American Rights Fund 

1712 N St., N.W. 

Washington, D.C. 20036 

(202) 785-4166 

(202) 822-0068 FAX 

4 
189 

Mr. ABERCROMBIE. And now our final testifier, before we get to 

the questions and observations, will be Councilman Rasmussen. 

STATEMENT OF JAMES RASMUSSEN 

Mr. RAsMUSSEN. My name is James Rasmussen. I have been a 

councilman for the Duwamish Indian Tribe for the past 6 years. 

Before me, my mother served on that council for 17 years. Before 

her, my grandfather served on that council for about 20 years. In 

his time, we were dealing with court of claims issues, and in those 

days we worked closely with all of the tribes within Puget Sound 

to try to get at least some justice from the Federal Government as 

far as the land that was taken from all of our people. 

During my mother's time, it was a time of treaty rights. In the 

1960's and in the 1970's, all of a sudden, people started realizing 

that we had more rights than we had ever been offered by the Federal Government. One of her jobs, that she took upon herself, was 

to hold tht dignity of the tribe and the individual, individuality of 

the tribe. 

Many times the tribe was tried to be taken over by other organizations, to make it part of their organization so they might be able 

to enjoy our treaty rights. They all failed. 

During my tenure in the last 6 years, one of the things that I 

have been trying to do is to work on the culture of my own people. 

We have negotiated with the port of Seattle, we have negotiated 

with the county, we have negotiated with lots of government agencies. All of them are very, very sorry and in most cases, even 

though we still are ongoing in negotiation with some of those, to 

say that because the tribe is not recognized, and they have a political protocol that they have to follow within the State, that they 

can't do anything right now and, hopefully, that things will change. 

My people have not had a longhouse for over, probably over 100 

years. One of the things that we are trying to do, working with the 

community and working with the port, is to try to build one of 

those again on the Duwamish River in the home of my people. All 

the tribes that I represent from Stowe have been in this process for 

the last 20 years. If you know anything about what BAR has been 

about and how complicated the criteria are, we would not be as far 

as we are, had we not been very seriously considered. We would 

have been dumped out a long time ago, especially when the same 

people who were involved in the court cases that Mr. Jones talks 

about were involved in recognizing-not recognizing officially at 

this time, but at least passing through the Bureau of Acknowledgment and Review, the Snoqualmie Tribe. 

The Duwamish were supposed to have a final determination by 

January by BAR, by its own regulations, and month to month to 

month, again, we do not have any word from them. In the last 2 

weeks we have not been able to get a phone call returned hy our 

attorney. I am not sure why or what, because they won't talk to 

us. 

One of the things that we also would like to mention is that the 

delays coming to being an active consideration have been large 

also. Actually, we had our documents ready in 1989, and we have 

been involved in this process in the hearings from the beginning, 

in the 1970's. We received an OD letter in 1990. We responded to 
190 

that in 1990. And in 1992 we were put under active consideration 

and had site visits. 

I don't know if you can realize how scary this whole thing is. 

Talking about my three generations in my family, I am the first 

one to ever testify in front of Congress, so this is not an easy thing 

for me right now, although I have spoken in front of the National 

Congress of American Indians and had support from there to have 

a fair process. 

We have also had support in the Governor's office to have a fair 

process. We have also had support from the mayor's office of the 

city of Seattle to have a fair process. 

Time is deadly and time is very important. It is like my people 

have been in a war for the past 20 years, and we have had lots 

of casualties, lots of elders have died, and not one shot has been 

fired. 

Originally, BAR was created, as far as we know, to be a cooperative process in a fair and pure environment dealing with the facts, 

not dealing with politics, not dealing with economic issues. We 

were to try to find the facts. Now, recognizing tribes have been involved, spending hundreds of thousands of dollars to eliminate the 

tribes that I represent, spreading false and alarming rumors 

through Indian country. 

I don't know how to finish this as far as the tribes that I am here 

to represent and Stowe is concerned. But this issue is a political 

issue, and if we do not take it out of that arena, we are going to 

be back here in another 6 years, in another 20 years, and it is 

never going to be resolved, because people do have a tendency to 

like power, and that is what has been created here. 

Thank you. (Prepared statement of Mr. Rasmussen and attachment follow:] 
191 

TESTIMONY of JAMES RASMUSSEN 

DUWAMISH INDIAN TRIBE 

212 Wells Ave. S. 

Renton, WA 98055 

(206) 226-5185 

In Conjunction with H.R.4462 and H.R.2549 

Before the Committee on Interior and Insular Affairs 

July 22, 1994 

I am James Rasmussen of the Duwamish Tribal Council. I am a resident of 

Seattle, Washington. My tribal Chairman has appeared before the Senate 

Committee on Indian Affairs on this issue. A! Cooper of the Snohomish Tribe 

and John Barnett Chairman of the Cowlitz Tribe, and Dr. Ken Tollefson, 

Anthropologist at Seattle Pacific University have all appeared before the House 

Interior Committee on the same issues. 

My appearance here today is on behalf of several of the Western Washington 

tribes currently seeking recognition through the Federal Acknowledgment 

Process. 

SUMMARY STATEMENT 

The Federal Acknowledgment Process has failed to clarify the status of 

petitioning Western Washington tribes during its 15 years of operation. 

Tribes throughout the United States have been victimized and held in 

administrative limbo by the current BIA administrative process, with its 

systematic delays, inadequate staffing, and political agenda. 

Since 1988, several national hearings and bills have been drafted to solve this 

problem. The latest being H.R.4462 & H.R.2549. Rather than improving the 

process for currently petitioning Western Washington tribes, H.R. 2549 would 

effectively exclude them from the process--thereby necessitating individual 

tribal recognition bills. The predecessors including H. R.3430, S.1315, and 

S.192 were rejected for this very reason. It is our understanding that these 

current bills are not introduced as a final solution, but to stimulate debate to lead 

to a reasoned solution. 

The Chinook, Cowlitz, Duwamish, Snohomish, and Steilacoom Tribes offer the 

attached draft bill to facilitate the redrafting of this legislation. It offers some 

constructive suggestions regarding improved language. We request that this 

draft bill (Attachment A) be entered into the record. 
192 

COMMENTS ON PROPOSED LEGISLATION H R 4462 and H R 2549 

H.R 2549 as written would eliminate 5 petitioning Western Washington 

tribes from the entire acknowledgment process. Language in both bills 

would guarantee that the tribes could never enjoy the full benefits of tribal 

recognition. Bill language would guarantee the statutory termination of 

treaty rights. Unfortunately, the failure of the bills to cons1der all currently 

petitioning tribes, treat all tribes equally, and protect treaty nghts makes these 

termination bills rather than recogn1t1on or restoration acts for Western 

Washington tr1bes 

ISSUE_S 

The Final Repo1i of the American lnd1an Pol1cy Rev1ew CommiSSIOn (1977) 

recommended that Congress take action to 1nsure that appl1cat1on of Federal 

Indian laws and the delivery of government benefits and serv1ces to alUru:!ian 

lnb.e.sJ..!ill!Qj]]]Jy 

2. Unilllrm_treatment QLal~ 

Any leg<slatlon must uphold the premise that all tribes should be accorded 

equal treatment. The bills are based on the prem1se that a tribe should not be 

fully recognized if it might impact a tribe that is currently recognized The old 

BIA process did not contain such language 

There IS no legal merit in the posit1on that currently recognized tribes are 

somehow more equal than the petitioning tnbes Every party is equal 

In 1975, the Commissioner of Indian Affairs found no merit 1n the 

Tulalip Tribe's oppos1tion to the acknowledgment of the ... Stillaguamish 

Tribe. "You (Tulalip] ... state that recognition would make Judge Boldt's 

decision [regarding treaty fish1ng rights] Impossible to administer. and that 

such recognition would reduce Federal services ... In our opinion, it would 

not be equitable or legal to establish a policy of not recognizing deserving 

Tribes ... on the bas1s that it would reduce benefits and services for other 

more fortunate Tribes who have enJoyed that recognition and the attendant 

benefits for a number of years 

It is not legal to deny a legitimate claim for acknowledgment based on 

whether or not a currently Federally-recognized tribe, state, county, or 

municipality is impacted by the acknowledgment of a petitioning tnbe 
193 

This position was supported by the State of Washington (Letter from 

the Office of the Governor to petitioning Washington Tribes, November 22, 

1988). "It is our belief that you have a right to a clear, unbiased, timely, 

and non-capricious or arbitrary system for acknowledgment based 

entirely on historical fact and not on the support or non-support of 

any state or tribe. This is your right and we support it in full." 

ANALYSIS OF SELECTED SECTIONS 

H R 4462 Section 3 (12) & (13). The definitions of a "member'' of a 

petitioning group and tribe are not equivalent. While members of petitioning 

groups must consent to membership, consent is not required of members of 

currently recognized tribes. 

H R 4462 Section 5 (a) (2) (C). The bills exclude tribes rejected by the BIA's 

Branch of Acknowledgment and Research, the very body whose arbitrary and 

unacceptable performance has lead to the legislation's being proposed. This 

provision would legitimate the flawed decision making being reformed, 

instead of, for example, negating the prior decisions or establishing a special 

review process to evaluate the integrity of prior administrative decisions. 

U.S. District Court Judge Thomas Zilly, in a sharply worded decision in a 

lawsuit in February of 1992, accused the BIA of depriving the Samish Tribe of its 

basic constitutional right of due process by summarily declaring the tribe extinct 

without a fair hearing. He ordered the BIA to reconsider the Samish petition. 

''The informal administrative hearing held by the BIA did not meet the dueprocess requirement," he said. "Plaintiffs were not given an opportunity to 

cross-examine the BIA's experts, research materials relied on by the decisionmakers were withheld from the plaintiffs, and there is evidence that would lead 

an objective bystander to believe that some of the decision-makers prejudged 

the case." 

H.R.2549 Section 3 (b)(4). The act would not apply to any Indian group that 

was determined by court not to be a tribe. This is more restrictive than the 

current BAR process which has held that " ... acknowledgment cases are 

decided independently, on a significantly broader base of evidence than 

was before the courts, and thus may support a different conclusion as to 

the tribal character of the petitioners." 

Unfortunately, this provision is an example of the problem that has plagued the 

BAR reform hearings and bills. Lobbyists that oppose the recognition of any 

Washington Tribes for political and economic reasons have been proposing 

legislative provisions that further restrict rather streamline the acknowledgment 

process. 
194 

This section appears to be designed to purposely exclude the 5 petitioning ~ 

Washington tribes which unsuccessfully Intervened in the "Boldt decision." On w June 11, 1992, a stunning arttcle in the Seattle Post-lntelligencer reported that ""' 

Judge Boldt was suffering from Alzheimer's disease when he tssued the 1979 

ruling that consigned five NW Indian Tribes to off1c1al extinction. A mellon has 

been filed to set aside the decision based on the Judge's Incompetence 

laf- I This is a "Qutnault" provisiOn which would depnve tnbes of a maJor element 

attaching to Recognil!on, which 1s the right to goverr trust lands as to which they 

should have nghts. The words "freeze out" are applicable 

The provision would legitimize improperly exerc1sed jurisdiCtiOn over Indian 

reservations. The legality of such jurisdiction must be establlshed on a case-bycase basis and to legislate an end to the matter would probably constitute a 

violation of the Due Process clause of the United States Constitution. 

This is a "Tulalip" provision which would elim1nate such tribal nghts as hunting 

and fishing if the tribe's rights are exercised by another. Federal 

acKf1owledQment is an admission that a tnbe has cont1nuously existed as..aJ!:iJ:l.e 

since aboriginal times; yet these provisions would strip away as a matter of law 

some of the most basic tribal rights Acknowledgment is intended to right a 

"wrong" --that is, previous BIA failure to recognize the tribe; th1s language would 

perpetuate essential ingredients of the wrongs being addressed by 

acknowledgment Moreover, the statutory termination of such tnbal rights easily 

could be cited in oppos1t1on to the affected tribe's petition seeking 

acknowledgmentl The result is "Catch 22' the tnbe has no tribal rights, so how 

can it be a tnbe? 

H.R. 4462 ESTABLISHES A COMMJS.SIQN The Comm1ssion does respond to 

the need to have an office independent of the Bureau of lnd1an Affa1rs 

However, Commissions are slow to be implemented and a !a1r transition policy 

needs to be developed It would not be fa1r to expect tribes to start over again 

under the Commission. 

COMMUNITY CRITERIA -- The "Indian community requirement" needs to be 

written in a way which can be met by tribes in a modern soc1ety. The historical 

facts are that (i) the nonrecognized tribes have been forced to assimilate into the 

non-Indian world and (ii) the "global village" of 1994 leaves few places in the 

contiguous 48 that might be distinctly "Indian." 

QIHER.l.tiiEB.ESIEARIIE.S The only issue to be determined is whether a 

group can establish its own entitlement to recogmtion as a matter of fact and 
195 

without having to respond to attacks mounted by wealthy tribes seeking to block 

recognition of tribes for political reasons. 

H.R. 2549 NOTICE TO RECOGNIZED TRIBES. In motions regarding the 

anticipated Samish Administrative Hearing to reconsider it tribal status, the court 

has found that its neighboring recognized tribes (Swinomish and Tulalip) did not 

have a right to intervene just because of their status as recognized tribes. The 

court further rejected the Swinomish intervention as unnecessarily delaying the 

process 

PROPOSED AUTHORIZATIONS. The authorization for petition development 

and review is not adequate. II is less than that currently being provided to 

petitioners. By resolution the National Congress of American Indians supports 

$3.5 million for the review of petitions; and $1.5 million for petitioners. There are 

currently almost 20 active cases, including the tribes in litigation and backlogged 

for review. In 2 to 3 years, there may be 20 more cases ready for active 

consideration. We need to be prepared to review process these cases, not 

create another under funded process that drags on for years and years. 

Overall Conclusions 

The provisions of the bills do not protect the basic tribal rights of the 

petitioning Washington tribes. These tribes have all submitted petitions under 

the current federal acknowledgment process. These tribes would all be done 

with process if it was fair and efficient. I appears that some other tribes have 

benefited from the delays while these petitions sit in administrative limbo. To 

now try to legislatively deprive these petitioning Western Washington 

Tribes of their right to petition and/ or major elements attaching to 

Recognition is simply unacceptable. 

If the purpose of the bills is to avoid the problem of individual tribes 

seeking direct legislative recognition, this language defeats the purpose. 

This language which has consistently appeared in proposed bills is one of 

the reasons these reform bills can not be supported and passed. 

Ali-in-all, the need for reform is dramatized by H.R. 4462 and H.R. 2549- but 

there still is work to do. 
lOJd CONGRESS 

2d Sessioa 

s. 

lN TIL!! SENATI; OF TILE UNITED STA1ES 

April_, \994 

MR. INOUYE introduced the following bill; which was read Twice and referred to the Select Committee on Indian Aff:lirs 

A lliLL 

To e>tabli~h administrative procedures and guidelines to be followed in extending formal 

recognition to Ameri«UU Indian tribes acknowledging their existence a>, and status of, ladian tribes. 

Be it enacted by the Senat< and Howe of Repres.ntaJive:I of the United StaJes 

Congress asumb/eJ: 

SEC. 2. PURPOSES. 

The purposes of this Act are -

(a} to establish an objective proetdure for the recognition of Indian tribes not 

currently federally recognized by the United Stales; 

(b} to extend to Indian groups which should be federally recognized as Indian 

tribes t'ul1 federal recognition as Indian tribes and the immunities and privileges now 

enjoyed by Indian tribes; 

(c} 10 establish within th

of Assistant Secretary of the Inter

to create the Office of federal A

the Department separate from the 

(d) to restore the admini

Indian groups should be recognize

involving the petitioning Indian gro

and to eliminate: any notion that t

(e) to impose standards 

criminal penalties for individuals or 

of Federal Acl<nowl<dgment and R

for recognition, and to provide the 

Office of Federal Acknowledgment 

SEC. 3. DEFINITIONS. 

For th~ purposes of this Act 

(!) The term •acknowledg

Acknowiedgm.enc and Recognition 

formal federal recognition and ent

relationship with the United State

recogn:ized as eligible for tbe special 

to Indians because ot !heir status 

Indian tribes. 
(2) The term "Assistant Secretary" means the Assistant Secretary of the Interior 

for Federal Acknowledgement and Recognition. 

(3) The term "Bureau" me:ms the Bureau of Indian Affairs of the United States 

Department of the Interior. 

(4) The term "community" means a group of people sharing descent from ao 

aboriginal Indiao tribe or band of a specific geographical area who have maintained 

tribal relations through any of several means, including - but not limited to - meetings, 

prox:imity of residency, participation in family and community events (funerals, weddings, 

elections, judgment hearings and other events), shared work (including fishing, clam 

digging, berry picking, food-processing and other activities), differentiating members from 

nonmembers and visiting. 

(5) The term "continuous~ means on a regular and sustained basis, 

notwithstanding gaps in documentary materials because of fire, narural disasters or other 

loss of records. One measure of "continuous" shall be the consistent appearance, or 

identification. of Indian group members aod/or dealings with the petitioning Indian group 

in eight or more decades in any consecutive ten decades in historical and/or 

anthropological records. A second measure of '"continuous" shall be evidence of tribal 

existence as of a specific date and also as of a later dare, but not more than 50 years 

later, in which case continuous tribal existence shall be presumed for the intervening 

period absent proof to the contrary. There may be other measures of continuous. so 

long as they satiscy the definition in the first sentence of this subparagraph (5). 

(6) The term "Deparrment" me:ms the United States Deparrment of the 

Interior. 

(7) The term "Indian 

band or tribe located within the 

as an Indian tribe by the Secretar

to petition under this Act. The 

shall be unaffected by any previo

or judicial, as w the group's staru

(8) The term "Indian tri

or tribe located within the Unit

Indian tribe by the Secretary, De

(9) The term "Office" 

Recognition created by Section 1

(10) The term ~recognitio

the Office that an Indian tribe is 

is emirled to participate in a go

States. 

(11) The term "Secretary

bis !awfully designated represent::u

( 12) 1be term "treaty" m

(A) negotiated and 

any Indian group or Indian 

(B) negotiated by 

or on behalf at any illdian 

United States Senate; 
5 

(C) negotiated by any ;overeign witb, or on behalf o£, a.ny Indian group 

or fndian tribe, whereby the .sovereign acquired territory which was $ubscquently 

acquired by the United State!, either by purchase or cession: 

(D) negotiated by tlle United Scates subsequent to March J, !871, with, 

or on behalf of, any Indian group or Indian tribe whereby the United Slates 

acquired territory. 

TITLE I • ACKNOWLEDGEI'v!ENT AND RECOGNITION 

Of INDIAN TRIBES 

SEC. 101. OFFICE m· FEDERAL ACKNOWLEDG~!ENT AND RECOGNITION. 

(a) ESTABLISHMENT OF OFFICE. (!) There is hereby e5tablished within 

the Depanruent, and no( within the Bureau~ the Office of Federal Acl:nowledgrnent and 

R~cognition.. 

(2) The Office shall be beaded by tl!e Assi>tant Secretary cf the Interior for 

Federol Acknowledgment and Recognition, who shall be appointed by and serve at the 

pleasure of; the President of tbe United States, subjec~ to coru1r.nation by <he United 

States Senate, and who shall be a person frunHiar \\>itb the historical, anthropo!ogicaJ and 

political issues pertaining to Indian group' and lndiao tribes. 

(3) The Assistant Secretary is authorized to appoint employees fat the Office 

and fix their comperuat:ion in accordance wlth federal 1aw, and subjet."t to review and 

approval of the Secretary, but no more th~rt a total of three emp1oyees or contraaon 

of the Office or pe.,;onoel detail

eitber dire""t!y or as contract pcr:

or the Branch of Aclrnowledgrne

Department. 

(4) The Office sha.ll car

this Act. 

(5) The Assistant S~t

ad.mi.nisrracion of the Office, tndu

be necessary m implement the re

(b) AUTHORITY OF ASS

and the staff of the Office are au

(A) enter i.nro cot

carry out itS responsibilities 

{B) condm.'t he3lin

(C) take testimony 

(D) have such prim

(E) make expendit

(F) take such othe

as may be necessary to ftll.till its d

(2) The A.lsistant Socreta

Office to a.d.m.in.ister oaths or affir

pr-::sent testimony or other evide

submitted in accordance wnb Secti
(3) (A) The Office is authorized to secure directly from any officer, 

department, agency, estabUshment or instrumentality of tbe federal government 

such information as the Office may require for the purpos~s of this Act, and each 

such officer, department, agency, establishment or instrumentality is authorized and 

directed to furnish. to the extent permitted by Jaw, such information. suggestions, 

estimates and statistics directly to the Office. 

(B) All requests for ioformation shall be signed by the Assistant Secretary 

or persons authorized by the Administrator to make such requests. 

(C) Upon request of the Assistant Secretary, the bead of any federal 

department, agency or instrumentality is authorized to make any of the facilities 

and services of such department, agency or instrumentality available to the Office 

and assign any personnel of such department, agency or instrumentality to the 

Office, on a nonreimbursable basis, to assist the Office in carrying out its duties 

and responsibilities under this Act. 

(D) The Office may use the United States mails in the same manner and 

under the same conditions as the Department. 

SEC. 102. STANDARDS OF REVIEW. 

(a) BASE CRITERIA FOR FEDERAL RECOGNITION. (1) In reviewing 

and evaluating petitions· for recognjtioo submitted i.n accordance with Section 103 of this 

Act, the Office shall use as base criteria those standards articulated by Felix Cohen in 

the Handbook of Federal Indian l.aw (1942), which the Department relied upon in 

determining which Indian groups 

pursuant to the Act of June 18, 

(2) The base criteria to 

be recognized as an Indian tribe 

(A) that the Indian 

(B) that the India

Congress or Executive Orde

(C) that the Indian 

Indian tribe•. 

(D) that the Indian 

tn"bal lands or ~ds, even t

(E) that the India

members. through a tribal c

(F) that the India

pursuant to the provision• o

(b) SECONDARY CRIT

:eviewing and evaluacing petitions f

:his Act, the Office shail utilize the b

:riteria-

(A) that the Indian 

(B) that the Indian g

services, including bur not lim

Health Service, 
9 

(C) that the Indian group is recognized by the Indian Claims Commission 

or the Uaitt:d States Oaims Court, 

(D) that the Bureau has bad ceguJar CO illacts with the: lnd..ian group or 

its representatives. 

(E) that !he Indian group bas had frequ ent com~ cts with the Bureau. 

(F) tha.t tbc: Bureau ba.~ assisted 'llc Indian group wilh sp~ci:ll projects 

ot any kind, 

(G) that the Indian group has 3.1l orga.nizatinn which meets reguf.arly, 

(H) that the Indian group is an ethnic group in wbit.:h the members of 

the group !lcknowlcdge a common identity acnong thernseivc:s and differentiate 

themselves from other groups otround them. 

(I) tha t the Imlian group has elet"ted officials a.nd governing body, 

{J) th~t the Indian group bas a Constitution and byla·Ns, 

(K) thot the Indian grou? has :u1 offiri:ll ttibll roll it has adopted, 

(L) Lhat the lndi::tn group's governing body roeel'i regu h rly to conduct 

tribal business, 

( M) th:H any feder.aJ agem.:y or depanment has issued identification cards 

10 members of the Indian gro up in conjum."'tion with :lctivities ext:rci.sed by 

members of tbe Indian group as an Indian group, such as fishing, 

(N) that the Indian group bas been active in exercising communal rights. 

evidencing community. 

(c) APPUCATION OF BA.SE CRri'ERIA ··The b:lSc criteria described a t 

Section !02(a) of this Act first shall be applied ro the foru wilicb existed during the time 

period commen<iog Jnne 18, 

accordance with Sections 103(c) "

for fe deral acknowledgment ;w<

guide-lines in evaluating petitions 

lndian grou p satisfy all of rhe: b

lt}t(b). II a pe titioning Iud ian gr

the period of time identificJ in 

dcte rmin:u.ion tb:11 the Indiau gr

shall be fina i for t!:e Departm

de termination u.nJ{=r this section s

or judiL-ia.l, utUess :he de rermio:::w

consult.:uJts of tbe Office. 

(d) APPUCA T!ON O f 

group does r.o t rc o~iv e ai: J.fiino:~r

of this Acl, then :t.c: Office shaJI u

of this Act ln n!vle '.ving ami eva

s~c::ions !OJ(d) :ted lO.I(c) o f th

gujdelines i.n evalu :uing: petitions fo

parry satisfy all of the secornia.ry c

(e) COOPERA'ITVE RE

·.vork Ln a conpc:r.:uive manner w

.liJaJyLing any petition. and tl.!~y 

determine the fa.crs underlying the: 
11 

the requirements of thls subsection shall constitute cause for immediate di>missal, with 

due pro~css, from bis or her employment with the Offi<:<~ and the federal government. 

SEC. 103. PETITIONS FOR RECOGNITION. 

(a) PETITIONS FOR RECOGNmON OR ACKNOWLEDGMENT. (1) Any 

Indian group which ill indigenous and satisfies the criteria set out at Sectioa 102 of this 

Act, including any Indian group which was previously federally recognized a:ad was subject 

to litigation terminating its status a.s a federally recognized Indian tribe, may submit a 

petition to the Office seeking acknowledgmeot and roecgnition that such Indian group 

is an Indian tribe. At tlle election of tlle petitioning Indian group, the petition may be 

submitted under the bB!Ie criteria set forth at Seetion 102(a), or under the secondary 

criteria set forth at Section 102(b ), or both. 

(2) The provisions of this Act do not apply to the following groups or entities, 

which shaU not be eligible for recognition under this Act -

(A) Indian tribes, organited bands, pueblos, communities and Alaska 

Native entities which ue already recognized by the Secretary as Indian tribes and 

are receiving services from the Bureau, and 

(B) splinter groups, political factions, communities or groups of any 

character which separate from the main body of an Indian group or tribe, unless 

it can be established <bat the groop ha.'l functioned from historical times until tlle 

present as an autonomous tribal entity. 

(b) FORM OF PETi

recognition under this section ma

it is a petition under subsections 

(2) A petition under t

petitiooing Indian group's curren

governing documents, a statement 

by whkh the petitioner currently g

petition shall also be accompan

petitioner's own membership criter

in which the petitioning Indian gr

(c) BASE CRITERIA I

can satisfy the base criteria set f

shoutd state on its face that tile p

(2) Designation of a 

simultaneous designation of the 

processed in accordance witll Sect

(3) Ba.se criteria petition

of Section !04(b) of thi5 Act. 

(d) SECONDARY CRIT

that it can satisfy the secondary cr

petition should state on its face th

petition_ 
13 

(2) Secondary criteria petitions shall be processed in accordance with the 

provisions of Section 104(c) of this Act. 

SEC. 104. PETITION PROCESS. 

(a) DOCKET AND NOTICE. (!) WitbiJJ 30 days of the dale on wtuctJ > 

petition for r~cognjtion is received by the Office in accord~mcc with the I'equiremcnts of 

Section 103 of this Act, tbe Office sbaH send a written receipt to !be petitioning Indian 

group and shall hove published in the ~~ a notice stating -

(A) tbat the petition ho.s been file d; 

(B) tbe date on which petition wa> filed; 

(C) the name, location and mailing address of the petitioning Indian 

group and sucn other information as is re::tsonably calculotc:d to identify tlle 

petitioning Indian group; and 

(D) the location(s) where petition may be examined. 

(2) Within 45 days of the Jate on which a pe tition for recognition is received 

by the Offir:e, Jbe Office ~hall send a wriueo ootilk:uion o f such filing to the Gtwernor 

and Auomey General o[, and aU fndi:J.n 1ribes and pcHitiouir:g Indiau groups located 

within. lbc state or states in which the petitioning Indian group is located. 

(J) Within 60 days of tbe date on which a pe tition for re L~gnitio n is received 

by the Office, tbe Office sbaU cause to be pcblished in a newspaper of general 

circulatiaa ia the location of the petitionil1g lndian group a ootke of the petilion. In 

addition to the informatica described at Section 104(a)(l), the notice shall state·-

(A) that public co

.at a specified address for 

publication; 

(8) all commentS 

the Office upon receipt; 

(C) the petitioo.it1

comment prior lo any cons

(D) no comments 

by an individuaJ, whose ille

(E) <Lil comments, 

the Office. v.-ill be subject 

States Code, providfog crl

gove rnment, and that in the 

of an entity or office. the im

provisions of law identified 

purports to ac t on behalf o f 

lnr.!i01n tribe. 

(b) REVIEW PROCEDU

re·Ji ew proc~durc:s set fonb i.n 1!U

pe d tions designated in accordJ.Dce 

(2) Within 90 days of th

witb Section 103{c) is n:ceived by 

the base criteria shall 'begin. 
15 

(3) Within 90 days after the date on which active consideration begins as to 

a base criteria petition, the Office shall -

(A) make a preliminary determination on the petition which either 

acknowledges and recognizes the petitioner as an Indian tribe or rebuts the 

evidence submitted by the petitioner as to the base criteria. and 

(B) publish such prelim.inary determination in the Federal Register. 

(4) If the Office makes a prelim.inary determination to deny the petition on the 

base criteria petition, the Office sball provide to tbe petitioner with the denial decision 

a detailed written explanation of the grounds on which the decision was based, together 

with copies of all documents delivered to and/or coosidered by the Office during the 

petition'3 evaluation. 

(5) For a period of 45 days following delivery to the petitioner of a denial 

decision on a base criteria petition, the petitioner may submit to the Office written 

comments on the prelim.inary ruling, including comments concerning false statements 

made to the Office in conjunction with the petition. All reports of false statements made 

to the Office in conjunction with a base criteria petition shall be referred by the Office 

to the Department's Offiee of Inspector General for investigation. and rhat investigation 

shall be undertaken inunediate!y by the Office of Inspector General. 

(6) A preliminary dewal decision on a bas~ criteria petition shall have no 

impact upon consideration of the same petition as a secondary petition designated in 

accordance with Section 103(d), nor shall such denial be an element of importance or 

evidence during active consideration of a secondary criteria petition. 

(c) REVIEW PROCED

procedures set f<lrth in this subse

in accordance with the provisions 

(2) Within 120 days of 

with Section 103( d) is received by 

(3) Within 120 days of 

secondary criteria petition, the O

petition, publish the preliminary d

petitioning Indian group with a de

determination was based. 

(4) A preliminary deter

include specific findings as to eac

references to all materials delive

petition's evaluation. 

(5) For a period of 60 

decision on a secondary criteria pe

comments on the prelim.inary rul

made to the Office in conjunction w

to the Office in conjunction with 

Office to the Department's Offic

investigation shall be undertaken 

(6) After publication in t

acknowledgment and recognition, t
17 

of fact or law, and the Office shall retain the se-rvices of a professional arbitrator or 

mediator wbo shall conduct tb4 arbitration on disputed issues and submit a report to the 

Office within 60 days of the date 011 which said azbitrator or mediator is designated. 

Tho arbitration report sball be raken in consideration by tbe Office in a further 

evaluation of ics prelimi!lllry determination on tile pet!cion. Referral of the petition to 

arbitration shall stay aU other matters under this Act until 120 days after receipt of the 

arbiu:2.tion report by the Office. 

(7) Reversal of a determination by the Office on the basis of :lll arbitration 

report sbaU coastitute a final decision by the Office. 

(d) PROPOSED FINDINGS AND DETERMINATIONS. (I) A preliminary 

determi!llltion on • petition sbaU be published in the Federal Register by the Office in 

accordance with subsections 104(b) and (<). 

(2) The Office may delay makinc proposed findings on a petition under 

sub!ection (d)(!) for up to 120 days upon a showing or due Clluse to the petitioner or 

with written consent of £be petitiooer. 

(3) lo addition to the proposed findings, the Office shall prepare a report on 

eotch pedtioo which summarizes the: evidence for the proposed findiogs. Copies of such 

report shall be available to the petitioner and the gener.U pubUc upon request. 

(4) Upon publlcation of the proposed determlnation under subsection (d)(l), 

members of tbe aeneral public may submit comn.u::ots and relevant evidence to the 

proposed finding>, and aU submissions sboll be subject to tbe provisions of sub~ection 

104(a)(J)(E). 

(5) After considerat

response to the proposed findi

the petitioning Indian group is 

foUowing shaU apply -

(A) such dete

(B) tbe dettr

Federal Register and a 

petitioner by no later 

described at subsection 

{C) such deter

which the summary of th

(D) if the Offic

.and acknowledged as an 

petitioner all optio~a un

the Bureau may be mad

SEC. !05. APPELLAT

(a) APPEllATE JU

date on which the Office ddive

denying feder:tl recognition, the 

to the United States Court of A

petitioning Wdian group is loca

21 

(2) $2,000,000 for each of the fiscal years 1998, 1999 and 2 000. 

(b) There ue authori:u:d to be appropriated for the Administra.tion for Native 

Ameri~ of the United Stares D~putment of Heahb and Human Services for the 

purpose of canying out the proruions of this Ac~ the sum of S3,500,000 for the fisc>J 

years 1995, 1996, 1997, 1998, 1999 and 2 000. 

TITI.E 11 • TIUBAL GOVERJW>omNT OPERATIONS 

SEC. 201. APPLICABILITY OF OTIIER LAWS. E<cept >S otherwise provided 

by this Act, without regard to the existence of rcserv:uions for any Indian tribe existing 

now or in tbe future, all federal laws of general application to lodjan tribe! and their 

members nol inconsistent with the provisions of this Act. including SectioD 787 1 of the 

Internal Revenue Code of 1986, sball apply to all Indian tribes gaining feder>J 

rec~gnition pursuant to the provisions of this Act. 

SEC. 202. TRlDAL MEMBERSHIP ROLLS. 

(>) PREPARATION OF ROLL Within one year after an lndim tribe is 

recognized in accordunce witb the previsions of tbis Act or tbe date of enactment of 

this Ac!, whicbever is l:lter, eacb Indian tribe recognized under t.hi$ Act shall submit to 

the Sccretill'Y a· ctment tribal membt!rsb1p roU adopted according to tbe tribe's own 

enrollment and membership criteria and procedures, duly ce:nifled by tbe tribe. The 

Secreta.ry shall maintain i1 record ol each sucb rolL 

· (b) QUAimCA'ITO

on a membership roll submit

Section 202(a) shall be decerm

SEC. 203. LlND HE

lnl!tt starus for tbe beoefil a.ny 

as such property is conveyed 

shall be rubject to ail valid e

ta.."es and mortg:1ges. Upon be

from all locU, state and feder
e.xlCUttV€ COVMI t1U 

nfthla,.J...-t.t..;t..,. 

Clolpp•w• 

nn.t'lti~~ ... 

Ju.,vh T. Uu.:.ll\11.1 

l{fliW'II 

s ~--*"*"" n••~• k•ll•r t;l!tt•h· 

rW.AartA!J.,. 

J•m•lf•'f'l'• /1"/(l~tt•m 

AtMf"-AJM 

;.,,\' Fh14!#! 

-C'hl\'t'llto•lf>nr $i .. u-

,IU ..... -~ ... 

"lYIII01'UI 0 11).0(141~• 

Ytft'lf 0•1 1ut 'u•bf• 

~""..._ .... , .. ,.. .... :.o.-t.-.y Kltwt 

•illlftt;fA•-

b•lOldf'O!rt<>" 

., . .,., .. , 

-·- (d..,.;dk_ Tt.<)II'IU 

T#ttflii·H•hll 

··---lllii.Af Jtfft" ~ ..... ,.,,, .. 

207 

National Congress of Americun Indians 

Est. 1944 

RE:SOtUTJON NO. NV-9H72 

RESOLUTION l!RGINCi "fi!Ai-FlillERAL ACKNOWLEDGEMENT 

PROf:l'$5 ReFORM LEGISLATiON 

W HER£AS, w~. the tne~r-b'!n of the N~ttinnal Cong:re.'>s of AUJerican l11diaus ()( the 

United Staf(\'1, invoking the Civlnt. bl ssin~ of tb~ Creatm upon our efforts 

~n~ purpu-ses, in o(d~r to prese-rve f6T0Ufielve.1 nnd ou£ Uesc~ndants rights 

secured under h1diru1 cultural values, and otherwise promote the wcltllre ot' 

the Indian pe<~ple, Clo h~rdby establish a.nd submit the foUQwing te:.oiutiou: 

WHEREAS. 

WHEREAS, 

WIIEilEAS, 

the Nlltittoal Cullgttss ufNnedcan (odians (NCAJ) is the old~!. a.nd largest 

natiul:l~l oce;an.iulio~ c:smbli~;bed in 1944 and rnmpdo:r.d Hf rcpres~ptatives 

of ~ad advocates for national, r~gional, and local Tribal concern~~ aad 

tbe health, safety, welfare, education, economic and employment 

oppottunity, aod preservation nf i:Ultura.l and natural resourCJ:.S are primary 

euu.h• tt.ud vbje.;tivcs of Nr tJ; ,;md 

tl•• t\fliliated Tnbe' .,f N~rtnwest Indian• (ATN!), on May 26, 1993 

nominated ttiba! leaders to par.ldpah: in a ll\eeting '.vilh the White H(luse 

including sr,.;utine: au Executive Otd~rfProdamatiou impleweutlng a 

govt:rnmeuHo~goy~~~E~policy stat-ement. To be foUowtd-up with 

sessions with Cabm-tt ru-:mbers and th~! CQOrdina!ioo or imrlrrue:nling the 

policy io ea1:b Federal departm~nt and agency; and 

f<1r••tCil<tlllr Pr.tt•w•r•:rr:i 

t'l""•ld --~--£. CH ..... .. ,. 

, .. /.;. 

....._ ... "·- """"' &rm &>'~IGn• lt~lt4tto> v·Q•i\""' 

;>P01J•IiA•"" 

thv,.w,." ... SPdt~t• 

.._.,_,, ......... 'luun!oluhu ;-·.,,,. 

•-~Jw.n,..,..A,.. 

A.an .. o«Jonu {,,. .. ;., 

Vt~C:UTlVE tn"'r:C10n 

ltt.t.n•l 

!\•"~""" J<tupl\ 

$/I<JthOiff·,.ei"l"llcto•• 

WIIEREAS, tri~ from uu:~ Nortbwest .!teed to identify wbidJ 11Ce the mQSt important 

regional problems uad assist ln tho coordirultion of spc:ci<'ll hdeftng parht:es 

to be presented tcr spedfic <tg(: ncies and deparhncnta ioduding the division 

of tb('; workload in pr ~e:ndng tire briefiug pa<:kages; and 

WBEREA..'t, at the 1990 and 199:1-Aunual ATN[ Conferenc~s rc.;;oluticu:\ were passl:!d 

staliu& ATNL's policy/position on the rWeral Ackn.owtf'.dgement Process: 

~nd 

WREREAS, at the 1991 Md 19'V. Anr.ua1 NC'Al Conference- resolutiollS wert passed 

stating NCA1's pollcy/po!<Hioo ou th~ Fede1al Acknowledgemenl Process; 

<tnd 

WHltREAS, oo pre.seutAtion Oirlrib:ll So\<~.tf:'.ig.llty hsues. would be cornpkte without 

dealing with the Pe&:o.ral Anknowledgmeut Issue; 

NOW TllEilEFORE llE lT llESOH'ED, th't ))ICAJ !J:l&ffi_~ tbat the !'<'<ition 

presentcl.l tu P1c.:oideu1 Cli11tot\ should includct NCAf'~ nntf ATN1'1i current PQfiti6n oil Federal 

AcknowledQ'wMt. That i$ that J•ederal Ackmnvted~;~m~ut Proetss refo;-rtt lt:l{istation be 
208 

NV.'I'\-1?7 

Pdl;c ]. 

a high priority item on the lndiaJl Ager1dn f<H' t11e Clintou Admini"lruHon n.nd be 

addrffl<;.f'.ll in auy }'residential Prodamatiun; 

BE IT fURTHER RESOL8"ED, that NC~J ~~!m_~ that the lmiJtuweot&tion of ;~;n)' 

"Goverrunc:nHo Govertuneot¥ Poliry Futflt~!tl iadude as oondl!i\1n5· 

• Recognition tbJI:t A lack of federul acknowtt!dgt:Olent for all tribes is the Ul&jor 

obstacle tu the full truplefl)eotAtiori oi-am)l l.ndlan Affairs Policy within the Federal li)'Siem. 

Commitment to proll\flte and jmplemeat the lceislative ::.uthoriz.atiou and 

apprtJpri::tlinn~ .o;uppordve of \be t.:ft:~1i1m of art olfict eottus.ted wttb the responsibility of 

affinning tribes' r~li\tiQnsbips wiOt thc-fWcml Guvetmuent and empoWt".red to ditccl Ft.dera! 

lndilU proe:ramt to tb0$t: Tri:bei:~ and 

BE fl' FURTHER RESOLVED, rltort NC'AJ ~mmends that a.li tbe issue of lack of federal 

lribltl ~l'knnwlr-.deemcnt for aU UitA:s CQutinues to be one of the most critical unresolved 1tibaJ 

!>OV~(eignty and- riJblt issues, this b~ut>. nee& tc ~ identified a.~ a s~xtfic agenda it~ru for 

the 'White Hou5e meeting; and 

llE lt FURTHER RESOLVED, d1.rt NCAJ !'&Jll!ll!!S<l1s that the Notthwest delegat"' must 

indude a person wbo ls cotmnittet.! to pt'esentioj!. the issue of the non,rtt;o&nized iribe.s to the 

White Ilr;u~ Conftrence, at least on~-delcgale :ihould Ue from a noo-rl!cogni.z.ed tribe. This 

pres~nt.alioo should include ptomolin: ..-'ICA1's current position on .l<'cd~rnJ 

Atknowledgement~~thnt is supporiitrg the generaJ ~:u~~: aud 

111' 1T FURTHER RESOLVED, that NCA! recommend• that in the spirit of the U.N. 

Declaration on the Ri&:bts of Jo_!.ligonou:: Pr:Qples, that Tliba! lc:ad-ersh.ip speak nut the 

co-ntinuiu,~~: uujuu violation! of lbCn~hts of un-ro:.ocniled ttlbes and provide s forutn for 

represenll!.lives from tribes who ate 't\.lfTteutl;-pelitioning for a clnrificatiop of their status to 

address the Pr~ldent, Cabinet and a,endes d\rl!1;tly; and 

BE IT FURTI!l':R RESOLVED, tb•t-NCM ~ thot tbe dcafi bili promoting the 

legisla1ive' tl!ron:n or the ft.deral~JQw\e1aov.:nt procesli be taken to the White House 

t..:oolerwnce; and 

BE IT fiNALLY RESOL VED,-that NCAI ro<om!lll'llil~ the followiog looguage for any 

!11 it: fine and b~ue p~~:pen: 

Federal Aclutowledgemtnt Proces~ 

Coagaession~l Qv~eui~hl- bearin,1u bave derenoiueJ tbat seri-ous Jnoblems in th~ 

f~r.ai Acknowledgement Process have unreasonably ddayed tbe processing of petitio!U. 

Affected 1ribes b<tvt- not re-;.e)vt"d tho!'ir ri&htful status as tribal governments To provide: 

direction $nd SUP{\Ort tht! right of non·ftderally reco&niu.d tribes to pelitioo under a cleat! 

llbhiA~'"'· And Umely admin.istraliv~ p~ocedure Con,ll,ressional te,eisla!ioo is needed. Statutory 

1efonu tihould indud~: 1} the cr~tion of an office or commission i11dependMl of the BlA to 

process pt::titit;m: 2) the autiH)rizntion of~ miuimum of S:3.5 million per fiscal year for 
209 

NV-93·l72 

-····P>gel 

~~utlooers; 3} at le..<J.St $2-5 million ~ffiscal year for the revit<:w of pctitiou~~ A) defin.itive 

and re2sonabh: time lines f<Jr te'liewing petitions; 5) an independent appeal proc-ess; 6} 

language Ol?['Oslng the review ofMy_lribe rocognlz.ed llS of 1988; and, 7) criteria tbllt gives 

dur: tCfiUd lo U1e s:wctity Qf \Uec tf\l'!.l tt:lationship by treatins differently those tri~ thai can 

show previous reco~n.ilion by the United States, 

ln l9TJ, the A.ruerican lodian Policy Re~iew Corurolssiou recommended tbe ptoposed 

legishtive strateg)' The CQrumis~ion SHggettt.d lha.t ", .. n":fusal ... to ace<nd Federal 

recognition,, .is not prerui!;ed t;n ~tourLis of equity Md jusucc Out ;nerni:.ed on th~ !ack of 

ade-quate <.~.[l,HOpriation of fuads ta pwp"J:rl)'-li-~tvo those tfibe! and f"CQple who are already 

fcdcn:tHy rt<'DgnizecL .. ~ At n 1988 Corlgtesdooalll,.,aril'~' !he RIA Qffered this justinC{llinn 

f<lr tbt iondequ31e st.afting of tis current administration process that review petitions of tribes 

seeklng 1\ darifir',.qfinn of rederal .stutus. 

Eslt\blisbed l97S, the BL".'s Federal Acknowied~c:meu! Proc~~s ba~· IJperntcJ with 

only 2 rcvlcw team;; during most of Its 1enn. Tht BIA 's curr~nf expauo.;lon tn. 4 re\'iew teams 

is iuadt;qua!e to meet iU current and rupidly escalating ba<':ktog t;n peti!iuo~ The-- Bure.:\U btu: 

rept>-<ilt'tlly fuught tr:v!Adl.lg.___jts 1!.druini-1trativc procC(;S with oue cre.:tt0.1 by Coogre\'i 

Congressional le.:l$iat\on it> aeedcd to Jolv.!. the t'cntiouin~ problem. 

i:GRTIFICAT!ON 

The fore!;:oing resol!ttlon Was----w:lopted .Jt !he l993 Amm:J Convenlioo of the NatioM! 

of Am':-d~ lndinm1, held ~1 the Nugget Hotel, in lh~U(l/Spa;h, Nevada, on the 

3fd of Drcr.ml~~r 1993, with :1 qum\lm present. 

A'ITEST. 

Adopted by the Generi.l A.lilletnbly during !hr. fQQ" Annual Couvention, NQ~ember 28~ 

Decem!:.>o!r 3, 1993, Reno/Sparks, Ne\·tn.la, 
210 

Mr. ABERCROMBIE. Thank you, Mr. Rasmussen. It may have been 

your first time testifying here, but you did an excellent job of making your point. In fact, I have a couple of questions I want to try 

and elaborate on as a result of what you had to say. You did a terrific job. It didn't explicate all of the objections and observations in 

your summary, but I am going to refer to that probably in my questioning. 

Let me go back first to Mr. Shapard and also Dr. Grabowski, if 

I can. 

Mr. Shapard, Dr. Grabowski, in a sense, echoed what you were 

saying with her commentary that I summarized here as inherent 

conflict of interest. Would that relate to your first two problems 

where you talked about the lack of a clear definition, that which 

is sought with respect to what the tribes are entitled to, and then 

a definite definition of Indian tribe? 

Mr. SHAPARD. I am not sure that they relate t<r--

Mr. ABERCROMBIE. Or rather, then another point you made was, 

standards are not consistent. 

Mr. SHAPARD. That is true, but-well, the interpretations of the 

standards are not consistent. 

Mr. ABERCROMBIE. That is what l meant. 

Mr. SHAPARD. That is absolutely true. And what you find in one 

petition that seems to make the case for them, for positive decision, 

is used in the next case to turn a group down; and there is just 

no precedent. And when you ask them about that, they say, well, 

we take each case on its individual merits, and that we don't use 

precedent. Which means again, it does relate. 

I see what you are getting at. It does relate to the subjectivity 

of the regulations, and you have just simply got t<r--

Mr. ABERCROMBIE. It is not, though-by no means is it inconsistent, however, to make such a statement, right, that obviously, 

those who fish on a great river in the northwest might have objectively totally different criteria upon which they have conducted 

their lives historically and otherwise from those who were on a 

great !and-a great plain and hunted buffalo as opposed to say the 

Algonquins or the Senecas up in the Iroquois Nation in upstatewell, upstate New York or the New England area. 

Mr. SHAPARD. Well, there certainly are differences in the cultures 

of the groups that we look at--or that the BIA looks at; I am not 

a "we" anymore-the thing that bothers so many is that they don't 

apply the same standards to measure that culture. 

I mean, you just don't-I mean, if you have a group of fishermen, 

you certainly can't apply their fishing techniques to a group of 

plains Indians. But you can certainly look and see if they are a 

community or if they are a group of Indians who have resided in 

the same area for years and years and years, which has absolutely 

nothing to do with whether they fish or rode horses. 

Mr. ABERCROMBIE. But whether they fish or rode horses might 

have to do with the self-definition. Another thing that the anthropological testimony is directing itself to, as I understand it, is that 

self-definition is important with respect to what constitutes a tribe 

of people-a belief system, a commitment, an acknowledgment, a 

self-acknowledgment. 
211 

Mr. GRABOWSKI. Mr. Abercrombie, if I may interrupt at this 

point, that is precisely the point-and I think that Dr. Campisi has 

made this point as well-that, yes, certainly one of the hallmarks 

of anthropology is cultural relativism and holism, and that you 

have to investigate what the tribe identity is from their point of 

view. 

However, the way that the BIA has conducted these investigations is that they don't examine that. If you look at their summaries of evidence, they don't examine what the people's own concept of identity is. So that, how can you evaluate whether or not 

this group constitutes a group or even a cohesive community? How 

can you make a judgment on them when you haven't even looked 

at the most basic issues? Because, as Dr. Campisi said, what they 

are doing is receiving the views of non-Indians which are apt to appear in documentary sources. This is biased. 

Mr. ABERCROMBIE. I see, for purposes of our discussion and to 

advance the cause of the legislation, I am accepting that as not 

only legitimate criticism, but something which has to be addressed 

in the legislation. That is what I am looking to try and find out: 

How can we write-what should we write into legislation that will 

take into account precisely this question, if it is possible to do? 

Mr. SHAPARD. I think it is possible to do, and I think you can 

answer the same questions that now require this convoluted, nonsensical, scholastic, gymnastic kind of process very simply. 

No. 1, go back to 1934 or 1930 or 1940, whenever we are sure 

we have got a clear-cut picture of Indians and when it was not real 

positive to be an Indian-anybody that comes around saying, I am 

an Indian, in 1934, was clearly an Indian--see if that same genealogical line is in place now, and then you have got a group that has 

remained in place. 

If you have got a group, there is bound to have been some sort 

of political interaction or social interaction. If the same descendents 

of the same people are in place 50 years later or 60 years later, 

then why do you need to go back to prehistoric times to prove you 

have Indians? 

Mr. ABERCROMBIE. Well, the reason I am-I don't think you do, 

and I don't care to pursue that further today. 

My interest at this stage is being able to redraft or rework legislation that doesn't get down to the pomt where the Congress is, in 

fact, writing a series of protocols actually into the legislation, because we are bound to leave something out that should be in and 

put something in that should be out; and then you are in a fix of 

having to say, well, this is what the law says. 

Mr. SHAPARD. Well, in all due respect, sir, I think if you don't 

establish the protocols, if you don't define what you are after, then 

you are allowing a Federal agency with a near-perfect record of 

failure--

Mr. ABERCROMBIE. Excuse me, Mr. Shapard. Defining what you 

are after and establishing protocols are two different things legislatively. One could amount to an administrative rule-making or a 

process that-and the other is saying the intent and where you 

want to go. 

Mr. SHAPARD. We are talking about what you are looking at, No. 

1, and what standards you are using to judge that, OK? If you 
212 

don't put that in some sort of legislative concrete, then you are allowing a Federal agency with a near-perfect record of failure in Indian programs--

Mr. ABERCROMBIE. OK. You know what we net::d then is for you 

to examine each other's testimony; and I don't mean to complicate 

it, but I mean this sincerely, because there are specific suggestions, 

legislatively speaking, in each of the testimonies that would accomplish what you are saying right now. But what I need and what 

the committee needs is for you to examine each other and see if we 

can get some-if it is possible in the best of all possihle worlds, 

there would be a consensus as to what that language should read 

legislatively. If there isn't, we at least need the benefit of you having examined not only your own suggestions, but others, to see 

whether or not that can become clearer. 

I hope you will take the time to do that. It is such an important 

thing. 

Mr. Rasmussen wanted to make a point. 

Mr. RASMUSSEN. Very quick, going back to Senate bill 611, Mr. 

INOUYE's attempt to clean up this process--

Mr. ABERCROMBIE. Yes. 

Mr. RASMUSSEN. Once again, we start dealing with issues of community and an ambiguous statement. My tribe as happens--our 

aboriginal area is the greater Seattle area. Since the turn of the 

century, that land was too valuable for a reservation. Our treaty 

was done in 1855; the reservations were not created until 1935. 

There is a lot of time between there. 

My family lives in their home. It was a homestead homesteaded 

in 1870. I still live in that house. Yet I have a telephone and I have 

a television set. I can talk to people and we have meetings all the 

time. Yet what is a community, sometimes to the BIA, is a reservation; to get a reservation, you have to be a recognized tribe. There 

are catch-22 situations all the time. 

What we would like to do is just to be judged fairly, not in tricky 

ways. 

Mr. ABERCROMBIE. I understand. Well, it is clear to me that we 

are going to have to rework the language to try to accomplish this. 

Dr. Cantrell, you used the word, to "validate" them, and then recited a-in Mr. Rasmussen's terms, a series of catch-22's. When 

you are out, you are in, and when you are in, you are out; and pretty much the judgment on that is what you say, in your instance, 

if I understood it correctly, is what didn't get said inasmuch as you 

weren't able to get any response to anything. 

You probably should have taken Mr. Thomas Moore's approach 

and said, "silence is assent," and then gone out from there; and 

whatever you were doing must have been right, because nobody 

ever called you and said, don't. 

Ms. CAl'\iTRELL. I was just concerned because the regulations and 

especially the criteria in the two bills that we are discussing today 

seemed to assume that the facts and evidence at hand are not in 

dispute. And clearly in a situation in which there are intervening 

parties who are going to argue that. no, these people are not a 

tribe, they have never been a tribe, you end up with facts that are 

in dispute, especially with the anthropological material. 
213 

Mr. ABERCROMBIE. I got the sense from your testimony that you 

found yourself having to transpose yourself into being a legal scholar, as opposed to being an anthropologist. 

Ms. CA.~TRELL. Well, this is a legal proceeding, despite the fact 

that I was told that it was not a legal proceeding, it is an administrative process. 

It seems to me that there are standards here, as Mr. Shapard 

has said, that I had to meet as an anthropologist. What evidence 

can I use to show what elements of what criteria? That was all I 

was asking, and they couldn't answer the question. 

Mr. ABERCROMBIE. I see. 

Ms. CA.t~TRELL. So if I, in my best professional judgment, can 

pick out of the great universe of facts out there any fact I want and 

put it in a report, is that fact reliable? How does anybody know 

where that fact is from? 

Mr. ABERCROMBIE. So all of you are saying we have got to establish a benchmark or a demarcation line of tribal definition, right? 

Ms. CANTRELL. Well, I am, I think, really looking at how evidence and information are used. It seems to me that when you read 

the Bureau reports, you have no idea what they are talking about. 

There has to be a way to determine reliability of evidence. Experts 

have to be cross-examined; documents have to be--

Mr. ABERCROMBIE. I understand all of that, but I am also worried that the human dimension is going to get lost in all of this. 

Some of this is going to require people to be good to one another. 

You know, there is a system-throughout Polynesia, really, but 

among the Samoans and the Hawaiians in particular-called 

Ho'oponopono, where there is a recognition that not everything is 

clear and not everything is precise; and what happens is, there is 

a kind of Polynesian version of a couple of old political laws-there 

are only two things that you do: Nobody leaves the room and nobody punches anybody. And you don't leave, literally, until it gets 

resolved, and you keep talking until it gets resolved. And the only criterion-the criterion is, it gets resolved; you are not allowed not 

to resolve it. 

Ms. CANTRELL. Congressman, I will say that I wrote a report 

that I was very satisfied with. I don't know if the Bureau was satisfied with the report. 

I think that what I am saying is that when you get a set of information about a particular group, instead of trying to pigeonhole 

that group into preconceived ideas about what an Indian is or is 

not, that you should look at the data and listen to the data and 

let the data tell you. 

Mr. ABERCROMBIE. OK. But data is also human beings. One of 

the things that is being discussed-not so here today-is like fishing rights is one. There are a set of people who are a tribe and another set of people who aren't a tribe. And I hate to say it, but I 

detect the old western imperialistic activity, which is to say, let 

them all beat each other up. 

The second you get into a situation where you can say, well, we 

managed to be able to stay a tribe, and you got screwed long 

enough that we can say you are not really a tribe according to what 

some judge in a western imperialistic context says, why, then to 

hell with you. As opposed to, well, look, we all took the shaft one 
214 

way or another; why don't we try and figure out how we can all 

help each other and be good to each other? 

That may sound hopelessly naive to you, but I hate to get into 

a situation where I am drafting legislation that either permeates 

or accentuates to me what has been a version of divide and conquer 

for a hell of a long time. I mean, I have seen it out where we are 

as well. Well, let's put something out there and watch the Hawaiians beat the living daylights out of one another, trying to determine who is in charge and who isn't, and what is right, and what 

is mine and what is yours and all the rest of it, which is a real 

shambles of what history really meant it to be. 

Ms. CANTRELL. Congressman, I think I understand what you are 

saying, and I think I agree with you. I would argue that the current criteria, as they are used, prevent the best evidence from 

being used. 

Mr. ABERCROMBIE. OK. Thank you. 

Mr. Campisi and then Mr. Rasmussen. 

Mr. CAMPISI. The point you make about the relationship between 

the parties, I think is an important one and should be-it should 

be looked at in your legislation. As it stands now, the tribes come 

in as inferior parties to the debate. 

The Branch has sole power to make a determination, and basically, it has sole power to review its determination and find its determination correct. That doesn't stimulate debate. And I can tell 

you from personal experience, members of the tribe sometimes get 

unhappy when you approach them as though you were equal. 

I have worked on 22 petitions over the course of these 16 years, 

and I have had a number of run-ins when I have raised questions 

which I thought were reasonable questions on the part of the petitioner. We are always asking the same thing: What is sufficient 

evidence to prove this point and what do you consider to be evidence? And very often we get the answer, well, give us what you 

have got and we will determine if it is enough. 

Now, if you can set a system up that gives the petitioner some 

equality in the debate, if you can set a system up that makes it 

more collegial, or if I can set a system up that gets both the bureaucrat and the anthropologist out of the debate, which may be 

the best solution, you may be able to move these things. 

Mr. ABERCROMBIE. But won't you find yourself then in a parallel 

difficulty? That was the next point I was going to raise. You suggested and used the phrase "separate agency," but might not a separate agency find itself in the same position: Give us the evidence 

that you have, and then we will decide what it is-excuse me, then 

we will decide whether it is sufficient? 

Mr. CAMPISI. It would if you don't limit that agency and if you 

don't put some controls on that agency. There needs to be some appeal system without-hopefully, without going to court, but to a 

group of peers. I mean, the histories of native populations in the 

different parts of this country are very different, the specific histories. And it is hard to believe that four or five people at the 

Branch of Acknowledgment and Research have such a ubiquitous 

knowledge that they can handle all of those histories. 

Now, there are experts outside of the experts for the petitioning 

group and the experts for the Government who understand, who 
215 

know, the histories of various groups; and there ought to be some 

mechanism by which those people can be pulled in as they kind 

of.--

Mr. ABERCROMBIE. Can I suggest something? Again, I hope you 

will forgive me making reference all the time to the-to our circumstances, but it might be instructive by virtue of being parallel, 

not necessarily analogous at all. But we have the Puna, elders who 

tend to take a long view and be a little kinder to those who think 

they know more because they are younger; and I have come over 

time to realize that there is good reason to have elders and to refer 

to elders, because they tend to have seen most of it already and not 

be so quick to judge other people. 

Why couldn't we have as part of this process, particularly when 

there is some argument, or maybe a good degree of disagreement 

and argument among those who are claiming to be tribes, where 

you give the people involved, that is to say, the Native Americans, 

the chance to sit down without the interference or moderationmoderating element of a Government agency and let them talk 

things out, and then see if they can come up with something and 

the separate agency would have to accept it? 

In other words, if some Indians were not a tribe and others who 

were already recognized as a tribe can work something out by 

themselves-! was going to say in private-really, the Native 

Americans have been shafted from time-immemorial. I can't see we 

can't set up some circumstance whereby the Native Americans 

work things out with one another as Native Americans and then 

tell the rest of us what they have concluded and we say, all right, 

particularly if they are able to work out their differences. 

Now, it may not be entirely classically, legally clean at that 

stage, but it could be affirmed at that point, if that is sufficient 

unto the day as far as the Native Americans are concerned. 

Mr. CA.\-IPISI. Well, that might work in some cases, but I think 

you have gotten a sense already that there are strong economic interests that operate in these cases and other kinds of interests that 

would make it, I think-it might make it as difficult for recognized 

Native American groups, Native American Indian groups to participate on a basis where they would be in effect bringing in more people to share in the same available resources. 

I mean, that is always-that is an argument we often hear, you 

know, about recognition, because--

Mr. ABERCROMBIE. Yes. 

Mr. CAMPISI. And I wonder--

Mr. ABERCROMBIE. A lot of that economic conflict, if you will, has 

been imposed upon the Native Americans where it might otherwise 

have been settled in a kind of manner, again-again, for a Hawaiian, if you come to the table, you come to the feast, everybody eats. 

Everybody eats, not some people who said we got more taro than 

you, or we had a better fishing day than you did. You know, the 

people who grew the taro didn't necessarily catch the fish, because 

they lived on a different part of the island, but everybody had the 

fish and the poi and the taro. 

And if you came and you didn't have as much, well, maybe you 

had bad luck, maybe your circumstances were unfortunate. Maybe 

the hurricane hit Kauai, but it didn't hit Oahu. But you can't say 
216 

to the people on Kauai, tough luck to you, the hurricane hit you, 

because particularly if you are island people, you have to live together and cooperate, because otherwise everybody gets hurt. 

But all I am saying is, everybody eats, and it is shared. You don't 

put all of the food at one end of the table and say, we have got it 

all over here and you don't have any, or we will dole it out to you. 

Everybody eats. 

I hope I don't sound too naive to you, but I think that that is 

a basic-did you want to say something, Mr. Shapard, and then I 

will get to you, Mr. Rasmussen. I am afraid I am getting off intothe next thing I will be saying is Mr. Robert's Neighborhood or 

something, so I had better stop. 

Mr. SHAPARD. Just briefly, the problem you are facing here is not 

only is there a major bias within the B11reau of Indian Affairs towards recognized tribes, there is a bias LJ recognized tribes against 

unrecognized tribes, generally speaking, not--

Mr. ABERCROMBIE. Yes, I understand that. 

Mr. SHAPARD. And that if you are not recognized now, then there 

is a real reluctance for them to believe that you are, in fact, Indian; 

and that permeates virtually every recognized tribe that I have 

talked to. 

Mr. ABERCROMBIE. But isn't that because there is something genuine to lose at this stage, or at least it is portrayed that way, that 

if there are more recognized tribes, the pie will be smaller, it will 

be more difficult? 

Mr. SHAPARD. That certainly has a--

Mr. ABERCROMBIE. Sure. I mean, again, it is a human thing, and 

I understand it. But there are not all that many anymore. People have been dispersed, they have been killed, they have been diminished. We can't ali-I cannot accept, if you want to talk about 

someone objective in that sense, because I have nothing to gain 

from any of this. I don't-! am not married to a Hawaiian, I have 

no aspirations towards taking Hawaiian land. I get in trouble out 

there because I am looked upon as someone that is too pro-Hawaiian, which I find outrageous. It is a badge of honor as far as I am 

concerned. 

But I also understand that there are things to be lost, because 

some people have gained from things as they are. Or maybe that 

is an incorrect way of putting-not gained from things as they are, 

but what little there is available, at least they have had a shot at 

getting. And they have consolidated and worked hard and seen to 

it that what was there was protected and taken care of, and then 

suddenly there is a group of people knocking on the door saying, 

us too. And that is pretty tough to swallow, because you have had 

to give up so much already, or so much has been taken already; 

and then all of a sudden, there is another group of people saying, 

we should be included as well. But I don't think that that should 

automatically preclude you from having at least the opportunity to 

say, us too. 

Mr. SHAPARD. Well, that is true. And I think most recognized 

tribes would honestly say that if they are genuinely Indian, then 

we would welcome them into the fold. The problem is, what is 

genuinely Indian? And that varies from tribe to tribe. 
217 

Mr. ABERCROMBIE. OK. I am going to conclude then this section. 

I understand completely, Mr. Rasmussen, because clearly, you are 

the surviving element on the panel with respect to the Native 

Americans. 

Mr. RASMUSSEN. Mr. Abercrombie, you talked about native Hawaiians a lot and about their cultures. Native Hawaiians have not 

had to deal with BIA for the last 100 years. 

Mr. ABERCROMBIE. I know. We are trying to get-I hope we can 

keep it separate. 

Mr. RASMUSSEN. As you look at a lot of the people that are involved in this whole game, you will find BIA people--current and 

ex-BIA people through this whole thing. And if it was just left up 

to native people without the influences, that is almost like INOUYE 

used to say, and still does say, Indians have to figure this one out 

for themselves, because nobody else can do it for them. The BIA is 

still there, and until we take it out of the BIA, you are going to 

have that same problem. 

Mr. ABERCROMBIE. OK. I think I have it clearly in mind in that 

regard. 

I have one last point that anybody can answer, and particularly 

for you, Mr. Shapard. Mr. Thomas would like to have, for the 

record, your view; and I will put the question directly as he put it: 

Setting aside for the moment your views on the existing process, 

could you tell us what you think about the concept of legislative 

recognition? 

Mr. SHAPARD. I think it should be preserved as a lifesaver, perhaps. I think--

Mr. ABERCROMBIE. Did you hear Mr. Alexis' testimony? 

Mr. SHAPARD. Yes, sir. 

Mr. ABERCROMBIE. I did. I think he expressed a somewhat similar view. 

Mr. SHAPARD. I think there needs to be--the bulk of the questions, the bulk of the p;~titioners, I think, can be sorted through a 

fairly drawn administrative process. There are going to be some 

that really probably need to be looked at congressionally; that is 

my opinion. I think there should be some saving grace in that. 

And along that line, I don't think it is probably a good idea to 

unequivocally ratify the previous decisions of the Branch, because 

I don't think necessarily that they are all very accurate. I think 

there are one or two cases that bear looking at again. I think if you 

are going to leave the standards pretty much as they are, the criteria pretty much as they are, as you have got in the present bills, 

there is no need to do that. If you are going to change the criteria 

and get something that is a little more reasonable and objectively 

drawn, then it may be worthwhile to go back and look at at least 

some of the cases. 

Mr. ABERCROMBIE. But you would reserve the legislative recognition as kind of a court of last resort, or not first resort, but--

Mr. SHAPARD. Yes, sir. 

Mr. ABERCROMBIE. OK. Thank you. Unless there is any-are 

there any other comments at this stage? 

Mr. CAMPISI. Well, just a very short one. I don't understand why 

there has developed this distinction about nonrecognized treaty 

tribes. If they were recognized by the United States in a treaty, 
218 

who terminated them? Congress didn't. Why did it come about that 

the executive branch ended up terminating tribes? I mean, it seems 

that something is wrong with that concept. 

I mean, if a tribe was recognized and had a treaty relationship 

with the United States, whether it acted on it or not doesn't seem 

to me to be determinative. My understanding was that only Congress terminated tribes. And yet we have a whole host of groups, 

some who were terminated and one, at least, who has been denied 

recognition following the act of the recognition that it was illegally 

terminated. Now, I think, you know, I think your committee needs 

to look at that and take back that power and control. 

Mr. ABERCROMBIE. That has been made abundantly clear to me, 

at least as one member of it, and I recognize--no pun intendedthe thrust of your remark; and it registers with me, I can assure 

you. 

With that, I will say mahalo nui loa. Thank you very much to 

all of you. This has been highly informative to us. I assure you, we 

will go over this entire verbal record, all of which is being kept, all 

of which is being put together, and we will go over it in detail and 

try to come up with a product that is worthy of the time and attention and commitment and passion that all of you have put in, not 

only into your lives, but into this testimony today. 

Thank you very much. 

[Whereupon, at 1:30 p.m., the subcommittee was adjourned.) 
APPENDIX 

July 22, 1994 

ADDITIONAL MATERIAL SUBMITTED FOR THE HEARING RECORD 

STATEMENT OF MR. WILLIAMS FROM 

MONTANA 

REGARDING H.R. 4709, SECTION 10 

NORTHERN CHEYENNE LAND 

TRANSFER 

MR. CHAIRMAN: I want to offer my 

support for H.R. 4709. Section 10 of this bill 

is of great importance for the Northern 

Cheyenne Tribe of Southeastern Montana. 

The Cheyenne are the only tribe in Montana 

that do not have a public high school on their 

reservation forcing students to travel between 

32 and 108 miles (round trip) per day to 

attend high school. The trip is especially 

difficult and dangerous during bad weather. 

1 
220 

The long distances make it all but itnpossible 

for Cheyenne students to participate in 

extracurricular activities and the lack 

of Cheyenne cultural concerns in the public 

schools have taken a toll on 

Cheyenne students. Student drop out rates 

range from a low of 33% to 53% which is 

significantly higher than the average high 

school dropout rate in Montana. 

In November 1993, the Montana 

Superintendent of Public Instruction issued an 

order creating a high school district that will 

serve the entire Cheyenne reservation as well 

as some adjacent areas. The Superintendent's 

order was the culmination of tribal efforts 

spanning over 25 years and countless hours of 

hard work. The Superintendent granted the 

2 
221 

Tribe's petition creating the new high school 

contingent on the land where the permanent 

high will be built being deeded to the high 

school, which is what Section 10 of H.R. 

4 709 provides for. 

Historically, the Northern Cheyenne have 

been very protective of their lands, ninetynine percent of the surface lands of the 

reservation is trust land, most of which is 

owned by the tribe. The remaining one 

percent is owned almost exclusively by tribal 

members. After careful consideration the 

Northern Cheyenne Tribal Council crafted 

Section 10, which provides for the land being 

transferred out of trust if the following 

conditions are met: the entire subsurface will 

be retained in tribal ownership, the land may 

3 
222 

only be used for construction and operation of 

the high school and the land will revert to the 

tribe if a permanent high school has not been 

constructed on the site within eight years from 

the date the patent is issued. 

Section 10 represents the unique concerns 

of the Northern Cheyenne People, it provides 

that upon the approval of the Superintendent 

of Public Instruction the Tribe may in the 

future tender a long-term rent-free lease of the 

site to the school district. Upon such tender 

ownership of the 40 acres would revert to the 

tribe. 

While this process may seem unwieldy it 

meets both the needs of the tribe as well as 

satisfying the Superintendent's order. 

The Superintendent of Public Instruction 

4 
223 

has stated, unequivocally, that she no longer 

has jurisdiction over the matter (see attached 

letter) since establishment of the school 

district has been appealed to state district 

court by off-reservation opponents. 

Personnel at the Department of Interior 

fail to understand that the only way to satisfy 

the legal requirements of the Superintendent's 

Order is for the Secretary to transfer the land 

out of trust to the school district. The 

Department has been unwilling and/or unable 

to reach a satisfactory conclusion to this 

matter even though Section 10 encompasses 

less than 6 pages, Department personnel have 

had the necessary materials for at least two 

weeks and the government is aware of the 

grave importance of this amendment to the 

5 
224 

Cheyenne people. 

It is time that the Northern Cheyenne 

realize the promise of a school on their 

reservation. I urge your support of Section 

10 as written, it means the realization of that 

dream while at the same time protecting the 

historical land base of the Cheyenne people. 

Thank you. 

6 
225 

ENI F. H. FALEOMAVAEGA 

Member of Congress 

Mr. Chairman and members of the subcommittee, thank 

you for this opportunity to testify on H.R. 2549, and H.R. 

4462, both designed to establish administrative procedures 

to extend Federal reaognition to certain Indian groups. 

For many Indian tribes, the current process of recognition 

has been and continues to be an agonizing bureaucratic 

nightmare designed to please no one --- particularly our 

Native American community for whom this process is supposed 

to help. 

Under the current system, it not only takes too long 

to compile the petitions, it takes just as long, if not 

longer, to process them. Senator McCain of Arizona reported 

that some petitioners have waited ten years or more for even 

a cursory review by the Bureau of Indian Affairs (BIA). For 

example, an application for recognition by the Chinook Tribe 

of Washington State has sat in the BIA for fifteen years 

without being processed. A few years ago, Congressman 

George Miller, Chairman of the House Committee on Natural 

Resources, described today•s process as "an abomination." 

I could not agree more. 

The current process is flawed and unrealistic. By 

now, Native Americans probably see our government as a big 
226 

2 

monster that keeps growing a new head every year. John 

Rivers, a counsel for the Mowa Tribe has said, "if you could 

meet the criteria set by the BIA, then you were probably not 

Indian, because that means that you have stayed in one spot, 

could read and write, kept a journal of everything you have 

done for the past few hundred years, and were economically 

stable. Heck, if we had all that -- we would all be middleclass white people." 

Mr. Chairman, today, when we tell Indian Tribes they 

must go through the "process" to obtain federal recognition, 

it is understandable when they say they have had enough of 

the "process." 

The evolution of this process can be divided into four 

separate parts: 

The FIRST process has been referred to by some 

historians as one of extermination. The official record 

provides us with an accurate picture of the federal 

government's policies toward American Indians. Who can 

forget the blunt statement from General Philip Sheridan who 

said, "the only good Indian I ever saw is a dead Indian," 

or how about "attack and kill every male Indian over twelve 

years of age," -- General Patrick Connor, before his troops 

slaughtered 262 Paiutes at Fort Reno in 1864. 

The SECOND process imposed by the federal government 

and the Congress on Native Americans was removal. This was 

the forced removal of American Indians to lands west of the 
227 

3 

Mississippi then termed as "Indian Territories." Today, we 

call this exile. In 1838, United States President Martin 

Van Buren put it this way, "no state can achieve proper 

culture, civilization, and progress in safety as long as 

Indians are permitted to remain." Thousands of Cherokees 

died of exposure on the infamous "Trail of Tears" when they 

were forced off their Georgia homelands to travel west. 

Today, we call this an outrage. In the past, our national 

leaders called it "manifest destiny." 

The THIRD process was "assimilation." Never mind that 

their centuries-old culture and religious heritage were more 

advanced in terms of civilized behavior than anything 

existing in Europe at that time. This period's rationale 

was assimilate and westernize the so-called "savage" into 

more "civilized" Europeans. 

The FOURTH process was termination. It was an 

extension in the 1950's of the assimilation policy. The 

relationship between the Federal Government and Tribal 

Governments were terminated during the 1950's in an effort 

to eradicate past fiscal inefficiencies and to reserve a 

trend of dependency on federal aid in Indian communities. 

For Indian reservations, "Termination" meant the loss of 

needed health care benefits from the Indian health service 

and lost eligibility for grants, loans and scholarships from 

the Bureau of Indian Affairs. 

H.R. 2549 and H.R. 4462 are honest efforts, to improve 
4 

the Administrative process through which Indian Tribes can 

receive Federal Recognition. 

Under the current system there is no timeline required 

for the BIA to respond to the initial request for Federal 

Recognition. My bill requires the BIA's branch of 

acknowledgement and research (BAR) to respond to the initial 

request within 30 days • 

.. The tribe is then asked to justify its petition and meet 

a certain set of criteria . 

•. This second petition is again reviewed by the Bar--- my 

bill requires the government to respond a second time within 

60 days . 

•. Under the current-process, the Government conducts two 

additional review periods. A full review is then conducted 

by a three-man team consisting of an anthropologist, an 

ethno-historian, and a genealogist. Their decision is then 

published in the federal register with no deadline set to 

receive comments from either the tribes or the public. My 

bill will place a limit on this time to 120 days • 

.••..• Finally, the board's decision is then sent to the 

Secretary of Interior for a final decision. My bill 

requires the Secretary to act on the board's decision within 

60 days. 

If a tribe disagrees with the Secretary's decision, 

the tribe can then sue in federal court. 

Needless to say, the current process is quite 
229 

5 

cumbersome and does not require the government to respond 

within a given time-frame, that is if they respond at all. 

The bill I have introduced mandates the BIA to meet a 

specific time-frame throughout the recognition process. 

Additionally my bill also authorizes the petitioning tribe 

to recover costs, whereas the federal government cannot. 

A classic example of a tribe that has to deal with the 

present outrageous process is the plight of the Lumbee 

Indians of Robeson County, North Carolina. This tribe has 

been seeking federal recognition for approximately 110 

years. 

The Lumbees have filed petitions for recognition six 

times and have submitted themselves to demeaning studies, 

including a blood test to see how "Indian" they were. One 

test result showed one man as a "half blood or greater," 

while his own brothers and sisters were listed as "less than 

half." Another test included measurements of one's head, 

his teeth, and shape of your toe and finger nails. 

Where are the Lumbees today? Their petition is back 

in Congress where it has been debated since the early part 

of this Century. This is an issue of right and wrong. It 

is heartbreaking for me to sit in Congress and listen to the 

Lumbees plead the same cause they have been pleading for 

over 100 years and then hear that other tribes are against 

Lumbee recognition because of a misplaced fear that this 

will mean a smaller division of federal assistance for the 
~0 

6 

rest of the tribes. 

I would like to commend Chairman Richardson who has 

offered a companion bill which, along with mine, would 

improve a process which even the BIA has described as being 

"unrealistic in today's world." It is my hope that we will 

be able to incorporate H.R. 4462 and H.R. 2549 into a single 

bill and finally address the long-standing problems 

associated with the federal recognition process. I would 

also like to commend Congressman Abercrombie and Congressman 

Thomas, and other members of this Subcommittee for their 

strong support of this important issue. Finally, I would 

like to recognize Ada Deer, who in the short time she has 

headed the BIA, has made major and substantive changes in 

the way the federal government addresses the overall needs 

of our Native American community. 

Thank you Mr. Chairman. I look forward to hearing the 

testimony of today's witnesses. 
231 

- - $GMi4J, 1~ <J,;/u, ,11!!11' .i!!!!!!J'4- OF WASHINGTON 

.. ~ 

August 3, 1994 

Hon. Bill Richardson 

Chairman, Subcommittee on Native Americans Affairs 

House Committee on Natural Resources 

Washington, D.C. 20515-6201 

Attn: Tadd Johnson 

Dear Congressman Richardson: 

We wish to thank the Subcommittee for making time available 

for us to participate in its July 22 hearing on H.R. 4462 and 

H.R. 2549, of which we were only aware a few days ago. We mean 

no disrespect by not attending, but felt that we lacked 

sufficient time to prepare an adequately-documented statement on 

such a complex issue. You should also understand that, as a 

nation that has been struggling to regain its treaty rights and 

Federal recognition--mostly at our own expense- -for 20 years, and 

which is facing a trial on this question next month, we have not 

a penny to spare, even in matters that may affect us very 

directly. 

We will try to explain briefly, in this letter, why we feel 

that some of the provisions in H.R. 2549 may have truly unjust 

consequences which the Subcommittee may have overlooked. 

We are one of five landless Indian tribes in Puget Sound 

that had tried, unsuccessfully, to intervene as parties in the 

Northwest Indian treaty fishing-rights litigation, Unjted States 

y. Washington ("Boldt decision"), All of us signed treaties with 

the United States in 1855, but were never given the reservations 

MAILING ADDRESS: P.O. BOX 217 ANACORTES, WA 98221 OFFICE: 803 31ot STREET 

(206) 293-6404 FAX (206)299.0790 
promised to us. 

232 

2 

All of us lived as best as we could, receiving 

occasional Indian services from the BIA up to the 1950s. All of 

us were issued "blue cards" (or Indian treaty fishing 

identification cards) by the BIA in the 1950s, and each of our 

five tribes won an Indian Claims Commission breach-of-treaty 

judgment against the United States in the 1960s. Our Samish 

claims money is in a Treasury Department account to this day, 

because we have refused to take it until our sovereign status is 

clarified. 

Lawyers for the Indian treaty tribes of Puget Sound decided 

that landless tribes should only move to intervene in the Boldt 

litigation, after all of the reservation tribes bad joined. The 

initial judgment in favor of the reservation tribes was in 1974. 

Shortly afterwards, the BTA i tseJ f offered to help us intervene 

in the ongoing litigation and even obtained a supplemental FY 75 

appropriation for that purpose. v.·hen the five landless tribes 

moved to intervene in 1975, ltowever, the Portland Regional 

Solicitor that represented the Cnited States 1 George Dysart, 

objected. He argl __ H!d that -v.·e had all r.eased to exist as Indian 

tribes. 

We have since lear·ned, through these persons' sworn 

depositions that Dysart, Assistant licitor Keep, and BIA 

Central Office enrollment officer Pat Simmons had among 

themselves decided--without any research 1 notice, or hearings--

that the Samish and other landless tribes should no longer be 

Federally recognized. We were actually on internal BIA lists as 

a recognized Indian tribe until 1966, and were considered 

recognized by the Indian Health Service in 1972. 
233 

3 

Judge Boldt initially ruled that only Federally-recognized 

Indian tribes can exercise treaty fishing rights. The Ninth 

Circuit Court of Appeals overturned this, saying that the 

descendants of treaty Indians need only be "organized". At 

hearings in 1975, we showed that we were still organized with a 

constitution, council, office, and employees. However, four 

years after this hearing, Judge Boldt suddenly issued an order 

holding that the Samish and four other tribes were not entitled 

to fish because we were not recognized. Furthermore--without a 

shred of relevant evidence in the hearing records whatsoever to 

support it- -Judge Boldt added that we were not "successors-ininterest" to treaty tribes, were not their descendants, were not 

communities, and were not culturally Indian. 

What Judge Boldt had done, in actuality, was to sign the 

proposed findings of fact submitted by George Dysart for the 

United States. He did not change a single word. On appeal, a 

divided Ninth Circuit took note of this irregularity, indicating 

that it would ordinarily require a reversal and remand. The 

Ninth Circuit also noted that Judge Boldt had based his judgment, 

at least in part, on whether we were Federally recognized--the 

same argument the Circuit had already overturned once before, 

The majority nonetheless affirmed the judgment against us, on the 

basis of Boldt's unsubstantiated socio-cultural findings of fact. 

Judge Canbyt an authority on Indian lawt dissented. 

We have since discovered that Judge Boldt had been 

suffereing from Alzheimers disease for at least a year before he 

made this decision--and it was listed as a cause of his death 

shortly afterwards. On this basis, three of the five tribes that 
234 

lost their treaty rights because of his decision have joined in a 

Rule 60{b) action in Fed£.-'!ral court to reopen the case, o-.'hich is 

currently pending before Judge Rothstein. 

afford to join them at this time. 

We simply cannot 

That is the court decision which sec. 3{b)(4) of H.R. 254S 

would entrench legislatively as a bar not on l __ v to our treaty 

rights, but our right to regain Federal rPcognition. 

The Saml:sh Indian Tribe initially t'l?Spond ed to the Boldt 

order by pressing i~~ petition for Federal recognition under the 

original rule~ promulgated in 1978. During the eight-year 

administratjve process 1 we repeatedly challenged the BIA's 

reliance on field research which they claimed to have done, since 

we were denied access tl1e data ar1d were unable to question the 

BIA's researchers \lnder oath. We also objected to the fact that 

Scott Keep, who had advised George Dysart in opposing us bE"~fore 

Judge Boldt, was participating in the review of our Federal 

acknowledgment petition. 

~ot surprisingly 1 our petition was denied, and w·e appealed 

to the Federal District Court i ri Seattle. Ju(Jge Zilly reversed 

and remanded, ordering the BIA to give us a Fifth Amendment 

hearing. lie also stated that there an appearance of prejudgment 

by the BI A. Although the Cnited States appealed this decision, 

the Interior Department's Office of Hearings and Appeals is going 

ahead ~ith our hearing on August 22. 

Judge Zilly ruled that petitioners have a right to a Due 

Process hearing, at least in a case such as Sam ish where there 

was evidence of some previous Federal dealings and services. He 

also firmly rejected the arguments of the United States and the 
235 

Tulalip Tribes that Boldt's contested 1979 order on treaty 

fishing rights has any res judicata or preclusive effects on our 

eligibility for Federal acknowledgment. The issues are separate 

and independent, he ruled. 

This is the Federal court judgment which sec. 3 (b) ( 4) of 

H.R. 2549 would legislatively overturn. 

We feel it is particularly inappropriate for Congress to 

preempt the judicial branch by l egislatively overturning a 

judgment that is on appeal. It is unseemly even to consider this 

bill at this time, since it suggests to them that upholding the 

Zilly judgment will be futile; Congress will overturn it anyway. 

The Subcommittee could well have overlooked these effects of 

this innocent- looking section, which appears to have been 

carefully drafted to avoid any clue as to its highly selective 

and discriminatory effect on the Samish and four other Ind ian 

tribes. 

Subsection 3(b)(4)(B) uses the term "successor-in- interest 

to an Indian tribe". This terminology comes from Ind i an Claims 

Commission practice. The Samish Indian Tri be was determined to 

be the successor-in-interest to the treaty-signing or aboriginal 

Samish with respect to breach-of-treaty and land claims in I CC 

Docket 261.* Judge Boldt subsequently held that the Samish were 

not the successor-in-interest to the treaty- signing Sam ish with 

respect to fishing rights, ignoring the previous ICC judgment. 

The United States argued to Judge Zilly that the Boldt hearing 

was not only proper, but conclusive of issues that were not even 

* Incidentally, the Tulalip Tribes were found, in Docket 262, not 

to be the successors- in-interest to any aboriginal or treaty 

tribe. 
236 

6 

before either the ICC or Boldt--that is, Federal recognition. 

Apart from the five tribes included in the Boldt order, we are 

not aware of any other Indian groups that would be barred from 

Federal acknowledgment by this subsection. 

Subsection 3(b)(4)(C) refers to findings of fact made in 

previous litigation. In legal terms this is an argument of 

issue preclusion." that is, issues of fact canot be relitigated 

by the same parties, in relation to the same or related legal 

claims. Judge Zilly repeatedly rejected arguments that issue 

preclusion applies to this case, noting that the Supreme Court 

has consistently held that Indian treaty rights and Federal 

recognition of Indian tribes are independent legal issues. 

Indians may have treaty rights without recognition (as for 

example the Menominees during the period they were terminated) 

or, of course, they may be recognized but have to treation or 

treaty rights. 

In his brief in opposition to certiorari when we appealed 

Boldt's ruling, the Solicitor General of the United States 

assured the Supreme CoHrt expressly that Boldt's findings and 

conclusions would not affect the five tribes' eligibility to seek 

F~deral recognition. This is in the United States' brief. 

However, in the proceedings before Judge Zilly, Associate 

Solicitor Keep reversed this position, and insisted that the 

Boldt Order had resolved finally all issues of fact and law 

relating t.o the right of the Samish Tribe to be Federally 

recognized. By enacting subsection 3(b)(4) of H.R. 2549, 

Congress would be helping Mr. Keep make a liar out of the former 

Solicitor General. 
237 

7 

We have limited our comments on H.R. 4462 and H.R. 2549 to 

those parts which have a selective, discriminatory effect of the 

Sam ish and four other similarly-situated Puget Sound landless 

tribes. You might also consider, however, that neither bill 

provides for a hearing, at a minimum in cases where the 

petitioner meets the threshold test of some past Federal dealings 

and services a test we believe could be met by dozens of 

petitioners. If Judge Zilly;s rulings in our case stand, it 

follows that both bills are unconstitutional in part. 

In summary, sec. 3(b)(4) of H.R. 2549 would, if enacted, 

have the effect of legislatively entrenching the contested 1979 

Boldt order and legislatively overturning Judge lilly's 1992 

ruling on non-preclusion. It also has the effect of ratifying a 

Government misrepresentation to the Supreme Court of the United 

States, and interfering with ongoing litigation in the Federal 

courts. 

We might add the Tulalip Tribes Inc., who we believe to be 

the real authors of Section 3(b)(4), have three times tried and 

failed to convenience the Ninth Circuit that they have standing 

to intervene in the Samish Federal acknowledgment litigation. 

They are no trying to deceive Congress into unwittingly 

legislating what the Federal courts have refused to bear. 

Our office has documentation to support all that we have 

said and will gladly make it available to the Subcommittee upon 

request, or l if you wish, make our legal counsel ava.i lable to 

consult with your staff. 
238 

8 

We would appreciate it greatly if this letter could be made 

part of the record of the July 22 hearing on H.R. 4462 and H.R. 

2549. 

Sincerely, 

SAMISH INDIAN TRIBE 

Margaret Greene 
239 

SNOHOMISH TRIBE OF INDIANS 

18933 59th Avenue N.E. 

Suite 115 

Arlington, WA ~8223 

July 20, 1994 

Honor~ble Bill Richardson, Chairman 

subcommittee on Native American Affairs 

1522 Longworth House Office auilding. 

Washington, D.C. 20515-6201 

Dear Ch~irman Richardson: 

We are writing this letter to serve as testimony for the 

Subcommittee on Native American Affairs hearing to be held on Friday, July 22, 1994 to express our deep concerns regarding 

H.R.2549, to establish administrative procedures to extend 

federal recognition to certain Indian groups, and M.R. 4462, 

the Indian Federal Recognition Administrative Procedures Act 

of 1994. 

H.R.2549 as written would eliminate the snohomish Tribe 

of Indians trom the entir~ acknowledgment process. Language 

in both bills would guarantee that'the Snohomish who had a previous relationship with the !eder~l government would never enjoy the full benefits o( tribal recognition. 

H.R.2549 Section 3 (b)(4) will unwittingly tamper with 

federal court decisions and current federal litigation. It 

would overturn the decision in the Samish case (Greene v. Babbitt) that the Boldt decision does not have a bearing on tederal acknowledgment and upheld 5th Amendment Due Process tor tha Samish. It would preclude the 5 Washington Tribes 

(Samish, Snoqualmie, Duwamish, Steilacoom and Snohomish) from 

overturning Boldt in current litigation. This section appears to be designed to purposely exclude the 5 petitioning 

Washington Tribes by the usa of wording that Assistant 

Solicitor, Scott Keap and the Tulalip ~ribes, Incorporated, 

argued in u.s. Oist~ict Court in the Samish case before Judge Thomas Zllly; an argument Which was explicitly refused. 

You may not real12e that this is an implicit attempt to circumvent the Zilly decision; that it would have Congress 

override Treaty litigation. We feel that it 1~ inappropriate to interfere with the judicial and constitutional integrity of 

the Zilly decision. Such decisions ~ke clear that federal 

recognition and treaty issues are 2 separate issues. We must add that Judge Zilly, a Reagan appointee, is by no means a radical. 
240 

Honorable Bill Fichardson, Chairman Page Two 

Further, last y~ar the snohomish Tribe of Indiana •erved aa gran~ee for an Administration for Native Americans funded 

project for the Samish Tribe for the development of a Due 

Process Approach to Federal Recognition before an Administrative Law Judge as remanded by Judge Zilly to the 

Department of Interior. This project included the taking ot sworn deposition~ from federal government avowed '"decisionmakers" who made many incriminating statements. We stronqly 

urge your Committee to review these depositions before any 

action is taken on any bill addressing federal acknowledgment. 

Lastly, we urge the Committee to include the provision of 

a hearings that preserve 5th Amendment Due Process for 

petitioners in any federal acknowledgment process legislation. 

We, the Snohomish Tribe of Indiana who have been in the 

federal acknowledgment proceaa for the past 19 yeara, truly 

understand the need for improvement. Kathleen. L Bishop, a Snohomish Tribal member, served as a consultant to the 

American Indian Policy Review Commission Task Force tlO on Terminated and Non-Federally Recognized Tribes in a Bfport on the Landless Tribii of Washington State to get this process 

atarted. We have spent approximately $750,000.00 on this 

process. We have testified before congress in 1989, 1989 and 

1991. We have attended at least 4 hearings and numerous intertribal meetings throughout the Nation. We have supported 

the Affiliated Tribes of Northwest Indians and the National 

Congrese of American Indians in their recommendations for a fair and equitable process tor recognition. We will continue to provide guidance in any effort to create a fair, equitable, and efficient federal acknowledgment process. 

Reapectfully, 

iJAtyt:~ .,..f/oj~l Director 

Respectfully, 

William E. Mathaaon 

Tribal Chairman 
241 

PUEBLO OF SAN JUAN OE GUADALUPE, NEW MEXICO 

June 8, 1994 

Honorable Bill Richardson 

United States House of Representatives 

2349 Rayburn House Office Building 

Washington, D.C. 20515-3103 

Dear Representative Richardson, 

It is my understanding that you have introduced legislation to reform 

the 25 C.F.R. 83 federal recognition process. If so, I would be in 

support of such legislation. I have enclosed information about our Tribe for your rev1ew. 

Honorable Representative Richardson, something must be done to remedy 

the injustices and undue burden the 25 C.F.R. B3 process places on Indian tribes. I have personally been actively involved in the 

federal recognition efforts of my tribe for over ten years. r have 

witnessed and shared the effects of what it means to be non-federally 

recognized to the Tribe itself, and more importaptly, to the people 

of the Tribe. 

Although my opinion is subjective, the entire notion of 

"non-federally" recognized and the process to "become" federally recognized is unjust and inhumane. It is not proper or just to deny someone of their 1dentity. Many of the 25 CFR 83 requirements show a lack of common sense about Indian culture and tribal life, apart from 

being culturally biased. The ultimate paradox is in the fact that 

non-Indians (staff of the Bureau of Acknowledgment and Research) 

decide who is and who is not an Indian. 

This issue has human costs and has a dem~aning spiritual, economic 

and emotional effect on the everyday lives of the people. our Tribe 

is now and has always been a recognized sovereign in this region. 

The position of the spiritual and governmental leader of our tribe 

has been recognized by the spanish and Mexican governments (See 

enclosed attachment). At the turn of the century, children of the 

tribe were taken to government boarding schools. 
242 

Recently, the tribe is notified by state and federal agencies in 

accordance with the Indian Child Welfare Act and Native American 

Graves and Repatriation Act (NAGPRA). our Tribal council governs the 

spiritual and administrative activities of the tribe and tribal 

members. 

The re-establishment of the government to government federal trust 

relationship between the Piro/Manso/Tiwa Indian Tribe, Pueblo of San 

Juan de Guadalupe and the United states of America must be secured to ensure the protection of the Tribe's sovereignty and traditions. 

Members of our tribe are willing to testify at any hearings that may 

be initiating in regard to this matter. This letter can also be read 

into the congressional record expressing my support of any 

legislation reforming the current federal recognition process. 

Thank you for your time and consideration in this matter. 

Sincerely, ~./. // 

~~ (7 t£r~- Andrew J. Roybal 

Project coordinator 

Piro/Manso/Tiwa Indian Tribe 

Pueblo of san Juan de Guadalupe 

P.O. Box 16243 

Las cruces, New Mexico 88004 

(505) 527-1699 
243 

PUEJLO OF SAH JUAH I>! CUAllALUP!, lml MUlCO 

COMMUNITY PROFILI 

The Piro/Manso/Tiwa Indian Tribe, Pueblo of san Juan de Guadalupe, 

is located in the Mesilla Valley in southern New Mexico. 

The pueblos of the Piro Indians were referred to as early as 1540 

during the Coronado expedition. At that time, the Piro Indians 

inhabited the area from just south of Belen to the vicinity of san Antonio along the Rio Grande and from the Rio Grande valley to as far east as Gran 0uivira. 

The pueblos of the Tiwa Indians were also referred to as early as 1540 during the coronado expedition. At that time, the Tiwa 

Indians inhabited the area from just south of Isleta pueblo to the 

vicinity of Bernalillo and the area surrounding Taos and Picuris 

pueblos simultaneously with the Piro Indian inhabitation of central 

New Mexico. 

Historically, the Manso Indians occupied the area of what is 

present-day southern New Mexico, far west Texas and northern 

Mexico. 

As a result of Apache Indian incursions between 1670 and 1680, the 

f iro Indians first consolidated themselves in the area ·>round 

Socorro, and then at the time of the Pueblo Indian Revolt of 1680 

they removed to what was then southern New Mexico near present day El Paso, Texas. 

At the time of the Pueblo Indian Revolt of 1680, many Tiwa Indians 

inhabiting the Isleta Pueblo and in vicinity also removed to what was then southern New Mexico near present day El Paso, Texas. 

Following the signing of the Treaty of Guadalupe Hidalgo in 1848, 

the cacique of the Piro and Manso Pueblo Indians relocated twentytwo families and established the Piro/Manso/Tiwa Indian Tribe of 

the Pueblo of San Juan de Guadalupe. Descendants of these Indians 

collectively comprise the membership of the Piro/Manso/Tiwa Indian 

Tribe, Pueblo of San Juan de Guadalupe, and continue to live in Las 

cruces, New Mexico. They continue to carry on the traditional and 

spiritual activities of the pueblo today. 
244 

Since the late 1960's, the tribe has been seeking federal recognition. The tribe had filed a formal petition with the Bureau of 

Indian Affairs (B.I.A . ) in 1973. This petition, however, was inadequate due to a lack of funding for further research, and not 

actively revi ewed by the B.I.A .. 

In 1976, the Honorable Senator Pete Domenici introduced legislation, Senate Bill 3352, granting federal recognition to the tribe 

to the United States Senate. In July of the same year, then New 

Mexico Governor Jerry Apodaca officially endorsed senate Bill 3352. 

However, the bill died in committee. 

In 1992, with the aid of a 1990 research grant from the Administration for Native Americans (ANA), the tribe once again submitted a completed petition for federal recognition to the B.I.A.'s Bureau 

of Acknowledgment and Research. In August of 1993, the Bureau of 

Acknowledgment responded, commenting that certain points of the 

petition were unclear and more research was needed. 

The following year, the tribe received another research grant from 

ANA for the purpose of providing historical and contemporary data 

requested by the Bureau of Acknowledgment. Partial funding was also granted for the purpose of social and community development 

planning, Present tribal plans include the establishment of a community center designed to provide social services to tribal 

members. 

Despite previous set backs, the Piro/Manso/Tiwa Indian Tribe is 

moving forward with community, social, and cultural development. 

However, a successful outcome of the federal acknowledgment process 

will improve the tribe's ability to continue its culture for future 

and present generations. 
245 

A BRIEF HISTORY OF THE PIRO/MANSO/TIWA INDIAN TRIBE 

PUEBLO OF SAN JUAN DE GUADALUPE 

INTRODUCTION 

The Piro/Manso/Tiwa Tribe, Pueblo of san Juan de Guadalupe, constitutes the only organized Piro Indian group remaining either 

in the united States or Mexico. Their immediate predecessors came to Las Cruces, New Mexico primarily from Juarez and senecu,Chihuahua, though their original homeland was in central New Mexico, where 

they had occupied various villages and had enjoyed a well 

differentiated culture by the time of Spanish conquest. 

some Piros survived epidemics, famine, raids, rebellion, geographical displacement and the like, and some intermarried with the 

conquerors or other tribes. Before 1681, most of them had migrated into the El Paso Valley, and within a few years, most of the 

remaining Piro population in Mexico was gone, while all their 

central New Mexico villages had been abandoned. 

TRIBAL LEADERSHIP 

The Tribe has been under the spiritual and secular leadership of hereditary Chiefs called caciques since time immemorial. From 

the time of earliest records, this has proved to be true. __ (!(lcique 

Caetano Roybal, in El Paso del Norte by 1794, was listed on the 

1803 and 1806 census lists with his family in Chamisal, and his 

wife was Anastacia Benavides. Their son, Jose Francisco Roybal, 

married a widow, Leogarda Anaya (AACJ 1847: Reel 8), who was listed on the 1803 and 1806 list of Indians at our Lady of Guadalupe 

Mission (AAD 1803, 1806}. By the 1810s, recording of tribal 

affiliations in parish records and census reports had waned, and 

ended when Mexico's 1820 constitution abolished Indio racial status 

(Spicer 1962:334). "Indigene replaced Yndio in Paso del Norte 

records. Pueblo Indians were not listed tribally, while Apaches were referred to as indio Apache or yndio barbaro ("wild 

Indians"). 

Jose Francisco's son, Agapito, married Albina Jemente 

(then later, Maria Jostea Enriques, and then Josefa Manrique}. He was Cacique in Chamisal in 1836, according to the El Paso, Juarez 

Archives lists, and on the 1844 list of Indigenes Native family heads from Chamisal and Barreal districts (JA 1884: Reel 13). 

Agapito's and Albina's son, Jose Roybal, born in Chamisal in 1832 

{married to Isadore Lopez, then Isabel Salado), became Cacique in 

1862 (ACCJ 1862: Reel 8), and was listed as one of the Indigenes de 

la cabezera, Natives of the Regional capital, Paso del Norte, as eligible for the Mexican Army's military draft in 1862 (JA 1862a: 

Reel 24), with other descendants of Indians on the 1844 census. 
246 

Jose's son by Isadore, Felipe, was Cacique of the Piro/ Manso/ Tiwa 

Tribe about 1865, and remained cacique until 1906. Felipe Roybal's 

widow, Francisca Avalos, acted as caciqua Regent a after his murder, 

with her Assistant, her brother Senovio Avalos, as Cacique Regent. Felipe's son, Vicente, succeed as Cacique in 1935. His wife, 

Isidra, was caciqua Regenta after his death in 1978 until her own deatn in 1982. His son, Felipe, has been cacique since, and his 

Assistant Cacique since 1991 has been Edward Richard Roybal. 

BL PASO DEL NORTI 

Following the original enforced Spanish resettlement of Piros 

at El Paso del Norte in the late 1650s, they lived within European dominated El Paso Valley communities for over two centuries. 

Residing beside Indians from other tribes, they lived as an ethnic 

group within El Paso, senecu or socorro. Each of these Indian 

villages had Indian military and civil officials who acted as part 

of the governing structure of the community, under a cacique, who 

carried the core Pueblo beliefs and customs. The Piros never lost 

their identity or customs as Pueblo Indians, despite acculturative 

Spanish and Mexican, and later, Anglo influences. 

In the Mesilla Valley, the primarily El Paso Piro immigrants and Senecu emigrants, along with a very few Ysleta del sur Indians, 

lived in the presence of Hispanics and Americans as they had in El 

Paso, and took part in the settlement of the new Mesilla Valley 

towns along with non-Indian emigrants from the El Paso area. 

SETTLEMENT OF THB MESILLA VALLEY 

The st. Genevieve's church at the core community site in Las 

Cruces, and the mission church of Nuestra Senora de Guadalupe (at 

Tortugas), were the focal points for ethnic identity and customs. 

Indian dancing in the plazas of their churches and at Fic£cho, the 

lighting of bonfires on their sacred mountains on feast days, 

characterized the group• s Indian life. Governmental restrictions on the public display of religious devotion in conjunction with 

considerations of economic survival fueled the migration to the Las cruces area in the mid1800's. 

It appears probable that some Piro emigrants were present in 

the Mesilla Valley on the Dona Ana Bend Colony by 1843, prior to 

the establishment of any other permanent settlement. Lt. Sackett of 

the u. s. Army garrison, coming to the Las cruces area from Dona 

Ana in 1849 to lay out the tracts for the future city, reported that he found about 120 people already living there in brush 

reinforced clay-shelled shelters (jacales) on what came to be the 

plaza near church street and Las cruces Avenue (Staff, "Mesilla 

Valley's history: Rich, Vibrant, and not that long ago," Las Cruces 

Bulletin, 13 sept. 1989, C2}. These individuals apparently moved 

into assigned lots in the new 84-block area of Las Cruces when it was laid out by Sackett's survey team. There is only a vague 
247 

description of this group housed in a small pueblo or village 

community at the site of what became the Las Cruces civic center at 

the time of Sackett's arrival. The group, however, was situated at 

what eventually became the civic center plaza area. 

These former El Paso Pires, now in Las Cruces, appear to have 

been organized under the leadership of a local Cacique by 1849. some elder Pires claim the Tribe used the private home of a tribal 

elder as a meeting house, a trading center and social hall, dating 

from about that time (late 1840s). They danced in their Las Cruces 

Plaza and used a kiva and a makeshift meeting hall only a few 

blocks from the site of the present core community. After 1859, the 

Tribe used the plaza of the local church of st. Genevieve's for 

their fiestas and dances until the priest barred their doing so in 

the early 1900s. That building stood at the edge of the present 

civic center plaza area. 

The location of the cacique's compound in the near vicinity, only a block away, suggests the probability that at least some of the 

Piros were already making homes in this early pueblo at what came to be Las cruces, and further, that the Pueblo Sackett encountered 

indeed was the early Piro pueblo. What is not clear is whether some or all of these people at the little pueblo already were permanent residents, though it appears that at least 5some 

participated in the drawing of lots for parcels ot land in the 

84-block Las cruces area, or later acquired such lots. 

TRIBAL CULTURAL LIFE 

The Piro/Manso/Tiwas built fires on the nearby mountains and 

otherwise venerated their patron saint in an amalgamation of Indian 

and western christian ri.tes, by thel880s. They conducted ceremonies 

within the kiva at the family compound of the caciques in the ~?s 

Cruces core community, periodically throughout each year, un<..i.l 

that block of buildings was partially razed during urban renewal 

during the early 1960s. The Tribe's spiritual leaders conducted 

private rituals each December 10,11 to support the public ceremo- nies which eventually became an annual devotional event in the Las 

Cruces area each December 12. 

The Tribe's ceramics and other crafts, Piro ceremonies, Indian 

olla and other dances and rabbit hunts were activities which they 

conducted differently than their non-Indian neighbors, and their 

Piro language, songs, drumming and smoke ceremonies were peculiar 

to themselves in the area. 
248 

BQARDING SGHQQL PERIOD 

The Piro/Hanso/Tiwas were treated as American citizens and 

voted in elections, but continued to be identified as Pueblo Indian 

in the local community after 1900. Prior to 1900, public school 

education was not available for all Las Cruces area Indians. Having never abandoned tribal relations, they were persuaded or coerced 

into sending their children to boarding school from the 1890s 

through the first two decades of this century. 

Though scores of the Tribe's youth attended boarding school, this 

opportunity appears to have contributed surprisingly little to 

their educational status or general wellbeing. After 1900, as local 

public education became more widely available, fewer of these 

children were sent to Federal boarding schools. 

TRIBAL CQRPOBATIQN on the eve of World War I, the Tribe preempted a tract of land 

through the normal processes available in the area, and built their 

church to Nuestra Senora de Guadalupe, as well as a community 

center and dining hall in Tortugas, just west of University Park near Las Cruces. In 1914, working with Eugene van Patten and other 

friendly non-Indians, the Tribe founded a daughter corporation 

under state law as a religious-besot service and business organization, to further certain limited development purposes of the Tribe 

and its leaders, without allowing the corporation to the traditional tribal organization itself. Ysleta del sur formed a similar 

corporation for the same purposes at about the same time. 

Throughout its association with the daughter corporation, the 

Tribe always held its own annual elections on New Year's Eve to 

elect its own officers separate from corporation Board election, at 

the home of the caciques, in Las cruces. The corporation became a vehicle for maintaining customs the Tl·ibes' ancestors had brought 

to Las cruces, including the celebration of their Holy Days, and 

through which they dealt with the catholic Church regarding their 

activities. The corporation also carried on building and mainte- nance programs for the Pueblo. The Tribe • s Cacique and other 

spiritual leaders still conducted private rituals. 

Perhaps in part due to the rigors of boarding school experiences, 

and the sharp recollection of the loss of their lands and rights to 

publicly carry on their religious activities in Mexico, the Tribe 

did not pursue their rights or entitlements as Indians aggressive- ly. The Tribe was not, however, otherwise treated as a group needing special services from any particular external government 

agency, though the condition of poverty in Tortugas (with which 

they were still then identified) was found to be extreme during the 

1930s in federally-funded sociological studies. 
249 

DEINDIANIZATIQN Of TRIBAL CORPORATION AND PUEBLO LANDS 

During the mid-1940s, while many adult male tribal leaders were in the armed forces or working to support the war effort, the 

Tribe began to lose control over the daughter business corporation. 

In the late 1940's and early 1950's, there was a hostile take-over 

by non-Indian members of the corporation. This take-over resulted 

in the permanent separation of the Las Cruces-based tribal core community from the enterprise at Tortugas. The takeover group at 

Tortugas continued to conduct activities including the Guadalupe 

Day dances and A Mountain pilgrimage, which always had been 

associated with the Tribe. 

The Cacique Vicente Roybal's attempts to accommodate the 

takeover group while preserving the rights and well being of the 

Tribe were mostly unproductive. Though his presence was demanded at 

corporation-sponsored public ceremonies, he retreated from direct 

participation as the hope waned that there could be a reconciliation which would result in the resumption of leadership roles in 

the organization on the part of Piro/Manso/Tiwa tribal leaders, 

such as Vicente Roybal's sons. By the mid-1950's, most Piros, as well as their cacique, no longer were active in corporation 

affairs, and no longer participated in religious activities 

directly associated with Tortugas. 

REUNIFICATION AND CONTINUATION 

Tribal meetings and annual New Year's Eve elections continued 

in Las Cruces, at the home of the cacique or at the home of other 

tribal officers and members from the 1950's through the 1980's. 

Only a small number of the Tribe's members belonged to the 

corporation at by the 1970's, and none do today. Most corporation 

members are of non-Piro descent, yet they carry on customs based on Piro models, and bar the majority cf Piro descendants from 

participation in the activities and property which were part of 

their heritage and which helped to identify them as Indians. 

The Tribe continued to pursue its common welfare under the 

leadership of a hereditary succession of the Cacique, with 

occasional help from sympathetic non-Indian Hispanics and Anglos. 

In the 1960's, with Termination policy on the wane, the Tribe 

attempted to obtain Fed~ral acknowledgment by means then available. 

They pursued legislative acknowledgment without success, and are now making a submission of a Federal acknowledgment petition under 

25 C. F. R. 83. 
250 

STRENGTH AND RICHNESS FOR TUB fUTURE 

This Tribe is distinct in that they represent the sole 

functional, organized remnant of the old Piro population and 

culture. This Tribe is unusual in that they have had to tolerate 

the reinterpretation of widely-known aspects of their culture by non-Indians, who carried on versions of Piro ceremonies as if the Piros themselves no longer existed. 

Still, the Tribe has found ways to preserve and continue with 

aspects of their ceremonial life until the present largely out of 

the public eye, and are conducting their own political activities 

entirely apart from their former colony at Tortuqas. The peculiar 

aspects of their situation and condition require the evaluation of 

their character as an Indian Tribe in light of the historical 

events that make them different from any non-Indian group, and from 

most Indian groups. 

Documentation available from Tribal Office 

ISBN 0-16 046717-9 

90000