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77–947 PDF 2013

S. HRG. 112–684

FEDERAL RECOGNITION: POLITICS AND LEGAL

RELATIONSHIP BETWEEN GOVERNMENTS

HEARING

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS 

UNITED STATES SENATE

ONE HUNDRED TWELFTH CONGRESS

SECOND SESSION

JULY 12, 2012

Printed for the use of the Committee on Indian Affairs

(

(II)

COMMITTEE ON INDIAN AFFAIRS 

DANIEL K. AKAKA, Hawaii, Chairman 

JOHN BARRASSO, Wyoming, Vice Chairman 

DANIEL K. INOUYE, Hawaii 

KENT CONRAD, North Dakota 

TIM JOHNSON, South Dakota 

MARIA CANTWELL, Washington 

JON TESTER, Montana 

TOM UDALL, New Mexico 

AL FRANKEN, Minnesota 

JOHN MCCAIN, Arizona 

LISA MURKOWSKI, Alaska 

JOHN HOEVEN, North Dakota 

MIKE CRAPO, Idaho 

MIKE JOHANNS, Nebraska 

LORETTA A. TUELL, Majority Staff Director and Chief Counsel 

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

(III)

C O N T E N T S 

Page 

Hearing held on July 12, 2012 ............................................................................... 1

Statement of Senator Akaka ................................................................................... 1 

Statement of Senator Barrasso ............................................................................... 3

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

Statement of Senator Webb .................................................................................... 4

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

WITNESSES

Adkins, Hon. Stephen R., Chief, Chickahominy Indian Tribe ............................. 13

Prepared statement .......................................................................................... 15

Anderson, Michael J., Owner, Anderson Indian Law ........................................... 33

Prepared statement .......................................................................................... 35

Brooks, Hon. Paul, Chairman, Lumbee Tribe of North Carolina ........................ 17

Prepared statement .......................................................................................... 19

Gottschalk, K. Jerome, Staff Attorney, Native American Rights Fund .............. 30

Prepared statement .......................................................................................... 32

Newland, Bryan, Senior Policy Advisor, Office of the Assistant Secretary 

for Indian Affairs, U.S. Department of the Interior .......................................... 6

Prepared statement .......................................................................................... 7

Norwood, John, Co-Chair, Task Force on Federal Acknowledgment, National 

Congress of American Indians ............................................................................ 20

Prepared statement .......................................................................................... 23

APPENDIX

Knugank Tribe, prepared statement ...................................................................... 47

Qutekcak Native Tribe, prepared statement ......................................................... 55

Weaver, Hon. Framon, Chief, MOWA Band of Choctaw Indians, prepared 

statement .............................................................................................................. 52

(1)

FEDERAL RECOGNITION: POLITICS AND 

LEGAL RELATIONSHIP BETWEEN

GOVERNMENTS 

THURSDAY, JULY 12, 2012

U.S. SENATE, 

COMMITTEE ON INDIAN AFFAIRS, 

Washington, DC. 

The Committee met, pursuant to notice, at 2:15 p.m. in room 

628, Dirksen Senate Office Building, Hon. Daniel K. Akaka,

Chairman of the Committee, presiding. 

OPENING STATEMENT OF HON. DANIEL K. AKAKA,

U.S. SENATOR FROM HAWAII 

The CHAIRMAN. I call this hearing of the Committee on Indian 

Affairs to order. 

Aloha and welcome to all of you. And welcome to this Committee’s oversight hearing on Federal Recognition, the Political, and 

Legal Relationship Between Governments. 

The people of the United States have long acknowledged that our 

Nation has a special relationship with and responsibility to our indigenous peoples, one that we first contemplated as we framed our 

Constitution and have struggled to fulfill ever since. We have long 

acknowledged that as we forge this new Nation, the United States, 

and continue our great experiment in democracy, we must ensure 

the survival of the many Native nations who have called these 

lands home long before Columbus first set sail. 

The United States has recognized that the trust responsibility to 

Native nations means supporting and advancing their ability to be 

self-determining and self-sufficient. Fulfilling that trust responsibility has meant Federal action in three basic areas. First, providing support to address barriers to self-sufficiency. Second, enacting laws to protect the collective rights of all Native nations. And 

third, actively engaging Native nations in a government-to-government relationship. 

Currently, the United States is taking action in all three areas 

of trust responsibility, with 566 federally-recognized Native nations. For my own people, the Native Hawaiian people, the United 

States has taken action on two out of three areas. The United 

States currently provides support for addressing barriers to selfsufficiency and protects the collective rights of the Native Hawaiian 

people in the same laws that protect the rights of other indigenous 

peoples. 

2

My bill, the Native Hawaiian Government Reorganization Act, 

which is S. 675, takes action to fulfill the third trust responsibility 

to the Native Hawaiian people by engaging in a government-to-government relationship with them. 

In the past, the Federal acknowledgment has come in a variety 

of ways. Federal recognition of the trust responsibility and status 

of these Native nations as sovereign governments has occurred 

through treaties, acts of Congress, court rulings, and administrative decisions. It wasn’t until 1978 that a uniform process existed 

for Federal recognition. Unfortunately, that process, which was intended to streamline Federal recognition and make it consistent, 

has failed to accomplish that goal. 

So the road to Federal recognition remains a difficult one. Because the administrative process is most often described as broken, 

and Congress has not recognized a Tribe through legislation, can 

you imagine, in over a decade. 

Many Native nations wait sometimes decades for the Federal 

Government to acknowledge the trust responsibility and their status as sovereign governments. At the beginning of the hearing, the 

monitors displayed quotes from members of Congress and Administration officials related to the Federal recognition process. Those 

statements, as well as testimonies from the last 30 years, show 

that numerous Tribal leaders, interest groups, the GAO, and Senators from both sides of the aisle acknowledge the flaws in the recognition process. 

The length of the process, interpretation of the criteria, and staffing needs have been raised countless times at Committee hearings. 

Sadly, little has changed with the process and many of the issues 

raised decades ago still remain unresolved. 

Let me call on my colleague on the Committee, Senator Tester, 

for any opening statement he may have. 

STATEMENT OF HON. JON TESTER,

U.S. SENATOR FROM MONTANA 

Senator TESTER. Thank you, Mr. Chairman. I will make it quick. 

First of all, I want to thank Senator Webb for being here today. 

I appreciate it, and look forward to your testimony. 

Ken Gottschalk, attorney for the Native American Rights Fund, 

thank you very much for the work you have done on Little Shell 

Tribe, and thank you, Mr. Chairman, for holding this hearing. 

I am going to make my comments very, very short. Basically, 

Tribal recognition should be based on history, culture and science, 

not politics. The process should be rigorous. But it is inefficient and 

time-consuming and costs a bunch of money. In fact, the Little 

Shell started their process in 1978. And the process continues on. 

They are in the appeals process right now in 2012, some 34 years 

later, $2 million in legal fees, and 70,000 pages of documents. From 

my perspective, they end up making the wrong decision. 

So I think that there is a lot of work to be done here. I think 

you have a bill, Mr. Chairman, I have a bill, I am sitting here looking at the pending petitions by regional distribution that aren’t 

there. Little Shell isn’t on there, I assume that is because they are 

appealing the process right now. 

3

But the bottom line is that we have to be more efficient, we have 

to be more timely and we have to get better information and leave 

the politics out. Thank you for having the hearing, Mr. Chairman. 

The CHAIRMAN. Thank you, very much, Senator Tester. 

Let me now call on our Vice Chairman, Senator Barrasso. 

STATEMENT OF HON. JOHN BARRASSO,

U.S. SENATOR FROM WYOMING 

Senator BARRASSO. Thank you very much, Mr. Chairman, for 

holding this hearing today on the Federal acknowledgment process. 

I am going to keep my opening statement brief as well, so we can 

proceed to our witnesses. 

This Committee has held several hearings on this topic over the 

past few sessions of Congress. We have heard a lot of complaints. 

And they are essentially the same complaints each time we gather 

to discuss this issue. The process takes much too long, it costs far 

too much and the outcomes are not consistent. I want to be clear, 

Mr. Chairman, an administrative process for recognizing Indian 

tribes is preferable to a legislative process. The administrative 

process allows for thorough and fair analysis of Federal acknowledgment petitions. The Office of Federal Acknowledgment has experts who are historians, anthropologists, genealogists. These people are able to analyze and evaluate petitions against the exacting 

criteria in the acknowledgment regulations. 

On the other hand, the legislative process is poorly suited to 

make these complex and highly fact-specific judgments. But if the 

administrative process takes over a decade to get through, then 

something is wrong. The efficiency, the consistency, the timeliness 

of this process should be improved if it is to serve any meaningful 

purpose. In previous committee hearings on this topic, the Department has acknowledged the need to improve the process. 

So as we proceed today, I would like to know what headway, if 

any, the Department has made in addressing these issues. I just 

want to thank the witnesses for being with us and joining us today. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you very much, Senator Barrasso. 

Today we are hoping to hear good news from the Administration 

about their efforts to improve the recognition process. We will also 

hear from Tribal leaders about the need for Congress to exercise 

its plenary power to recognize Tribes. 

Finally, we will hear thoughts and ideas on how to improve the 

Federal recognition process for our Native nations, those displayed 

on the charts as well as others. 

As Chairman, it is my goal to ensure that we hear from all who 

want to contribute to the discussion. So the hearing record is open 

for two weeks from today. I encourage everyone to submit their 

comments to written testimony. 

I want to remind witnesses to please limit your oral testimony 

to five minutes today. We will begin by hearing from our Senator, 

the Honorable Jim Webb, United States Senator from Virginia. 

Welcome, Senator Webb. It is good to have you here. 

4

STATEMENT OF HON. JIM WEBB,

U.S. SENATOR FROM VIRGINIA 

Senator WEBB. Thank you very much, Mr. Chairman, Senator 

Barrasso, Senator Tester, and others. I appreciate the Committee’s 

willingness to hold this hearing. 

I have a written statement that I would ask be submitted for the 

record and I would just like to make some brief oral remarks today. 

I would like to thank Steve Adkins, Chief Adkins of the Chickahominy Tribe for being here today representing the Six Virginia Indian Tribes who are seeking Federal recognition. As the Committee 

knows, I am a sponsor of the Indian Tribes of Virginia Federal Recognition Act of 2011. This bill would give Federal recognition to six 

Indian Tribes from the Commonwealth of Virginia. This bill was 

passed out of this Committee in July of 2011. 

This is not a new issue for your Committee. These six Tribes 

gained State recognition in the Commonwealth of Virginia between 

the years 1983 and 1989. I would like to emphasize to this Committee that they have received strong bipartisan support from the 

Virginia General Assembly for Federal recognition and importantly, seven former Virginia governors and Virginia’s current governor all have expressed support for this legislation. 

I understand the reluctance from Congress to grant any Native 

American Tribe Federal recognition through legislation rather than 

through the administrative process. However, I would like to emphasize my personal belief that this particular situation with respect to Virginia is historically unique. I say that as someone who 

studied and wrote about this well before I entered into the Senate. 

The unique history of Virginia with respect to its Indian Tribes 

and the harsh policies of the past have created a gray area for Virginia’s Native American Tribes to meet the criteria that we have 

been using in the administrative process. It is a fact that Virginia 

in the past had race laws which regulated the activity of Virginia 

Indians and laws which went so far as to eliminate an individual’s 

identity as a Native American on many birth, death, and marriage 

certificates. 

The elimination of racial identity records had a harmful impact 

on Virginia’s Tribes when they began this process. In addition to 

this, five of the six courthouses that held the vast majority of the 

records that Virginia Tribes would need to document their history 

were destroyed in the Civil War. And lastly, Virginia Tribes, with 

respect to the treaties that you mentioned, Mr. Chairman, actually 

signed a treaty with England before our Country was politically 

formed. This predated the practice of most Tribes that signed a 

treaty with the Federal Government which have been relied on in 

the administrative process. 

For these reasons, I strongly believe that recognition for these six 

Virginia Tribes is justified based on principles of dignity and fairness and historical necessity. Moreover, given the current structure 

and the requirements of the BIA administrative process, it is really 

doubtful that our Tribes could successfully complete the process. 

So in conclusion, I would say this is an issue that has strong bipartisan support inside the Commonwealth of Virginia, at the 

State level and here at the Federal level. It has been in the works 

for a very long time and I would respectfully ask the Committee 

5

to work with our office in order to bring the legislation to the Senate Floor. Thank you very much. 

[The prepared statement of Senator Webb follows:] 

PREPARED STATEMENT OF HON. JIM WEBB, U.S. SENATOR FROM VIRGINIA

Thank you, Mr. Chairman and members of the Committee. I appreciate the Committee’s willingness to have this oversight hearing to discuss the current federal recognition process for Indian Tribes. I would like to thank Chief Stephen Adkins of 

the Chickahominy Indian Tribe for being here today and representing the six Virginia Indian Tribes’ tireless efforts in seeking federal recognition. For the tribes in 

my state, the rigid nature of the administrative recognition process has been a 

source of delay, frustrate ion and a lingering sense of unfairness. 

As the Committee knows, I am the sponsor of the ‘‘Indian Tribes of Virginia Federal Recognition Act of 2011’’ (S. 379). This bill would grant federal recognition to 

six Native American tribes from the Commonwealth of Virginia. Most recently, this 

bill was passed out of this Committee on July 28, 2011. In the past, it has also 

passed the U.S. House of Representatives—championed by Congressman Moran, 

who has been a staunch advocate for Virginia’s Indian Tribes. 

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

has been voiced many times during the 15 years since they began seeking federal 

recognition. These six tribes are the Chickahominy, Chickahominy Indian Tribe 

Eastern Division, the Upper Mattaponi, the Rappahannock, the Monacan, and the 

Nansemond Indian Tribe. 

The tribes covered by this bill gained state recognition in the Commonwealth of 

Virginia between 1983 and 1989. They have received strong bipartisan support from 

the Virginia General Assembly for federal recognition. I believe it is appropriate for 

them to finally receive the federal recognition that has been denied for far too long. 

Importantly, seven former Virginia governors and Virginia’s current governor have 

expressed support for this legislation. 

Mr. Chairman, I understand the reluctance from Congress to grant any Native 

American tribe federal recognition through legislation rather than through the BIA 

administrative process. I have not taken this issue lightly, and agree in principle 

that Congress generally should not have to determine whether or not Native American tribes deserve federal recognition. 

However, the administrative process which is the specific topic of your hearing 

today, is subject to unreasonable delays, lacks clear guidance and is expensive. In 

many cases the administrative process has taken in excess of 20 years before a determination is reached. This has been well documented by repeated GAO studies. 

In 2008, the BIA’s Office of Federal Acknowledgment came out with new guidelines 

on implementing the criteria to determine federal recognition. While I applaud improvements to the process, this still does not change the impact of racially hostile 

laws formerly in effect in Virginia on these tribes’ ability to meet the BIA’s seven 

established recognition criteria. 

Virginia’s unique history and its harsh policies of the past have created a barrier 

for Virginia’s Native American Tribes to meet the BIA criteria. Many Western tribes 

experienced government neglect during the 20th century, but Virginia’s story was 

different. 

First, Virginia passed ‘‘race laws’’ in 1705, which regulated the activity of Virginia 

Indians. In 1924, Virginia passed the Racial Integrity Law, and the Virginia Bureau 

of Vital Statistics went so far as to eliminate an individual’s identity as a Native 

American on many birth, death and marriage certificates. The elimination of racial 

identity records had a harmful impact on Virginia’s tribes, when they began seeking 

Federal recognition. In addition to this burden, five of the six courthouses that held 

the vast majority of the records that Virginia Tribes would need to document their 

history were destroyed in the Civil War. 

Last, Virginia tribes signed a treaty with England, predating the practices of most 

tribes that signed a treaty with the Federal Government. 

For these reasons, I strongly believe that recognition for these six Virginia tribes 

is justified based on principles of dignity and fairness. Moreover, given the current 

structure and requirements of the BIA administrative process, it is doubtful that 

our six Virginia tribes could successfully complete the process. As I mentioned, I 

spent several months examining this issue in great detail, including the rich history 

and culture of Virginia’s Tribes before deciding to advance this legislation. After 

thorough investigation, I concluded that legislative action is needed for recognition 

of Virginia’s tribes due to the broken and burdensome administrative process we are 

6

discussing here today. Congressional hearings and reports over the last several Congresses demonstrate the ancestry and status of these tribes. 

Most notably, recognition would place these tribes on an equal footing with other 

tribes in the United States by acknowledging their heritage and their right to be 

treated with the same dignity and respect as other Indian tribes in this country. 

In conclusion, Mr. Chairman and members of the Committee, this bill has been 

a long time in the works and these six Virginia Indian Tribes have been patiently 

waiting. 

I respectfully ask the Committee to work with me to bring this legislation to the 

Senate floor. 

Thank you Mr. Chairman.

The CHAIRMAN. Thank you very much, Senator Webb, for your 

statement. I want you to know that we look forward to working 

with you on this. 

Senator WEBB. Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you. 

I would like to invite our witness to the table who is the first 

panel. Serving on that panel is Mr. Bryan Newland, Senior Policy 

Advisor to the Assistant Secretary of Indian Affairs, Department of 

Interior, Washington, D.C. Welcome to the Committee, Mr. 

Newland. Please proceed with your statement. 

STATEMENT OF BRYAN NEWLAND, SENIOR POLICY ADVISOR, 

OFFICE OF THE ASSISTANT SECRETARY FOR INDIAN

AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR 

Mr. NEWLAND. Good afternoon, Chairman Akaka. Thank you for 

having this hearing today. 

My name is Bryan Newland. I am a citizen of the Bay Mills Indian Community of the Ojibwe Tribe in Northern Michigan. I currently serve as the Senior Policy Advisor to the Assistant Secretary 

for Indian Affairs at the Department of Interior. 

I appreciate the opportunity to provide the Department’s views 

on the Federal acknowledgment process. Acting Assistant Secretary 

Del Laverdure regrets that he can’t be here today. He is traveling 

with the Secretary out west. 

The acknowledgment of the continued existence of another sovereign entity is one of the most solemn and important responsibilities delegated to the Secretary of the Interior. Federal acknowledgment confirms the existence of a nation-to-nation relationship between an Indian Tribe and the United States. It permanently establishes a government-to-government relationship between the 

two. 

The Department’s process for acknowledging Indian Tribes is set 

forth in regulations that were first adopted in 1978. Those regulations contain seven mandatory criteria that a petitioning entity 

must satisfy in order for the Department to acknowledge the government-to-government relationship with the Tribe. 

Since 2009, we have issued six final determinations on acknowledgment petitions, including a June 13th, 2010 determination to 

acknowledge the Shinnecock Indian Nation in the State of New 

York. These decisions were issued pursuant to our regulations, 

which set forth the exclusive process to acknowledge Indian Tribes 

that have yet to establish a government-to-government relationship 

with the United States, or where that relationship has lapsed. 

7

The Department is well aware of the criticism expressed by 

many interested parties regarding the acknowledgment process. 

Earlier this year, we participated in a roundtable discussion hosted 

by your Committee, Mr. Chairman. I would like to thank you on 

behalf of the Department for bringing together leadership from various Indian communities and the public to discuss this issue at 

that roundtable discussion. 

That roundtable highlighted a number of concerns with the acknowledgment process, including criticism that the process is expensive, burdensome, intrusive, less than transparent, and unpredictable. Others have expressed that the Department needs to be 

more efficient in its review, and others yet stated that our process 

does not give enough weight to findings made in judicial proceedings or by Congress. 

We have been reviewing our existing regulations to consider 

ways to improve this process. Based upon our review and the views 

expressed by Tribes and interested parties, we believe that any efforts to improve the process should be undertaken pursuant to certain guiding principles: transparency, timeliness, efficiency, and 

flexibility. 

We have also considered a number of concepts that have been 

raised by the Tribes that have gone through the process, petitioning groups and staff within our Office of Federal Acknowledgment. I would like, Mr. Chairman and Vice Chairman Barrasso, to 

acknowledge Lee Fleming, who is here with me today, the Director 

of the Office of Federal Acknowledgment at the Department. 

These concepts include assessing the standards of evidence that 

the Department uses to review petitions, utilizing outside research 

tools and changing the schedule for proposed findings and final determinations. We believe that these principles and considerations 

have established a framework that can lead to improvements in 

our Part 83 acknowledgment process. 

With that, I would like to thank you for your time, Mr. Chairman 

and Vice Chairman Barrasso. I would be happy to answer any 

questions that you have for me today. 

[The prepared statement of Mr. Newland follows:]

PREPARED STATEMENT OF BRYAN NEWLAND, SENIOR POLICY ADVISOR, OFFICE OF THE

ASSISTANT SECRETARY FOR INDIAN AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR

Good afternoon Chairman Akaka, Vice Chairman Barrasso, and members of the 

Committee. Thank you for the opportunity to provide the Department of the Interior’s (Department) statement on Federal Acknowledgment: Political and Legal Relationship between Governments. My name is Bryan Newland, and I am the Senior 

Policy Advisor to the Assistant Secretary for Indian Affairs. 

Implications of Federal Acknowledgment 

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

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

Interior. Federal acknowledgment confirms the existence of a nation-to-nation relationship between an Indian tribe and the United States, and permanently establishes a government-to-government relationship between the two. 

The decision to acknowledge an Indian tribe has a significant impact on the petitioning group, other Indian tribes, surrounding communities, and federal, state, and 

local governments. Acknowledgment generally carries with it certain powers, privileges, and immunities, including the authority to establish a land-base over which 

to exercise jurisdiction, provide government services to tribal citizens, and sovereign 

immunity from lawsuits and taxation from other governments. In 1994, Congress 

8

confirmed that all federally-acknowledged tribes are entitled to the same privileges 

and immunities as one another. 

Background of the Federal Acknowledgment Process 

The Department’s process for acknowledging an Indian tribe is set forth in its regulations at 25 CFR Part 83, ‘‘Procedures for Establishing that an American Indian 

Group Exists as an Indian Tribe.’’ (Part 83 Process) This process allows the Assistant Secretary to make an informed decision on whether to acknowledge a petitioner’s nation-to-nation relationship with the United States. These regulations include seven ‘‘mandatory’’ criteria, by which a petitioner must demonstrate that:

(a) It has been identified as an American Indian entity on a substantially continuous basis since 1900;

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

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

(d) It has provided a copy of the group’s present governing document including 

its membership criteria;

(e) Its membership consists of individuals who descend from an historical Indian tribe or from historical Indian tribes that combined and functioned as 

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

(f) The membership of the petitioning group is composed principally of persons 

who are not members of any acknowledged North American Indian Tribe; 

and,

(g) Neither the petitioner nor its members are the subject of congressional legislation that has expressly terminated or forbidden the federal relationship.

The Department considers a criterion satisfied if the available evidence establishes a reasonable likelihood of the validity of the facts relating to that criterion. 

This does not mean that the Department applies a ‘‘preponderance of the evidence’’ 

standard to each petition. A petitioner must satisfy all seven of the mandatory criteria in order for the Department to acknowledge the continued tribal existence of 

a group as an Indian tribe. 

The Federal acknowledgment process is implemented by the Office of Federal Acknowledgment (OFA). OFA is currently staffed with a Director, an administrative 

assistant, four anthropologists, four genealogists, and four historians. A team composed of one professional from each of these three disciplines reviews each petition. 

Recent Actions Under the Acknowledgment Process 

The Department has issued six final determinations on acknowledgment petitions 

since 2009. These include a June 13, 2010 determination acknowledging the 

Shinnecock Indian Nation in New York, and five final determinations declining to 

acknowledge petitioning tribes. Those negative determinations are:

• October 27, 2009 final determination not to acknowledge the Little Shell Tribe 

of Chippewa Indians of Montana.

• March 15, 2011 final determination not to acknowledge the Juaneno Band of 

Mission Indians, Acjachemen Nation (#84A).

• March 15, 2011 final determination not to acknowledge the Juaneno Band of 

Mission Indians (#84B).

• March 23, 2012 final determination not to acknowledge the Central Band of 

Cherokee.

• April 21, 2011 final determination not to acknowledge the Choctaw Nation of 

Florida.

Recent Actions outside the Acknowledgment Process 

The Part 83 process is the exclusive regulatory process used by the Department 

to acknowledge Indian tribes that have yet to establish a government-to-government 

relationship with the United States, or where such a relationship has lapsed. Nevertheless, the Department may include additional tribes on the list of federally recognized tribes by rectifying previous administrative errors that resulted in the exclusion of a tribe from the list or resolving litigation for tribes that were wrongfully 

terminated. 

Early in this Administration, the Assistant Secretary committed to consider requests for the reaffirmation of tribal status for those tribes that were not included 

on previous lists of federally recognized tribes due to administrative error. After a 

9

careful review of information submitted over a period of years, the Assistant Secretary reaffirmed the government-to-government relationship between the United 

States and the Tejon Indian Tribe in December 2011. The Tejon Indian Tribe had 

been omitted from the 1979 list of Indian tribes due to a unilateral administrative 

error on the part of the United States. 

In 2009, the Department entered into an agreement as part of the settlement of 

litigation to restore the United States’ government-to-government relationship with 

the Wilton Rancheria, in California. The Wilton Rancheria had been improperly terminated by the United States. The settlement agreement, and the corresponding 

court order, provides that the Wilton Rancheria is restored to the same status it enjoyed prior to the distribution of its trust assets, and that the Tribe is entitled to 

any of the benefits or services provided or performed by the United States for Indian 

tribes. 

The Department does not consider these actions to constitute ‘‘acknowledgment’’ 

of an Indian tribe in the manner governed by the Part 83 process. Rather, these 

actions were undertaken in separate contexts, and were made after a rigorous review of the unique facts and circumstances of each tribe on a case-by-case basis. 

Common Views of the Federal Acknowledgment Process 

The Department is well-aware of common views expressed by federally-recognized 

tribes, petitioning groups, observers, and the general public regarding the acknowledgment process. Earlier this year, the Department participated in a roundtable discussion on this issue hosted by the Committee. I would like to thank the Committee 

for bringing together leadership from various Indian communities and members of 

the public to discuss this important issue. 

That discussion highlighted a number of concerns with the acknowledgment process that have been expressed in previous congressional hearings in previous years. 

The most common concerns include:

• A general view that the process is expensive, burdensome, intrusive, less than 

transparent, and unpredictable;

• The Department needs to be more efficient in its review, including the expenditure of federal funds, and explore ways to integrate outside experts and other 

Department staff into the review process;

• Petitioners should be apprised of the Department’s views on threshold legal 

questions before they invest precious time and resources into advancing their 

petition;

• The trajectory of the Department’s review of a petition is unpredictable, due to 

the research schedule demanded by interested parties;

• Petitioning groups that were previously denied acknowledgment should be permitted to go through the process again, and present new or supplemental evidence;

• The Department’s process does not give enough weight to findings made in judicial proceedings or by Congress; and,

• Collateral issues raised in a federally-acknowledged tribe’s prior petition are 

now being resurrected in legal arguments concerning the governmental status 

of those tribes, especially in light of the 2009 Carcieri decision.

These are only some of the common critiques of this process that emerged in the 

Committee’s roundtable discussion and through other forums over the years. 

Principles Guiding Improvements in the Federal Acknowledgment Process 

As noted above, the Department is well-aware of critiques of the existing Part 83 

Process for federal acknowledgment. We have previously indicated that we have 

been reviewing our existing regulations to consider ways to improve the process. 

Based upon our review, and the views expressed by tribes and interested parties, 

we believe than any efforts to improve the process should be undertaken pursuant 

to certain guiding principles:

• Transparency—Ensuring that the process is open, and is easily understood by 

petitioning groups and interested parties.

• Timeliness—Moving petitions through the process, responding to requests for 

information, and reaching decisions as soon as possible, while ensuring that the 

appropriate level of review has been conducted.

• Efficiency—Conducting our review of petitions to maximize federal resources, 

and to be mindful of the resources available to petitioning groups.

10

• Flexibility—Understanding the unique history of each tribal community, and 

avoiding the rigid application of standards that do not account for the unique 

histories of tribal communities.

To this end, the Department has considered a number of concepts that have been 

raised by the tribes that have gone through this process, petitioning groups, other 

interested parties, and staff within our Office of Federal Acknowledgment. These 

considerations include:

• Conducting an assessment of the standard of evidence required for the seven 

mandatory criteria under the Part 83 process.

• Pairing the resources within the Office of Federal Acknowledgment with outside 

research tools that will help the Department to be more flexible and responsive.

• Adopting a streamlined and transparent process for granting extensions of time 

or adopting changes in the schedule for a Proposed Finding or Final Determination.

• Adopting single criteria negative determinations and expedited review when a 

petitioning group can demonstrate continuous existence on a reservation since 

1900.

We believe these principles and considerations have established a framework that 

can lead to improvements in the Part 83 process. Any efforts to improve the process 

must ensure that we are acknowledging the nation-to-nation relationships between 

the United States and Indian tribes in a manner that is both fair and defensible. 

Conclusion 

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

The CHAIRMAN. We really appreciate your being here, Mr. 

Newland. 

In your testimony, you outline principles raised through years of 

hearings as well as at our recent roundtable. Thanks for expressing 

your appreciation for the roundtable meetings. 

My question is, how well did the Department implement these 

considerations to improve the administrative process and also ensure that they are fair and defensible? 

Mr. NEWLAND. Thank you, Mr. Chairman. 

I think as we move forward we have some broad agreement within the Department on a number of areas within our regulations 

that deal with process that we think can help make this more efficient, which is one of the principles that was in our prepared testimony. 

With respect to the substantive provisions of the regulations, we 

would certainly engage in Tribal consultation and dialogue with interested parties and of course, work with members of the Committee and your staff and try to seek broad consensus and ideas 

that will really improve this process and make it work for everybody involved. 

The CHAIRMAN. Thank you for that. Even here in the Committee 

we try to spend more time to include the Tribes as well, and hearing directly from them. 

Mr. Newland, Congress has recognized 16 Tribes in the last 40 

years. Is there a continued need for Congress to exercise its authority to acknowledge or reaffirm Tribes? 

Mr. NEWLAND. Thank you, Mr. Chairman. 

Coming from the State of Michigan, I am very familiar with Congressional enactments that have reaffirmed or restored the government-to-government relationship between the United States and 

11

Indian Tribes. I have seen up close that there are certainly times 

where that is appropriate or warranted. 

The Department, we have our process under Part 83, which was 

noted earlier by the Vice Chairman. It is supposed to bring some 

uniformity of review. But at times, Congress, in its authority over 

matters of Indian affairs, may be the appropriate route to examine, 

on a case by case basis, the needs of organizations that want to engage the United States in a nation-to-nation relationship. 

The CHAIRMAN. Thank you. 

Let me call on our Vice Chairman for any questions he may 

have. 

Senator BARRASSO. Just a couple, Mr. Chairman. 

Thanks so much for being here. During a Committee hearing on 

Federal recognition back in November of 2009, the Acting Principal 

Deputy Assistant Secretary for Indian Affairs at that time, George 

Skibine, identified specific issues in the current Federal recognition 

process. The issues included the need for clear time frames for decisions, qualifying some ambiguities and standards in the process. 

He testified that the Department intended to publish within a year 

proposed rules to address these issues. 

I was just wondering if you could tell us what progress has been 

made to implement reforms on these sorts of issues. 

Mr. NEWLAND. Thank you, Mr. Vice Chairman. Yes, I am well 

aware of the testimony in that hearing in 2009, where we had 

pledged to propose new rules within a year. In response to that, we 

didn’t get that done. There is no sugar-coating that. 

But that is not to say we haven’t made progress. I think a lot 

of the progress was highlighted at the recent roundtable here 

hosted by this Committee. Again, it was a great opportunity to pull 

together petitioning groups, federally-recognized Tribes, members 

of Congress and staff, and key staff from the Department, where 

again, a lot of the issues were framed and a lot of good ideas were 

presented. 

I think that out of that roundtable, we were able again to develop some guideposts or key principles that will inform a regulatory reform effort. 

Senator BARRASSO. Obviously we hear, in a bipartisan way, Mr. 

Chairman, we hear concerns and complaints about how long it 

takes to get through the Federal acknowledgment process. Some 

Tribal groups have had their acknowledgment petitions on the 

‘‘ready and waiting’‘ list for over a dozen years. So I want to know 

what the principal reasons are for the slow pace of the process and 

what the Department is doing to address the problem. 

Mr. NEWLAND. Thank you, Vice Chairman. The regulations 

themselves, as was highlighted in the 2009 hearing, contain a process time line that in a perfect world would take 25 months. But 

clearly, that is not how the process has been working. And we have 

to look at some of the other parts, the non-process parts of our regulations, and also take advantage of the flexibility that we do have 

under the existing regulations. 

The important part to remember is that each group, each petitioning group and each federally-recognized Tribe has a unique nation-to-nation relationship with the United States. It is important 

that when we are reviewing petitions or considering reform that we 

12

look at the standard of evidence, standard of proof that we applied 

and make sure that we retain and perhaps bolster the flexibility 

that we do have. We have all heard the stories of petitioners submitting tens of thousands of pages of documents. We can put time 

lines in the regulations. But when we have a burden of proof and 

a rigid application of mandatory criteria, that has a huge impact 

on the time line and the length of time it takes us to complete our 

review. 

So really delving into the substantive parts of the regs is also 

something that we are going to have to look at going forward. 

Senator BARRASSO. Well, we want to make sure it is not going 

to take the Department as long to fix the process as it takes a 

Tribe to get through the process. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you very much, Senator Barrasso, for that 

question. Because I think we need to work toward what you mentioned, the perfect solution, as quickly as we can. I think we can 

work that out together here in Congress and with the Administration. But it is important that we try to improve the process. 

Mr. Newland, similarly, at his confirmation hearing, former Assistant Secretary Echo Hawk discussed problems with the Federal 

acknowledgment process. Subsequently, there were assurances 

made that the Administration would seek, as we all are, to resolve 

those issues. 

Can we expect to see improvements made to the process before 

the end of this Congress? 

Mr. NEWLAND. Thank you, Mr. Chairman. 

I can’t, especially in light of our previous testimony, come up 

here and honestly answer that these reforms are going to be finished by then. What I can pledge is that this Administration, this 

Department of the Interior, are going to continue our work. Again, 

we have made, notwithstanding the fact that we did not publish 

proposed rules within a year as was indicated in the last hearing, 

that is not to say we haven’t made progress. I think a lot of that 

progress, again, came out of really the roundtable that this Committee hosted. It was a collaborative effort, and I really think it 

was an important moment in this effort. 

I think we have a good template, we have a good framework to 

move forward. We do have a commitment to move forward, and we 

are sensitive to, Mr. Vice Chairman, the concern that we don’t 

want this effort to draw out longer than it takes to acknowledge 

Tribes under the existing process. It is important, it is a priority 

for us. We are going to continue our work. 

The CHAIRMAN. Thank you. Any further questions? 

Well, this is a challenge, not only for us here and for you, but 

for the Administration as well in many of the areas. We continue 

to work on it. And in our case, we want to try to move it along as 

best we can. This is the effort. 

There being no further questions, I want to thank you very 

much, Mr. Newland, for being here, for your statement and your 

responses. I really appreciate it and look forward to working with 

you and the Administration on these challenges. 

Mr. NEWLAND. Thank you, Mr. Chairman, Mr. Vice Chairman. 

13

The CHAIRMAN. I would like to invite the second panel to the witness table. Serving on our second panel is the Honorable Stephen 

R. Adkins, Chief, Chickahominy Indian Tribe, Charles City, Virginia; the Honorable Paul Brooks, Chairman of the Lumbee Tribe, 

Pembroke, North Carolina; Mr. John Norwood, Co-Chair of the National Congress of American Indian Taskforce on Federal Acknowledgment, Washington, D.C.; Mr. K. Jerome Gottschalk, Staff Attorney, Native American Rights Fund, Boulder, Colorado; and Mr. Michael J. Anderson, Owner, Anderson Indian Law, Washington, D.C. 

I want to welcome all of you here and ask Chief Adkins to please 

proceed with your testimony. 

STATEMENT OF HON. STEPHEN R. ADKINS, CHIEF, 

CHICKAHOMINY INDIAN TRIBE 

Mr. ADKINS. Thank you, Chairman Akaka and Ranking Member 

Senator Barrasso, for inviting me here today to speak on this very 

important subject in Indian Country. 

Today I seek to provide a voice for those Tribes seeking Federal 

acknowledgment as sovereign nations, regardless of the process 

they are pursuing. However, in some specific areas, I am speaking 

to those six Tribes named in S. 379, the Indian Tribes of Virginia 

Federal Recognition Act of 2011. And when I think of S. 379, it is 

with some dismay. This bill was heard and passed out of Committee on July 28th, 2011, but no committee report has been issued 

since then. I find that distressing and I just want to register 

present with that observation. 

Chairman Akaka, during the first decade of the 21st century, the 

Virginia Indian Tribes were honored to represent the very essence 

of democracy and freedom for this Country. We represented the 

Commonwealth of Virginia and we represented the United States, 

traveling extensively, talking about that first primitive English settlement, the fact that that was the cradle of democracy and the 

contributions the Native Indians made to the success of that first 

primitive English settlement. Sadly, somehow we got lost in the 

process and the first to greet the settlers have yet to be recognized. 

Let me point out a few points regarding the history of Virginia 

Indian Tribes. A government-to-government relationship with the 

colonists and crown began in the early 17th century. A final treaty 

drawn in 1677 deemed us, the signatories, sovereign subjects of the 

crown. However, the sovereign status was neither honored nor recognized by the United States. 

Some Virginia Indian Tribes were forcibly relocated from ancestral lands to other parts of Virginia. Some of these Tribes migrated 

back to their homeland and miraculously purchased land fee simple. In the late 19th century anthropologists applauded our efforts 

and our success in maintaining our respective identities and urged 

us to continue those efforts. 

Indians were inducted into the armed forces as Indian people in 

World War I. The Racial Integrity Act of 1924 decreed that there 

were only two races in Virginia, White and Colored. So those folks 

that entered service in World War II had to take their chiefs with 

them to ensure they were registered as Indians. 

During the Indian Reorganization Act of 1934, representatives 

from the United States government visited our Tribal communities, 

14

verified who we were, and yet the State continued to say we did 

not exist. The State paid for teachers and supplies for Indian students attending Indian schools, even though the state did not officially recognize us. 

In the 1940s, the State began paying tuition and transportation 

costs to send Virginia Indians out of State to attend high school. 

Lots of my folks went to Bacone College in Oklahoma. Students 

continued to attend boarding schools throughout the 1950s. These 

are just some of the things that happened to us during our history. 

The Virginia Tribes deserve Federal acknowledgment as sovereign nations. We deserve and have vigorously pursued paths to 

achieve same. To achieve recognition, we were told we needed to 

go through the administrative process. We were told all we would 

have to do was present records substantiating our existence. 

Well, our records were destroyed during the Civil War. They 

were also destroyed by action of the Commonwealth through the 

Racial Integrity Act of 1924. So we had the State saying we are not 

who we say we are, all this we had to be overcome in order to meet 

the rigors of the administrative process. 

We began the administrative process in the 1990s. Our hopes 

were significantly diminished when the then Assistant Secretary 

for Indian Affairs told us that many of us would not live to see Federal acknowledgment through the administrative process. And I 

hate to say this, but several of our chiefs have been buried since 

then. That proved to be a prophecy that came to pass. 

The Tribes are not carbon copies of each other across the United 

States. So a standardized mechanism to acknowledge Tribes clearly 

cannot work. The road to recognition is very costly. Some Tribes 

cannot afford the cost of pursuing that route. 

Now, let’s look at how we fared using the Congressional or legislative route. The fact that Congress has authority to recognize 

Tribes remains above dispute. Let’s look at the Government Accountability Office numbers. As of April 2011, 564 Tribes had been 

acknowledged as sovereign Indian nations. Out of those 564 Tribes, 

530 were acknowledged by Congress. 

The bottom line is that Congress has authorized 92 percent of 

the Tribes that have been accorded recognition from the United 

States of America. 

Out of the box, we made some concessions in our process that actually chipped away at our sovereignty. We have had no interest 

in gaming, so we readily agreed to insert language into our bill 

stipulating that we would not engage in gaming. 

Many times our bills have passed out of one body of Congress. 

In the 111th Congress, for instance, our bill passed the House but 

failed to reach the Floor of the Senate. We continue to press our 

case and have been advised that we have a very compelling story 

and should be accorded recognition. But it still has not happened. 

In conclusion, let me say that much conversation has occurred regarding when Indian Tribes should be recognized by the Federal 

Government. Let me summarize our feelings on this subject. Tribes 

who have been able to maintain their identity over hundreds of 

years, who have faced abuse and insults because of their heritage, 

who have continued to see their Tribal lands shrink, who have seen 

their ranks decimated to the point that Native American Indians 

15

represent less than 1.4 percent of the United States population, 

who have lost more of their citizens per capita fighting for our 

Country in the armed services of the United States of America, and 

these folks who resolutely salute Old Glory and display pride and 

love for their Country, the answer to when to do the right thing 

must always be right now. 

Mr. Chairman, the Virginia Indian Tribes urge you to seize the 

opportunity to stand and do the right thing now by ensuring the 

passage of S. 379, thus granting Federal acknowledgment as sovereign nations to these historic Virginia Indian Tribes. 

Thank you, Chairman Akaka, for allowing me to address you 

today on this very important topic. And I will say, my written testimony goes into detail on these various subjects. Thank you for listening to me today. 

[The prepared statement of Mr. Adkins follows:]

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

TRIBE

Thank you Chairman Akaka and other distinguished members of the Senate Committee on Indian Affairs for inviting me here today to speak at the oversight hearing 

on ‘‘Federal Recognition: Political and Legal Relationship Between Governments’’. It 

is an honor to appear before this Committee today to speak to this very important 

subject which looms large all across Indian Country. 

I seek to provide a voice for those tribes seeking federal acknowledgement as sovereign nations regardless of the process they are pursuing. However in some specific 

areas, I am speaking on behalf of the Eastern Chickahominy, the Monacan, the 

Nansemond, the Upper Mattaponi, the Rappahannock, and my Tribe the Chickahominy, the six Tribes named in S 379, The Indian Tribes of Virginia Federal Recognition Act of 2011. Hereinafter these six tribes will be referred to as the Virginia 

Indian Tribes. 

Chairman Akaka, the Virginia Indian Tribes were honored to represent the very 

essence of democracy and freedom as we participated in events, both in the Commonwealth of Virginia and the United Kingdom, commemorating the 400th anniversary of the establishment of the first permanent English Settlement in America in 

May 1607. 

We took pride in representing the Commonwealth of Virginia and the United 

States of America as descendant tribes of those Virginia woodland Indians who welcomed the first permanent English settlement to what is now called America. A culminating event to the commemoration occurred in May 2007 when President George 

W. Bush shared the podium with dignitaries from the United Kingdom, the Governor of Virginia, and leadership from Virginia Indian tribes. However, when the 

hoopla subsided and the festivities were over, we remained unrecognized as sovereign nations by the United States of America. 

Virginia Indian Tribes lived under the Treaty of 1677, a treaty with the English 

Crown, until the formation of the United States. Signatories of this treaty were 

deemed ‘‘sovereign subjects of the crown’’. As recently as the first decade of the 21st 

century this treaty was applied to a court case involving Virginia Indians. And while 

we are now recognized by the Commonwealth of Virginia, federal recognition remains unfulfilled. While we continue to attempt to achieve recognition through the 

administrative tribal recognition process, it is our belief that this process is broken 

and unavailable to us. 

Please allow me to cite a painful example of why the current administrative process falls short in embracing the reality Virginia’s Indigenous people face. In 1912, 

a man named Walter Ashby Plecker became head of the first Bureau of Vital Statistics in Virginia. Plecker was a rabid white separatist; he supported and enforced the 

Virginia Racial Integrity Act, which became law in 1924. To give you an idea of the 

motives surrounding this legislation, a companion bill was the Sterilization Act, 

which called for the forced sterilization of ‘‘feeble-minded’’ inmates. 

The Racial Integrity Act classified all persons in the Commonwealth of Virginia 

as either ‘‘white’’ or ‘‘colored.’’ It enforced the ‘‘one-drop’’ rule, in which any person 

with even ‘‘one drop’’ of African or Native American blood was deemed to be ‘‘colored.’’ From 1924, official records of the Commonwealth of Virginia did not allow 

Virginia’s Native American Tribes to list Indian, Native American, or any other tribVerDate 0ct 09 2002 12:59 Jan 17, 2013 Jkt 077947 PO 00000 Frm 00019 Fmt 6633 Sfmt 6621 S:\DOCS\77947.TXT JACK
16

al affiliation as race. According to the Commonwealth of Virginia, we were all just 

‘‘colored.’’

This act served as the official policy of Virginia for five decades, remaining in effect until 1967. The act caused my parents and other Virginia Indians to have to 

travel to Washington D.C. in order to be married as Indians. This vile law forced 

all segments of the population to be registered at birth in one of two categories, 

white or colored. Our anthropologist says there is no other state that attacked Indian identity as directly as the laws passed during that period of time in Virginia. 

No other ethnic community’s heritage was denied in this way. Our State, by law, 

declared there were no Indians in the State in 1924, and if you dared to say differently, you went to jail or suffered other indignities. This state action distinguishes us from many other tribes in this country, tribes that were protected from 

this blatant denial of Indian heritage and identity. 

However, there was one exemption to this rule. Many of the First Families of Virginia claimed to be descendants of Pocahontas. The law contained a ‘‘Pocahontas exemption,’’ allowing the landed white families in Virginia to be listed as ‘‘white’’ despite the one-drop rule, while still claiming to be descendants of Pocahontas. 

Plecker and the Virginia Bureau of Vital Statistics even went so far as to retroactively change the vital records of many of our ancestors so that only white or colored were listed. As part of the Indian Reorganization Act in 1934, United States 

government officials contacted the Commonwealth of Virginia regarding its Indian 

population. The state registrar, also one Mr. Walter A. Plecker, advised there were 

no Indian Tribes in Virginia. Despite Plecker’s response, Federal Government officials visited Virginia tribes, conducted interviews, and photographed people, places 

and things substantiating our existence. But no action was taken, and we remain 

unrecognized. 

To achieve recognition, we are now told that we should go through the administrative process in the Department of the Interior. All we have to do, we are told, 

is present records substantiating our claims to have been tribes. But because the 

Virginia Indian Tribes signed treaties with the English in 1677, our treaties aren’t 

recognized by the United States of America, which had yet to be formed. Because 

courthouses containing our records were burned during the Civil War, our documentation isn’t in order. And because Walter Plecker and the vile Racial Integrity 

Act claimed we didn’t exist, it appears that the administrative process agrees. 

The history of the Virginia Indian Tribes predates 1607, our first sustained 

English contact. In my discussion with the Bureau of Acknowledgement and Research (BAR) now the Office of Federal Acknowledgement (OFA), I was advised we 

needed to supply documentation of our existence for each decade since 1607. Even 

though this has been relaxed to reach back to 1790, problems still exist from several 

fronts: (1) tribes had no written language; (2) oral history was considered inadequate; (3) colonial leadership sought to annihilate Native people versus maintaining vital statistics on them. 

Ironies at the state and federal level have supported the fact that Virginia Indian 

Tribes have endured over time. In the 20th century the Commonwealth of Virginia 

supplied transportation and tuition funding for Virginia Indian students to attend 

high school at Bacone Indian School in Muskogee, Oklahoma. In addition to Oklahoma, the Commonwealth of Virginia provided funding for students to attend high 

school in other States. On the other hand, the Federal Government supplied funds 

to send Virginia Indian Students to Federal Government Indian boarding schools located in several different states. The former being tantamount to the Commonwealth of Virginia recognizing Virginia Indian Tribes as Indian, and the latter, the 

Federal Government recognizing Virginia Indian Tribes as Indian by supplying federal funding for boarding school attendance. 

Probably the most telling testimony to the current system is the fact that in 1999, 

the head of the BIA, the Assistant Secretary for Indian Affairs, advised a Virginia 

Indian tribal delegation that many of those people assembled on that day would not 

live long enough to see federal acknowledgement for their tribe(s) through the administrative process. This proved to be prophetic for several of the tribal chiefs and 

other tribal members who attended that meeting in 1999 have been buried since 

then. 

This testimony would be incomplete if I did not cite a common thread that exists 

among Atlantic Coast Tribes and even some Gulf Coast Tribes. The thread I am 

speaking of is our respective tie to colonial governments. The success of these tribes 

in going through the administrative process has been very low. Several factors contribute to the low success rate:

1. Lack of resources needed by tribes to ‘‘ferret’’ out the requisite information 

to be compliant with a process geared more toward post-1790 tribal histories;

17

2. Perceived low value/regard for tribal oral history;

3. Failure of the administrative process to recognize that one size does not necessarily fit all;

4. Perceived lack of value/regard for treaties drawn between tribes and colonial 

governments.

Other compelling reasons to have this conversation today include:

1) Time—In many cases the administrative process has taken in excess of 20 

years before a determination is reached. Even legislative recognition often 

takes several years before a bill reaches the floor of the House or Senate.

2) Cost—The road to recognition is very costly ranging from several hundred 

thousand to several million dollars. These costs include fees for attorneys, lobbyists, anthropologists, et al. Tribes generally are poor and can’t afford these 

fees.

3) Application of administrative criteria—

1. Criteria appear to be geared to those tribes encountered following formation of the United States without taking into account regional differences 

in tribal experiences;

2. Criteria seem to be interpreted more strictly with time, especially with 

adoption of IGRA;

3. State recognition or state reservations don’t seem to be given much weight;

4. Many petitioners perceive that racial bias seems more prevalent regarding 

tribes in the East & South

The fact that congress has the authority to recognize tribes remains above dispute. Let’s look at the Government Accountability Office (GAO) numbers. As of April 

2011, 564 tribes had been acknowledged as sovereign Indian Nations. Out of those 

564 tribes, 530 tribes had been acknowledged by Congress; 17 tribes had been acknowledged by OFA; 10 tribes had been acknowledged through the administrative 

process pre-1978; 7 tribes had been recognized by the administrative process post1978 but outside of OFA. The bottom line is that Congress has recognized 92 percent of tribes who have been accorded recognition from the United States government. 

Much conversation has occurred regarding when Indian tribes should be newly 

recognized by the Federal Government. Let me summarize my feelings on this subject: Tribes who have been able to maintain their identity over hundreds of years, 

who have faced abuse and insults because of their heritage, who have witnessed 

continued shrinking and sometimes complete loss of their tribal lands, who have 

seen their ranks decimated to the point that Native American Indians represent less 

than 1.4 percent of the United States population, who have lost more of their citizens per capita fighting for their country in the Armed Forces of the United States 

of America than any other group in the Union, and who resolutely salute Old Glory 

and display pride and love for their county, the answer to ‘‘when?’’ is a resounding 

‘‘NOW’’! 

Thank you for allowing me to address you today on this very important topic.

The CHAIRMAN. Thank you, Chief Adkins. 

Chairman Brooks, will you please proceed with your statement? 

STATEMENT OF HON. PAUL BROOKS, CHAIRMAN, LUMBEE 

TRIBE OF NORTH CAROLINA 

Mr. BROOKS. Chairman Akaka, Tribal leaders and staff, thank 

you for the opportunity to address the Federal acknowledgment 

process from the perspective of my people. 

Other panelists have specific complaints about how the process 

is inefficient and in some ways completely broken. On behalf of my 

people, I am here today to tell you that there is no administrative 

process for the people of the Lumbee Tribe of North Carolina. 

Congress passed the Lumbee Act in 1956. This legislation acknowledged the Indians of Robeson County and surrounding counties, but the following clause was included to prevent Federal services to my people: ‘‘Nothing in this Act shall make Indians eligible 

18

for any services performed by the United States because of their 

status as Indians.’‘ 

In 1989, the Lumbee petitioned the Bureau of Indian Affairs for 

full Federal recognition. The Secretary of the Interior requested a 

review of the Lumbee Act of 1956. From the Office of the Solicitor, 

in light of the Lumbee petition, the Solicitor indicated that the acknowledgment regulation, 25 CFR Part 83, do not apply to groups 

which are the subject of Congressional legislation terminating or 

forbidding the Federal relationship. 

Based on the language in the Lumbee Act, the Solicitor opined 

that the Lumbee Act terminated or forbade the Lumbee from relationships with the Federal Government. The Solicitor recommended 

to the Secretary that the Department had no authority to act on 

the extensive petition submitted by the Lumbee. 

To support his opinion, the Solicitor concluded that the Department would be exposed to substantial risk of litigation if it provided services or acknowledgment and acknowledged the government-to-government relationship with the Lumbee Indians. 

The Solicitor refused to acknowledge a well-established, and I 

want to repeat that, the Solicitor refused to acknowledge a well-established government-to-government relationship between the 

Lumbee and the United States. In 1887, the North Carolina General Assembly passed a bill to provide education assistance for the 

Lumbee people by financing the construction of an Indian Normal 

School. That Indian Normal School today is the University of North 

Carolina at Pembroke, and it was born in that Act that North 

Carolina did. 

In 1900, Congressman Bellamy reported to the United States 

House Committee on Indian Affairs on the origin, history, and 

needs of the Indians of Robeson County. In 1910, the United States 

Government completed a special census of Indian population of 

Robeson and adjoining counties as part of the Decennial Census 

Survey. In 1913, the United States Congress held a hearing on the 

status and concerns of the Indians of Robeson County. In 1914, the 

United States Senate Resolution 410 directed the Secretary of the 

Interior to investigate the Indians of Robeson County and adjoining 

counties of North Carolina. In 1915, Indian Agent O.M. McPherson 

concluded that the Lumbees are of Cheraw descent. 

In 1923, the Superintendent of the Cherokee Agency recommended the State’s 1884 Indian rolls, listen to that, be revised 

and disputed Indians be granted access to training at Haskell University due to education disparities caused by the lack of funding 

in Robeson County. In 1933, Jon Swanton, a Smithsonian Institute 

anthropologist, studied the Tribe and declared the Lumbee to be of 

Cheraw Indian origin and other closely-related Siouan-speaking 

Tribes. These are just a few examples of the government-to-government relationship between the Lumbee Tribe of North Carolina 

and the United States. 

For more than 100 years, my people have petitioned, applied, 

and appealed for recognition of our sovereignty. My people have 

served in every major conflict in which our United States military 

has engaged including, but not limited to, the Revolutionary War, 

the Civil War, World War I, and World War II. And we are still 

dying today because of that. 

19

I respectfully offer today that the various means of Federal recognition have failed the Lumbee Tribe of North Carolina. The Constitution of these United States makes this Congress responsible 

for the well-being of indigenous people of the United States. There 

is no delineation or classification of Tribes in the United States 

Constitution. The United States Congress has a responsibility to 

my people to deal with them as they do with other Tribes across 

the Country, without regard to recognition status. 

Never before has the government accorded the Tribe of Lumbees 

that are not eligible for the process to go through a process that 

everybody admits is broken. The Solicitor has also said that we are 

not eligible for the Federal acknowledgment process, so Congress 

should do what it has done for every other Tribe that has already 

been mentioned like that, and pass full recognition legislation. 

Some might say that the recognition process has been delegated 

to the Department of the Interior. Respectfully, I suggest to you 

that the delegation of a responsibility by the United States Congress does not relieve Congress of the responsibility to uphold the 

Constitution. For over 100 years, my people have followed the processes of this government. We worked with the various Federal 

agencies as they studied us. We have testified numerous times before Congress. We have petitioned the Bureau of Indian Affairs. We 

have had legislation introduced almost every Congress since 1988. 

I implore you to make way for the recognition of the Lumbee 

Tribe of North Carolina. Our elders are dying waiting for the benefits, and our children struggle to become educated while waiting for 

benefits that should be available to all Tribes under Federal statute. 

I thank you for the opportunity to address the Committee. I look 

forward to the day when my people, the Lumbee Tribe, receive the 

same benefits accorded Indian people who have been recognized by 

these United States. Thank you very much. 

[The prepared statement of Mr. Brooks follows:]

PREPARED STATEMENT OF HON. PAUL BROOKS, CHAIRMAN, LUMBEE TRIBE OF NORTH

CAROLINA

Chairman Akaka, Committee Members, Tribal Leaders and Staff: 

Thank you for the opportunity to address the Federal Acknowledgment process 

from the perspective of my people. Other panelists have specific complaints about 

how the process is inefficient and in some respects completely broken. On behalf of 

my people, I am here today to tell you that there is no administrative process for 

the people of the Lumbee Tribe of North Carolina.

Congress passed the Lumbee Act in 1956. This legislation acknowledged the Indians of Robeson County and surrounding Counties, but the following clause was included to prevent federal services to my people: ‘‘Nothing in this Act shall make Indians eligible for any services performed by the United States because of their status as Indians, . . .’’ In 1989, the Lumbee petitioned the Bureau of Indian Affairs 

for full federal recognition. The Secretary of the Interior requested a review of the 

Lumbee Act of 1956 from the Office of the Solicitor in light of the Lumbee petition. 

The Solicitor indicated that the acknowledgment regulations (25 CFR Part 83) do 

not apply to groups which are the subject of Congressional legislation terminating 

or forbidding the Federal relationship. Based on the language in the Lumbee Act, 

the Solicitor opined that the Lumbee Act terminated or forbade the Lumbee from 

a relationship with the Federal Government. The Solicitor recommended to the Secretary that the Department had no authority to act on the extensive petition submitted by the Lumbee. To support his opinion, the Solicitor concluded that the Department would be exposed to substantial risk of litigation if it provided services 

20

or acknowledged a government-to-government relationship with the Lumbee Indians. The Solicitor refused to acknowledge a well-established government-to-government relationship between the Lumbee and the United States. In 1887, the North 

Carolina General Assembly passed a bill to provide education assistance for the 

Lumbee people by financing the construction of an Indian Normal School and the 

present day University of North Carolina at Pembroke was born. In 1900, Congressman Bellamy reported to the United States House Committee on Indian Affairs on 

the origin, history and needs of the Indians of Robeson County. In 1910, the United 

States Government completed a special census of Indian population of Robeson and 

adjoining counties as part of the decennial Census survey. In 1913, the United 

States Congress held a hearing on the status and concerns of the Indians of Robeson 

County. In 1914, United States Senate Resolution 410 directed the Secretary of the 

Interior to investigate the Indians of Robeson and adjoining Counties of North Carolina. In 1915, Indian Agent O.M. McPherson concluded that the Lumbee are of 

Cheraw descent. In 1923, the Superintendent of the Cherokee Agency recommended 

the State’s 1884 Indian rolls be revised and undisputed Indians be granted access 

to training at Haskell University due to education disparities caused by lack of 

funding in Robeson County. In 1933, Jon Swanton, a Smithsonian Institute anthropologist, studied the tribe and declared the Lumbee to be of Cheraw Indian origin 

and other closely related Siouan speaking tribes. These are just a few examples of 

the government-to-government relationship between the Lumbee Tribe of North 

Carolina and the United States. 

For more than 100 years, my people have petitioned, applied and appealed for recognition of our sovereignty. My people have served in every major conflict in which 

our United States military has engaged including, but not limited to, the Revolutionary War, the Civil War, World War I, and World War II. 

I respectfully offer today that the various means of federal recognition have failed 

the Lumbee Tribe of North Carolina. The Constitution of these United States makes 

this Congress responsible for the well-being of indigenous peoples of the United 

States. There is no delineation or classification of tribes in the United States Constitution. The United States Congress has a responsibility to my people to deal with 

them as they do with other tribes across this country without regard to recognition 

status. Never before has the government required a tribe like Lumbee that is not 

eligible for the process to go through a process that everybody admits is broken. The 

Solicitor’s office has said that we are not eligible for the federal acknowledgment 

process so Congress should do what it has done for every other tribe like that and 

pass full federal recognition legislation. Some might say that the recognition process 

has been delegated to the Department of Interior. Respectfully, I suggest to you that 

delegation of a responsibility by the United States Congress does not relieve Congress of the responsibility to uphold the Constitution. 

For over 100 years, my people have followed the processes of this Government. 

We worked with the various federal agents as they studied us, we have testified numerous times before Congress, we have petitioned the Bureau of Indian Affairs, and 

we have had legislation introduced almost every Congress since 1988. I implore you 

to make a way for the recognition of the Lumbee Tribe of North Carolina. Our elders are dying waiting for health benefits and our children struggle to become educated while waiting for benefits available to other tribes by federal statutes. 

Mr. Chairman, I thank you for the opportunity to address this Committee, and 

I look forward to the day when my people, the Lumbee Tribe, receive the same benefits afforded Indian people who have been recognized by these United States.

The CHAIRMAN. Thank you for your statement, Chairman Brooks. 

Mr. Norwood, will you please proceed with your statement? 

STATEMENT OF JOHN NORWOOD, CO–CHAIR, TASK FORCE ON 

FEDERAL ACKNOWLEDGMENT, NATIONAL CONGRESS OF 

AMERICAN INDIANS 

Mr. NORWOOD. I would like to thank you, Senator Akaka, members of the Committee and staff for the invitation to testify at this 

hearing. I am appreciative of the manner in which you, sir, have 

served as a champion not only for the Hawaiian people, but also 

for the indigenous people here in the Continental United States. 

I would like to acknowledge the fact that two of the chiefs of the 

Confederation of which I am part, the Confederated NanticokeVerDate 0ct 09 2002 12:59 Jan 17, 2013 Jkt 077947 PO 00000 Frm 00024 Fmt 6633 Sfmt 6601 S:\DOCS\77947.TXT JACK
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Lenape Tribes of the Delaware Bay are here. Chief Gould and 

Chief Coker, and I will have trouble at home if I don’t acknowledge 

my lovely wife, Tanya, also. 

The Congress obviously has jurisdiction over the interaction between the Federal Government and the American Indian Tribes. 

However, as codified in the federally-Recognized Indian Tribe List 

Act of 1994, not only Congress, but also the Bureau of Indian Affairs and even a decision of the Federal court can bring Federal acknowledgment. But for roughly the past 35 years, recognition has 

been either through Congress or primarily through the administrative process. 

However, the process, the administrative process that was meant 

to be an objective method to correct the relationship between our 

Country and the historically verifiable American Indian nations, 

without Federal recognition, has broken down. That has been obvious in all the studies and the hearings that have come before this 

Committee, and even in the statement of the BIA earlier, in this 

very hearing. 

In reviewing petitions for Federal recognition, the manner in 

which the criteria have been applied has become increasingly unreasonable, overwhelmingly expensive and unjustifiably unpredictable. So much so than an estimated 72 percent of currently recognized Tribes could not successfully navigate the process as the criteria are applied today. The process that was meant to aid legitimate Tribes has become a burdensome obstacle to their recognition. 

Tribes now enter this process with fewer rights than defendants in 

criminal proceedings. Criminal court defendants are at least presumed innocent until proven guilty. And that guilt must be proven 

beyond a reasonable doubt. But American Indian Tribes must now 

prove their existence beyond a shadow of any doubt. 

Successful applications that were once only a couple of hundred 

pages of material now require tens of thousands of pages of evidence, costing upwards of millions of dollars and taking up to 35 

years of delays to make final determinations. Then after pouring 

such resources into an intergenerational effort, many of those determinations are still unreasonable denials. 

Adding insult to injury, and demonstrating the urgency of our 

concern, there is a new marginalization of non-federally recognized 

historically documented Tribes through Federal regulations that 

have begun to exclusively define Indian as members of federallyrecognized Tribes only. This policy is becoming pervasive and influencing even non-governmental charitable organizations. It is an increasing problem for many American Indians who are now treated 

as though they are not Indian at all. And it is a denial of indigenous identity through administrative reclassification. It is a form 

of Tribal termination. 

One of the many examples is there are citizens of non-Federal 

historically documented Tribes who attended Federal Indian boarding schools and colleges from the late 1800s straight through to 

2001, which they are now prohibited from attending. It is a travesty that proud, non-federally recognized graduates of federallyfunded American Indian colleges cannot return for additional study 

or have their children or grandchildren attend their own alma 

mater. 

22

Additionally, and astoundingly, even after the Executive Branch 

affirmed its support, the United Nations declaration on the rights 

of indigenous people, a recent statement from the Department of 

Justice regarding the application of that declaration suggested that 

it only applied to federally-recognized Indians. The obvious implication being that citizens of non-federally recognized Tribes suddenly, 

for some reason, are no longer considered indigenous. 

Increasingly, the words ‘‘indigenous’’ and ‘‘American Indian’’ are 

being redefined as ‘‘federally-recognized,’’ even while the administrative process for recognition is known to be hostile, unreasonable, 

unfair, racially biased, and demeaning to all American Indians. 

This increasing denial of identity equates to a process of administrative genocide in which non-federally recognized Tribal citizens 

are being systematically wiped from the political landscape. 

As I stated earlier, I am Nanticoke-Lenape, of the people of ‘‘first 

contact’’. My people were and are cited in historic records since the 

days of Captain John Smith and the Jamestown Colony. And like 

many of the Tribes on the east coast, we were also studied by arms 

of the Federal Government. Our children also went to Federal Indian schools. Yet we were peaceful and were not enumerated by 

the Department of War and moved onto Federal reservations. And 

I remain a citizen of a Tribe that is ignored by the Federal Government in many of its laws. 

Federal acknowledgment is a correction of an error in the relationship between the Federal Government and historic Tribes. It 

improves the ability of the Tribe to assert its own rights, preserve 

and protect its culture, defend its identity, promote its heritage, 

and provide for its Tribal citizens. However, Federal recognition 

does not bestow sovereignty, it merely acknowledges a Tribe’s inherent sovereignty. 

Furthermore, while the trust responsibility is acknowledged by 

Federal recognition, case law has shown that it exists even without 

such recognition. The lack of acknowledgment for historically documented Tribes is an injustice that needs swift correction. Worthy 

Tribes should not be forced to wait any longer for justice. Studies 

and discussion and hearings should now give way to swift action. 

And the mere tweaking of the administrative process has proven 

not to be the answer. It is a fact, and should be assumed that our 

learned leaders are capable of taking swift action and making positive decisions. 

Distinguishing and recognizing historically documented Tribes is 

a task that is not beyond the capability of Congress and the courts. 

It is not rocket science, it is not quantum physics. Congress can 

take action and has done so in the past. The United States Congress and the courts, as a matter of justice, should assume responsibility for correcting the injustice done to historic, non-federally 

recognized Tribes. 

I have six quick suggestions for the Committee. First, Congress 

and the courts should no longer solely rely on the Office of Federal 

Acknowledgment to process applications. Instead, Congress and the 

courts should act in accordance with the expectation of the federally-Recognized Indian Tribe List Act of 1994, utilizing their authority and discretion to immediately acknowledge worthy Tribes 

23

through legislative acts and court decisions and to provide methods 

for Tribes to access all means of acknowledgment under the Act. 

Access to such relief should be simplified for Tribes. Action by 

Congress on acknowledgment should not be an insurmountable 

task fought with intrigue and only successful through expensive, 

herculean lobbying efforts. Also, a Tribe should be able to request 

a judgment from a Federal court without having to be a defendant, 

and the courts should act regardless of any pending application before the BIA, which has recently been used as a reason for the Federal courts to defer to the Bureau. 

Congress should also ensure that listing in government reports, 

reports of agencies used as arms of the government or receiving of 

government services should be viewed as prior recognition. Tribes 

cited in records and studies between the 1880s and 1950s, or which 

were served through Federal Indian schools, should only have to 

demonstrate continuous community from the period of government 

citation or service. And, Tribes which prove to do so should be affirmed by Congress as having already been recognized. 

Number three, as a matter of justice, legislative, and regulatory 

measures should immediately be taken to ensure that the criteria 

for acknowledgment be applied as it was prior to 1981. Congress 

should immediately act to rectify this injustice and resolve or replace the onerous Federal acknowledgment process, including possibly removing the process from the Bureau of Indian Affairs. And 

if not, replace the Office of Federal Acknowledgment management 

and staff at the Bureau of Indian Affairs to ensure a fresh look at 

the evidence and the issues. 

Number four, regional considerations should be a part of any review for acknowledgment. The history of the area which may impact a Tribe’s ability to provide certain types of information or influence how such information is reviewed should have weight in 

the final determination. Regional histories need to be considered 

when evaluating Tribes’ Federal acknowledgment. And Congress 

should commission a study of the regional realities that have impacted Tribal histories, especially among the coastal Tribes of the 

colonial era. 

Number five, being weak in a single criterion should not be reason enough for rejection, especially if there is overwhelming evidence in meeting other criteria of the process. 

The CHAIRMAN. Mr. Norwood, will you please summarize? 

Mr. NORWOOD. Yes, I will, sir. Interested third parties should not 

be able to derail the Federal acknowledgment of deserving Tribes. 

I ask Congress to act swiftly, decisively, immediately. Thank you, 

sir. 

[The prepared statement of Mr. Norwood follows:]

PREPARED STATEMENT OF JOHN NORWOOD, CO-CHAIR, TASK FORCE ON FEDERAL

ACKNOWLEDGMENT, NATIONAL CONGRESS OF AMERICAN INDIANS

Introduction 

Kwankomeluhemo! Nteluwensi Kelekpethakomakw. Ni, hnakay, Wenetko ok 

Lenape, aweniki Scheyichbi ok Lenapei Poutaxat. [I greet you all. My name is Smiling-Thunderbear. I am Nanticoke and Lenape, the people of the water’s edge and the 

Lenape round water (New Jersey and the Delaware Bay)].

I am Pastor John Norwood, a councilman of the Nanticoke Lenni-Lenape Tribal 

Nation, which is one of the three historically and genealogically interrelated conVerDate 0ct 09 2002 12:59 Jan 17, 2013 Jkt 077947 PO 00000 Frm 00027 Fmt 6633 Sfmt 6621 S:\DOCS\77947.TXT JACK
24

tinuing communities of Nanticoke and Lenape people remaining in the area of the 

Delaware Bay. My tribe is united with the Lenape Indian Tribe of Delaware and 

the Nanticoke Indian Tribe in the ‘‘Confederation of Sovereign Nanticoke-Lenape 

Tribes.’’ I also serve as the co-chairman of the Task Force on Federal Acknowledgment of the National Congress of American Indians (NCAI), which is the nation’s 

oldest and largest national organization of American Indian and Alaska Native tribal governments. The Task Force was established to address the interests of all 

tribes, both federally recognized and non-federally recognized, on any recommended 

changes to policies, procedures, or strategic plans in the federal recognition process. 

I thank Senator Akaka, the Committee, and staff for the invitation to testify at 

this hearing. I am truly appreciative for the manner in which Senator Akaka has 

been a champion for not only Native Hawaiians but also for the critical issues confronting non-federally recognized American Indian Tribes. 

Background on the Federal Acknowledgment of American Indian Tribes 

Federal recognition is the acknowledgement of an American Indian Tribe by the 

Federal Government of the United States. It affirms a federal trust responsibility 

for a ‘‘government-to-government’’ relationship between the United States and the 

tribal government and establishes tribal eligibility for certain federal American Indian programs. Federal recognition is the correction of an error in the relationship 

between the United States and the tribal nation receiving the acknowledgement it 

was always due. Federal recognition does not bestow sovereignty, but acknowledges 

a tribe’s inherent sovereignty. Federal Indian Policy holds that American Indian 

Tribes have a sovereignty that predates the United States and is not bestowed by 

any federal action.

Neither the passage of time nor the apparent assimilation of native peoples can 

be interpreted as diminishing or abandoning a tribe’s status as a self-governing 

entity.... Perhaps the most basic principle of all Indian law, supported by a 

host of decisions, is that those powers lawfully vested in an Indian nation are 

not, in general, delegated powers granted by express acts of Congress, but rather ‘‘inherent powers of a limited sovereignty which has never been extinguished.’’... The tribes began their relationship with the Federal Government with the sovereign powers of independent nations. (Newton 2005, 206)

Furthermore, while the trust responsibility is formally acknowledged by federal 

recognition, it exists even without such recognition. This fact was included in a 1977 

congressional report citing the Pasamaquoddy v. Morton case:

Pasamaquoddy v. Morton presented an important decision regarding the executive branch use of the distinction ‘‘recognized’’ and ‘‘non-recognized’’. The Department stipulated for the purpose of the case that the Passamaquoddy were 

an Indian tribe, but argued that it was not required as a trustee to prosecute 

the Passamaqoddy claim against the State of Maine, since the tribe was ‘‘unrecognized’’. The Court rejected the [Department of Interior’s] position finding that 

that the United States has a trust obligation to the tribe. The case makes it 

clear that the executive branch cannot arbitrarily exclude Indian tribes from its 

trust relationship. (American Indian Policy Review Commission, 478)

While the action of the Federal Government does not make a tribe or bestow sovereignty, federal recognition extends access for inherently sovereign historic tribes 

and their citizens to certain rights, protections, benefits, and privileges reserved for 

federally recognized tribes. 

An Indian Tribe is a political community whose origins pre-date the founding of 

the United States. When the United States opens government-to-government relations with a Tribe, that Tribe is said to be ‘‘recognized’’ or ‘‘acknowledged.’’ An ‘‘unrecognized’’ or ‘‘non-federally recognized’’ tribe is one with which the United States 

does not formally conduct government-to-government relations. Many non-federally 

recognized tribes are historically well documented and have been cited in government reports for over a century. Some non-federally recognized Tribes are acknowledged by the States. State recognition, however, does not entitle the Tribe to the 

full breadth of critical federal protections, services or benefits that flow from a formally acknowledged government-to-government relationship with the United States. 

The Congress of the United States has primary jurisdiction over the interaction 

between the Federal Government and American Indian Tribes. However, as codified 

in the ‘‘Federally Recognized Indian Tribe List Act of 1994,’’ Public Law 103–454 

of the 103rd Congress, the typical ways that American Indian Tribes become federally recognized are: (1) Through Congressional legislation; (2) Through the Bureau 

of Indian Affairs administrative process, conducted by the ‘‘Office of Federal Acknowledgement;’’ and, (3) By the ruling of a Federal Court. For roughly the past 

25

35 years, federal recognition has usually either been through congressional action 

or through the administrative process. 

The history of recognition is varied. Tribes that established treaties with the 

United States during the first 150 years of its history, were considered ‘‘recognized.’’ 

The process for some federally recognized tribes was simplified due to their enumeration on federal rolls after forced relocation onto reservations.

The earliest means by which the United States ‘‘recognized’’ a particular tribe 

was, of course, the making of a treaty with that tribe. This has been the usual 

method of establishing the ‘‘government to government’’ relationship which recognition really entails. Many tribes, however, never entered into a treaty with 

the United States. These tribes were too peaceful to present a military threat, 

too small or isolated to be noticed, or simply possessed nothing that the United 

States and its citizens desired to have. Other groups simply refused to conclude 

a treaty with the United States. (Anderson and Kickingbird 1978, 1)

In 1901, the United States Supreme Court determined that a legitimate tribe: (1) 

is made up of members who are of common historic American Indian descent; (2) 

is united in affirming some form of leadership or government; (3) has historically 

inhabited a particular, though sometimes ill-defined, territory. Within the federal 

court system, the characteristics of independence of action, continuity of existence, 

a common leadership, and concert of action have been asserted as criteria for identifying whether a group of American Indians are a tribe/nation/band under federal 

common law. 

The 1934 Indian Reorganization Act created a listing of tribes considered to be 

‘‘under federal jurisdiction,’’ which eventually became known as ‘‘federally recognized tribes.’’ This list was incomplete. Many historic tribes were left off of the list 

and, while there have been some subsequent corrections, many who should have 

been on the list still remain unrecognized. 

In the latter 1970s, the Bureau of Indian Affairs administrative process was established to assist non-federally recognized American Indian Nations in petitioning 

for federal recognition. Part 83 of the Code of Federal Regulations denominated 

‘‘Procedures for Establishing that an American Indian Group Exists as an Indian 

Tribe’’ provides an administrative process requiring that a petitioner meet seven criteria: (1) A statement of facts establishing that it has been identified as an Indian 

entity on a substantially continuous basis since 1900; (2) Evidence that a predominate portion of the group is a distinct community and has existed as a community 

from historical times to the present; (3) Evidence that it has maintained political 

authority or influence over its members as an autonomous entity from historical 

times until the present; (4) A copy of its governing document including membership 

criteria or, if it does not have a formal governing document, a statement describing 

its membership criteria and governing procedures; (5) An official membership list, 

all available former lists, and evidence that its current members descend from a historic tribe or tribes that combined into a single autonomous political entity; (6) Evidence that it consists mainly of people who are not members of a federally recognized tribe; and, (7) A statement that it is not the subject of congressional legislation that has terminated or forbidden the federal trust relationship. 

From Opportunity to Obstacle 

The administrative process was meant to be an objective method to correct the 

relationship between the United States and historically verifiable American Indian 

Nations without federal recognition. However, when reviewing petitions for federal 

recognition, the manner in which the seven criteria of the administrative process 

have been applied by the Office of Federal Acknowledgement has become increasingly unreasonable, overwhelmingly expensive, and unjustifiably 

unpredictable . . . so much so it is estimated that 72 percent of currently federally 

recognized tribes could not successfully navigate the FAP as the criteria are applied 

today. The GAO has reported, along with other independent studies and congressional hearings, that the current methodology of the administrative process has become a cumbersome, expensive, and time consuming barrier to the recognition of deserving tribes. The process meant to aid legitimate tribes has become a burdensome 

obstacle to their recognition. Successful applications once were only a couple of hundred pages of material. Now, tens of thousands of pages of evidence are required, 

costing upwards of millions of dollars and and taking up to thirty-five years of 

delays in making final acknowledgment determinations. After pouring such resources into an intergenerational effort, many worthy tribes are still unreasonably 

denied. Two of the most recent approvals of new recognition only occurred after the 

intervention of the federal courts. Confidence in the Federal Acknowledgment Process has eroded to the point of non-existence. 

26

Tribes now enter the FAP with fewer rights than defendants in criminal proceedings. Criminal court defendants are at least presumed innocent until proven 

guilty. But, American Indian Tribes must prove their existence beyond any shadow 

of doubt. One such example is the experience of the Shinnocock Nation, which spent 

an estimated two million dollars to provide evidence required by the Office of Federal Acknowledgment (OFA) that the people of their community with the same surnames and in the same location, were the same people from one generation to the 

next generation. After this expense and effort they were then told by OFA that it 

should not have been necessary to do so. Another tribe was required to produce 

phone records to demonstrate the communication between tribal members. Such applications of the criteria are beyond what was originally in view when the FAP was 

initiated, and to require it of tribes today is discriminatory. 

The NCAI Policy on Federal Recognition of Indian Tribes (Resolution # PHX–08–

055) cites the inequities of the Federal Acknowledgment Process (FAP), claiming 

that it has ‘‘severely deteriorated since its beginning, with unreasonable decadeslong delays in considering applications, irrational documentation requirements that 

defy historical and cultural realities, and [there are] legitimate questions about the 

fairness and integrity of the process’’ and that the FAP ‘‘has strayed from its original intentions, and has become a barrier to federal recognition, rather than a fair 

process for facilitating recognition of tribes who meet the criteria’’ and affirms that 

the NCAI ‘‘strongly supports federal recognition of all Indian tribes that have maintained tribal relations from historical times, their right to timely and fair consideration of their applications under the FAP process, and their right to seek alternative 

means for recognition of their status as Indian tribes.’’

Historic coastal area tribes of the colonial era (including the eastern, western, and 

southern coastlines) remaining in or near their traditional homelands are most affected by the inequities and deficiencies of the Federal Acknowledgment Process 

(FAP), which no longer reflects the original intent of the acknowledgment process 

as a vehicle for the correction of the relationship between the Federal Government 

and non-federally recognized historic tribes. Among the many tribes considered nonfederally recognized are those which had colonial era treaties, reservations, identified Indian towns, had been identified in studies done by arms of the Federal Government, had received services from the Federal Government, and had reason to 

have been considered under federal jurisdiction at the time of the 1934 Indian Reorganization Act, but were not included in the Act due to apparent regional or racial 

biases of the era. These tribes tended to have been peaceful after the formation of 

the Federal Government, were not enumerated by the Department of War or placed 

on federal reservations. They became the ‘‘lost’’ and ‘‘overlooked’’ in Federal Indian 

Policy. Today, many of these tribes continue to languish in the political and legal 

limbo of being non-federally recognized. often due to the same biases that had resulted in them not being able to utilize the Indian Reorganization Act.

The reasons that are usually presented to withhold recognition from tribes are 

(1) that they are racially tainted with the blood of African tribes-men or (2) 

greed, for newly recognized tribes will share in the appropriations for services 

given to the Bureau of Indian Affairs. The names of justice, mercy, sanity, common sense, fiscal responsibility, and rationality can be presented just as easily 

on the side of those advocating recognition. (Anderson and Kickingbird 1978, 

17)

The Modern Era of Denied Identity and De-facto Termination 

There is a new marginalization of non-federally recognized historically documented tribes through federal regulations that have begun to exclusively define ‘‘Indian’’ as a member of a federally recognized tribe. This policy is becoming pervasive 

and is influencing even nongovernmental charitable organizations. Many scholarships designated for American Indians are now restricted to those who are citizens 

of federally recognized tribes. This is an increasing problem for many American Indians who are now treated as though they are not American Indian at all. It is the 

denial of indigenous identity through administrative reclassification. It is a form of 

tribal termination. 

There are citizens of ‘‘non-federal’’ historically documentable tribes who attended 

federal Indian boarding schools and colleges, from the late 1800s until as late as 

2001, which they are now prohibited from attending. During the time of the initial 

involvement of these tribes at some of the federal Indian schools, a minimum of 1⁄4

blood quantum was required; this was eventually changed to require membership 

in a federally recognized tribe receiving Bureau of Indian Education educational 

benefits, thus eliminating the attendance of those non-federal tribal citizens, which 

the BIA had long considered Indians and who had sent their family members away 

27

from home to attend federal boarding schools and colleges. (H.E.L.P. Haskell). There 

is the case of a Haskell graduate who wanted to return for additional study, but 

was denied because in the years since her graduation, the policy at her alma mater 

was changed from requiring 1⁄4 blood quantum to membership in a federally recognized tribe. It is a travesty that proud nonfederally recognized graduates of Haskell 

and other federally funded American Indian colleges cannot return for additional 

study or send their children or grandchildren to their alma mater. 

Another example of redefining ‘‘American Indian’’ to mean a ‘‘citizen of a federally 

recognized tribe’’ is in the Department of Justice’s review of the regulations regarding the possession of Eagle feathers. In her November 30, 2011, letter to Deputy 

Assistant Attorney General Ethan Shenkman of the Environmental & Natural Resources Division and Tracy Toulou, Director, Office of Tribal Justice at the Department of Justice (DOJ), NCAI Executive Director Jacqueline Johnson Pata summed 

up the critical concern of NCAI in regard to the impact of narrowing the definition 

of ‘‘Indian’’ to exclude non-federally recognized indigenous people and issued a critique of the FAP:

NCAI believes that the DOJ should adopt a policy, consistent with the Morton 

Policy, which addresses tribal use of eagle feathers and other bird feathers and 

parts only if that policy is created and implemented in a manner that permits 

all Indigenous peoples in the United States to exercise their religious freedom 

and maintain their cultural practices. Barring that, NCAI fears that this policy 

could be more harmful than what currently stands...

. . . What DOJ is proposing is a significant narrowing of the scope of applicability, which alone makes the proposed policy much more restrictive than the 

Morton Policy and conflicts with legal and legislative precedent that supports 

a definition of ‘‘Indian’’ that is more expansive than federally recognized tribes, 

especially where issues of cultural protection and religious freedom are 

involved...

. . . DOJ’s current proposal to limit any new policy to members of federally 

recognized tribes seems to be based on the assumption that the U.S. Government’s process of federal acknowledgement is working as it should, when it is, 

in fact, a broken system that needs fixing. NCAI has several standing resolutions on the issue of federal recognition and has provided congressional testimony on the federal acknowledgement process and related issues numerous 

times. If there is one thing that these resolutions and testimony demonstrate, 

it is that the federal recognition process has severely deteriorated since its inception. The current system is fraught with unreasonable, decades-long delays 

in considering applications and irrational documentation requirements that defy 

historical and cultural realities. These problems raise legitimate questions 

about the fairness and integrity of the federal recognition process. If the DOJ 

moves forward with its policy as currently proposed, it would be making prosecutorial judgments about questions of religious freedom based on a wholly unreliable system of federal recognition for tribes...

Another concern that the NCAI Executive Director cites is the conflict between 

DOJ’s proposal and the United Nations Declaration on the Rights of Indigenous 

Peoples (UN DRIP):

Finally, the position that DOJ has taken on the applicability of its new policy 

to solely federally recognized tribal members is directly at odds with the United 

Nations Declaration on the Rights of Indigenous Peoples (the Declaration), 

which President Obama endorsed on December 16, 2011. Article 12 of the Declaration states that: ‘‘Indigenous peoples have the right to manifest, practi[c]e, 

develop and teach their spiritual and religious traditions, customs and 

ceremonies... [as well as] the right to the use and control of their ceremonial 

objects . . .’’ The Declaration applies to all Indigenous peoples within the 

United States; it is not limited by the bounds of the U.S. federal recognition 

process. NCAI believes that the formalization of this DOJ policy presents a 

unique opportunity for the Obama Administration to reaffirm its commitment 

to implement the Declaration by ensuring that the policy protects all Indigenous 

peoples’ rights to possess eagle—and other bird—feathers and parts for cultural 

and religious use, not just the rights of members of federally recognized tribes. 

Astoundingly, DOJ’s response regarding the applicability of the UN DRIP, circulated at the NCAI 2012 Mid-Year Conference in Lincoln Nebraska on June 18th, 

stated that:

. . . the ‘‘United States’ existing recognition of, and relationship with, federally recognized tribes’’ is the ‘‘basis for the special legal and political 

28

relationship... pursuant to which the United States supports, protects, and 

promotes tribal governmental authority over a broad range of internal and territorial affairs, including... culture and religion.’’

Increasingly, ‘‘indigenous’’ and ‘‘American Indian’’ are being redefined as ‘‘federally recognized’’ based upon a history and process that is known to be hostile, unreasonable, unfair, racially biased, and demeaning to non-federally recognized historically documented tribes. It has become the position of the Executive Branch to also 

exclude non-federally recognized tribes from formal government consultation even 

over matters that directly impact them. This was such an issue that NCAI Resolution #PSP–09–008 ‘‘Resolution of the National Congress of American Indians on 

President Barack Obama’s First Annual Meeting with Tribal Leaders: Reaffirmation 

of the Nation-to-Nation Relationship’’ calls on the United States to ‘‘Extend consultation and the Nation to Nation relationship to include state recognized tribes 

as supported by federal statutes’’ and also calls on the United States to ‘‘Recognize 

that our Indian tribes are the original Native American nations endowed with inherent natural rights to self-government, self-determination and territorial integrity.’’

This increasing denial of identity equates to a process of administrative genocide, 

in which nonfederally recognized tribal citizens are being systematically wiped from 

the political landscape. It is unconscionable that in the thirty five years since the 

American Indian Policy Review Commission Report of 1977, little has 

changed...

The results of ‘‘non-recognition’’ upon Indian communities and individuals have 

been devastating, and highly similar to the results of termination. The continued erosion of tribal lands with a complete loss thereof; the deterioration of, cohesive, effective tribal governments and social organizations; and the elimination of special federal services through the continued denial of such services 

which Indian communities in general appear to need desperately. Further, the 

Indians are uniformly perplexed by the current usage of ‘‘federal recognition’’ 

and cannot understand why the Federal Government has continually ignored 

their existence as Indians. Characteristically, Indians have reviewed their lack 

of recognition as Indians by the Federal Government in our disbelief and complete dismay and feel classification as non-federally recognized is both degrading and wholly unjustified. (American Indian Policy Review Commission 1977, 

463)

A Call for Justice and the Application of Common Sense 

As stated earlier, I am Nanticoke-Lenape, of the people of ‘‘first contact.’’ My people were placed on colonial era reservations, had colonial era treaties, are cited in 

the historic record since the days of Captain John Smith and the Jamestown Colony. 

Since latter 1800’s, agencies acting as ‘‘arms of the Federal Government’’ listed and 

studied us and academics published scholarly works about us. My relatives attended 

federal Indian boarding schools. Our specific families have been listed in numerous 

government reports. Yet, I remain a citizen of a non-federally recognized tribe. increasingly marginalized in a political and legal climate that is hostile to the continuance of my tribe and the confederation of which it is a part. 

Federal acknowledgment is a correction of an error in the relationship between 

the Federal Government and a historic tribe, improving the ability of the tribal government to assert its rights, protect and preserve its culture, defend its identity, 

promote its heritage, and provide for its tribal citizens. The lack of such acknowledgment for historically documented tribes is an injustice in need of swift correction. 

The relationship between American Indian Tribes and the Federal Government is 

under the jurisdiction of Congress. The FAP is broken and worthy tribes are languishing without federal status, creating increasing undue hardship for the indigenous communities across the country. We should not be forced to wait any longer 

for justice. Studies, discussions, and hearings should now give way to action, and 

the mere ‘‘tweaking’’ of the administrative process has proven to not be the answer. 

It should not be presumed that distinguishing and recognizing historically documented tribes is a task beyond the capability of Congress or the Courts. The manner 

in which the administrative process is currently being applied has made the task 

overly complicated for both deserving tribes and for the government. Summed up, 

the criteria need only demonstrate that a tribe applying for federal acknowledgment 

is ‘‘a continuing community of interrelated descendants of a historic American Indian Tribe or tribes which has maintained tribal identity in some manner that can 

be documented from at least the 19th century or earlier.’’ It is not ‘‘rocket science’’ 

or ‘‘quantum physics.’’ Congress can take action, and has in the past. According to 

a 2003 Congressional Research Service Report from the Library of Congress, from 

29

1973 to 2003, thirty-two (32) tribes received federal status by congressional action. 

Twenty-five (25) of those were regarding federal recognition with the remaining 

seven (7) being some other form of status change. Eighteen (18) of the twenty-five 

received a restoration of their recognition and the remaining seven (7) of the twentyfive which received federal recognition were tribes that never had any previous federal acknowledgement. Tribes that received recognition by congressional legislation 

between 1980 to 2003 were: Houlton Band of Maliseet Indians (1980); Kickapoo Traditional Tribe of Texas (1983); Mashantucket Pequot Tribe (1983); Aroostook Band 

of Micmac Indians of Maine (1991); Pokagon Band of Potawatomi Indians of Michigan (1994). Additionally, two tribes’ federal recognition was reaffirmed by federal 

legislation, the Little Traverse Bay Bands of Odawa Indians of Michigan (1994) and 

the Little River Band of Ottawa Indians of Michigan (1994). 

The United States Congress and the United States courts, as a matter of justice, 

should assume responsibility for correcting the injustice done to historic non-federally recognized tribes. Congress and the Courts should no longer solely rely on the 

Office of Federal Acknowledgment to process applications. Instead Congress and the 

Courts should act in accordance with the expectations of the Federally Recognized 

Indian Tribe List Act of 1994, utilizing their authority and discretion to immediately 

acknowledge worthy tribes through legislative acts and court decisions and to provide methods for tribes to access all means to acknowledgment under the Federally 

Recognized Indian Tribe List Act of 1994. Access to such relief should be simplified 

for tribes. A tribe should be able to request a judgment from a federal court without 

having to be a defendant and the courts should act regardless of any pending application before the BIA... which has been recently used as reason for a federal 

court to defer to the FAP even though such inaction results in a breech of justice 

for most tribes. Also, action by Congress on acknowledgment should not be an insurmountable task fraught with political intrigue and only successful through expensive herculean lobbying efforts. 

Congress should ensure that listing in government reports, reports of agencies 

used as arms of the government, or receiving of government services should be 

viewed as prior recognition so that a tribe must only show continuance from that 

period of historic federal identification or service, and that, as a matter of justice, 

tribes historically identified, but not included, in the Indian Reorganization Act of 

1934 (IRA) should be immediately reviewed for acknowledgment due to the impact 

of regional and racial bias in the application of the IRA. Tribes cited in government 

records and studies between the 1880s and 1950s, or which were served through 

federal Indian schools, should only have to demonstrate continuous community from 

the period of the government citation or service. Those tribes which qualify under 

this criteria should receive immediate affirmation of recognition by Congressional 

legislation. 

As a matter of justice, legislative and regulatory measures should immediately be 

taken by the United State Congress and the Executive Branch to ensure that the 

criteria for acknowledgment be applied as it was intended and that guidelines used 

to apply the criteria for the current review of applications for acknowledgment, and 

the burden of proof, be commensurate with what was utilized to acknowledge tribes 

prior to 1981. Congress can take immediate action to rectify this injustice and resolve or replace the onerous Federal Acknowledgment Process (FAP) including possibly removing the FAP from the Bureau of Indian Affairs, and if not, replacing the 

Office of Federal Acknowledgment management and staff at the Bureau of Indian 

Affairs to ensure a fresh look at the evidence and issues. 

Regional considerations should be part of any review for acknowledgment. The 

history of the area, which may impact a tribe’s ability to provide certain types of 

information or should influence how such information is reviewed, should have 

weight. Regional histories must be considered when evaluating a tribe for federal 

acknowledgement and, as a matter of justice, the Congress should commission a 

study of the regional realities that have impacted tribal histories, especially among 

coastal area tribes of the colonial era, which affect the manner in which tribes from 

a given region can meet the federal acknowledgment criteria and that the study be 

done in cooperation with such tribes to establish regional historical assumptions to 

be considered in evaluating applications for acknowledgment. 

Being weak in a single criteria should not be reason enough for rejection, especially if there is overwhelming evidence meeting other criteria. Objectively reviewing 

documentation of the tribe’s historic and continuing identity should not create the 

unreasonable evidentiary burden and bureaucratic backlog currently found in the 

FAP. 

’’Interested third parties,’’ should not be able to derail the federal acknowledgment 

of a deserving tribe. Currently, the comments and political influence of third parties 

have delayed and denied justice for many historic tribes. This must be prevented. 

30

Conclusion 

The manner that Congress has abandoned historic tribes to an administrative 

process that is hostile to their very existence should weigh heavily on the national 

conscience. A cast system has been created and perpetuated in Indian Country by 

the Federal Government. Our past, our present, and our future is held hostage by 

the political and legal disregard of the Federal Government. My tribal confederation 

cannot protect the graves of our ancestors, we fight to protect and defend our culture and heritage, we struggle to access support for our elders and children’s future. 

Congress must act immediately and decisively, in the name of justice. Historically 

documented tribes identified in federal reports, that received federal services, or 

whose citizens attended federal boarding schools should be acknowledged by Congressional action. A simplified, fair, regionally sensitive, and objective process for acknowledgment should also be established under congressional direction with the 

guidance of tribal leaders and tribally endorsed historians and ethnologists representing the regions where non-federally recognized tribes are primarily clustered 

in the coastal regions of the east, south and west. The ability of tribes to petition 

the federal courts regarding federal acknowledgment should be provided. 

The current degrading atmosphere of increasing denial of American Indian tribal 

identity and status for non-federally recognized tribes must be eradicated. 

References 

American Indian Policy Review Commission Final Report. Submitted to Congress 

May 17, 1977. U.S. Government Printing Office, Washington, DC 1977. 

Anderson, Terry and Kirke Kickingbird. 1978. An Historical Perspective on the 

Issue of Federal Recognition and Non-Recognition. Washington, DC: Institute for the 

Development of Indian Law. 

H.E.L.P. Haskell. Haskell Endangered Legacy Project. http://

www.HelpHaskell.com (accessed October 24, 2011) 

Newton, Nell Jessup. Editor-in-Chief. 2005. Cohen’s Handbook Of Federal Indian 

Law, 2005 Edition. Newark, NJ and San Francisco, CA: LexisNexis Matthew Bender.

The CHAIRMAN. Thank you. 

Mr. Gottschalk, please proceed with your testimony. 

STATEMENT OF K. JEROME GOTTSCHALK, STAFF ATTORNEY, 

NATIVE AMERICAN RIGHTS FUND 

Mr. GOTTSCHALK. Thank you, Chairman Akaka. 

I am an attorney with the Native American Rights Fund. I have 

been involved with several recognition petitions over the years. I 

currently represent the Little Shell Tribe of Chippewa Indians in 

this process. I thank the Committee for the opportunity to offer 

some suggestions for improvement of that process. 

I am going to skip over a lot of the preliminaries, which I think 

we are all in agreement about, that it is too costly, et cetera. Except I think one thing worth noting is, as Senator Tester said, that 

Little Shell Tribe has been in the process for all or parts of five 

different decades. 

With that said, I would like in my oral testimony to make four 

specific suggestions for improving the process. First, Criterion A 

should be eliminated. That criterion requires recognition by outsiders of an Indian entity on a regular basis since 1900. As a practical matter, it requires sufficient interaction between outsiders 

and the Tribal community to produce a document identifying the 

Tribal community every 10 years. 

The criterion may say little or nothing about whether a Tribe exists, but only whether outsiders recognized and recorded the fact 

that they were looking at an Indian entity and not just at individual Indians. In the case of Little Shell, the final determination 

against recognition recognizes that there were many references 

31

from 1900 to 1935 to landless Indians, garbage dump Indians, halfbreeds and other derogatory terms, but found that there were not 

references to Indian entities, and therefore, the criterion was not 

met. On that ground alone, the Tribe could be denied Federal recognition. 

Little Shell ancestors avoided contact with the dominant society 

because that contact subjected them to open and blatant discrimination. They existed on the margins of society and by its nature, 

this lifestyle does not produce a paper trail required by Criterion 

A. The denial of Little Shell on this basis was a failure of the process, not a failure of Little Shell. This criterion is illegal, arbitrary, 

capricious and must be eliminated. 

Second, Criterion B, community and Criterion C, political influence, must be greatly modified. At present they require proof of 

community and political influence from historic times to the 

present. The BIA requires proof of relationships. In the case of 

community, relationships among the Tribal members, and in the 

case of political influence, relationships between the Tribal members and their political leaders. Self-identification of leaders and 

oral traditions are not sufficient for a Tribe to carry its burden of 

proof. There must be documentary evidence; or alternatively, statistical evidence of such things as marriage rights, from which the 

BIA is willing to presume the existence of interaction. 

The process requires too much paper over too long a period of 

time. It is unreasonable, for example, to expect a buffalo-hunting 

Tribe like Little Shell to have maintained minutes or organizational charts from historical times. 

In 1934, the year of passage of the Indian Reorganization Act, 

when Congress and the Executive actively addressed issues of Tribal existence, is a much more reasonable time period and is consistent with Federal policy. The Little Shell Tribe’s records since 

that time, for example, is quite full. And the Tribe would have been 

recognized in 1934, but for the lack of Federal funds to purchase 

Tribal lands. 

Third, certain activity under the regulations violates due process 

and transparency, a word that Mr. Newland used before. In the 

case of Little Shell, interviews of 71 people occurred at the end of 

the process and the Tribe was not given a chance to review and 

comment on those interviews prior to the issuance of the final determination. The Tribe had to do a FOIA request and pay nearly 

$5,000 to get the documents for the appeal to the IBIA. It puts 

Tribes in a much different position to force them to get a decision 

overturned than to allow them to address issues before a final determination is made. 

Fourth, under OFA’s interpretation the regulations provide a 

somewhat streamlined process if a Tribe can show that its existence was previously established and that it previously had a government-to-government relationship with the U.S. Requiring proof 

of a previous government-to-government relationship is not necessary to the issue of Tribal existence and should not be required 

for the streamlined process to apply. 

These changes would improve the process, but too late for Tribes 

like Little Shell. Recognition of Indian Tribes has always been a 

prerogative of Congress and the Tribe urges the Committee to act 

32

favorably on S. 546, which extends Federal recognition to the Little 

Shell Tribe, and file the Committee report so that the bill can move 

forward on the Floor. 

Thank you. 

[The prepared statement of Mr. Gottschalk follows:]

PREPARED STATEMENT OF K. JEROME GOTTSCHALK, STAFF ATTORNEY, NATIVE

AMERICAN RIGHTS FUND

Chairman Akaka, Vice Chairman Barrasso, Senator Tester, and honorable members of this Committee on Indian Affairs, on behalf of the Little Shell Tribe of Chippewa Indians of Montana, I thank you for the opportunity to testify before this Committee today on the important subject of Federal Recognition: Political and Legal 

Relationship between Governments. I would like to take this opportunity to provide 

some perspective on the long, expensive, and frustrating process experienced by the 

Little Shell Tribe in attempting to comply with the shifting administrative requirements for federal acknowledgment and to urge Congress to exercise its traditional 

role in Indian affairs and provide legislative recognition of the Tribe. I am an attorney at the Native American Rights Fund and we have assisted the Tribe in its efforts to achieve recognition for more than twenty years, expending more than one 

million dollars for consultant research , and well over a million dollars in attorney 

time. In addition to extensive administrative efforts, the Tribe has been seeking legislative recognition for several years. 

The Little Shell Tribe first sent a letter to the Bureau of Indian Affairs petitioning for federal acknowledgment in 1978. After years of work and mountains of 

submissions, the Tribe was encouraged by a July 2000, Preliminary Finding in favor 

of recognition. The PF invited comment ‘‘. . . on these various matters, including 

the consistency of these proposed findings with the existing regulations.’’ 65 Fed. 

Reg. 45394, 45395 (July 21, 2000). The Tribe had every reason to expect a final determination in favor of recognition, but continued working to ensure that it could 

respond to any negative evidence which might be presented. There were only two 

comments received during the comment period, neither one of which had any bearing on the final decision. 

Thus, the PF was in favor of recognition and there was no new evidence against 

recognition. And yet, inexplicably, the decision was against recognition. This is despite the fact that on the question of descendancy from an historic tribe, the Office 

of Acknowledgment agreed that new evidence clearly established that the tribe met 

this criteria. Is it any wonder that the Tribe is frustrated? The FD has not become 

effective yet because of an appeal filed with the Interior Board of Indian Appeals 

which was filed February 1, 2010. That body may take years to rule. Its scope of 

review is limited and to my knowledge no tribe has ever improved its position on 

appeal. The best that has ever been done is to have a favorable decision affirmed. 

While I insist that with the proper application of the regulations in light of the 

Little Shell Tribe’s specific history, administrative recognition is warranted, nevertheless, the administrative process clearly has not served the Little Shell Tribe and 

is not designed for Tribes such as Little Shell. Without proper consideration of the 

evidence in the context of the historic circumstances of the Tribe, which the regulations purportedly require, but for some reason OFA chose not to do, the Tribe is 

held to an extraordinarily difficult standard of evidence. In some cases, as with Criterion a) which requires that outsiders identify petitioners not just as Indian individuals, but as an Indian entity, the criterion itself is inappropriate and almost 

surely illegal. Essentially, this criterion requires interaction between outsiders and 

the tribal community sufficient to produce a document identifying the tribal community every ten years. The FD recognizes that there were many references from 1900 

to 1935 to landless Indians, breeds and other uncomplimentary names,but it says 

that there were not references to Indian entities and that therefore the criterion was 

not met. Historically, the Little Shell was a migratory band, following the buffalo 

herds between the United States and Canada. By the early 1880s, most of the herds 

had disappeared and Little Shell ancestors had settled in out of the way, rural 

places in Montana. Even then, Little Shell ancestors avoided contact with the dominant society because that contact subjected them to open and blatant discrimination, including federal and state efforts to deport tribal members to Canada. Thus, 

Little Shell survived as a migratory people off the official radar screen. By its nature, this life style does not produce the paper trail required by criterion a). Nor, 

if the substantive requirements of the regulations are met, should lack of identification by outsiders render a tribe a non-tribe. 

33

As to criteria b (community) and c (political influence), the BIA requires proof of 

relationships—in the case of community, relationships among the tribal members, 

and in the case of political influence, relationships between the tribal members and 

their political leaders. Again, self-identification of leaders and oral tradition are not 

sufficient for a tribe to carry its burden of proof. There must be documentary evidence, or alternatively statistics (e.g., on marriage rates) from which the BIA is willing to presume the existence of interaction. Obviously, such documents are not likely to exist for a tribal community that survived historically in the traditional way 

and in modern times by avoiding dominant society. Combine this with the economic, 

social and political dislocation suffered by the Little Shell, as the BIA itself found, 

it becomes clear that Little Shell presents a unique circumstance in which a paperdriven process is simply inappropriate. As a result, failure by Little Shell on these 

criteria in the final determination does not mean that it does not exist as a tribe; 

it only means that the administrative process is not well-suited to judge the unique 

history and circumstances of Little Shell. As the Assistant Secretary noted in the 

Proposed Finding on Little Shell, the administrative process must be applied in a 

flexible manner, giving different weight to various kinds of evidence, to accommodate the unusual history of Little Shell. 65 Fed. Reg. No. 141, at 45395 (July 21, 

2000) (‘‘. . . the evidence as a whole indicates that the Little Shell petitioner is a 

tribe.’’). Ultimately, though, the BIA decided to reverse its flexible approach and to 

apply the criteria in a mechanistic fashion not suitable to the complex historic situation of the Tribe. 

Clearly, this is a failure of the administrative process as applied to Little Shell, 

not a failure on the part of Little Shell to exist as an Indian tribe. The appropriateness of legislation under these circumstances was noted even by the professional 

staff at the BIA, the same personnel who ultimately recommended that Little Shell 

be declined for federal acknowledgment. Writing in 2000, the chief of the Office of 

Federal Acknowledgment effectively admitted the unsuitability of the process for 

Little Shell. He noted the departure of the proposed Little Shell finding from past 

precedent and suggested that special legislation should be considered: ‘‘Another alternative would be to recommend legislation to acknowledge this petitioner. This 

recommendation would be based on a finding that because of the unique and complicated nature of its history, this petitioner is outside the scope envisioned by the 

regulations, but nonetheless merits tribal status.’’

Significantly, the United States continues to hold funds in trust, invested by the 

Secretary of the Interior, for the benefit of eligible members of the Little Shell Tribe 

of Chippewa Indians of Montana. Act of Dec. 31, 1982, Pub. L. 97–403, 96 STAT. 

2023. All seven federally recognized Tribes in Montana support recognition of Little 

Shell as does its sister tribe in North Dakota—the Turtle Mountain Tribe. 

The proposed legislation to recognize the Little Shell Tribe, S. 546, would extend 

full recognition to the Tribe and provide a four county area in which land could be 

taken into trust. The counties in which land would be taken into trust for the Tribe 

support federal recognition. The recognition of Indian Tribes has always been a prerogative of Congress, with an overwhelming majority of the 566 recognized Tribes 

having been recognized by some form of Congressional action. It is long past time 

for the Little Shell Tribe to be recognized by Congress as a Tribe with whom the 

Federal Government will carry on a government to government relationship. For all 

of these reasons, S. 546 should be enacted by Congress. The Tribe appreciates the 

Committee’s continued attention to this issue and we urge you act favorably and file 

the Committee report so that the bill can move forward on the floor.

The CHAIRMAN. Thank you very much, Mr. Gottschalk. 

Mr. Anderson, will you please proceed with your statement? 

STATEMENT OF MICHAEL J. ANDERSON, OWNER, ANDERSON 

INDIAN LAW 

Mr. ANDERSON. Mr. Chairman, aloha. Greetings and thank you 

for this hearing. 

I wanted to focus on a few things in my written testimony dealing with different pathways to Federal recognition, both Congressional, administrative, and judicial. But based on Senator Webb’s 

testimony and the exchange with the Vice Chair Barrasso, I wanted to focus on the Congressional prerogative to recognize Tribes, 

34

and why I think it is absolutely essential that Congress, this session, exercise that authority. 

Congress can say that this is the primary responsibility of the 

BIA. If you examine the histories of various Tribes, like the ones 

that were just discussed today and others, you will find that Congress has had a direct role in Tribes not being recognized. I will 

give you an example. In 1851, Federal commissioners went to California to negotiate treaties with Indian Tribes. They actually had 

a successful negotiation. They brought the treaties back to the 

United States. 

And then the Senate, based on the recommendations of the California delegation at that time, decided that they didn’t want to 

have hearings, they didn’t want these implemented. So those treaties were sealed and hidden from public view for 50 years. They 

were not discovered as signed treaties until the early 1900s, when 

a Senate clerk discovered them. 

So while the Tribes back then should have had homelands, including the Muwekma Tribe, which is not recognized today, they 

lost all the opportunities, 50 years of recognition like any other recognized Tribe. 

How can Congress now say that we have no responsibility, when 

this body, this United States Senate, was directly culpable for 

those Tribes not being recognized? Or at least having a hearing? 

And at many times at the request of the President, those Tribes 

that had treaties were recognized. 

That is but one example. In California, shortly before World War 

I, the Congress appropriated and authorized Indian agents to go 

find lands for Indians in California as Tribes, for home lands. But 

then they didn’t appropriate the money for it. So those Tribes had 

no chance to get a homeland. 

How can Congress now say, well, it is the responsibility of the 

BIA now to solve that problem, to recognize and rectify that historical tragedy, really, and that these homelands weren’t discovered? 

You heard from the Lumbee. Congress had a role there with 

them as well. They terminated this Tribe and said that there 

wasn’t authority for them to get services. How can they now say, 

let’s go to the BIA to remedy that problem, when Congress put 

Lumbee in the situation? Little Shell and Virginia have also faced 

the same issues. Virginia with the State government in their case, 

basically eliminating any possibility that they would have the 

records to show that they were recognized. How can it be fair to 

ask the Virginia Tribes to now go to the BIA for that justice? 

So there is a direct role based on the history and based on the 

direct role of the Senate in contributing to this problem to fix 

today. And what has happened since 2000 as a whole in this body, 

nothing. It has been a frozen process here on the Senate side and 

the House side. Not this Committee, this Committee has been active. This Committee has marked out legislation. The House Resources Committee has done so. 

But the Senate and the House together as a whole has not done 

so. Having represented Tribes in this process, when there is a 

threat of filibuster raised by Senators because they believe the primacy should be at the BIA, then the ability to get a Floor vote to 

35

overcome the 60 votes needed to get some Floor time really renders 

these politically powerless Tribes in an impossible situation. 

So one recommendation I would have is that maybe collectively, 

having heard the stories of Lumbee, Little Shell, the Virginia 

Tribes and others that perhaps maybe at least one afternoon, one 

day could be set aside this session for an up and down vote. I am 

very confident both on the Senate and the House side that in an 

up and down vote, these Tribes would prevail. Justice would be 

served, the deference to the Committees of jurisdiction yours and 

Mr. Young’s on the House side who have all recommended that 

these Tribes go forward I think would be honored. There would be 

more than bipartisan support for that to happen. 

So that is something this Congress could do now based on their 

historical culpability, but also with your constitutional authority to 

do so. 

Now, in the remaining minute, I just wanted to talk about the 

Administration and their performance over the last four years. 

Without the favorable decisions of the Shinnecock Tribe and the 

Tejon Decision, I think they would get a big fat F. Because they 

have had no progress in terms of regulatory development or standards or decision-making. We could have the same hearing four 

years from now that we are having today that we had four years 

ago and four years before. So there is much work to be done on 

their end. 

I would just conclude in terms of one favorable thing the Department did that they could apply to the Federal recognition. In the 

Carcieri analysis and the standards they have used there, they 

have actually been very, very progressive. I was actually delighted 

and thrilled when I read their Cowlitz decision. As you know, you 

have had them as a witness before here, the Department found 

that they were under Federal jurisdiction by looking at things like 

children attending Indian schools, attorney-approved contracts, all 

the things that showed the interaction. 

But yet, a couple months later with the Juaneno decision, it is 

almost like a complete reversal. All of those good, solid areas of evidence were not used in the recognition area. So that is why I would 

say, if they were getting a C, that would be great. But it is probably even worse than that. That is something the Department 

could do today to harmonize what they have done in the Carcieri

area with the Federal acknowledgment area. That is also spelled 

out in my testimony. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Anderson follows:]

PREPARED STATEMENT OF MICHAEL J. ANDERSON, OWNER, ANDERSON INDIAN LAW

Chairman Akaka, Vice Chairman Barrasso, and honorable members of the Senate 

Committee on Indian Affairs, good afternoon and thank you for the opportunity to 

testify on the federal recognition process. My name is Michael Anderson, and I am 

the owner of Anderson Indian Law and a member of the Muscogee (Creek) Nation. 

I have practiced law for twenty-eight years, and served for the past ten years as 

outside legal counsel to more than two dozen American Indian tribal governments. 

Before that, I served for eight years in the Clinton Administration at the United 

States Department of the Interior as Associate Solicitor for Indian Affairs and as 

Deputy Assistant Secretary for Indian Affairs. 

36

1FEDERALLY RECOGNIZED INDIAN TRIBE LIST ACT OF 1994, PL 103–454, November 

2, 1994, 108 Stat 4791. 

2See Montoya v. United States, 180 U.S. 261, 36 Ct.Cl. 577, 21 S.Ct. 358, 45 L.Ed. 521 (1901). 3FEDERALLY RECOGNIZED INDIAN TRIBE LIST ACT OF 1994, PL 103–454, November 

2, 1994, 108 Stat 4791. 

I. Summary 

My testimony will discuss the three routes to federal recognition of Indian tribes: 

legislative, administrative, and judicial. Congress, in the Federal List Act, has recognized that tribes can be recognized through legislation, administrative procedures, 

and by court decisions. 1 Each of these methods must continue to be utilized. I will 

also discuss the inconsistent approach in recent Department of Interior policy with 

respect to its progressive interpretation of the evidence for determining whether a 

tribe meets the standard for ‘‘under federal jurisdiction’’ in land into trust matters 

versus its regressive interpretation of whether a tribe meets recognition criteria. 

A. Legislative

• Congress recognizes tribes based on its authority under the United States Constitution.

• The United States can and has enacted legislation to recognize tribes.

• Congressional recognition is difficult for tribes because it is a political process, 

and, in particular, on the Senate side subject to potential filibuster roadblocks. 

Indeed, without the filibuster problem, perhaps a half dozen tribes or more 

could be recognized by Congress this session.

• The last Tribe to be recognized by Congress was over 10 years ago in 2000, the 

Shawnee Tribe of Oklahoma (Loyal Shawnee).

B. Administrative

• The Department of Interior recognizes tribes through the Federal Acknowledgment Process in the federal regulations at 25 C.F.R. Part 83.

• This process is lengthy, inconsistent, and expensive for tribes.

• Tribes can also organize under the Indian Reorganization Act’s half-blood provision.

• A limited number of tribes that were recognized and mistakenly omitted from 

the list of federally recognized tribes also have been reaffirmed through administrative error correction. This occurs when tribes whose government-to-government relationship was never severed, lapsed, or administratively terminated are 

administratively reaffirmed and placed on the list of recognized tribes.

C. Judicial

• The U.S. Supreme Court developed common law standards for federal recognition in the 1901 case Montoya v. U.S. 2

• For example, the Shinnecock Nation was recognized by a federal court using the 

Montoya standards, although that decision was appealed.

• While courts have been reluctant to step in to matters of federal recognition, 

they have the authority to do so.

• For example, after the federal government failed to live up to its obligations 

under the California Rancheria Act, a group of California tribes were judicially 

restored in the Tillie Hardwick and Scotts Valley cases, among others.

D. Administrative Policy

• The Department of Interior lacks a consistent approach to federal recognition.

• The Department took a progressive view of tribal history and federal interaction 

with the Tribe in the Cowlitz Record of Decision (ROD), in contrast to a narrow 

view of tribal history in the Final Determination Against Acknowledgment of 

the Juaneno Band.

• The Department should follow the policies and approach outlined in the Cowlitz 

ROD and apply them to recognition cases.

II. Testimony 

Congress has recognized that ‘‘Indian tribes presently may be recognized by Act 

of Congress; by the administrative procedures set forth in part 83 of the Code of 

Federal Regulations denominated ‘‘Procedures for Establishing that an American Indian Group Exists as an Indian Tribe;’’ or by a decision of a United States court.’’ 3

37

4Worcester v. Georgia, 31 U.S. 515, 559 (1832) (emphasis in original). 5P.L. 106–568 (Dec. 27, 2000). 

6 California Valley Miwok Tribe v. United States, 515 F. 3d 1262, 1263 (D.C. Cir. 2008). 7Felix S. Cohen, Cohen’s Handbook of Federal Indian Law 2005 edition. 

8 25 U.S.C.A. § 476 9 25 U.S.C.A. § 479 10First published at 44 Fed. Reg. 7,235 (Feb. 6, 1979). 

In addition, tribes can organize under the half-blood provision of the Indian Reorganization Act. Tribes that were mistakenly omitted from the list of Indian Entities 

Recognized and Eligible to Receive Services from the United States Bureau of Indian Affairs can also be reaffirmed as federally recognized tribes. All of these methods are valid ways to recognize or reaffirm tribes. 

A. Congressional Recognition 

Congress has the authority to recognize government-to-government relationships 

with Indian tribes under the U.S. Constitution, primarily based on the treaty clause 

and the Indian commerce clause. In a foundational case for Indian law, Worcester 

v. Georgia, the U.S. Supreme Court states ‘‘our existing constitution.confers on congress the powers of war and peace; of making treaties, and of regulating commerce 

with foreign nations, and among the several states, and with the Indian tribes. 

These powers comprehend all that is required for the regulation of our intercourse 

with Indians.’’ 4 Congress historically recognized tribes treaties and through legislation. Only Congress has the power to terminate the government-to-government relationship with a tribe. The last tribe to be recognized through congressional legislation was the Shawnee Tribe of Oklahoma in 2000 (Loyal Shawnee). 5 Regrettably, 

the United States Senate filibuster process has derailed the potential recognition of 

tribes in this session of Congress. Unfortunately, some Senators believe only the Department of Interior, and not Congress, should acknowledge tribes. 

B. Administrative Recognition 

The executive branch has historically and continues to be heavily involved in federal recognition. Some tribes were recognized through executive orders. 6 In addition, the President negotiated treaties, subject to ratification by the Senate. 7

Authority for federal recognition was also implicitly delegated by Congress to the 

executive branch. This authority flows from the President to the Secretary of the 

Interior to the Bureau of Indian Affairs. The Department of Interior issued regulations, found at 25 C.F.R. Part 83, for the Federal Acknowledgment Process (FAP) 

in 1978 and revised them in 1994. While the procedural process is clearly stated, 

the implementation of the acknowledgment process is widely recognized as broken. 

The process is extremely lengthy and burdensome to the petitioners. Tribes have to 

wait years and even decades for decisions on their petitions. The process leaves the 

opportunity for inconsistent application of the criteria while also suffering from the 

problem of applying a one-size-fits-all standard to tribes with widely varying histories and circumstances. While a new federal commission on recognition could be 

desirable, little congressional support for such a program exists. Given the likelihood that the current Office of Federal Acknowledgment will continue, the best opportunity for qualified tribes to achieve recognition is through fair application of the 

criteria. 

The Indian Reorganization Act also allows tribes to organize under what is known 

as the ‘‘half-blood provision.’’ ‘‘Any Indian tribe shall have the right to organize for 

its common welfare, and may adopt an appropriate constitution and bylaws, and 

any amendments thereto.’’ 8 This shall become effective when ratified by the Tribe 

and approved by the Secretary. ‘‘The term ‘‘Indian’’ as used in this Act shall include 

all persons of Indian descent who are members of any recognized Indian tribe now 

under Federal jurisdiction, and all persons who are descendants of such members 

who were, on June 1, 1934, residing within the present boundaries of any Indian 

reservation, and shall further include all other persons of one-half or more Indian 

blood.’’ 9

Another way a small set of tribes has been acknowledged is by administrative 

error correction by the Department of Interior. This is for tribes whose governmentto-government relationship was never severed, but through administrative error the 

tribes did not appear on the list of Indian Entities Recognized and Eligible to Receive Services from the United States Bureau of Indian Affairs, periodically published in the Federal Register. 10 These tribes were never administratively terminated and their government-to-government relationship had not lapsed. Rather than 

a new recognition, this is a reaffirmation of the government-to-government relationship. Thus, a process similar to that under 25 CFR Part 83 is not required. The 

statuses of the Lower Lake Rancheria Koi Nation, the Ione Band of Miwok Indians, 

38

11 58 FR 54364–01 (Oct. 21, 1993). 12Muwekma Ohlone Tribe v. Salazar, No. 03–1231, at 5 n.3 (D.D.C. Sept. 28, 2011). 13Worcester v. Georgia, 31 U.S. 515, 561 (1832) 14See Montoya v. United States, 180 U.S. 261, 266, 36 Ct.Cl. 577, 21 S.Ct. 358, 359, 45 L.Ed. 

521 (1901). 15Golden Hill Paugusett Tribe of Indians v. Weicker, 39 F.3d 51 (2d Cir. 1994). 

the King Salmon Tribe, the Shoonaq’ Tribe of Kodiak, and most recently the Tejon 

Indian Tribe were appropriately corrected this way. 

In a unique situation involving Alaska Native Tribes, on October 21, 1993, the 

Department issued its list of tribes in the United States eligible for services from 

the Department. The list named the Alaska villages recognized under the Alaska 

Native Claims Settlement Act as tribes, and specifically stated that they have ‘‘all 

the immunities and privileges available to other federally acknowledged Indian 

tribes by virtue of their government-to-government relationship with the United 

States as well as the responsibilities, powers, limitations and obligations of such 

tribes.’’ 11 The over 220 tribes acknowledged in that notice did not achieve recognition through the Office of Federal Acknowledgment, which would have taken decades, but rather through the Department’s interpretation of congressional statutes, 

policies, and directives, which collectively affirm Alaska Native government sovereignty. 

In another case, the Muwekma Tribe of California also sought to be reaffirmed 

to federal recognition for many years. The Verona Band (that the Muwekma Tribe 

directly descends from) was federally recognized and was not legally terminated, 

which the Department of Interior acknowledged. The Muwekma Tribe first informed 

the Department of Interior that it would petition for federal acknowledgment in 

1989. The Tribe submitted a formal petition for acknowledgment in 1995, with thousands of pages of supplemental materials. The petition was evaluated under the 

modified federal acknowledgment regulations at 25 CFR § 83.8. The Department, 

notwithstanding a solid record of Muwekma’s history as a tribe, found that 

Muwekma ‘‘failed to provide sufficient evidence to the Department that it ‘has been 

identified as an American Indian entity on a substantially continuous basis since 

1927, when the Verona band was last recognized by the Federal Government.’’ 12

Muwekma requested that the Department reaffirm its status through administrative error correction, as it had done with Lower Lake Rancheria Koi Nation and the 

Ione Band of Mission Indians. The Department refused to do so, and Muwekma 

sued the Department. As a result of that claim, the Court directed the Department 

to provide an explanation for why the Part 83 procedures were waived for Lower 

Lake and Ione but not for Muwekma. If the Tribes were similarly situated, they 

should have been granted the same waiver. Courts are granted limited review of 

agency decisions, so the Court could only direct the Department to justify the difference in treatment, rather than reviewing Muwekma’s evidence submitted to the 

Department itself and making its own determination. The Department pointed to 

a pattern of federal dealings with Ione and Lower Lake, which the Department did 

not believe it similarly had with Muwekma or Verona band after 1927. The Court 

found the Department’s explanation as to why Muwekma was treated differently 

sufficient. The important distinction, in the view of the Department, was that the 

federal government interacted with Lower Lake and Ione as tribes, and Muwekma’s 

evidence only showed interaction with Indian individuals. Although Muwekma presented solid and verifiable evidence, the Department interpreted the evidence only 

as relevant to individuals rather than the tribe. The Court did, however, confirm 

the Department’s authority to waive regulations under 25 CFR § 1.2, and spoke 

positively about the reaffirmation process. 

C. Judicial Recognition 

The courts have also been involved in federal recognition in different ways. In 

Worcester v. Georgia, the U.S. Supreme Court affirmed the Cherokee Nation’s status 

as a federally recognized tribe, based on treaties and Acts of Congress, in the context of federal authority over Indian affairs as opposed to state authority: ‘‘The 

Cherokee nation, then, is a distinct community occupying its own territory, with 

boundaries accurately described, in which the laws of Georgia can have no force, 

and which the citizens of Georgia have no right to enter, but with the assent of the 

Cherokees themselves, or in conformity with treaties, and with the acts of congress. 

The whole intercourse between the United States and this nation, is, by our constitution and laws, vested in the government of the United States.’’ 13

There are also common law standards for recognition of Indian tribes. In Montoya 14 and Golden Hill, 15 the Supreme Court and Second Circuit, respectively, considered whether to recognize certain Indians as Tribes without waiting for recogniVerDate 0ct 09 2002 12:59 Jan 17, 2013 Jkt 077947 PO 00000 Frm 00042 Fmt 6633 Sfmt 6621 S:\DOCS\77947.TXT JACK
39

16 New York v. Shinnecock Indian Nation, No. 03–CV–3243 (D. N.Y. Nov. 7 2005). 17Montoya, 180 U.S. 261, 266 (1901). 18 New York v. Shinnecock Indian Nation, No. 03–CV–3243 (D. N.Y. Nov. 7 2005). 19 75 Fed. Reg. 34760 (June 18, 2010). 20Tillie Hardwick, et al. v. United States of America, et al., No. C–79–1710 (N.D.Cal.). 21 Pub.L. 85–671 (72 Stat. 619) 22Tillie Hardwick, et al. v. United States of America, et al., No. C–79–1710 (N.D.Cal.). 23Scotts Valley v. United States (Final Judgment), No. C–86–3660–VRW (N.D. Cal. April 17, 

1992). 24 United States Department of Interior, Record of Decision Trust Acquisition of, and Reservation Proclamation for the 151.87-acre Cowlitz Parcel in Clark County, Washington, for the Cowlitz Indian Tribe (Dec. 2010) (‘‘Cowlitz ROD’’). 25Larry Echo Hawk, Assistant Secretary—Indian Affairs, Final Determination Against Acknowledgment of the Juaneno Band of Mission Indians, Acjachemen Nation (Petitioner #84A) 

(March 15, 2011) (‘‘Juaneno Final Determination’’). 26See Cowlitz ROD. 

tion by the United States. 16 The U.S. Supreme Court defined an Indian Tribe in 

Montoya as ‘‘a body of Indians of the same or a similar race, united in a community 

under one leadership or government, and inhabiting a particular though sometimes 

ill-defined territory.’’ 17 The Shinnecock Nation was a tribe recognized by a federal 

court using the Montoya standards: ‘‘The cases described above, beginning with 

Montoya and continuing to the present, establish a federal common law standard 

for determining tribal existence that the Shinnecock Indian Nation plainly satisfies.’’ 18 Although the Court found that the Shinnecock Nation met the common law 

standards for federal recognition, the Nation later became engaged in an administrative recognition process under the Department of the Interior. The Department 

made a final determination on the Tribe’s petition in 2010. 19

A group of California tribes were also restored judicially in Tillie Hardwick. 20

Forty-one tribes were terminated by the California Rancheria Act in 1958. 21 The 

Act required that a distribution plan be made for each tribe and other actions be 

taken, including the construction of water delivery systems.. Upon compliance with 

these requirements, the tribes were to be terminated. In 1979, distributees from 

thirty-four of the tribes sued the United States for violation of the Rancheria Act 

for failing to satisfy the obligation of the Act and to inform the distributees that 

they would no longer have access to federal programs and protections. 22 The parties 

entered into a Stipulation for Entry of Judgment in 1983, restoring federal recognition to seventeen of the tribes. A similar court approved settlement, in Scotts Valley 

Band of Pomo v. U.S., restored other tribes in 1992. 23 Since then, other tribes in 

California terminated by the Rancheria Act have also been restored by judicial stipulation. 

D. Administrative Policy 

The Department of Interior historically and currently lacks a consistent approach 

to matters of federal recognition and how evidence showing recognition or federal 

jurisdiction should be viewed. The Department has employed progressive standards 

in the Record of Decision (‘‘Cowlitz ROD’’) for a trust acquisition and reservation 

proclamation for the Cowlitz Indian Tribe 24 and regressive standards in the Final 

Determination Against Acknowledgment of the Juaneno Band of Mission Indians 

(‘‘Juaneno Determination’’). 25 These decisions show an inconsistent approach to how 

the government interprets federal/tribal interactions. In the Cowlitz ROD the Department of Interior dealt with the question of whether the Tribe was under federal 

jurisdiction, and in the Juaneno Determination, the Department evaluated whether 

the Juaneno Band met the standards for recognition in 25 C.F.R. Part 83, however, 

a comparison of the two is useful to show the Department’s varying approach to 

similar evidence. 

In Cowlitz, the Department evaluated the question of ‘‘under federal jurisdiction’’ 

in the context of the Indian Reorganization Act with the goal of taking land into 

trust. The Department interpreted the evidence needed for course of dealings and 

superintendence in a very broad fashion. Support for federal superintendence and 

sovereign status was found in treaty negotiations (even for unratified treaties) census records, BIA expenditures for tribe and individual Indians, placement of Indian 

children in BIA schools, hiring of attorneys to protect land rights of individual members of a tribe, supervision of allotment sales, funeral expenses for individual members, protection of water rights and other trust assets. 26 A federal attorney contract, 

according to the opinion, demonstrates the Tribe did not lose jurisdictional status 

at that point. The Cowlitz were federally acknowledged on February 14, 2000, and 

their acknowledgement was reaffirmed in 2002. So in the ROD, the Secretary assessed whether the Tribe was under federal jurisdiction in 1934 to determine if the 

40

27 Juaneno Final Determination at 21. 28 U.S. Dept. of the Interior, Sol. Op. No. M–35029 (Mar. 17, 1948). 29The Confederated Tribes of the Grand Ronde Community of Oregon v. Ken Salazar, No. 11–

cv–00284, Plaintiff’s Motion for Summary Judgment (June 20, 2012).

IRA would apply. The attorney contracts were viewed as robust evidence of federal 

jurisdiction in the Cowlitz ROD. 

In Juaneno, the Department evaluated whether there were instances of third 

party acknowledgement of the tribe under 25 C.F.R. § 83.7 for the purposes of federal recognition. Juaneno, while claiming it also had attorney contracts, did not 

have a copy of the actual attorney contracts. The Tribe claimed a letter from the 

Commissioner could be construed as an approval of attorney contracts but that letter was not produced either. Notably, the Office of Federal Acknowledgment (OFA) 

did not produce this document either, even though this is a government record. OFA 

then dismissed this claim as self-identification. Although the Final Determination 

notes that the evidence of attorney contracts was not evaluated because the actual 

documents were not produced, it is further noted that ‘‘such correspondence merely 

repeats self-identifications and is not considered identifications under this criteria.’’ 27 In stark contrast, the Cowlitz ROD states ‘‘This action to approve the Cowlitz Tribe’s contract in 1932 supports a finding that it was considered a tribe subject 

to the statutory requirement for Department supervision of its attorney contracts, 

and thus ‘under federal jurisdiction.’’’ This is supported by a 1948 Solicitor’s Opinion 

construing the 1946 Claims Act as allowing only claims if ‘‘political recognition had 

been accorded to the particular Indian groups asserting them.’’ 28

In the Cowlitz ROD, the Department used BIA activities for both the tribe and 

for individual Indians to find ‘‘under federal jurisdiction’’ activity. Importantly, the 

Department also said the federal government must find probative/affirmative evidence that a tribe was terminated before it can conclude the tribe was not under 

federal jurisdiction. This correctly shifts the burden to the Department to find such 

evidence of termination rather than placing the burden on the tribe. 

This confusion in the Department’s approach leaves the Department open to challenges of its decisionmaking, which is detrimental both to the Department and the 

Tribe. For example, the Confederated Tribes of the Grand Ronde Community of Oregon sued the Department for its decision to take land into trust for the Cowlitz 

Tribe. Grand Ronde’s motion for summary judgment attacks the Secretary of the 

Department of the Interior on his explanation that the term ‘‘recognized’’ has been 

used in various senses. 29 The Department has a variety of tools to recognize, reaffirm, or show that a tribe was under federal jurisdiction. The approach developed 

in the Cowlitz ROD show an approach to characterizing government-to-government 

relationships that better meets the evolving standards of federal/tribal interaction. 

This approach should be consistent for all tribes, including those seeking recognition. 

The CHAIRMAN. Thank you very much, Mr. Anderson. 

Chief Adkins, in your testimony, you listed several factors that 

contribute to the low success rate of Tribes going through the administrative process. If those factors are addressed, will there still 

be the need for Congressional recognition in certain cases? 

Mr. ADKINS. Mr. Chairman, I believe yes, that there would be 

need for Congressional action in certain cases. I wish I could say 

I didn’t think so. I have pointed out things that obviously need to 

be addressed. But in certain cases, it would still need action of 

Congress, and you have demonstrated that you can do that for certain Tribes. 

The CHAIRMAN. Thank you. 

Chairman Brooks, due to the 1956 Lumbee Act, the Tribe is ineligible to petition through the administrative process. Therefore, is 

Congressional recognition the only means for the Lumbee to obtain 

Federal recognition? 

Mr. BROOKS. Mr. Chairman, as long as the Solicitor’s opinion is 

stated as it is stated, and the way it has been implemented, the 

only way we are ever going to be federally-recognized is for this 

Congress to say, look, let’s do it. 

41

The CHAIRMAN. Yes, and as you mentioned about the long history 

of not being recognized. Thank you for that response. 

Mr. Norwood, since 1977, there have been approximately 30 bills 

introduced in Congress to alter the Federal recognition process. 

Does the Task Force support any of the proposals already put 

forth? Or is there a need for new proposals? 

Mr. NORWOOD. I think the answer is inherent in the question, 

sir. Because there have been so many proposals and so many hearings, I think we need a whole new process. And it needs to be done 

by Congress. 

The CHAIRMAN. Thank you. 

Mr. Gottschalk, having worked with numerous Tribes seeking 

Federal recognition over the past decades, please describe the evolution of the administrative process for Federal recognition. 

Mr. GOTTSCHALK. Chairman Akaka, even though I have quite a 

bit of experience in the process, I am not sure I am totally qualified 

for that. But let me give it a try. 

One of the first cases that I was involved in was the San Juan 

Southern Paiute Recognition in the 1980s. I believe the entire process took approximately six years for that Tribe. Now, I was involved with the Shinnecock process, which took over 30. As we 

have said, Little Shell has taken all or parts of five different decades. So I think there has been a tightening of a reading of the regulations, lack of flexibility. 

I hate to pick on Mr. Newland too much, but when he was explaining why the perfect world of 25 months doesn’t work under 

the regulations, he spoke of the thousands of pages of documents. 

I wrote this down, he said, when you have to rigidly apply mandatory criteria to all of these pages, it takes time. I think one of the 

problems is precisely that. It is not supposed to be rigid application. It is supposed to be according to the regulations themselves, 

a flexible application which takes into account the culture, history, 

and situation of each Tribe involved. 

I think perhaps that is what has evolved, is a turning away from 

that flexibility, which seemed to be there in the 1980s with the San 

Juan Southern Paiute Tribe, and which I am not seeing now. 

The CHAIRMAN. Thank you so much. It is good to draw from your 

experience in this respect. 

Mr. Anderson, in your testimony you mentioned the Department’s varying approach to similar evidence and recognition cases. 

What mechanisms can be put in place to ensure that all recognition 

cases are considered on equal and consistent basis? For instance, 

can a regional approach help? 

Mr. ANDERSON. I think direction from the top, from the Secretary’s office, for the Secretary to make these consistent, it could 

work. My example in my testimony showed that while there have 

been favorable standards used in this Cowlitz decision, where 

things like attendance at BIA schools was seen as valid evidence 

of Tribal citizenship, it has not been used in the recognition case. 

So there has been a disconnect at the Interior Department between the team, which I think has been really first rate, working 

on the Cowlitz land into trust cases, and I think because the Solicitor herself has been involved in that, versus what has gone on at 

the staff level where unfortunately, the acknowledgment area is 

42

kind of the stepchild of Indian law and policy at Interior. It is not 

something that a lot of people focus on, have a lot of attention to. 

As a result, sometimes precedents and policies are formed there at 

the staff level that really don’t reflect what I think is a greater policy. 

So directives, and then as you mentioned, regional standards, 

like the approval of attorney contracts, that is good evidence. If 

that was enunciated in a policy, I think you could go to a chart of 

all these Tribes, that if they can meet this threshold of these standards, at least we would know there is real potential that at least 

should be looked at as a priority matter. 

The CHAIRMAN. Thank you very much. 

Chief Adkins and Chairman Brooks, in your testimonies, you 

both summarized the many hardships faced throughout the history 

of your people and State, that the time for Congress to act is now. 

Please describe the impact of delaying action on your recognition 

legislation. 

Mr. ADKINS. Mr. Chairman, I would like to say that access to 

education, that is of primary importance to us. If you look at statistics, they will show that only 3 percent of Natives who enroll in college graduate from college. Only 50 percent of Native students complete high school. Education is of paramount importance. And with 

Federal acknowledgment, we would have access to at least a grant 

process from which we are excluded today to gain funding for education. 

Number two, the bones of my ancestors, a lot of those folks, a 

lot of those remains are in the Smithsonian. I am precluded from 

bringing my ancestors home for burial because as a non-federally 

recognized Tribe, I do not have access to their remains. I want to 

bring my people home. 

And number three, it was stated in 1999, when we approached 

the Bureau of Indian Affairs, we were told by the Assistant Secretary of the Department of the Interior that many of us would die 

before we gained recognition through the administrative process. I 

want to do this for the chiefs who have passed away since then. 

I want to do that for the elders who clung tenaciously to the hope 

that the Congress of the United States of America, or that its arm, 

the Department of the Interior, would do the right thing by its people, by those people who fought, who died and bled initially to protect their own homeland, but then who helped the invaders establish a foothold in this place we call the United States, who now 

have the authority and the power to dictate our futures. 

So I would like for the legacy of my forebears to include, to be 

reflected in the action this Congress might take to accord Federal 

acknowledgment to these Tribes who have worked so desperately 

hard, who have been true patriots to this Country. I want that legacy to arise and endure. 

The CHAIRMAN. Thank you very much, Chief Adkins. 

Chairman Brooks? 

Mr. BROOKS. Mr. Chairman, when we consider, or when I consider the cost of just cancer itself, and I just went through that 

with my wife, and you are looking at $150,000-plus, and then when 

I look at the cost of diabetes, and I look at the cost of heart attacks, 

and I look at the cost of strokes, our graveyards are filling up. BeVerDate 0ct 09 2002 12:59 Jan 17, 2013 Jkt 077947 PO 00000 Frm 00046 Fmt 6633 Sfmt 6601 S:\DOCS\77947.TXT JACK
43

cause we don’t have the proper care that needs to be out there for 

our elders. And I am seeing that every day. It is not just something 

that I realize is going to happen. It is happening now. 

And the only way that I know we are going to be able to get out 

of this kind of thing is for Congress to say, look, let’s go ahead and 

do the right thing. Let’s go ahead and do the thing that will help 

us solve some of these problems that we have. Especially in the 

educational aspect of it. When you look at the cost of education 

today, just in my Tribe, there are thousands of kids today not able 

to go to college because of the cost of it. 

So I implore, I implore you today, let’s act quickly if we can. 

Thank you very much. 

The CHAIRMAN. Thank you, Chairman. 

Mr. Norwood, Mr. Gottschalk, and Mr. Anderson, the idea of an 

independent commission on Tribal recognition has been around for 

several years. In your opinion, is this a viable solution to the problems with the current administrative process? Mr. Norwood? 

Mr. NORWOOD. I believe that it is, sir. I think that it would have 

to incorporate regional considerations, that there are different histories in different areas of the Country, different concerns. I think 

that the people that sit on the committee should be referred to or 

Congress should be guided to them by the Tribes who are going to 

be impacted by those decisions, and that they are familiar with the 

regional histories. 

But I think that that is an alternative and a way that Congress 

can take action and establish justice for these Tribes. 

The CHAIRMAN. Thank you. 

Mr. Gottschalk? 

Mr. GOTTSCHALK. Mr. Chairman, with your indulgence, I was remiss in my previous answer about the move from flexibility to rigidity in the process to not point out, of course, that the perfect example is Little Shell itself, which received a favorable preliminary 

determination because of the Assistant Secretary’s flexible application of the criteria. And then the subsequent rigid application that 

resulted in a negative final determination. I just wanted to make 

that point. 

As to your present question, it is a fact that in the IBIA appeals 

process, we have asked for the appointment of outside independent 

experts. It seems to me that each Tribe, when they go through this 

recognition process, you hire someone that spends years studying 

the particular situation of a given Tribe. I think it is extraordinarily difficult to expect that a small group of people appear, can 

just jump in and become that familiar with a given Tribe. The way 

that could happen, if you could seek out independent experts that 

had expertise, as Mr. Norwood said, in the Tribes of a given area. 

So I think that is something that certainly should be considered. 

The CHAIRMAN. Thank you. Mr. Anderson? 

Mr. ANDERSON. Yes, Mr. Chairman, I think a commission is a 

good idea whose time will probably never come. The reluctance of 

Congress to form new commissions, the lead time to hire staff probably renders it a real good idea that won’t be implemented. But 

that doesn’t mean that the Department, within its own system, 

can’t do something similar to that in terms of independence or outside panels. And frankly, just a more fair, and as Mr. Gottschalk 

44

said, flexible application of the standards themselves today I think 

would expedite these processes. 

The CHAIRMAN. Mr. Anderson, under the Clinton Administration, 

several Tribes received recognition both legislatively and Congressionally. Can you please discuss the approach taken by the Assistant Secretary regarding Tribal recognition during that time? 

Mr. ANDERSON. Yes, I would be pleased to. Of course, at that 

time Assistant Secretary Kevin Gover was the Assistant Secretary, 

and prior to that, Ada Deer. I think with, particularly with Secretary Deer, initially we had the issue of the Alaska Native recognition. There was some thought that these Tribes, the 224 Tribes 

should all go through the recognition process through OFA. 

Well, one can imagine how many decades and years that would 

take. Or should there be an innovative approach in seeing, as a 

group, could they be recognized based on Congressional statutes 

that are mentioned in the Alaska Native Settlement Claims Act. 

And that is what happened. So they didn’t go through the BAR 

process at all, they were recognized in the Assistant Secretary’s 

power. 

So that was an innovation. I think it kind of opened people’s eyes 

to thinking that, gee, we don’t always have to go through the OFA, 

but let’s look at other ways. Then when Mr. Gover was the Assistant Secretary, he thought, could we do things outside BAR in terms 

of where a Tribe is currently recognized, but through a mistake of 

the United States Government we have overlooked that recognition. And he found an innovative approach to recognize some 

Tribes in that manner. 

So I think it is trying to get outside the box that particularly 

those in OFA have wanted to put Tribes in, that there is an exclusive, only one way to be recognized, that is through their office. It 

is broadening that to Congressional, judicial, and other means, like 

the error correction. I think that was the difference in thinking. 

Until recently, that didn’t occur during the Bush Administration. 

At the very end of Mr. Echo Hawk’s tenure, with Tejon, he finally 

used that authority which is available. The Bureau in the past 

used to take the position in litigation that if one Tribe uses that, 

then all of them will want to. Well, of course, and maybe they 

should where they are qualified to use that error. But I think it 

was just an innovative approach that we hopefully maybe, with 

some of the testimony you have heard today from the Administration, that they would try to now follow. 

The CHAIRMAN. Thank you very much. I want to tell you that 

your responses, your statements, too, have been very valuable to 

the Committee. What we try to do, of course, is understand what 

happened and to hear leaders like you and experts as well tell us 

some of your experiences. It will certainly help us in what we try 

to do, and we need to do this working together and do it as quickly 

as we can. 

We cannot accept the fact that oh, it takes long, so we just have 

to be patient. Well, we want to see what we can do in reforming 

that and try to help the indigenous people as quickly as we can 

here. 

As a nation, we must always remember our history and the circumstances from which our great democracy was born. Fulfilling 

45

the Federal trust responsibility to America’s first peoples or indigenous Nations isn’t simply a matter of goodwill. It was in the beginning and it has been in our Constitution, it is a matter of justice, 

of promises kept and of remembering the debt owed to those whose 

sacrifices have helped to make this great Nation possible. All of you 

have mentioned that. 

So it is important that as we contemplate policies that fulfill that 

responsibility, we strive to achieve what we call parity among Native Nations. The United States must ensure that we are meeting 

our trust responsibility to each Native Nation in all three areas, 

addressing barriers to self-sufficiency, protecting the collective 

rights of Native Nations and engaging in a government-to-government relationship. Congress sets the standard and direction of Indian policies, maintains oversight in the implementation, and must 

exercise its authority to correct situations. That is what we are attempting to do when implementation does not achieve the goals of 

this great Nation. 

And without question, it will take a concerted effort of Tribal 

leaders, the Administration, and the Congress to fix the recognition 

process. And that is the whole attempt here. 

So I look forward to continuing to work with all of you on this 

endeavor. I also want to, I notice that we have had good attendance 

today, including some very young people who are seated here in the 

front row. I want to thank the young people in the front row for 

staying here and listening to what has gone on. I hope you will be 

receiving the benefits of our discussion today as we move along 

here. 

So again, thank you so much for your wisdom and your knowledge and we need to reach out to get all of this and try to do it 

as right as we can for our indigenous people. 

So again, mahalo, thank you, and thank you so much for being 

here and helping us with your valuable statements and responses. 

Mr. ADKINS. Mr. Chair, I would like to offer one little story. It 

won’t take but a second. One of the local universities close to our 

ancestral land had exhumed, through archeological digs, many of 

the Indian remains of the Chickahominy people. We have met with 

the university and we are making provisions to bring those remains home. 

But two crania were sent to a forensic sculptor, who created 

likenesses from those. She is a noted forensic sculptor. And I got 

to meet, face to face, the images of my forebears who had lived in 

the middle of the 14th century. And there are stories like that 

across Indian Country that ought to just resonate with this administrative process. We are who we say we are. And our community 

linkages, a lot of us went underground to survive. By design, we 

didn’t want to be noticed by the ruling folks, because we knew 

what would happen. We would lose a lot of property that we had. 

So we went underground. 

In retrospect, that probably hurt us. But in going underground, 

we strengthened our individual ties Tribe to Tribe. So that did 

cause us to get even stronger. 

So there are factors that I think I wanted you to be aware of and 

that the administrative process ought to be able to look at to 

46

render an informed decision regarding those Tribes who are in that 

process. So thank you for letting me make that statement. 

The CHAIRMAN. Thank you so much. Therefore, I am going to extend that opportunity to each one of you here at the table. If you 

have any further comments to make before we adjourn. Chairman 

Brooks? 

Mr. BROOKS. I just want to thank you, and I appreciate the fact 

that your heart is where it is, that we can be together in one unity 

as we sit around this table. From what I have heard today, we are 

one people. Thank you. 

The CHAIRMAN. Mr. Norwood? 

Mr. NORWOOD. I just want to thank you, sir, for allowing us to 

give testimony and also want to pledge my efforts to the task of 

making the correction and pray for our collective people, that one 

day both of us will perhaps be dancing together and celebrating 

Federal acknowledgment. 

The CHAIRMAN. Thank you very much. Mr. Gottschalk? 

Mr. GOTTSCHALK. Thank you, Chairman Akaka. I would just like 

to say that the Little Shell Tribe is a Tribe that has given the administrative process more than a fair chance, and it did not work, 

and it is not because of Little Shell Tribe. I would urge the Committee to report out S. 546 favorably so it can be moved on the 

Floor. Thank you. 

The CHAIRMAN. Thank you. 

Mr. Anderson? 

Mr. ANDERSON. Mr. Chairman, as a Native Hawaiian, I appreciate your understanding of the American Indian issues and know 

that across the Country, American Indians support the Native Hawaiians as well. It has been a great partnership. 

The CHAIRMAN. Thank you very much. 

Again, mahalo, thank you to all. This hearing is adjourned. 

[Whereupon, at 4:37 p.m., the Committee was adjourned.] 

(47)

APPENDIX

PREPARED STATEMENT OF THE KNUGANK TRIBE


712a1.eps
48


712a2.eps

Nativ~=id~l!tli ill OI~onvi1le (KnugatJk). but t:hat W33 because some oftllU' ohlldren were away 

at school and olm were temporarily aW.'!.)! from the village. 'The ANeSA enrollment miled 10 

include all NaHve residents o:!he village ami lWern memben of Ollf oomOlurdiY were 

,mistake-IllY, enro.l~, ~ a ~fferent village ~raricn,q~ 5i~tY~or)jroll:m a;o, a:Aarg~-roembu.-s or _Ifu::~,~~ ~p~?-~ariot _~GJ,*~~~~!il~g~ _~'!~ clliy24~~.!8fW-O!iOO, O1sciWille was'e8!~fS;hed ~)i "Native .Gt-01lp~ und!:f ANCSA tM not .;:.Nafive Vilmge_ 

The miacount hll.d SerlOUB ctll'laeqLlelwes forourTribe. As it N~'V~Oroup, we were 

entitled to ,[j,mlJcb. ~m~l1er land selection thlm Native Villases and had to walt longer to make our 

selection. l'lyth\l time WI; were able to milJ{,j a 4md selection urider ANeBA, all the land around 

Knugank had already been selected, mruuding the Knugank cemetery which is a~ UJe very heart 

of our villa.~ WId our tribal identity. 

1CrnJJ'!llnk has mmr beell knni.·u,tetti'i>yCafigress-lm'j"R:erefure, Mntinl."l8 to 00 a min. 

L·'.19-93, lheA~sis~l Secrelaty ruad<;; a m[~c b-y~)ID;tmg Kn'Jgahk {Ols<mvil!e) from 1M Iffit 

Ilf foo&:aUy 'r{l«-o~d tribes. We lia",* caIled ~!.l the Offici:- oftJw Ass1St-.,.m ~ ro 

ro~.:ab(j/&: ~ ~m!rewgnlti"n Jf. {jCf Tnoe?~ aiidit.~.~uga.~k !¢ .t11C I?: <If [edmlly rerogril.Z:ld,o:itli$, m Ihe Slate of AlllSkil. In.the. alt-etniti'le, we alSo SIlbmittOO J\ petitIon III June 

2012 to Org:,uuze as a TritiepunmllUt La the Alaska Amendment to the lndi1l1l Reorganization Act 

(Alaska !itA), 25 U.S,C. § 473a. In cKteI'Iding the IRA to Alaska, CO~g stated: 

''That groups of Indians in Alaskanairecogni.tee\ priOt to May:!l, 1936, M bands 

or tribes, but having a common band ()fOOQUpatiOIl, or association. orrllSidenoe 

within,.. wcll-dcfiired f1eighbc.hood, communIty, Qf ruJ'll1 district. may ¢rgani:e to 

a~ C?~tltio!~ and_.~YI~P.d'{o~~i~i ff,~e~Sf;~l?pr?oJ:ati()~a.1?- >_ 

;F_~!ilims unrlen>~-.:;!i9ns 1j~,-4-(-6. ~lld _4,7 .::flhlS tl!!e" :_, 

Fennet AsSi-itimt Scl:reW). for Indian Malis: Lmy E~bo l-fa;.>.-k:rwerit:ly confirmw 6:: 

c()!i'ti!l.i;i~g fJti!Otjty~~tt~.N9ska IRA in ~!JMu'~~:i, 201:l; ~~}{\ Setl~tf!r r:bMurkQwskI, 

which,We \!ppima to tliis writteiJ te8timQny for ilicluSion ill tIle ri:cord. Lqngilwuding practice and 

preceaimtUl1d;;r't)ie!Ai~k'aIRAprovlde foJ tb{i'Ei11\iau oJIndianAffrur$ (BrA) \0 authorize the 

orgwrl2atiOl'loftrlbes in Al33ka based on their 5howing ofa "C00llIl10n bond ofor,cupatiOIl, or 

association, t'lT' fe:lidence" that was estab1i~h~<:l prior to 1936. Knugank 

Restoring :Knngank's (;!deAl teeo&m:tion would enable 13S to prilSen'e and umintain Olll' 

cornmmillyhlentlly~ well ~ IIlrow us to orkr OUI membeis, particularly our youngpe~ lbl 

l=lclits,-oftnl.;ru ~ber.mip tilat are d\1~ u\¢m as AJas.\:kNati:~p~Ple without furoingfuem t.e 

fursld:e thcir'!,erita,g'::"by joinii.,g aiuxb.:r tn~e.. For Ir,~ f~ recognition merul5-we-eoold 

-as5i~t.'"mr m<;';!u!)CJ:s in iIr.pro~:liglbcir h¢ustpg, and may make it p~!dl)1e ~ U5, to Obtal_f;! 

resonrcCli 10 proi(lctoiJrviliage, partieutarly ('he ceh~ctcry, from fmther mOOlon. We attachOW' 

recent letter to tlie CiiyofDillingham, AllUl~~. wlii~h demonslmtcs!h(; !>6.iQUlllle8S of the threats 

facing our (XUt~lery ilnd ihe cbal1enges we. t~ in addrcs:sing thcm. The Alaska Federatioll of 

NatiVe!; (AFN), Bris/ol Bay Native AS$~i:ltic;m (ElBNA), Bri!!lolBay Arc:l,Hea!t\l Corporation 

{BBAHC} ind IriOIlS in our region nil roo:Jzm:oo KnUg<rnk;lS II tribe and l1aw been ~upportingour 

effort to ~tore :fuderaJ recognition ofourtrlbaJ status-. 

~~ ei~~'8p~-le~' Jlie':~6hllri--it1ee-',lIj ~'Mfal(:rfttho1dlng thc'oVt;i"sltbr h~~ We respedMl',r:", :~'0;I.ltlinIttee!p. 'retiJil'ld.1lit: m:~mit ofitS 

auth(¢ity, fe$pm!silillity. and Coo~t:I ~\%ilIj ... e llDdei: the A111llka IRA to'~aetioo on tribal re'c.WlIlll:lli. .:rittside!hi: Parr!!) - ". !lIn' ~ jlke.w'i$.. 
49


712a3.eps

United StaIe.~ Departm-ent of me. interior 

GFFICS OPTl"fE SECRE:t:;;R¥ 

WAl'lI!!NO'roN. D.C. 2tl2"P 

Ho-norab!e /,,1~3 ~·lu,kowskJ 

Unil~d Smk~ S~llat¢ 

Wasl!m8:<m. DC 'Xlifl) 

1k3l:StwMl'"M\;w;)~ 

JAH 3 f 21Jt2 

"Thenk~ w~ leg<&rcf1UI'.t 2t l\ill. jl~4lt-.">e~lWllS ae'.)jli ~lmftC;';gcli~ prl:K:= 

furA!~:1!.n trllml eJl1ilies. Ymlf idlf!!" ~ll;1);'; ~bolll !h1:"Jask&An!imdm~~t 1(.> !he Indian 

Rer.>r&al1i2al.\c'r\ Act. 25 U.S.c. § ';7311 (mA,I, an(lthe Departmcnt'~ Ml:l'I¢w1~dwncn( regulations. 

25 c.F.{t P(lrt 83, as the means bywhlC>h /lJw,~~lIll"ibal entities are l!!"eCl!tlti?r.~ as tribes. r 

apologize fuf \hu qolQY in responding teo your lctt.er. 

You- nOle th;!.t :b$r\\ am curront 11 W Alat\<.<! Fll!tJve entities (Bled L1. tile Ollt(,bet t, 2010 Fer/erul 

RegI.TI'q" Nox"(>.:e "!nJjll\u Enlttics R'O:c<lg.~l '11\.,:1 llli1;.i.ble ro R=ilf{; SCf'.N;1.l~ fum11~ h'rJted 

Sf'll&:; ButeR'l'! oflmfu,l'! Mciu..T ~Mkiwwl.oojp'l-""nt ¥>"'t\o..""'<=-uf~I"",,'<a Nl;i:M t'r\Rs aM 

-wf;~~ h$ ~ l!1I\&:;.OOwl<r.!e lililQry-, r.s ~'"hcl b»--lDw. 

When !hettihl amltics lw.= i'itSt;'I\Mlsht:d If! 1"9&1, k-=~a1if',,-"d Mi< "prcliminary li;1.. ~ 

See q Fw, ~ 53,130,53.133 (NCo'" :lA, 11}1l2). Efforts lodariiy\he lhlt ~ unsuccessful 

lind numertlllt.ljJaa,m Nntivc villages app~Rl~il bQing left off the 1986 Ibt, which resulted in th~ 

Departmont ~,wdrtYml! tile list significantly l\llllSa tq indudeAlaska N,,*j~ vi!J~ges a~d Alaska 

Nativ!l" Ci~i\l1$ s~(tl~)lI Act (ANCSA) elJrp~t~tlons and other tribal Offl~ll~l(jOI)S lh~1 would 

not 'COfMrwbu b,,~on~idercd tritM:s. See j3 t'cd. Reg.. 5-2,829-, 52,8?,Z (Do.:¢, ,29-, 1911&). 

UnlO~un~, Ill:nevisinns 10 the liw: Qjd n!)~ t'l;S{)M.: lhequcsliom !"(!\"t~d tMr\ba! srnfU!l:oflhe 

Nu1iv~ Vlll3.$Cl>;\Sd" tlltlged, m,,;y hw-re ml>~ ifW!U loon::: :ccmplit;l.mi. ,~a I\\.~t, ij!1l ~it"'T 

~=! a~<m~t-J,t ;)pm:.oo.=lh~ ;'Ou~t~ J~\;:ron<:Jf-A.lllsbN!!II\'~W.~ 

O'l,",:d.r.m\.<l'I1dN"MY,s~~M-3&l15 ~Sl\n..ll. !~,z~lcedJ"'n.l"'.lm). J.'l 

~~ It! ilia 'So.iicirors0ji~ 'iit~ l.~irr\m<:fIl ¥,!b'J~W <:. nvi's-ffi 11..'11: 6f tril:m1-.:atiOOsfN 

A1."l.Si;r>, lh;:, Im!:mlble 10 which TCWt..'I1iJ; tilt ~lg1lif"'1111111i~"!0!7 Q{"\fu: .-'\llt~k", ;»rtion -of the ijst. 

Sec SS" Fl':cl. I1l;g. S4,364 (CX:t. 21. J993). 1/fil ~U1horitalivenes~1.'fI.~ etl):~'qrli IiSl has most 

foo<mllyb~rm (1\lnfilTl1~d by the Alaska SUpl~rn~ Court in McCray v f,',mo/ fJw I'illagl?, No. S13972.201 I Al,,~. r..EXJS 136 (Alaska D~/l'. '.l, ;Wll)· 

·fuming ,0 yol,irsptloi!ic:qtltl'5lion as IQ tile ~p!~jC>'lMl!ly ofthc IRA ;eoAt~tk(\. ~I~ mAIlS: 

Q!"igin .. flY~rt¢{ed iI} (,))4 "ppHw 10 Ab~lm, hut h<'rl ltroiled ellbs lm-au~ ~'!l~ 

~"'f.w~ll{m;;-&im~ll::' ,<; ;b¢.S(; l.n.lh<:,.:lo::~t~! .m~~ .. Rm;>.l~~ 

1'Ja.~"'3~.-:fu;,w~><=. ~ .Mr$!"&W <hemAil.' 19*f;t)~om:1 crtV..>S!l' 

ci-<,,-u."n."~":1< Pn '!hN::~ro\E 4S slll~ $$.."tiun ~4 G!"t!>e iRA, 15 HS,C. § 41(>, 

.gay", mI! \tibe- or lrit~s reSi&ng -= = rr.!'>!;I'J~!ion me tigil; 19 I~lmim (\wi nd()p1 ~ 

COllslituliG,11 liJi ~f,lf-go'"CnlInent. Sinc¢.hcre wert: few re!rervatiOO1s ;n;"\1«fl'k~, Congress 

amended th~ Ul:A La provide in part: 
50


712a4.eps

lhl\t lftrIt'fnl 31'~S h! Absk:> rtOl. beretofu<l: f~;:a~.du;d re M."\& or lf~\'~, bUl 

m:wlllg >11Xlmrum;. woo nfooI;'"JP1!.ti{)u, t)l'AA~tfuo:" m ~",;)witl!1n a 

weU-dsfined ncighborlli;md, Ml'llIllQllil1 or roml dlstric!, rm;-,l-' /lI'$<mitt to adorrr 

t.:on$tiWL!OM amI bylaws and tf.> nwcl~'e Uhal'lers ofineotptmnllm ~mJ FC(!ero[ loaJlS 

IJl1d<)f S~q~ions 16, 17, and I O-f.1nh~ A~I Qf JUne 1 S, 1934 (4S SIaL 9a~)" 

('mp}f(JSI~' ndded} 

49Stal. Il.i'O; n USC §47Jn. 

1lttl$, a sr~up <{Ill:!: ~~ ~li!;h m.e..,i:1teru.w ~ i9J6 wil;; "u wmm<m kmd ¢f P;tt1.lp,-mu, !)f 

~<:1ili\'Q.\1, Ii, m,idn= withln 1'; wrJ}.clefint:ti lclgbtllr'hoolt ~\t<otl,.Y. vt-;wcl &sllli:ln ~td 

~"Q ~ oigMIi~:l: ~*e M~-a A"'~tl.t!)'w,lt o:.ffuf. 1&._ 

inbe A~ll, Amendment of Ill"" iRA do~ nQI IlW1y ttl fhe group bm:.ml~e file group W'i!.S lim it! 

emSltllCit in. 1 Il$<i, there arc severnl alillfll$dvBS, First, the gnmp-etluldseek sr~ci~1 clarifying 

Iegi~ln[;M,irlIllUnr to Iha! passed for tnc Ur,il<l'~ /<'!X!luo'l''ah Band ofCber'ok~t.l !nqhms (Act of 

AugltSI 10. I Q46: 60 Stot 976) or the Ce11lml CQ\f[luil of the Tlinglt and Un.id~ 'frllles (Act of 

Nov, 2, )99'l; IQR St~. 4793). ~!;olld. III ~I!<l ~henmlive.lhc grOltp oolllq oonsldcf furming a: 

",,11m, (li'8~\'!!mtfxm"v.-{!hitl. Il,e meanIng (It'llro l~di"nSelr·De1mminatitmWld \2I!lc..'1lion 

k!$l!4ilru:.e M.ll U.S.c. § 45ilb{l), for jRlrpW$ nt man<lgi~ Fw.e;.l.\ ~"]«:3 \Inti benefi!S' 

WlllU~t$ Al'as.%::. N!(j""'Jloopre.. A t>\lrd ~m1ityrnll;yu!he n;;k1"lO"'~~ 

~!!w ~n-=t's- reg:clm~, 15 C.P' JL j>;b't Sl. 0He cfi!:r.: .~lrem(ot:s-f!f'i};;rt [li'';',,''lt;$'S 

~ d'-.e "r;r:d to ;:h>Wi< ~<lm>s !;xist~lM 1$<l =~ irnm hl.OOti>::il.t tit)'leJ'; ID- tt--t} preseJ<i. 

:m 2$ C.f..-R. §- tJ.'I{b}, 

We h\)j)IHbooe'comm~nts bave be~n hl:lpful to j'(lll;n underslandlng ih~ Oo!jl\'\T1menl's poSitiml. 

[f)'Qllllav~ MljI furt~er ql!C.StiO[1S rlea~~ do 1101 h(;l.~llnle 10 com act us, 
51


712a5.eps

A):ce Rllhy, Mayet" 

City ofD:lfin!;lmm 

PO&:d21 

Diilingt.mn, AK 99576 

Paul Liedberg, Chair 

Plarlnjng Commis$il'lll 

City afDiIlingb:llU 

PO Box 889 

Dillingham. AK 99576 

Dear Ms. Ruby ~ud Mr. Lm.llicrg; 

OISftnviUe, Inc. 

P.O. Bo:<.S7I 

Dillingbllm, AK 99576 

M~S.2012 

I am writing to follow up ofllne issue uribe K.1nakanak Cemek:ry. w;'ieh 1 m:reussoo briclly m 

Ihe May 3 Dmingh!m~ City C01lnoil Meeting. I appreciate havinghae the oppommily!() sh~re 

Ihe Olsonvil1e (Kml@nk)community'shistm)'withllndcurrcntcoocemsaboUtlheCemetery 

wilh you at the meelil1!;>" J hope lImll was able to c~nycy the d~ep 5ignific:mcc the Cemelery hIlS 

10 ourcommunit)' and the sense of urgency we felll Ttlgarding lhese matters. 

Tne- K!l!lIlkanak Cenle!ery has been maintained and C(!red [<lr by ollr commllllity, and has 

re\JU\!ned the burial site >If OUf !IIl=!OTS, ror evil!' ! (10 yeaf~. Unfortunarel;;, dlle to wbat we 

consitkr HI be 3n egregl(llls mrot in the implementati(}O ofthe Alas].;.,'!. N<It:iYe Chims Scl!lemcnt 

Act (ANCSA), w';; WCN ,1\wer nNe !(l" ooqul"" legal title til the Cernetefj' ill our ANCSA 

COQ:lm!lW'~ We believe 1his e;roc WM fu"W -c-unlmws w. be.a V!ola(jUIl of the icilerellt rigru (If 

,he Kr ... lbo.ank ToW: to n~jnta.in cur role as ctretakl:~ fbrQ\.t:' tt3:iitiom! bl'l~ and cultuml 

resources, It right acknowledged in tbe United NlIIi<.!l1s Declaration {In the Rights ofindigenous 

Peoplcs (UNDRlP) (,Iu1icles 2.5, 2.6). The UNDRIP $pedfically affirms the rights ofindigcnolls 

communities "to mnlnmin, prolect and develop too f!ll$t, present and future manifC£l<\t!ons of 

their cultures, such as 1U.:1UU:o\ogical and historic slre$" (Article 11) and to "maintain, pro1l:ct, 

and hELve II.cce~s in ptivaQY 10 their religious rind CU1MIIi sites" (Arlicle 12). The K.makal1* 

CemeleI)' is ill f~ct I\.ccntm\ histQl1:o; rdiciollS, and cultulal site:forthe Knug<!l1k p~ple. 

Within the last several )'l.llIrs, it esne te ffilf attention thnl Choggi"Il»g, LId. had transfutred tina to 

the Celrn:tcq :0. the Ctty of DimngM~ After reCf.living i.'U:> lrIi'oamt!on, 'Wee I>1:nt a WUetID mc 

Diilingr.am 0.1y Mmll\gcroo Apnl 26, 20HI e;<jlresslUg coocem DVertln:. threat posed 10 the 

grOovc sib::! by rivero.uik '.l.ro.;ron an;l.(l;.;;iain:ng our pooi\icll that, due to -01.>. hmcric~! 

relationship with the Cem~tery. titlesllOuld belong to the Knugauk Tribe Ill" the ANCSA Native 
52

PREPARED STATEMENT OF HON. FRAMON WEAVER, CHIEF, MOWA BAND OF CHOCTAW

INDIANS

Thank you Mr. Chairman: 

It is clear that our tribe the MOWA Band of Choctaw Indians are the literal poster child for the structural failures evident in the federal recognition process. As the 

only tribe in the nation to have exhausted all three remedies made available for the 

granting of federal status (OFA, federal lawsuit, Congressional Bills), we are well 

aware of the inherent bias, political corruption, and highly financed campaigns 

waged against legitimate, historic ‘‘non-federal’’ tribes. We are the second longest 

petitioning tribe in the nation. Only the Lumbee in North Carolina have petitioned 

longer. Our initial attempts at federal recognition began in the early 1900s with our 

mass community attempt to be admitted to the Miller Roll. With numerous appeals 

through BAR/OFA, twelve Congressional bills, and a federal lawsuit thrown out on 

a statute of limitations argument, we clearly understand that the current process 

is only open to those who ally themselves with gaming backers who can invest tens 

of millions of dollars in their petitions. We have chosen throughout our long, arduous journey in the process not to ally ourselves with numerous gaming suitors. 

Some may call this ignorant to the realities of the process. We choose to call it what 

it is; integrity. The need to align with gaming backers compromises every aspect of 

the process and makes it completely illegitimate. 


712a6.eps
53

The only avenue for defining the federal to federal relationship is via the United 

States Congress. OFA has no place in this process and the integrity of the leadership in this organization is not something that can be fixed. Lawsuits have no place 

in this process. Like the OFA process, they are economically prohibitive for most petitioning tribes. Congress must make determinations based on facts and facts only. 

No political influence. No backdoor letters from federal tribes attempting to defend 

gaming zones from perceived competition. Congress must act. 

There exist numerous keys that define legitimate tribal communities, but due to 

extreme time constraints for presenters, we will discuss only a small number here. 

1. Tribes who have attended Indian boarding schools and can clearly document 

this attendance should be placed on the federal register in immediacy. Attendance 

at Indian boarding schools is a clear indicator of continuous acknowledgement from 

governmental, political, and social sources. Boarding schools such as Haskell, 

Bacone, Carlisle, Hampton, Cherokee, Choctaw Central, Chilocco, and others, educated members of historic, ‘‘non-federal’’ tribes for many generations. These schools 

were exclusive to Indians and there exists historic ‘‘non-federal’’ tribes who have had 

numerous members of their tribes attending such institutions at times when most 

required blood quantum of 1⁄4 or more Indian ancestry for attendance as a basic requirement. For copies of yearbook photos, campus newspaper articles, grade reports, 

contemporary interviews, etc. of these attendees and their tribes, please go to 

www.helphaskell.com

2. Tribes who live on long standing, historic colonial and/or state recognized Indian reservations should be placed on the federal register in immediacy. As Ojibwa 

academic and scholar David Treuer remarks in his book Rez Life, published in 2012 

by Atlantic Monthly Press, ‘‘Some Indians don’t have reservations, but all reservations have Indians . . .’’ The idea that Indians who have lived on their Indian reservations for generations, are suddenly to be considered as ‘‘non-Indians’’ is fundamentally absurd. The maintenance of tribal lands from the historic period to contemporary times is a simple, clear, and irrefutable identifier of Indian existence. 

The majority of the oldest Indian reservations in the United States are inhabited 

by historic ‘‘non-federal’’ tribes. 

3. Language is irrefutable proof of tribal existence. If a tribal community has 

maintained their tribal language into the contemporary period and can document 

such, there is simply no need to go through any other form of recognition criteria. 

There does not exist a singular community of ‘‘non-Indians’’ in this country who 

speak an Indian language. This is a social impossibility. This requires no further 

explanation. 

4. Unique regional history is highly important in determinations. There is no way 

to objectively determine the granting of federal recognition via one set of proposed 

regulations. The current seven criteria being used by OFA have never been used in 

any consistent form to this stage anyway, and so they are simply proof positive of 

the disaster of complete inconsistency and attempting to fit circular objects into 

square pegs. 

5. Racial bias towards tribal communities in the East and South in particular 

must be abolished completely. Two examples are cited here: 

In 1978 Terry Anderson and Kirke Kickingbird were hired by NCAI to research 

this issue of federal recognition and present a paper on their findings to the National Conference on Federal Recognition which was being held in Nashville, Tennessee. Their paper, ‘‘An Historical Perspective on the Issue of Federal Recognition 

and Non-recognition’’ closed with the following statement, 

‘‘The reasons that are usually presented to withhold recognition from tribes are 

(1) that they are racially tainted with the blood of African tribes-men or (2) greed, 

for newly recognized tribes will share in the appropriations for services given to the 

Bureau of Indian Affairs. The names of justice, mercy, sanity, common sense, fiscal 

responsibility, and rationality can be presented just as easily on the side of those 

advocating recognition.’’

Thirty-four years later there has been no change in these two factors being used 

as reasons to deny/work against federal recognition of petitioning tribes. 

Professor Don Rankin from Samford University in Birmingham, Alabama has recounted by letter a disturbing incident occurring during a June 1995 Genealogy 

Seminar conducted by Sharon Scholars Brown at Samford University. His letter 

states, 

‘‘Someone brought up the MOWA Choctaw and their attempt at federal recognition. At this stage, several people had gathered around as we were talking. Ms. 

Brown responded in an even professional tone of voice that she felt that they would 

not be successful. When asked why, she responded that they had black ancestors 

and in her opinion were not Indian. Mr. Lee Flemming, who was at the time the 

54

Tribal Registrar for the Western Band of Cherokees and one of the lecturers, agreed 

with her. I was shocked at their statements.’’

6. Genealogical ‘‘evidence’’ being used as the primary factor for recognition process 

review is absolute nonsense and must be dismissed as a primary factor in federal 

recognition decisions. Tribal communities are based on social realities including 

generational intermarriage, land tenure or relationships to land, identification as 

unique functioning communities, cultural communality, separate schooling, and 

other related factors. Census records, especially in Eastern and Southern states, are 

consistently inefficient as determiners of racial identity due to inherent bias from 

registrars in the past who viewed identity in a black and white racial binary. Indian 

identification on governmental records was expressly prohibited in many states. 

7. Tribes who began petitioning prior to the gaming era should not have any gaming tribes being able to comment on their petition in any form. They should be 

barred from any testimonials or comment periods. USET (United South and Eastern 

Tribes), which has opposed tribes petitioning Congress as opposed to going through 

the OFA process, is composed of a majority of tribes who they themselves were recognized by the U.S. Congress. These petitioning tribes should never be viewed 

through the lense of ‘‘wanting to gain federal recognition for the purposes of gaming’’ as their petitions predate the advent of gaming. 

8. The Congress needs to appoint an independent board of approximately ten to 

twenty individuals with an evenly distributed mix of predominantly federal and historic ‘‘non-federal’’ tribal members with expertise in various academic and research 

areas. These individuals must have shown clear records of unbiased research methodology, a strong knowledge of issues concerning Indian identity, history, and both 

social and political realities. Each member must independently review the petitions 

and make recommendations which result in a final group decision reached via consensus. Timeframes are not to exceed two years. 

9. After a brief overview of petitioning tribes, the ones who meet one or more the 

following criteria should be moved to the ‘‘front of the line’’ for consideration. All 

tribes who were formerly denied recognition, but can show an association with any 

of these nine criteria should be re-evaluated. 

There exist nine initial keys to federal recognition review that would expedite the 

process in an efficient and fair manner as per government regulations and burden 

of proof regarding separate status as Indian people. While we do not personally feel 

that these are the sole defining aspects of tribal identity, they are strong indicators 

which the Bureau of Indian Affairs and U.S. Congress cannot refute or downplay. 

The listing of them is not meant to create any division or place tribes above or below 

one another. It is meant to show the cohesive similarities between historic tribal 

communities, while giving reviewers peace of mind that they can proceed with more 

in-depth reviews of highly likely tribal communities. Unfortunately, it has become 

clear that our historic ‘‘non-federal’’ tribal communities must show our commonalities in opposition to newly created groups claiming Indian status and predominantly racially white descendant federally recognized tribes who have become along 

with regional gaming tribes, the primary groups lobbying against petitioning tribes. 

NINE KEYS:

1.Indian boarding school attendance (automatic recognition) 

2.Reservations/mission lands (automatic recognition) 

3.Language retention (automatic recognition) 

4.BIA/OIA funded school in community during any era (automatic recognition) 

5.Pre-1970 state recognition 

6.Prohibition from area white and black schools 

7.Substantial intermarriage with federal tribes and other historic ‘‘non-federal’’ 

tribes 

8.Long standing petitions for recognition which occurred at the beginning of the 

new process in 1978 and prior to this time period. 

9.Have received ten or more letters of support for federal recognition from other 

federal tribes and national Indian organizations such as NCAI. A maximum of 

three letters towards the minimum ten letter total may have been received from 

professionals in the fields of anthropology, linguistics, ethnology, or genealogy.

The MOWA Band of Choctaw Indians meet criteria 1,2,3,4,6,7,8, and 9 (though 

we also feel that we meet criteria #5 as well, but received renewed state recognition 

in 1979) of the ‘‘nine keys’’, yet we have been denied federal recognition to this day. 

Former Assistant Secretary of Indian Affairs Kevin Gover (Pawnee Nation of Oklahoma), who denied our petition at the recommendation of Lee Fleming, clearly illustrates in his 2004 testimony that we and others were wronged in the process and 

should be reconsidered. ‘‘Testimony of Kevin Gover before the Committee on Indian 

55

Affairs, United States Senate, concerning S. 297, April 21, 2004,’’ http://

www.senate.gov/scia/2004hrgs/042104hrg/gover.pdf.

Each time MOWA Choctaw came up for consideration the rules were changed by 

BAR/OFA. The genealogical expedited review was created as OFA knew our tribe 

would easily pass the other 6 criteria and so OFA would not be embarrassed, they 

said that genealogy ‘‘failure’’ (i.e. your people were listed as mulatto, etc. on records; 

while OFA conveniently dodged numerous federal documents such as military 

records which listed us as Indian) would make it so the other 6 criteria didn’t need 

to be considered. Language tapes and Indian boarding school records were said to 

have been ‘‘received out of time’’ and not able to be considered in the final determination. Our federal lawsuit was said to have been filed beyond the statute of limitations by a conservative, white, Republican judge who was quickly ushered into position to hear the case, replacing a Democratic, minority judge. 

An overview of previous case law shows that our tribe is the only ‘‘non-federal’’ 

tribe to be viewed as a federal tribe for the purposes of ICWA. Overview of Indian 

Child Welfare Act 68 FR 68180 (shows MOWA Choctaw are considered as a federal 

tribe). 

Our twelve Congressional Bills, including 1994’s Auburn Restoration Act, which 

passed both the House and Senate before we were stricken from the Bill, have been 

another level of continued futility in our quest for federal recognition. 

The number of support letters our tribe has received over the years from the likes 

of the National Congress of American Indians, noted Indian academic scholars such 

as Vine Deloria, Jr., federal tribes, anthropologists, etc. fills many binders. 

Our tribe has a complete research library dedicated specifically to the federal recognition process and issues related to lobbyists, gaming, identity policing, historical 

revisionism, etc. which have severely impacted our historic ‘‘non-federal’’ tribes. This 

library is available to all areas of government, as well as tribal leadership and academic inquiry in order to provide access to the history of the process. We have reviews of numerous federal petitions, as well as large numbers of books and articles 

published on these specific areas. There is also large sections of government correspondence and compact histories of historic ‘‘non-federal’’ tribes. 

We are just one case example in an every growing narrative of legitimate tribal 

communities denied. We have no intention of resting until justice is served. 

Chiyakokeli (I thank you), 

PREPARED STATEMENT OF THE QUTEKCAK NATIVE TRIBE

The Qutekcak Native Tribe (QNT) appreciates this opportunity to submit written 

testimony to be included in the record for the Senate Committee on Indian Affairs’ 

July 12, 2012 Oversight Hearing on Federal Recognition. QNT is a community of 

Alaska Natives in Seward, Alaska that has been active since 1886 and has had a 

formalized tribal government since 1972. 

Like other tribes in Alaska, we serve our 298 members by providing health care 

and other community services, promoting economic self-sufficiency, and carrying out 

federal programs under the Indian Self-Determination Act. We also sponsor a renowned dance and drum program through which our Elders pass on our cultural 

values and practices to our youth. We have also established the Alaska Native Archive jointly with the Seward Municipal Library. Unfortunately, however, we carry 

out the responsibilities of a tribe without enjoying any of the benefits of federal recognition. 

Tribes in Alaska have been recognized in a number of ways: pursuant to the statutory criteria set forth in the Alaska Amendment to the Indian Reorganization Act 

(the Alaska IRA), by being named in the Alaska Native Claims Settlement Act 

(ANCSA), through specific recognition by Congress, and through administrative confirmation by the Assistant Secretary for Indian Affairs. Not one of the 229 federal 

recognized tribes in Alaska has been recognized pursuant to the Part 83 regulatory 

process. 

The members of Qutekcak share a common association and location that has 

lasted over a hundred years. Despite our eligibility for recognition and our efforts 

over several decades, as a result of historical circumstances and administrative errors and delays, QNT has not been afforded the federal recognized tribal status we 

deserve. 

In 1971, the Alaska Native Claims Settlement Act (ANCSA) established Native 

Alaskan corporations for the purpose of administering land claims settlement funds. 

Many of those ANCSA-created entities have since been granted the benefits of recognized tribal status. One provision of the ANCSA enabled groups of Native people 

in primarily non-Native cities and towns to form urban corporations. Although SewVerDate 0ct 09 2002 12:59 Jan 17, 2013 Jkt 077947 PO 00000 Frm 00059 Fmt 6601 Sfmt 6621 S:\DOCS\77947.TXT JACK
56

* A copy of the letter is printed on pg. 49 of this hearing. 

ard Natives expected to benefit from that provision, when ANCSA was finalized only 

four such urban corporations were created: Juneau, Kodiak, Sitka, and Kenai. Similarly-situated communities, including our Native community in Seward, were unfairly left out. QNT was also left off of the list of Federally Recognized Tribal Entities in Alaska when it was published in 1993, with no explanation. 

Since 1993, QNT has expended significant time, energy, and resources seeking to 

have the federal government correct its error of not including QNT within ANCSA 

or on the 1993 and subsequent BIA lists of recognized tribes. In 1993, we submitted 

a petition to the Bureau of Indian Affairs (BIA) to adopt a tribal constitution under 

the Alaska IRA. The Alaska IRA provides statutory authority for the Department 

of the Interior (the Department) to organize Alaska Native tribes that have not otherwise been extended federal recognition. Under Section 1 of the Alaska IRA, Congress provided:

That groups of Indians in Alaska not recognized prior to May 1, 1936, as bands 

or tribes, but having a common bond of occupation, or association, or residence 

within a well-defined neighborhood, community, or rural district, may organize 

to adopt constitutions and bylaws and to receive charters of incorporation and 

Federal loans under sections 470, 476, and 477 of this title.

25 U.S.C.A. § 473a, May 1, 1936, c. 254, § 1, 49 Stat. 1250.

After submission of three formal requests to organize under the Alaska IRA and 

years of meetings, letters and legal briefings to address questions from the Department as to the scope of agency authority under the Alaska IRA , QNT was encouraged in January, 2012, when then Assistant Secretary for Indian Affairs Larry Echo 

Hawk responded to inquiries from Senator Lisa Murkowski with a letter reaffirming 

that ‘‘a group that can establish its existence in 1936 with ’a common bond of occupation, or association, or residence within a well-defined neighborhood, community, 

or rural district’ could seek to be organized under the Alaska Amendment to the 

IRA.’’ Assistant Secretary Echo Hawk’s letter stated that the Part 83 process was 

available to Alaska Native tribes as an alternative means to obtain federal recognition, if the Alaska IRA criteria do not apply to the group. (We attach a copy of the 

Assistant Secretary’s January 31, 2012, letter for the hearing record). * 

Mr. Echo Hawk’s letter affirmed the Department’s long-espoused the view that 

meeting the eligibility criteria to organize under the Alaska IRA would provide a 

basis for recognition, and that Alaska tribes need not petition for consideration 

under the 25 CFR Part 83 process unless the group does not meet the Alaska IRA 

criteria. When the Federal Acknowledgment Procedures issued in 1978, the Department expressly stated that those regulations would not apply to Alaska IRA-eligible 

groups: ‘‘The [Part 83] regulations... are not intended to apply to groups, villages, or associations which are eligible to organize under the Alaska Amendment 

of the Indian Reorganization Act (25 U.S.C. 473a) or which did not exist prior to 

1936.’’ 43 Fed. Reg. 39361 (1978). In the 1988 Federal Register Notice announcing 

the Native Communities within Alaska that were recognized and eligible to receive 

services from the BIA, the Department stated that:

‘‘applying the criteria presently contained in Part 83 to Alaska may be unduly 

burdensome for the many small Alaska organizations. Alaska, with small pockets of Natives living in isolated locations scattered throughout the state, may 

not have extensive documentation on its history during the 1800’s and early 

1900s much less earlier periods commonly researched for groups in the lower48 . . . insistence on [producing such documentation] for those Alaska groups 

might penalize them simply for being located in an area that was, until recently, extremely isolated.’’

53 Fed. Reg. at 52833 (1988).

Mr. Echo Hawk’s letter provides fresh confirmation of the established Department 

interpretation that Section 1 of the Alaska IRA has not been repealed and remains 

valid law. In 1993, the Solicitor of the Department of the Interior explained that 

while Section 19 of the ANCSA revoked Section 2 of the Alaska IRA authorizing the 

creation of reservations in Alaska, ‘‘ANCSA did not revoke the village IRA 

constitutions... [n]or did it repeal the authority in Section 1 of the Alaska 

amendment of the IRA for the Natives to reorganize and adopt constitutions.’’ Governmental Jurisdiction of Alaska Villages Over Land and Nonmembers, Op. Sol., M–

36975 at 39 (Jan. 11, 1993). 

The Federally Recognized Tribes List Act (‘‘List Act’’), enacted in 1994, also did 

not affect the Alaska IRA. The List Act requires the Secretary to annually publish 

57

a ‘‘list of all Indian tribes eligible for the special programs and services provided 

by the United States to Indians because of their status as Indians.’’ It does not specifically mention the Alaska IRA, nor is the Alaska IRA mentioned in the List Act’s 

legislative history. Overall, the legislative history evidences no intent for the List 

Act to limit the Secretary’s authority to recognize tribes. In fact, the List Act’s legislative history states that the Act is not intended to change the status of Alaska Native tribes, but requires that the ‘‘Secretary continue the current policy of including 

Alaska Native entities on the list of Federally recognized Indian tribes which are 

eligible to receive services.’’ See H.R. Rep. No. 103–781 (1994). 

In light of the statutory authority and recognition criteria set forth in the Alaska 

IRA and the Department’s stated policy, QNT hopes its documented tribal history 

and request to organize under an IRA constitution will finally correct the government’s past errors of omission in not listing QNT as a federally recognized tribe. 

When we first submitted an Alaska IRA petition in 1993, the BIA’s technical assistance letters raised no concerns about QNT’s eligibility under the statute. BIA correspondence, however, was sent to the wrong address and we did not receive file 

copies for several years. In light of a three year time lapse, the BIA advised that 

we should submit a new request. Unfortunately, when we resubmitted our petition, 

the BIA sent our documents to the Branch of Acknowledgment and Research even 

though our petition was submitted under the Alaska IRA and not 25 C.F.R. Part 

83. We wrote to BIA objecting to its mishandling of our IRA petition by placing it 

with the BAR/OFA, but our small Tribe had limited resources to mount a renewed 

effort to pursue recognition. It was not until 2008 that we had sufficient resources 

to submit a third petition. At that time, we resubmitted a fully revised Alaska IRA 

petition, complete with an ethnohistorical report. 

While Mr. Echo Hawk’s January 2012 letter offers some encouragement that the 

Department will act upon QNT’s request to organize under the IRA, we are concerned that the departure of the Assistant Secretary may stall our progress and add 

to the already extensive delays we have endured. The continuing delay adversely 

impacts our ability as a tribe to provide for the needs of our members, and maintaining the ongoing process is a constant and heavy strain on our limited resources. 

Federal recognition would enable our Tribe to expand our services to our members 

and would enable us to utilize the other federal programs open only to federally recognized tribes. We have support for our recognition effort from the City of Seward; 

tribes and Native organizations in the Chugach region, including Chugach Alaska 

Corporation; Chugachmiut, and the Alaska Federation of Natives. Congress provided the Department with statutory authority to act on our petition to organize as 

a tribe, but the Agency has not done so. 

In his January letter, Assistant Secretary Echo Hawk observed that Congress 

passed the Alaska IRA in order to account for ‘‘Alaska’s unique circumstances.’’ The 

Part 83 process does not account for these unique circumstances, as the Department 

has acknowledged in the past. Accordingly, the Department should exercise its 

clearly delegated authority under the Alaska IRA for the organization of groups of 

Alaska Natives not previously recognized, but ‘‘having a common bond of occupation, 

or association, or residence within a well-defined neighborhood, community, or rural 

district. The Qutekcak Native Tribe is simply seeking to be treated the same as 

other similarly situated tribes in Alaska. Thirty years is too long to wait. 

We appreciate the opportunity to share our testimony with the Committee. We 

ask the Committee acting in its oversight capacity and through its Chairman to encourage the Department to review and act upon QNT’s request to organize under 

the Alaska IRA consistent with statutory authority and Department precedent.

Æ