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[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[S. 1392 Introduced in Senate (IS)]

107th CONGRESS
  1st Session
                                S. 1392

    To establish procedures for the Bureau of Indian Affairs of the 
     Department of the Interior with respect to tribal recognition.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                             August 3, 2001

Mr. Dodd (for himself and Mr. Lieberman) introduced the following bill; 
  which was read twice and referred to the Committee on Indian Affairs

_______________________________________________________________________

                                 A BILL

 
    To establish procedures for the Bureau of Indian Affairs of the 
     Department of the Interior with respect to tribal recognition.

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

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Tribal Recognition 
and Indian Bureau Enhancement Act of 2001''.
    (b) Table of Contents.--The table of contents of this Act is as 
follows:

Sec. 1. Short title; table of contents.
Sec. 2. Findings.
Sec. 3. Purposes.
Sec. 4. Definitions.
Sec. 5. Effect of acknowledgment of tribal existence.
Sec. 6. Scope.
Sec. 7. Letter of intent.
Sec. 8. Duties of the Department.
Sec. 9. Requirements for the documented petition.
Sec. 10. Mandatory criteria for Federal acknowledgment.
Sec. 11. Previous Federal acknowledgment.
Sec. 12. Notice of receipt of a letter of intent or documented 
                            petition.
Sec. 13. Processing of the documented petition.
Sec. 14. Testimony and the opportunity to be heard.
Sec. 15. Written submissions by interested parties.
Sec. 16. Publication of final determination.
Sec. 17. Independent review, reconsideration, and final action.
Sec. 18. Implementation of decision acknowledging status as an Indian 
                            tribe.
Sec. 19. Authorization of appropriations.

SEC. 2. FINDINGS.

    Congress makes the following findings:
            (1) The United States has an obligation to recognize and 
        respect the sovereignty of Native American peoples who have 
        maintained their social, cultural, and political identity.
            (2) All Native American tribal governments that represent 
        tribes that have maintained their social, cultural, and 
        political identity, to the extent possible within the context 
        of history, are entitled to establish government-to-government 
        relations with the United States and are entitled to the rights 
        appertaining to sovereign governments.
            (3) The Bureau of Indian Affairs of the Department of the 
        Interior exercises responsibility for determining whether 
        Native American groups constitute ``Federal Tribes'' and are 
        therefore entitled to be recognized by the United States as 
        sovereign nations.
            (4) In recent years, the decisionmaking process used by the 
        Bureau of Indian Affairs to resolve claims of tribal 
        sovereignty has been widely criticized.
            (5) In order to ensure continued public confidence in the 
        Federal Government's decisions pertaining to tribal 
        recognition, it is necessary to reform the recognition process.

SEC. 3. PURPOSES.

    The purposes of this Act are as follows:
            (1) To establish administrative procedures to extend 
        Federal recognition to certain Indian groups.
            (2) To extend to Indian groups that are determined to be 
        Indian tribes the protection, services, and benefits available 
        from the Federal Government pursuant to the Federal trust 
        responsibility with respect to Indian tribes.
            (3) To extend to Indian groups that are determined to be 
        Indian tribes the immunities and privileges available to other 
        federally acknowledged Indian tribes by virtue of their status 
        as Indian tribes with a government-to-government relationship 
        with the United States.
            (4) To ensure that when the Federal Government extends 
        acknowledgment to an Indian group, the Federal Government does 
        so based upon clear, factual evidence derived from an open and 
        objective administrative process.
            (5) To provide clear and consistent standards of 
        administrative review of documented petitions for Federal 
        acknowledgment.
            (6) To clarify evidentiary standards and expedite the 
        administrative review process by providing adequate resources 
        to process petitions.

SEC. 4. DEFINITIONS.

    In this Act:
            (1) Bureau.--The term ``Bureau'' means the Bureau of Indian 
        Affairs of the Department of the Interior.
            (2) Department.--The term ``Department'' means the 
        Department of the Interior.
            (3) Documented petition.--The term ``documented petition'' 
        means the detailed arguments made by a petitioner to 
        substantiate the petitioner's claim to continuous existence as 
        an Indian tribe, together with the factual exposition and all 
        documentary evidence necessary to demonstrate that the 
        arguments address the mandatory criteria set forth in section 
        10.
            (4) Historically, historical, or history.--The term 
        ``historically'', ``historical'', or ``history'' means dating 
        from the first sustained contact with non-Indians.
            (5) Indian group or group.--The term ``Indian group'' or 
        ``group'' means any Indian or Alaska Native aggregation within 
        the continental United States that the Secretary does not 
        acknowledge to be an Indian tribe.
            (6) Indian tribe; tribe.--The terms ``Indian tribe'' and 
        ``tribe'' mean any group that the Secretary determines to have 
        met the mandatory criteria set forth in section 10.
            (7) Petitioner.--The term ``petitioner'' means any entity 
        that has submitted a letter of intent to the Secretary 
        requesting acknowledgment that the entity is an Indian tribe.
            (8) Secretary.--The term ``Secretary'' means the Secretary 
        of the Interior.

SEC. 5. EFFECT OF ACKNOWLEDGMENT OF TRIBAL EXISTENCE.

    Acknowledgment of an Indian tribe under this Act--
            (1) confers the protection, services, and benefits of the 
        Federal Government available to Indian tribes by virtue of 
        their status as tribes;
            (2) means that the tribe is entitled to the immunities and 
        privileges available to other federally acknowledged Indian 
        tribes by virtue of their government-to-government relationship 
        with the United States;
            (3) means that the United States recognizes that the tribe 
        has the responsibilities, powers, limitations, and obligations 
        of a federally acknowledged Indian tribe; and
            (4) subjects the Indian tribe to the same authority of 
        Congress and the United States to which other federally 
        acknowledged tribes are subjected.

SEC. 6. SCOPE.

    (a) In General.--This Act applies only to those Native American 
Indian groups indigenous to the continental United States which are not 
currently acknowledged as Indian tribes by the Department. It is 
intended to apply only to groups that can present evidence of a 
substantially continuous tribal existence and which have functioned as 
autonomous entities throughout history until the date of the submission 
of the documented petition.
    (b) Exclusions.--The procedures established under this Act shall 
not apply to any of the following:
            (1) Any Indian tribe, organized band, pueblo, Alaska Native 
        village, or community that, as of the date of enactment of this 
        Act, has been acknowledged as such and is receiving services 
        from the Bureau.
            (2) An association, organization, corporation, or group of 
        any character that has been formed after December 31, 2002.
            (3) Splinter groups, political factions, communities, or 
        groups of any character that separate from the main body of a 
        currently acknowledged tribe, except that any such group that 
        can establish clearly that the group has functioned throughout 
        history until the date of the submission of the documented 
        petition as an autonomous tribal entity may be acknowledged 
        under this Act, even though the group has been regarded by some 
        as part of or has been associated in some manner with an 
        acknowledged North American Indian tribe.
            (4) Any group which is, or the members of which are, 
        subject to congressional legislation terminating or forbidding 
        the Federal relationship.
            (5) Any group that previously petitioned and was denied 
        Federal acknowledgment under part 83 of title 25 of the Code of 
        Federal Regulations prior to the date of enactment of this Act, 
        including reorganized or reconstituted petitioners previously 
        denied, or splinter groups, spinoffs, or component groups of 
        any type that were once part of petitioners previously denied.
    (c) Pending Petitions.--Any Indian group whose documented petition 
is under active consideration under the regulations referred to in 
subsection (b)(5) as of the date of enactment of this Act, and for 
which a determination is not final and effective as of such date, may 
opt to have their petitioning process completed in accordance with this 
Act. Any such group may request a suspension of consideration in 
accordance with the provisions of section 83.10(g) of title 25 of the 
Code of Federal Regulations, as in effect on the date of enactment of 
this Act, of not more than 180 days in order to provide additional 
information or argument.

SEC. 7. LETTER OF INTENT.

    (a) In General.--Any Indian group in the continental United States 
that desires to be acknowledged as an Indian tribe and that can satisfy 
the mandatory criteria set forth in section 10 may submit a letter of 
intent to the Secretary. A letter of intent may be filed in advance of, 
or at the same time as, a group's documented petition.
    (b) Approval of Governing Body.--A letter of intent must be 
produced, dated, and signed by the governing body of the Indian group 
submitting the letter.

SEC. 8. DUTIES OF THE DEPARTMENT.

    (a) Publication of List of Indian Tribes.--The Department shall 
publish in the Federal Register, no less frequently than every 3 years, 
a list of all Indian tribes entitled to receive services from the 
Bureau by virtue of their status as Indian tribes. The list may be 
published more frequently, if the Secretary deems it necessary.
    (b) Guidelines for Preparation of Documented Petitions.--
            (1) In general.--The Secretary shall make available 
        guidelines for the preparation of documented petitions. Such 
        guidelines shall include the following:
                    (A) An explanation of the criteria and other 
                provisions relevant to the Department's consideration 
                of a documented petition.
                    (B) A discussion of the types of evidence which may 
                be used to demonstrate satisfaction or particular 
                criteria.
                    (C) General suggestions and guidelines on how and 
                where to conduct research.
                    (D) An example of a documented petition format, 
                except that such example shall not preclude the use of 
                any other format.
            (2) Supplementation and revision.--The Secretary may 
        supplement or update the guidelines as necessary.
    (c) Assistance.--The Department shall, upon request, provide 
petitioners with suggestions and advice regarding preparation of the 
documented petition. The Department shall not be responsible for any 
actual research necessary to prepare such petition.
    (d) Notice Regarding Current Petitions.--Any Indian group whose 
documented petition is under active consideration as of the date of 
enactment of this Act shall be notified of the opportunity under 
section 6(c) to choose whether to complete their petitioning process 
under the provisions of this Act or under the provisions of part 83 of 
title 25 of the Code of Federal Regulations, as in effect on the day 
before such date.
    (e) Notice to Groups With a Letter of Intent.--Any group that has 
submitted a letter of intent to the Department as of the date of 
enactment of this Act shall be notified that any documented petition 
submitted by the group shall be considered under the provisions of this 
Act.

SEC. 9. REQUIREMENTS FOR THE DOCUMENTED PETITION.

    (a) In General.--The documented petition may be in any readable 
form that contains detailed, specific evidence in support of a request 
to the Secretary to acknowledge tribal existence.
    (b) Approval of Governing Body.--The documented petition must 
include a certification, signed and dated by members of the group's 
governing body, stating that it is the group's official documented 
petition.
    (c) Satisfaction of Mandatory Criteria.--A petitioner must satisfy 
all of the mandatory criteria set forth in section 10 in order for 
tribal existence to be acknowledged. The documented petition must 
include thorough explanations and supporting documentation in response 
to all of such criteria.
    (d) Standards for Denial.--
            (1) In general.--Subject to paragraphs (2) and (3), a 
        petitioner shall not be acknowledged if the evidence presented 
        by the petitioner or others is insufficient to demonstrate that 
        the petitioner meets each of the mandatory criteria in section 
        10.
            (2) Reasonable likelihood of validity.--A criterion shall 
        be considered met if the Secretary finds that it is more likely 
        than not that the evidence presented demonstrates the 
        establishment of the criterion.
            (3) Conclusive proof not required.--Conclusive proof of the 
        facts relating to a criterion shall not be required in order 
        for the criterion to be considered met.
    (e) Consideration of Historical Situations.--Evaluation of 
petitions shall take into account historical situations and time 
periods for which evidence is demonstrably limited or not available. 
The limitations inherent in demonstrating the historical existence of 
community and political influence or authority shall also be taken into 
account. Existence of community and political influence or authority 
shall be demonstrated on a substantially continuous basis, but such 
demonstration does not require meeting these criteria at every point in 
time. Fluctuations in tribal activity during various years shall not in 
themselves be a cause for denial of acknowledgment under these 
criteria.

SEC. 10. MANDATORY CRITERIA FOR FEDERAL ACKNOWLEDGMENT.

    The mandatory criteria for Federal acknowledgment are the 
following:
            (1) Identification on a substantially continuous basis.--
        The petitioner has been identified as an American Indian entity 
        on a substantially continuous basis since 1900. Evidence that 
        the group's character as an Indian entity has from time to time 
        been denied shall not be considered to be conclusive evidence 
        that this criterion has not been met. Evidence to be relied 
        upon in determining a group's Indian identity may consist of 
        any 1, or a combination, of the following, as well as other 
        evidence of identification by other than the petitioner itself 
        or its members:
                    (A) Identification as an Indian entity by Federal 
                authorities.
                    (B) Relationships with State governments based on 
                identification of the group as Indian.
                    (C) Dealings with a county, parish, or other local 
                government in a relationship based on the group's 
                Indian identity.
                    (D) Identification as an Indian entity by 
                anthropologists, historians, or other scholars.
                    (E) Identification as an Indian entity in 
                newspapers and books.
                    (F) Identification as an Indian entity in 
                relationships with Indian tribes or with national, 
                regional, or State Indian organizations.
            (2) Distinct community.--
                    (A) In general.--A predominant portion of the 
                petitioning group comprises a distinct community and 
                has existed as a community from historical times until 
                the date of the submission of the documented petition. 
                This criterion may be demonstrated by some combination 
                of the following evidence or other evidence:
                            (i) Significant rates of marriage within 
                        the group, or, as may be culturally required, 
                        patterned out-marriages with other Indian 
                        populations.
                            (ii) Significant social relationships 
                        connecting individual members.
                            (iii) Significant rates of informal social 
                        interaction which exist broadly among the 
                        members of a group.
                            (iv) A significant degree of shared or 
                        cooperative labor or other economic activity 
                        among the membership.
                            (v) Evidence of strong patterns of 
                        discrimination or other social distinctions by 
                        nonmembers.
                            (vi) Shared sacred or secular ritual 
                        activity encompassing most of the group.
                            (vii) Cultural patterns shared among a 
                        significant portion of the group that are 
                        different from those of the non-Indian 
                        populations with whom it interacts. Such 
                        patterns must function as more than a symbolic 
                        identification of the group as Indian, and may 
                        include language, kinship organization, or 
                        religious beliefs and practices.
                            (viii) The persistence of a named, 
                        collective Indian identity continuously over a 
                        period of more than 50 years, notwithstanding 
                        changes in name.
                            (ix) A demonstration of historical 
                        political influence under the criterion in 
                        paragraph (3) shall be evidence for 
                        demonstrating historical community.
                    (B) Sufficient evidence.--A petitioner shall be 
                considered to have provided sufficient evidence of 
                community at a given point in time if evidence is 
                provided to demonstrate any 1 of the following:
                            (i) More than 50 percent of the members 
                        reside in a geographical area exclusively or 
                        almost exclusively composed of members of the 
                        group, and the balance of the group maintains 
                        consistent interaction with some members of the 
                        community.
                            (ii) At least 50 percent of the marriages 
                        in the group are between members of the group.
                            (iii) At least 50 percent of the group 
                        members maintain distinct cultural patterns 
                        such as language, kinship organization, or 
                        religious beliefs and practices.
                            (iv) There are distinct community social 
                        institutions encompassing most of the members, 
                        such as kinship organizations, formal or 
                        informal economic cooperation, or religious 
                        organizations.
                            (v) The group has met the criterion in 
                        paragraph (3) using evidence described in 
                        paragraph (3)(A).
            (3) Political influence or authority.--
                    (A) In general.--The petitioner has maintained 
                political influence or authority over its members as an 
                autonomous entity from historical times until the date 
                of the submission of the documented petition. This 
                criterion may be demonstrated by some combination of 
                the following evidence or by other evidence:
                            (i) The group is able to mobilize 
                        significant numbers of members and significant 
                        resources from its members for group purposes.
                            (ii) Most of the membership considers 
                        issues acted upon or actions taken by group 
                        leaders or governing bodies to be of 
                        importance.
                            (iii) There is widespread knowledge, 
                        communication, and involvement in political 
                        processes by most of the group's members.
                            (iv) The group meets the criterion in 
                        paragraph (2) at more than a minimal level.
                            (v) There are internal conflicts which show 
                        controversy over valued group goals, 
                        properties, policies, processes, or decisions.
                    (B) Sufficient evidence.--
                            (i) In general.--A petitioning group shall 
                        be considered to have provided sufficient 
                        evidence to demonstrate the exercise of 
                        political influence or authority at a given 
                        point in time by demonstrating that group 
                        leaders or other mechanisms exist or existed 
                        that--
                                    (I) allocate group resources such 
                                as land and residence rights on a 
                                consistent basis;
                                    (II) settle disputes between 
                                members or subgroups by mediation or 
                                other means on a regular basis;
                                    (III) exert strong influence on the 
                                behavior of individual members, such as 
                                the establishment or maintenance of 
                                norms and the enforcement of sanctions 
                                to direct or control behavior; or
                                    (IV) organize or influence economic 
                                subsistence activities among the 
                                members, including shared or 
                                cooperative labor.
                            (ii) Presumptive evidence.--A group that 
                        has met the requirements in paragraph (2)(A) at 
                        a given point in time shall be considered to 
                        have provided sufficient evidence to meet this 
                        criterion at that point in time.
            (4) Governing document and membership criteria.--Submission 
        of a copy of the group's governing document and membership 
        criteria. In the absence of a written document, the petitioner 
        must provide a statement describing in full its membership 
        criteria and current governing procedures.
            (5) Descendants from a historical indian tribe.--
                    (A) In general.--The petitioner's membership 
                consists of individuals who descend from a historical 
                Indian tribe or from historical Indian tribes which 
                combined and functioned as a single autonomous 
                political entity. Evidence acceptable to the Secretary 
                which can be used for this purpose includes the 
                following:
                            (i) Rolls prepared by the Secretary on a 
                        descendancy basis for purposes of distributing 
                        claims money, providing allotments, or other 
                        purposes.
                            (ii) Federal, State, or other official 
                        records or evidence identifying group members 
                        or ancestors of such members as being 
                        descendants of a historical tribe or tribes 
                        that combined and functioned as a single 
                        autonomous political entity.
                            (iii) Church, school, and other similar 
                        enrollment records identifying group members or 
                        ancestors of such members as being descendants 
                        of a historical tribe or tribes that combined 
                        and functioned as a single autonomous political 
                        entity.
                            (iv) Affidavits of recognition by tribal 
                        elders, leaders, or the tribal governing body 
                        identifying group members or ancestors of such 
                        members as being descendants of a historical 
                        tribe or tribes that combined and functioned as 
                        a single autonomous political entity.
                            (v) Other records or evidence identifying 
                        members or ancestors of such members as being 
                        descendants of a historical tribe or tribes 
                        that combined and functioned as a single 
                        autonomous political entity.
                    (B) Certified membership list.--The petitioner must 
                provide an official membership list, separately 
                certified by the group's governing body, of all known 
                current members of the group. The list must include 
                each member's full name (including maiden name), date 
                of birth, and current residential address. The 
                petitioner shall also provide a copy of each available 
                former list of members based on the group's own defined 
                criteria, as well as a statement describing the 
                circumstances surrounding the preparation of the 
                current list and, insofar as possible, the 
                circumstances surrounding the preparation of former 
                lists.
            (6) Membership is composed principally of individuals who 
        are not members of an acknowledged tribe.--
                    (A) In general.--The membership of the petitioning 
                group is composed principally of individuals who are 
                not members of any acknowledged North American Indian 
                tribe.
                    (B) Exception.--A petitioning group may be 
                acknowledged even if its membership is composed 
                principally of individuals whose names have appeared on 
                rolls of, or who have been otherwise associated with, 
                an acknowledged Indian tribe, if the group establishes 
                that it has functioned throughout history until the 
                date of the submission of the documented petition as a 
                separate and autonomous Indian tribal entity, that its 
                members do not maintain a bilateral political 
                relationship with the acknowledged tribe, and that its 
                members have provided written confirmation of their 
                membership in the petitioning group.
            (7) No legislation terminates or prohibits the federal 
        relationship.--Neither the petitioner nor its members are the 
        subject of congressional legislation that has expressly 
        terminated or forbidden the Federal relationship.

SEC. 11. PREVIOUS FEDERAL ACKNOWLEDGMENT.

    The provisions of section 83.8 of title 25 of the Code of Federal 
Regulations, as in effect on the date of enactment of this Act, shall 
apply with respect to petitioners claiming previous Federal 
acknowledgment under this Act.

SEC. 12. NOTICE OF RECEIPT OF A LETTER OF INTENT OR DOCUMENTED 
              PETITION.

    (a) Notice and Publication.--
            (1) In General.--Within 30 days after receiving a letter of 
        intent, or a documented petition if a letter of intent has not 
        previously been received and noticed, the Secretary shall 
        acknowledge such receipt in writing and shall have published 
        within 60 days in the Federal Register a notice of such 
        receipt.
            (2) Requirements.--The notice published in the Federal 
        Register shall include the following:
                    (A) The name, location, and mailing address of the 
                petitioner and such other information as will identify 
                the entity submitting the letter of intent or 
                documented petition.
                    (B) The date the letter or petition was received.
                    (C) Information regarding how interested and 
                informed parties may submit factual or legal arguments 
                in support of, or in opposition to, the petitioner's 
                request for acknowledgment or to request to be kept 
                informed of all general actions affecting the petition.
                    (D) Information regarding where a copy of the 
                letter of intent and the documented petition may be 
                examined.
    (b) Other Notification.--The Secretary shall notify, in writing, 
the chief executive officer, members of Congress, and attorney general 
of the State in which a petitioner is located and of each State in 
which the petitioner historically has been located. The Secretary shall 
also notify any recognized tribe and any other petitioner which appears 
to have a relationship with the petitioner, including a historical 
relationship, or which may otherwise be considered to have a potential 
interest in the acknowledgment determination. The Secretary shall also 
notify the chief executive officers of the counties and municipalities 
located in the geographic area historically occupied by the petitioning 
group.
    (c) Other Publication.--The Secretary shall also publish the notice 
of receipt of the letter of intent, or documented petition if a letter 
of intent has not been previously received, in a major newspaper or 
newspapers of general circulation in the town or city nearest to the 
petitioner. Such notice shall include the information required under 
subsection (a)(2).

SEC. 13. PROCESSING OF THE DOCUMENTED PETITION.

    The provisions of section 83.10 of title 25 of the Code of Federal 
Regulations, as in effect on the date of enactment of this Act, shall 
apply with respect to the processing of a documented petition under 
this Act.

SEC. 14. TESTIMONY AND THE OPPORTUNITY TO BE HEARD.

    (a) In General.--The Secretary shall consider all relevant evidence 
from any interested party including neighboring municipalities that 
possess information bearing on whether to recognize an Indian group or 
not.
    (b) Hearing Upon Request.--Upon an interested party's request, and 
for good cause shown, the Secretary shall conduct a formal hearing at 
which all interested parties may present evidence, call witnesses, 
cross-examine witnesses, or rebut evidence in the record or presented 
by other parties during the hearing.
    (c) Transcript Required.--A transcript of any hearing held under 
this section shall be made and shall become part of the administrative 
record upon which the Secretary is entitled to rely in determining 
whether to recognize an Indian group.

SEC. 15. WRITTEN SUBMISSIONS BY INTERESTED PARTIES.

    The Secretary shall consider any written materials submitted to the 
Bureau from any interested party, including neighboring municipalities, 
that possess information bearing on whether to recognize an Indian 
group.

SEC. 16. PUBLICATION OF FINAL DETERMINATION.

    The Secretary shall publish in the Federal Register a complete and 
detailed explanation of the Secretary's final decision regarding a 
documented petition under this Act, including express finding of facts 
and of law with regard to each of the critera listed in section 10.

SEC. 17. INDEPENDENT REVIEW, RECONSIDERATION, AND FINAL ACTION.

    The provisions of section 83.11 of title 25 of the Code of Federal 
Regulations, as in effect on the date of enactment of this Act, shall 
apply with respect to the independent review, reconsideration, and 
final action of the Secretary on a documented petition under this Act.

SEC. 18. IMPLEMENTATION OF DECISION ACKNOWLEDGING STATUS AS AN INDIAN 
              TRIBE.

    The provisions of section 83.12 of title 25 of the Code of Federal 
Regulations, as in effect on the date of enactment of this Act, shall 
apply with respect to the implementation of a decision under this Act 
acknowledging a petitioner as an Indian tribe.

SEC. 19. AUTHORIZATION OF APPROPRIATIONS.

    There is authorized to be appropriated to carry out this Act, 
$10,000,000 for fiscal year 2002 and each fiscal year thereafter.
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