```

[Senate Hearing 107-523]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 107-523
 
 WORK OF THE DEPARTMENT OF THE INTERIOR'S BRANCH OF ACKNOWLEDGMENT AND 
              RESEARCH WITHIN THE BUREAU OF INDIAN AFFAIRS
=======================================================================

                                HEARING

                               BEFORE THE

                      COMMITTEE ON INDIAN AFFAIRS
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             SECOND SESSION

                                   ON

 TO RECEIVE TESTIMONY FROM THE BUREAU OF INDIAN AFFAIRS ON THE PROCESS 
ESTABLISHED BY THE BRANCH OF ACKNOWLEDGMENT AND RESEARCH FOR THE REVIEW 
   OF PETITIONS OF TRIBAL GROUPS THAT ARE SEEKING FEDERAL RECOGNITION

                               __________

                             JUNE 11, 2002
                             WASHINGTON, DC

                       U. S. GOVERNMENT PRINTING OFFICE
80-405                          WASHINGTON : 2002
___________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800; (202) 512-1800  
Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001

?

                      COMMITTEE ON INDIAN AFFAIRS

                   DANIEL K. INOUYE, Hawaii, Chairman

            BEN NIGHTHORSE CAMPBELL, Colorado, Vice Chairman

FRANK MURKOWSKI, Alaska              KENT CONRAD, North Dakota
JOHN McCAIN, Arizona,                HARRY REID, Nevada
PETE V. DOMENICI, New Mexico         DANIEL K. AKAKA, Hawaii
CRAIG THOMAS, Wyoming                PAUL WELLSTONE, Minnesota
ORRIN G. HATCH, Utah                 BYRON L. DORGAN, North Dakota
JAMES M. INHOFE, Oklahoma            TIM JOHNSON, South Dakota
                                     MARIA CANTWELL, Washington

        Patricia M. Zell, Majority Staff Director/Chief Counsel

         Paul Moorehead, Minority Staff Director/Chief Counsel

                                  (ii)

  
                            C O N T E N T S

                              ----------                              
                                                                   Page
Statements:
    Campbell, Hon. Ben Nighthorse, U.S. Senator from Colorado, 
      vice chairman, Committee on Indian Affairs.................     2
    Fleming, Lee, chief, Branch of Acknowledgment and Research, 
      BIA, Department of the Interior............................     4
    Inouye, Hon. Daniel K., U.S. Senator from Hawaii, chairman, 
      Committee on Indian Affairs................................     1
    Keep, Scott, assistant solicitor, Branch of Tribal Government 
      and Alaska, Office of the Solicitor, Division of Indian 
      Affairs, Department of the Interior........................     4
    Roth, George, cultural anthropologist, BIA, Department of the 
      Interior...................................................     4
    Smith, Michael, director, Office of Tribal Services, BIA, 
      Department of the Interior.................................     4

                                Appendix

Prepared statements:
    Smith, Michael...............................................    19
Additional material submitted for the record:
    Campbell, Hon. Ben Nighthorse, U.S. Senator from Colorado, 
      vice chairman, Committee on Indian Affairs, letter to 
      William G. Meyers, III, solicitor, Department of the 
      Interior...................................................    22

WORK OF THE DEPARTMENT OF THE INTERIOR'S BRANCH OF ACKNOWLEDGEMENT AND 
              RESEARCH WITHIN THE BUREAU OF INDIAN AFFAIRS

                              ----------                              

                         TUESDAY, JUNE 11, 2002

                                       U.S. Senate,
                               Committee on Indian Affairs,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 1:33 p.m. in room 
485, Senate Russell Building, Hon. Daniel K. Inouye (chairman 
of the committee) presiding.
    Present: Senators Inouye and Campbell.

 STATEMENT OF HON. DANIEL K. INOUYE, U.S. SENATOR FROM HAWAII, 
             CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

    The Chairman. The committee meets this afternoon to receive 
testimony from the Bureau of Indian Affairs [BIA] on the 
process established by the Branch of Acknowledgement and 
Research for the review of petitions of tribal groups that are 
seeking Federal recognition.
    This hearing is the first in a series of hearings that will 
be held on the Federal Acknowledgement process. Today, the 
committee wants to develop a record and an understanding of the 
basic process that the Branch of Acknowledgement follows in 
acting upon the petitions of tribal groups. In the next 
hearing, the committee will receive testimony on the seven 
criteria that are used by the Branch of Acknowledgment and 
Research from experts in the field of genealogy, history and 
anthropology, as well as testimony on the manner in which 
criteria are being applied.
    In a later hearing, the committee will receive testimony on 
various legislative initiatives that propose to revise the 
Federal Acknowledgement process. This committee understands 
that attendant to any process is criticism in the way the 
process works and the process of the Federal acknowledgment of 
petitioning tribal groups is no different.
    When the challenges associated with the process become too 
much for some to bear, inevitably there will be those who will 
seek ways around the process and who will find clever ways to 
frustrate the process. The process entailed in the 
acknowledgement of petitioning tribal groups is no different in 
that respect either. And so, over the years tribal groups have 
come to the Congress seeking a legislative recognition of their 
status. In some instances, litigation relating to the 
acknowledgement process has been initiated, and more recently 
the Freedom of Information Act has been used as a means of 
diverting the staff of the Branch of Acknowledgment away from 
their primary charge, as they attempt to produce thousands of 
pages of documents requested by interested parties.
    The Congress is primarily responsible for the inadequate 
resources, both financial and personnel resources, that are 
provided for the Branch of Acknowledgment to carryout its work. 
Thus, today in addition to developing an understanding of the 
underlying process, the committee wants to know what is needed 
in terms of resources to assist the Branch in fulfilling its 
responsibilities.
    With these considerations in mind, we leave for another day 
the issues associated with the seven criteria and the manner in 
which the criteria are applied, as well as the frustrations 
that have consistently been expressed to this committee that 
the acknowledgment process needs to be more transparent and 
more timely. The committee expresses its appreciation to the 
General Accounting Office for its helpful assessment of the 
tribal recognition process. Equally as important, we thank the 
Bureau of Indian Affairs for appearing before the committee 
today.
    Before we proceed with our witnesses, may I call upon the 
Vice Chairman?
    Senator Campbell. Thank you, Mr. Chairman.
    Before I make some comments, with your permission I would 
like to introduce for the record a letter I wrote to Solicitor 
Myers on May 2, 2002 relating to this subject. I have not 
received an answer yet, but I would like to put that in the 
record.
    The Chairman. Without objection.
    [Referenced document appears in appendix. ]

 STATEMENT OF HON. BEN NIGHTHORSE CAMPBELL, U.S. SENATOR FROM 
      COLORADO, VICE CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

    Senator Campbell. Mr. Chairman, in the years before 
Columbus, some estimate the Native peoples of North America 
numbered nearly 10 million. The Indian tribes that existed at 
that time, they knew who they were by way of a shared culture 
and a shared language, governing structure, family ties, 
acknowledgment by other tribes, and their common history. 
Needless to say, there was no ``acknowledgment process'' or 25 
CFR Part 83 that governed who was and who was not considered an 
Indian tribe.
    I cannot help but think, Mr. Chairman, that those 
considerations were given by non-Indians who just got off the 
boat. I sometimes wonder what the reaction would have been on 
the part of the European people between 1492 and 1850 if the 
boats had gone the other way, and the newly arrived people from 
this side of the Atlantic Ocean would have gotten off the 
boats, set about to both civilize the people who had been there 
for years, if not centuries, and then categorized them and 
given them some identity cards or identity.
    These processes and regulations are creations of the U.S. 
Government and I think that we need to bear that in mind. They 
were not started by the Native peoples, and I find it somewhat 
ironic that the descendants of Native peoples who have lived in 
North America for thousands of years are the only American 
citizens who must be documented to prove their status.
    Indian groups can be recognized by way of the legislative 
route, which I have not always supported and generally tend to 
oppose unless there are some extenuating circumstances, or 
through the administrative process known as the Federal 
Acknowledgment Process that you mentioned. Because tribal 
recognition decisions were being decided inconsistently in the 
courts, in 1978 the Department of the Interior issued 
regulations to create the FAP process to be undertaken by the 
Branch of Acknowledgment and Research. The FAP regulations were 
revised in 1994 and again in 2000, but charges and counter-
charges about the current system have reached a boiling point. 
They include the GAO, which says the BAR is not transparent 
enough. The House of Representatives has said it lacks 
integrity. Petitioners say it is biased against them and under-
funded. And State attorneys general say it is biased against 
them and under-funded.
    Third parties often say that the criteria is too loose. 
Petitioning groups say that the criteria is too strict. And 
almost everyone believes the process is too slow. And the 
slowness of that process has been made worse by a wave of 
lawsuits from third parties filed by local governments, State 
attorneys general, and some filed by already-recognized tribes.
    In addition to its normal duties in analyzing petitions, 
the BAR is also being flooded with requests under the Freedom 
of Information Act that are resulting in a constant churning of 
documents and keeping the BAR from performing its core 
functions. All of these factors have led to a near-standstill 
in the processing of petitions before them.
    I am anxious to hear from the witnesses, Mr. Chairman, but 
like you, I feel strongly that we must act in the few months 
that we have remaining in the 107th Congress. As you also 
remember, Mr. Chairman, legislation you and I introduced last 
year to establish an independent recognition commission that 
was titled S. 504 is still pending before the committee. If our 
collective efforts to improve BAR fail, I certainly will press 
for consideration of that bill.
    Thank you, Mr. Chairman. I appreciate the time.
    The Chairman. Thank you very much, sir.
    Our first witness is the director of the Office of Tribal 
Services of the BIA, Department of the Interior, Mike Smith. 
Mr. Smith will be accompanied by the chief of the Branch of 
Acknowledgment and Research of BIA, Lee Fleming; and the 
assistant solicitor of the Branch of Tribal Government and 
Alaska Office of the Solicitor, Division of Indian Affairs, 
Department of the Interior, Scott Keep.
    Mr. Smith.

 STATEMENT OF MIKE SMITH, DIRECTOR, OFFICE OF TRIBAL SERVICES, 
 BIA, DEPARTMENT OF THE INTERIOR, ACCOMPANIED BY LEE FLEMING, 
CHIEF, BRANCH OF ACKNOWLEDGMENT AND RESEARCH, BIA; GEORGE ROTH, 
    CULTURAL ANTHROPOLOGIST, BIA; AND SCOTT KEEP, ASSISTANT 
 SOLICITOR, BRANCH OF TRIBAL GOVERNMENT AND ALASKA, OFFICE OF 
           THE SOLICITOR, DIVISION OF INDIAN AFFAIRS

    Mr. Smith. Good afternoon, Mr. Chairman and members of the 
committee.
    My name is Mike Smith. I am the director of the Office of 
Tribal Services within the BIA. I am an enrolled member of the 
Laguna Pueblo Tribe in New Mexico. I was born on the 
reservation at Fort Hall, Idaho, and spent my early years in 
Arizona on the Navajo Reservation, growing up primarily in New 
Mexico, Arizona, and Colorado.
    With me today is Robert Lee Fleming, who is the chief of 
the Branch of Acknowledgment and Research. That is within my 
Office. Unfortunately, Dr. George Roth could not be with us 
today. But also accompanying us this afternoon is Scott Keep, 
the Departmental Solicitor's Office. Mr. Keep is one of the 
attorney-advisers for the Branch of Acknowledgment and 
Research.
    We appreciate the opportunity to appear before you today to 
speak on behalf of the Department about issues that are 
currently impacting the Federal acknowledgment process. In 
fact, I have the high honor and privilege of appearing before 
this committee and the renowned Senators who I believe have 
been the strongest champions of Indian people and their causes 
over the years I have spent working in the Government.
    The Federal acknowledgment of an Indian tribe is a serious 
decision for the Department and the Federal Government. We feel 
it is important that a thorough and deliberate evaluation take 
place because of the status that the acknowledgment carries 
with it. Our decisions must be fact-based, equitable and 
defensible.
    In 1978, regulations were issued at 25 CFR Part 83 to 
provide a uniform process for determining which groups are 
Indian tribes. The BAR was created to implement these 
regulations. We feel the BAR's primary mission is to process 
and evaluate petitions for acknowledgment. However, within the 
past 10 years, the BAR has found itself performing more 
extensive and time-consuming administrative duties, including 
preparing administrative records in response to appeals and 
litigation, and the handling of extensive Freedom of 
Information requests on behalf of petitioners and interested 
parties.
    For the first one-half of this year 2002, over 84,000 pages 
have been released under the Freedom of Information Act, and 
over 4,200 pages have been withheld after careful legal 
analysis that have been deemed non-disclosable. In November 
2001, the General Accounting Office issued its report titled, 
``Indian Issues: Improvements Needed in Tribal Recognition 
Process.'' The GAO recommended that Federal acknowledgment 
decisions be made in a more predictable and timely manner. We 
would like to discuss that issue today.
    On page 14 of that report, GAO stated:

    Because of limited resources, a lack of time frames, and 
ineffective procedures for providing information to interested 
third parties, the length of time involved in reaching final 
decisions is substantial. The workload of BIA has increased, 
while resources have declined.

    The current staff within the BAR, the Branch of 
Acknowledgment and Research, consists of 11 full-time 
employees. That includes two new hires--a genealogist who 
started in May of this year and a cultural anthropologist who 
began work at the Branch of Acknowledgment last week.
    There are currently 15 petitions under active 
consideration. That is the core of the BAR's responsibilities 
as we see it. There are eight petitioners ready and waiting for 
active consideration. The regulations require that we provide 
informal technical assistance to petitioners and third parties. 
The BAR provides this in meetings, telephone conferences, and 
formal letters.
    In 1999, we held 68 meetings. In the year 2000, there were 
73 such meetings; and in 2001, 60 meetings. In addition, we 
issued 42 technical assistance letters during the period 1995 
through mid-2001. In 2001, the BAR held four recorded technical 
assistance meetings, otherwise known as on-the-record meetings. 
The agenda for one on-the-record technical assistance meeting 
generated a transcript of 561 pages. The planning, organizing, 
implementing and controlling of these formal meetings requires 
substantial research and administrative time and commitment of 
resources.
    The BAR also responds to inquiries from Members of 
Congress, provides technical comments on proposed legislation, 
and responds to extensive requests under the Freedom of 
Information Act for information relating to petitioners. In 
fact, the most time-consuming diversion of BAR researchers has 
been responding to requests for copies of documents under FOIA. 
This process requires that in order to avoid violating the 
Privacy Act, the BAR must make a detailed review of all 
documents and redact sensitive information. Over the period 
1991 through 2001, we responded to 396 requests and copied 
thousands of pages, while withholding about 5 percent of those 
and redacting approximately 1 percent.
    The BAR assists the Office of the Solicitor in responding 
to litigation. The Department ordinarily asserts that courts 
lack jurisdiction in our regulatory process until a final 
determination is made. However, in many cases courts have 
injected themselves into the process and have required the 
Department to abide by their schedules or keep the court 
updated on the progress regarding timelines. We currently have 
six acknowledgment cases before the courts. As a result, the 
Department is working on several court-approved timelines and 
court-ordered deadlines. Each negotiated schedule is unique, 
and one of those, the Schaghticoke Tribal Nation's petition, 
has resulted in a pilot project to speed the process.
    Mr. Fleming will provide additional information on that 
pilot project.
    The court orders impact other petitioners and preempt the 
ability of the Department to manage the Acknowledgment Program 
and its resources on a uniform and equitable basis. Court 
orders have forced us to divert our limited resources, and 
court orders have interrupted, delayed and adversely impacted 
petitioners on active consideration, and those who are high on 
the ready list. Court orders have also adversely impacted 
interested parties and petitioners themselves. They have 
abbreviated the time periods and accelerated the completion of 
proposed findings and final determinations.
    Finally, court-imposed deadlines can be unrealistic. In two 
situations, the Muwekma and the Connecticut cases, the 
petitioners and interested parties have requested extensions 
from the court because they were unable to meet the shortened 
deadlines.
    Thank you for the opportunity to testify on this issue. We 
will be happy to answer any questions you may have concerning 
the Federal Acknowledgment Process.
    [Prepared statement of Mr. Smith appears in appendix.]
    The Chairman. Just for the record, Mr. Smith--and I thank 
you--can you walk the committee through the process you follow 
in reviewing petitions of tribal groups?
    Mr. Smith. Yes, Mr. Chairman; I would like to turn that 
over to Mr. Fleming, who is most knowledgeable about this 
process.
    The Chairman. Mr. Fleming.
    Mr. Fleming. Thank you for the opportunity to give 
information to the committee. My name is Lee Fleming. I am a 
member of the Cherokee Nation in Oklahoma. I appreciate the 
opportunity to share this information with the committee.
    We had two very good meetings with the senior staff of the 
Committee on Indian Affairs just not too long ago. It was 
enjoyable to share with them this information as well.
    Our regulation, 25 CFR Part 83, has some history. It was 
promulgated back in 1978. Prior to 1978, the Department was 
involved with litigation and policy questions, particularly in 
treaty fishing rights, land claims involving the non-
Intercourse Act and revenue-sharing questions. All these 
questions seemed to come to a head at that time, which asked 
for a process to be developed.
    So in 1978, the Department conducted extensive 
consultation. Participation and comments were received through 
notice and rulemaking, and there were established uniform 
standards that resulted from this process. They also went into 
a revision of the proposed rule before it became a final rule. 
And so, you can understand that the current regulation had gone 
through extensive review.
    In 1994, revisions were needed for the regulation, although 
the criteria remained the same. There was a lowering of the 
burden of evidence for petitioners who could demonstrate 
unambiguous Federal acknowledgment. And some of the revisions 
clarified what evidence was needed to meet the criteria. 
Clarification of roles of interested and informed parties were 
developed. And the regulation also was revised to provide an 
independent review before the Interior Board of Indian Appeals.
    The seven mandatory criteria will be the study in upcoming 
hearings. But I needed to give you a quick overview of those 
seven mandatory criteria in order for you to fully understand 
the acknowledgment process, which is what I will then discuss. 
The seven mandatory criteria require the petitioner to 
demonstrate that it has been identified as an American Indian 
entity on a substantially continuous basis since 1900. The 
second criteria requires the petitioner to demonstrate that a 
predominant portion of the petitioning group comprises a 
distinct community and has existed as a community from 
historical times to the present.
    The third criterion requires that the petitioner 
demonstrates that it has maintained a political influence or 
authority over its members from historical times to the 
present. The fourth criterion requires the group to have 
structure, meaning it must have a governing document that 
describes its structure and its membership criteria. The fifth 
criterion requires the petitioner to have a membership where 
they can demonstrate that the group descends from the 
historical tribe or tribes to the present. The sixth criterion 
requires the group to show that it does not compose of another 
federally recognized tribe. And the last criterion, the 
petitioner must demonstrate that it is not under any 
congressional legislation that prohibits the group from going 
through the process.
    As you can see, all of those criteria require a group to 
show continuous tribal existence. With that, then, if a group 
believes that it could meet those criteria, then this is when 
the regulation processes begin. It begins with a letter of 
intent. The group submits the letter and basically it states 
that we are interested in going through this regulated process. 
The Department then publishes notice in the Federal Register so 
that we are giving public notice that there is a group in a 
particular State or region that is wishing to go through the 
regulated process. We also send letters to the Governor and 
Attorney General of the State of the petitioner, and we also 
publish in a regional newspaper that this group has this 
interested in going through the process.
    Then, the ball goes into the court of the petitioner. The 
petitioner then must research and acquire the documents that 
meet the seven mandatory criteria. There is no time frame in 
the regulation that is given for the petitioner, so the 
petitioner then must rely on its resources to do the research. 
During this time, we are available for technical assistance and 
have the opportunity to provide the petitioners with copies of 
the guidelines and the regulations.
    The petitioner is able to present the evidence, yet there 
is no set format for presenting the evidence. There is 
flexibility for the petitioner in the presentation of the 
evidence. We at the Branch of Acknowledgment and Research must 
then take what is presented and then understand how the 
evidence then falls under the seven mandatory criteria.
    Once the petitioner submits the evidence, then the 
Department is required to issue what is known as a Technical 
Assistance Review letter. This letter will point out any 
obvious deficiencies or significant omissions that is before 
the Department. The petitioner under the regulations is 
required to respond to the Technical Assistance Review letter. 
They may say, we believe that we have addressed all seven 
mandatory criteria and we would like to go on active 
consideration. Or they may take the opportunity to address any 
of the omissions or significant deficiencies.
    Once the petitioner makes the statement that they are ready 
to go forward, and we believe that they are ready to go 
forward, then the petitioner is placed on a waiting list, 
called Ready, Waiting for Active Consideration. This waiting 
list is a first-in, first-out lineup. When our resources are 
available, then we are able to then place the petitioner on 
active consideration.
    Once a petitioner goes on active consideration, this is 
when quite a number of regulatory time frames kick in. Active 
consideration is basically the formal review of the evidence. 
The Bureau of Indian Affairs has 12 months to review the 
documented petition. The documented petition is generally a 
voluminous petition, as you heard earlier, and it does occur 
during this time period that we receive a great number of 
Freedom of Information Act requests.
    I used to say that I came to Washington, DC to work for 
Indian people, being a member of the Cherokee Nation. Never did 
I realize that I would become a glorified Kinko's operator. But 
it is part of the job and it has to be done.
    At the end of the 12-month period, we then produce what is 
known as a proposed finding. This proposed finding is either to 
acknowledge the petitioner or not to acknowledge the 
petitioner. The notice is published in the Federal Register, 
which then begins the next regulated timeframe called the 
public comment period. Under the public comment period, the 
petitioner, interested parties, and the general public may 
respond to the proposed finding, and we hope to receive 
additional evidence and arguments that will help bring out the 
facts concerning the group's situation.
    This comment period then ends after 6 months, at which time 
the petitioner then has an opportunity to address any of the 
comments that came in through the public comment period. After 
the 2-month period, then the Department has a time period in 
which to develop what is known as a Final Determination. We 
review all the comments. We review all the responses. And then, 
we develop the Final Determination Recommendation and submit it 
to the Assistant Secretary, Indian Affairs, who will make the 
final determination.
    Once the determination is made, it is published in the 
Federal Register, and that begins one of the last phases, 
called the Independent Review Phase Consideration. The 
petitioner or interested parties may request reconsideration 
before the Interior Board of Indian Appeals. This process, if 
there are no extensions and the regulations do provide 
extensions through some of these period, if there are no 
extensions, the minimum processing time for a group is 2.5 
years.
    We understand that the time period for processing is a 
question, and due to these extensions that occur, once you have 
an extension for one petitioner, it may lead to extensions in 
the other petitions. Our staff working is at full capacity, and 
we are juggling more than one petition. We are addressing 
collateral duties and it is very difficult to get these 
recommendations prepared.
    With that, I believe I have described the process fully.
    Thank you.
    The Chairman. Just a matter of curiosity--what do you 
define as ``historic times''?
    Mr. Fleming. Historic times under the regulations refer 
back to first sustained contact that a group may have with the 
non-Indian communities. In some of our cases, this would be in 
the 1600's, in New England in particular. In California, it may 
be in the late 1600's or early 1700's.
    The Chairman. So it would depend upon contact with the 
European?
    Mr. Fleming. That is right.
    The Chairman. That is to fulfill your requirement that 
matters be in the form of written documents--the evidence be 
written documents?
    Mr. Fleming. Correct--written documentation.
    The Chairman. So there is no flat rule--the rule being 
European contact?
    Mr. Fleming. First sustained contact with.
    The Chairman. As a result, I suppose some tribes would have 
to provide documentation from the turn of the last century.
    Mr. Fleming. There are some groups that take advantage of 
another provision in our regulation called Unambiguous Federal 
Acknowledgment. If they can demonstrate that their group 
descends from that group that had contact at a later time 
period, then the evidence is what we would like to review.
    The Chairman. What is the pilot program that Mr. Smith 
referred to? I presume you are working on that, Mr. Fleming.
    Mr. Fleming. Yes; I am, and quite a number of the staff, 
and quite a number of other offices within the BIA and the 
Department of the Interior.
    This database system is called the Federal Acknowledgment 
Information Resource System. The acronym is FAIR--F-A-I-R. And 
the purpose of this database system is to speed up the analysis 
and the evaluation of these acknowledgment petitions. We are 
hoping that as we perfect this system that the factual bases of 
these decisions will become more transparent and readily 
available to the petitioners and third parties, which was what 
the GAO had recommended.
    We will be able to provide, provided that their are some 
safeguards in place, we are able to provide these databases to 
all the parties that are associated with the petitioning group. 
We worked with the Schaghticoke Tribal Nation petitioner, and 
the interested parties, the State of Connecticut, and the court 
to develop this system. Basically, we are reviewing all of the 
documents, cataloguing all of the evidence submitted by all the 
parties, and also any evidence located by the Branch of 
Acknowledgment and Research staff. Those catalogs then are 
complete bibliographic references which are then available to 
all parties. These documents are scanned into an electronic 
system and it is amazing how we are able to understand what is 
before us when we begin a formal review.
    Complete genealogical information is also a basic function 
of this project, and data on social and political activities 
are drawn from all the documentary and interview sources. So 
those are the basic functions of this database system.
    The Chairman. How much time will the database system save 
in the process?
    Mr. Fleming. It definitely will save time that will allow 
our professional researchers to devote to the analyses and 
evaluations. The data that is entered into the system, which is 
another feature that we are working with, we had contracted out 
and have brought on research assistants who are able to enter 
this data into the system. So the time that would have been 
involved with our professional researchers entering in all the 
data, that then is given to the research assistants, and that 
allows our researchers to devote quite a bit of time to their 
main task, which is the evaluation.
    The Chairman. How many new personnel would you have to 
hire, and how much would the resources cost to implement this 
project?
    Mr. Fleming. Currently, the project that we are involved 
with--I will give you some information about the cost of the 
contract. We had budgeted the project for $45,000. We have 
spent about $42,000 already. Our research assistants that were 
applied to this have been working for 21 weeks. That cost is 
$64,293. That is just in regard to the bare nuts and bolts of 
the system. We also had costs that we have not been able to 
ascertain with regard to the documents scanning that was done 
for this project. That was done by the Department of the 
Interior's Document Management Unit. They were able to assist 
us with that.
    But it goes to an overall question about the Branch of 
Acknowledgment and Research needs. The pilot project will be 
applied to all the petitions in the process. We feel it is 
going to be a tremendous tool for this process, and as a result 
not only would we like to take the opportunity to use 
appropriate outsourcing in this pilot project, but also that we 
need to understand how that fits in with the overall structure 
of the positions needed in the Branch of Acknowledgment and 
Research.
    The Chairman. Can you carryout the pilot project without 
jeopardizing the other functions of BAR?
    Mr. Fleming. Yes; we should be able to carryout all of 
other functions.
    The Chairman. I have a few other questions, but Mr. Vice 
Chairman?
    Senator Campbell. Thank you, Mr. Chairman.
    I guess, directed to whoever, but maybe just through Mr. 
Smith, it looks to me like that we are probably part of the 
problem here, too, of not providing enough resources so that 
you can do a good job. I was looking at the GAO report, which I 
am sure you are familiar with. Do you have a copy of it there? 
Look on page 15. I notice with interest between 1979 and 1990, 
you had a couple of spikes, but the number of petitioners that 
were being processed were up around five a year, or something 
of that nature. There were major budget and personnel cuts 
mandated by Congress in 1996.
    How does your personnel--I notice you just recently hired 
three more people in your office?
    Mr. Fleming. Two.
    Senator Campbell. How does your personnel now compare 
before about 1990, where it begins to go up--the workload 
begins to go up? Did you have more people then or less people?
    Mr. Fleming. We have developed a breakdown of the staff 
over the years, since the beginning in 1978 to the present. And 
I would be happy to provide exact figures for you.
    Senator Campbell. Okay. Well, just looking at that chart, 
though, I note with interest that you really began to climb in 
about 1990, just two years after we passed IGRA. I may sound 
somewhat cynical, but I keep thinking that that huge increase 
in the number of people are in two categories--probably some 
from terminated tribes that really we ought to reinstate; but 
certainly there are some others who the interest of casinos and 
casino money I think are the driving force. At least that is 
what it looks like to me. What would you think about that?
    Mr. Fleming. There may be some correlation. You also heard 
earlier that in 1994, we had revisions in the regulations, 
which brought about public awareness. There were also 
conferences that the White House had conducted with a great 
participation of many groups. And also the publicity of what 
has occurred in Indian country with regard to gaming may be a 
factor, but I think there are multiple factors for the numbers.
    Senator Campbell. You mentioned that of the petitioners 
that are denied, they can then seek a remedy through an appeals 
process. Is that correct?
    Mr. Fleming. That is correct.
    Senator Campbell. And if they are denied then, have you 
noticed an increase of the ones who are going to court to find 
some relief or coming here to try to get legislative relief?
    Mr. Fleming. The groups will take advantage of any avenue 
that would be available to them. So if they are denied through 
the administrative process, then they have the avenue of going 
to the court and suing under the Administrative Procedures Act, 
which then would----
    Senator Campbell. Well, I guess the question is, is that 
what all of them do?
    Mr. Fleming. Yes.
    Senator Campbell. It is just a matter of course?
    Mr. Fleming. It seems to be the direction.
    Senator Campbell. I see. I read the February 11, 2000 
regulations. The BAR was directed to refrain from substantial 
research, and to conduct the research necessary to verify and 
evaluate submissions. Have those changes improved the process 
at all? Has it reduced the workload at all?
    Mr. Fleming. We expect to address this issue later this 
year. There are some aspects of the directive that have 
assisted. There are some aspects that have been difficult to 
work under. But we do hope to have a position on the February 
11 directive later this year.
    Senator Campbell. And also, it is my understanding that 
Secretary McCaleb, as a response to the GAO report of November 
2001, indicated the Bureau would develop a ``strategic plan'' 
within about 6 months dealing with the BAR process. What is the 
status of that strategic plan?
    Mr. Fleming. We have been working on the draft. We expect 
to have that prepared shortly as well. As Director Mike Smith 
had shared with the committee earlier, we have been under 
court-projected timelines and court-ordered deadlines, but we 
have shared our drafts with the decisionmakers and we hope to 
have that out soon.
    Senator Campbell. Okay, if you could provide the committee 
with a copy of that. I am certainly also concerned about what 
we do to try to improve the process. As I understand your 
testimony, or perhaps it was Mr. Smith's, that about 40 percent 
of the BAR staff time is spent responding to Freedom of 
Information Act Requests. How can we deal with that at all? Is 
there anything that we can do legislatively without getting in 
trouble with the courts? Do you want to tackle that one, Mr. 
Keep?
    Mr. Keep. Senator, I will be glad to. I am not sure I can 
answer that clearly. We are concerned that we need to provide 
protection for the privacy of individuals. As I think you know, 
the BAR process involves the submission of a great deal of 
personal information to confirm and establish Indian ancestry, 
and it is important for us to be able to protect that. We have 
been able to make some progress, ironically, in the cases that 
have involved litigation by getting the parties to agree to 
confidentiality agreements. We are using the court's authority 
and powers to ensure the preservation of personal privacy.
    I am not sure that the best answer would be an amendment or 
modification of the Freedom of Information Act. I think that 
performs an important service. We are not sure what would be 
the most appropriate way to address that. We are looking at 
those. Those are some of the things that are being considered 
in the context of the further response to the GAO report.
    Senator Campbell. Okay. Well, in your recommendations, you 
can give the committee--I would certainly appreciate it.
    Mr. Keep. We certainly would be glad to do that.
    Senator Campbell. And speaking of courts, too, there are 
court-ordered deadlines. When you get court-ordered deadlines, 
how does that impact your work on other petitions? Do they 
then, because of the deadline, ``jump'' the line? Do they get 
elevated ahead of the ones that have been waiting patiently to 
get through the process?
    Mr. Keep. In terms of the Solicitor's Office and I would 
ask Lee to cover part of this, but from our perspective, it 
certainly does affect the priorities. The court-ordered 
deadlines or in some instances we have negotiated and tried to 
work a compromise. We realize that these are important issues 
that must be dealt with. The BAR is anxious to meet with them, 
and we are looking for ways to deal with ones that in all 
fairness--but clearly, it requires a changing in priorities. In 
one particular case, the group that was last on the ready-for-
active-consideration, was elevated to the first. And then 
having gotten these court-ordered deadlines, sought two 
extensions. That does cause disruptions in terms of planning, 
the staff. Every time the BAR staff or my staff in the 
Solicitor's Office has to review a document and then put it 
aside and start and look at another one because of a change in 
priorities, they then have to reinvent the wheel. So there is a 
problem of going back and picking up when you get your 
priorities changed.
    Senator Campbell. Thank you.
    Mr. Chairman, I have some further questions, but I will be 
happy to yield and go back and forth, if that is acceptable.
    The Chairman. Complying with Court orders take up to 40 
percent of your staff time?
    Mr. Keep. I beg your pardon, Senator?
    The Chairman. Does the work entailed in complying with 
court orders take up to 40 percent of your staff time?
    Mr. Keep. No; actually it is probably more at that time. 
There are four attorneys in my branch, and my branch is the one 
that handles and provides legal counsel to the branch of 
Acknowledgment. One attorney is working almost full time on 
that. Another attorney, a senior attorney, Ms. Cohen, who is 
with us today, is spending nearly 90 percent of her time on 
these cases. They are not all on the actual litigation. In many 
instances, they are on the litigation, but the time is spent in 
providing legal counsel to meet the litigation-directed 
deadlines. So my staff, the two other attorneys and about 50 
percent of my time is directed towards addressing the 
acknowledgment petitions which are the subject of the 
litigation. The actual review of the court filings and the 
review of briefs and whatnot does not take all of our time. But 
the counseling and assisting the BIA to articulate its 
conclusions and whatnot, that sort of legal work, takes up 
about 100 percent of our time now.
    The Chairman. But it does affect the scheduling and the 
priorities?
    Mr. Keep. Yes; it does.
    The Chairman. Can you provide us with a breakdown of the 
number of additional personnel that you could use in addressing 
litigation, and what levels of training for such personnel 
might be necessary, and if you could convert that into dollars, 
we would appreciate it.
    Mr. Keep. I think we could provide that, Senator. I am not 
quite sure how to answer it. Unfortunately, I think as is 
documented in the General Accounting Office report, as more 
decisions are issued, the trend in recent years has been to 
litigate almost all of them, so that in the past, even before 
the more recent circumstances which the vice chairman alluded 
to in the Indian Gaming Regulatory Act, we had been sued for 
declining to acknowledge groups. We have been sued by 
recognized tribes for acknowledging groups. And we have been 
sued for not issuing a decision at all.
    I am afraid that that pattern is likely to increase, so 
that our work in the Solicitor's Office is going to be tied 
very closely to the staffing of the Branch of Acknowledgment 
and Research. The more decisions they issue, the more staff 
time my office will be. So we work in very close relationship 
with them.
    The Chairman. At this moment, how many court orders are you 
dealing with?
    Mr. Keep. I think we referenced six cases. We have three in 
Connecticut, one here in the District of Columbia, and I think 
that is it--four court-ordered schedules.
    The Chairman. Out of how many petitions?
    Mr. Keep. There are 15 on active consideration.
    The Chairman. Fifteen?
    Mr. Keep. Fifteen. That is correct.
    Mr. Smith. Mr. Chairman, just as a follow-up to your 
previous question, previously we expressed that we had filed a 
response with the GAO report. In that response, we identified a 
strategic plan, which is in draft form. In that strategic plan, 
we have identified a number of positions that we feel would be 
ideal for the Branch of Acknowledgment and Research. That 
includes an Administrative Section. It also includes research 
assistants and staff people who would assist the professional 
staff. It also identifies an increase in the professional 
staff. We can provide that information to you.
    The Chairman. We would like to have that, not just the 
numbers and the talent, but the sums.
    Mr. Keep. Mr. Chairman, in that regard, if I may just 
follow up, because of things such as the Freedom of Information 
Act and the requirement that under the Department's regulations 
all redactions or documents withheld require legal review, to 
the extent that the BAR Office is producing more documents in 
response to the Freedom of Information Act, that impacts our 
office. To the extent that the BAR staff is increased with 
research assistance, clerical staff or other trained personnel, 
the material is going to be more readily reviewable by our 
office and it will be more efficient. Because of our court-
ordered deadlines, we have had to have attorneys do work that 
really did not require their expertise, but they were required 
to do it in order to meet the court-ordered deadline. So to the 
extent that the other staff of the BIA, the non-professional 
staff, that is, the research assistants and perhaps paralegals 
and records management staff is increased, that will also 
lighten to some extent the load that the Solicitor's Office has 
tried to fill in on.
    The Chairman. Thank you.
    Mr. Vice Chairman.
    Senator Campbell. Thank you, Mr. Chairman.
    Perhaps Mr. Keep could answer this. I am interested in 
knowing what discretion the Assistant Secretary has with the 
BAR? I have heard some question that, not this Assistant 
Secretary, because I think Neal McCaleb is a very fine man, but 
I have heard in the past sometimes that the Assistant Secretary 
``overrruled'' the BAR, or that BAR just feels like they are 
being overruled. Give me the general--how does BAR work with 
the Assistant Secretary?
    Mr. Keep. I would be glad to address that. I think the 
answer to your question is more fully set out in the 
Solicitor's response to your letter. He is reviewing what we 
have proposed to him--the letter that you introduced in the 
record earlier.
    Senator Campbell. So he can provide advice and 
recommendation, and he can overrule the BAR?
    Mr. Keep. I think that it is his decision ultimately to 
make, and there is no mistake of that. I think to the extent 
that he has adopted regulations that define what sorts of 
criteria he is going to consider and the entire regulatory 
scheme that is built around the expertise in BAR, those are 
some constraints on him. The court cases have generally 
deferred to the political branches of government on tribal 
status issues, that is yourselves, the Congress of the United 
States, and the Executive Branch. There is long precedent in 
the Supreme Court on that.
    They are not willing to necessarily defer indefinitely, as 
was decided in the Masphee case many years. The court said, I 
won't wait indefinitely for it. But subsequently, cases have 
indicated that the courts are willing to defer to the 
Department, as it has developed a special expertise. So that to 
some extent, the courts' willingness to defer to the Department 
is tied to the fact that the BAR has professional researchers 
who are looking at this in a very studied way, which does not 
mean necessarily a tedious, scholarly way, but a very 
methodological, sound way that is documented.
    Senator Campbell. I see.
    The unfortunate part of our Nation's history is that many 
tribes were forced to break up, certainly through no action of 
their own, but were literally done at gunpoint. Some of them as 
late as the 1950's under the Termination Acts can be tracked 
pretty well, because it was not very long ago. But some of them 
were a long time ago. I remember when I was on the House side, 
one group that came in was looking for legislative relief to 
that, and they had--I asked them some questions about their 
traditions, their songs, their dances, their story of 
creation--all the things that literally anybody that is 
involved with a tribe knows or knows about--they did not know 
any of it, did not know any of it.
    And I asked them what they had to make them legitimately a 
tribe, and they said, we formed a corporation, which probably 
does not fit under your criteria what a tribe is, but I can 
understand their point of view, too. If they were literally 
forced, through whatever process the government had at the 
time, to be broken up, there was no question that they were 
going to forget an awful lot of their traditional things that 
are now part of the criteria, as I understand it, to be 
reinstated or recognized as a tribe.
    When you have a group of people that fall in that category, 
it is almost impossible to track some things, but other Indian 
people recognize them and know they are Indian, or through some 
process of association. How do you address that? Perhaps Mr. 
Fleming--I am thinking in terms also, for instance, in the 
Trail of Tears. Most of the people were moved out of the 
Southeast part of the country to Oklahoma, but some were not. 
Some hid out in the hills and would not go. You know that. You 
come from a tribe that knows that very well, that story. How do 
you deal with things like that? I know that this is a little 
bit maybe off the subject, but I am interested in knowing.
    Mr. Fleming. The documentation that is available, or in 
some cases not available, is brought out through this regulated 
process. A group will need to do research on the local, State, 
national, tribal levels. Through the research, then the 
documentation hopefully will answer the questions. The 
documentation then is applied to those seven mandatory 
criteria. So as the group is researching, and again we are 
available for technical assistance and advice as to where to go 
to do the research, then the groups then are able to present 
that documentation to us.
    If you take a look at the cases that have been resolved 
through the regulated process, we have about 15 groups that 
have been denied acknowledgment, and 15 that have been 
acknowledged. So 15 groups have been able to find the 
documentation that is necessary to present to the process and 
meet the seven mandatory criteria.
    Mr. Smith. I would like to add also, Senator Campbell.
    Senator Campbell. Yes, Mr. Smith?
    Mr. Smith. Prior to coming to Washington, DC, I spent the 
last 15 years in California. I know exactly what you are 
talking about. There are many Indian people who have been 
disenfranchised through no fault of their own. We know those 
stories and we know the people are Indian people, but the 
question before us becomes whether or not they are a tribe, and 
that is I guess the crux of the problem. The mandatory criteria 
demands that we go through this evaluation of whether or not 
this is a tribe under our criteria.
    Senator Campbell. Yes; well, I might refer to my California 
days too, Mr. Smith, because there are a number of bands of the 
Me-Wuks, as you know, in the Valley. Some are recognized and 
some have not gotten recognized yet, and some of those people I 
know. I have known them since childhood. I went to school with 
them, and I know them as blood relatives of each other. But 
because one band, they are recognized, and because in another 
band, they are not. It is a difficult thing. I do not want to 
expand on that, because I am sure you are aware of the problem 
out there.
    Let me go on to another thing here. That deals with 
conflict of interest. In the past few years, there has been a 
great deal of hand-wringing about supposedly undue influence by 
financial and political interests into the BAR process, as you 
know. Are those allegations accurate, to your knowledge, or 
have been? If they are, what can be done about it to make sure 
that that is not a regular matter of course?
    Mr. Smith. I would say, speaking for the Branch and the 
Office of Tribal Services that I have not experienced any undue 
influence. I do not know that the BAR has been subjected to 
this prior to my coming to the Office, and I have been in that 
Office for the past 2 years. We have made recommendations to 
the decisionmaker, the Assistant Secretary. We have provided 
all of the information to document the recommendation. So in my 
opinion, there is no undue influence.
    Senator Campbell. What are the conflict of interest rules 
after they leave Federal employment--the BAR employees?
    Mr. Smith. I believe they vary. But in many cases, we have 
people who were employed at the BAR who are now working for 
petitioners.
    Senator Campbell. Is there any timeframe? For instance, 
here in Congress we cannot lobby for 1 year. We cannot lobby 
our colleagues for 1 year. I think that is in most of the area 
of the Administration, too.
    Mr. Keep. Senator, if I may, I think all of the conflict of 
interest statutes in title 18, 207, and 208, are certainly 
applicable to BAR. I am not aware of any instance in which an 
individual has worked on a particular petition or whatnot in 
BAR and then gone out and worked on that same issue from 
another side. I think that we look to the existing criminal 
statutes that prohibit someone working on a particular matter 
they were involved in before.
    Senator Campbell. As I understand it, the standard in the 
regulations to recognize a tribe is based on what is called the 
``reasonable likelihood'' standard. Is that the same as what 
you would find in a court called a ``predominance of evidence'' 
standard?
    Mr. Keep. I do not think that is the case. Preponderance of 
the evidence might be--it does not take into account the 
absence of evidence. I think what the BAR is looking for in the 
standard of evidence is, is there enough evidence to establish 
by reasonable likelihood that these facts exists, even in the 
absence of contrary or conflicting evidence. So we may have, as 
you have pointed out, one of the difficulties, particularly in 
some of the early histories, is there are gaps and there are 
absences of evidence. And so the task that BAR is confronted 
with is, even though there is no conflicting evidence or 
contrary evidence, is the evidence that is here enough to 
establish that there are leaders, and that there is interaction 
and it has been continuous.
    Senator Campbell. Thank you, Mr. Chairman.
    The Chairman. Well, I thank all of you very much. You have 
been extremely helpful. As I noted in my opening remarks, this 
will be the first in a series of meetings of this nature.
    We hope that when we conclude, we may be able to assist you 
in establishing a much more robust organization that can handle 
the heavy load that you apparently are called upon to handle. 
So if you could provide us with the information we have 
requested, we will see what the Appropriations Committee will 
do to be of assistance.
    Mr. Smith. We will provide that information, Mr. Chairman, 
and we thank you for allowing us this opportunity.
    The Chairman. With that, the hearing will stand in recess 
and the record will be kept open for the next 2 weeks if you 
have any additional questions, addendum, suggestions to make. 
We will be happy to receive them.
    [Whereupon, at 2:36 p.m., the committee was adjourned, to 
reconvene at the call of the Chair.]
=======================================================================

                            A P P E N D I X

                              ----------                              

              Additional Material Submitted for the Record

=======================================================================

  Prepared Statement of Michael R. Smith, Director, Office of Tribal 
                  Services, Department of the Interior

    Good afternoon, Mr. Chairman and members of the committee. My name 
is Mike Smith and I am the Director of the Office of Tribal Services 
(Office) within the Bureau of Indian Affairs (BIA). Accompanying me 
today is W. Lee Fleming who is the Chief of the Branch of 
Acknowledgment and Research (BAR) within my Office. We appreciate the 
opportunity to appear before you today to speak on behalf of the 
Department about issues that are currently impacting the Federal 
acknowledgment process.
    The Federal acknowledgment of an Indian tribe is a serious decision 
for the Department and the Federal Government. It is important that a 
thorough and deliberate evaluation occur before we acknowledge a 
group's tribal status, which carries with it certain immunities and 
privileges. These decisions must be fact-based, equitable, and thus 
defensible.
    In 1978, the Department issued regulations at 25 CFR Part 83, 
Procedures for Establishing that an American Indian Group Exists as an 
Indian Tribe, to provide a uniform process for determining which groups 
are Indian tribes. The BAR was created to implement these regulations. 
Under the regulations, acknowledgment is granted to groups that 
demonstrate that they have a ``substantially continuous tribal 
existence'' and ``have functioned as autonomous entities throughout 
history until the present.''
    BAR's primary mission is to process and evaluate petitions for 
acknowledgment. The BAR experts review and evaluate petitions', 
documentation, consult with petitioners and third parties, prepare 
technical assistance review letters, hold formal and informal technical 
assistance meetings, maintain petitions and administrative 
correspondence files, and make recommendations for proposed findings 
and final determinations to the Assistant Secretary for Indian Affairs 
(AS-IA). However, within the past 10 years, the BAR has found itself 
performing more extensive and time consuming administrative duties, 
including preparing administrative records in response to appeals and 
litigation, and the handling of extensive Freedom of Information Act 
(FOIA) requests on behalf of petitioners and interested parties. For 
example, the administrative record in Ramapough Mountain Indians v. 
Norton was 30,000 pages which had to be prepared and scanned onto 7 CD-
ROMs. For the first 0ne-half of 2002, over 94,000 pages had been 
released under FOIA, and over 4,200 pages had been withheld deemed, 
after careful legal analysis, to be non-disclosable.
    In November 2001, the General Accounting Office (GAO) issued its 
report, Indian Issues: Improvement Needed in Tribal Recognition Process 
(Report). The GAO recommended that Federal acknowledgment decisions be 
made in a more predictable and timely manner. On Page 14 of the report, 
the GAO stated ``[b]ecause of limited resources, a lack of timeframes, 
and ineffective procedures for providing information to interested 
third parties, the length of time involved in reaching final decisions 
is substantial. The workload of BIA staff assigned to evaluate 
recognition decisions has increased while resources have declined.'' 
The current staff within the BAR consists of 11 full-time employees, 
which includes two new hires--a genealogist who started work in May 
2002 and an anthropologist who started work on June 3, 2002.
    There are currently 15 petitioners under active consideration, 
which make up the core of BAR's responsibilities and 8 petitioners 
ready, waiting for active consideration. Active consideration is the 
core responsibility of the BAR and includes the process from the time 
the BAR staff officially begins its review and evaluation of the 
petition, through the proposed finding and comment stage to the final 
determination. It may also include a reconsidered final determination. 
if requested by the Secretary of the Interior (Secretary) following 
review and referral by the Interior Board of Indian Appeals (IBIA).
    The regulations require providing informal technical assistance to 
petitioners and third parties, which the BAR provides in meetings, 
telephone conferences, and formal letter. We held 68 meetings in 1999, 
73 in, 2000, and 60 in 2001. In addition, we issued 42 technical 
assistance letters during the 1995 to mid-2001 period.
    In 2001, the BAR held four recorded technical assistance meetings 
concerning the process at the request of petitioners and interested 
parties. The agenda for one on-the-record technical assistance meeting 
generated a transcript of 561 pages with indices. The planning, 
organizing, implementing, and controlling of these formal technical 
assistance meetings requires substantial research and administrative 
time and commitment of resources.
    The BAR also responds on a priority basis to inquiries from Members 
of Congress, provides technical comments on proposed legislation 
relating to the acknowledgment of tribal status generally or relating 
to the acknowledgment of the tribal status of specific groups of Indian 
descendants, and responds to extensive requests under the FOIA for 
information relating to a petitioner.
    The most time consuming diversion of BAR researchers from their 
primary responsibility of evaluating petitions, is responding to 
requests for copies of documents under FOIA. To satisfy the 
acknowledgment regulations, petitioners submit a large and varied body 
of documentation which includes a substantial amount of genealogical 
and other personal information. Initial petition submissions commonly 
range from 25,000 to 100,000 pages. Responses to proposed findings may 
entail an equally extensive amount of documentation. To avoid violating 
the Privacy Act, the BAR must make a detailed, page-by-page, line-by-
line review of all documents to redact sensitive information prior to 
public disclosure. Over the 1991 through mid-2001 period, we responded 
to 396 requests, copied and released 219,100 pages, withheld 12,966 
pages, and redacted 1,426 pages. This year, BAR is responding to 
multiple FOIA requests for the two Nipmuck acknowledgment petitions. 
The Department to date has released 59,021 pages and withheld 12,703 
pages.
    The BAR assists the Office of the Solicitor and the Department of 
Justice, in responding to litigation. When faced with litigation 
regarding the process or timing in which a petition has been handled, 
the Department ordinarily asserts that the Courts lack jurisdiction to 
become involved in the regulatory process until a final determination 
is made. However, in many of the cases below, Courts have nonetheless 
injected themselves into the process, and have required the Department 
to abide by specific schedules or keep the Court updated on progress on 
projected timelines. Pending lawsuits include: (1) Connecticut v. 
Department of the Interior, Civil No. 3:01CV-0088 (AVC), D. Conn. (2) 
United States v. 43.47 Acres of Land, Civil No. H-85-1078 (PCD), D. 
Conn. (3) Muwekma Tribe v. Babbitt , Civil No. 99-CV-3261 (RMU), D.D.C. 
(4) Burt Lake v. Norton, Civil No. 1:01CV00703, D.D.C. (5) Golden Hill 
Paugussett Tribe v. Norton, Civil No. 3:01CV1448 (JBA), D. Conn.; and 
(6) the Mashpee Wompanoag Council, Inc. v. Norton, No. 1:01CV00111 
(JR), D.D.C. Also, we just successfully defended two acknowledgment 
decisions in the 7th Circuit and the D.C. Circuit--Miami Nation of 
Indians of Indiana v. the Department of the Interior (petition for 
certiorari denied) and Ramapough Mountain Indians v. Norton (petition 
for certiorari pending). The 7th Circuit in the Indiana Miami case also 
affirmed the Department's authority to acknowledge tribes and affirmed 
the validity of the acknowledgment regulations. Additionally, we 
successfully defended a challenge to the requirement of exhaustion of 
the administrative process. United Tribe of Shawnee Indians v. United 
States (10th Circuit).
    The Department is working on several Court approved timelines and 
Court ordered deadlines. Each negotiated schedule is a result of unique 
circumstances, such as the Schaghticoke Tribal Nation's 
(``Schaghticoke'') acknowledgment petition, a condemnation action that 
had been pending since 1995. See United States v. 43.47 Acres of Land, 
Civil No. H-85-1078 (PCD), D. Conn. As a pilot project to speed the 
acknowledgment process, three technicians imputed data from the 
petition into an automated database that will be accessible to BAR 
researchers, petitioners, and interested parties. This demonstration 
project, if successful, will provide a decision that is more readily 
transparent and verifiable, and will provide a more efficient 
decisionmaking process, as recommended by GAO.
    Projected schedules for processing and evaluating the petitions of 
the following groups on active consideration are established by 
immediate regulatory deadlines, court approved settlement agreements, 
and court orders:

   \\\\\\Petitioners with projected regulatory schedules 
        include the: Chinook Indian Tribe/Chinook Nation (#57) 
        (Washington).
   \\\\\\Petitioners with court approved projected schedules 
        include the: Eastern Pequot Indians of Connecticut (#35), 
        Paucatuck Eastern Pequot Indians of Connecticut (#115), and the 
        Golden Hill Paugussett Tribe (#81), the Schaghticoke Tribal 
        Nation (#79) (Connecticut).
   \\\\\\Petitioners with court ordered schedules include the: 
        Muwekma Indian Tribe (#111) and Masphee Wampanoag (#15) 
        (California and Massachusetts respectively).

    There are six other petitioners on active consideration awaiting 
the availability of a BAR research team to complete the evaluation and 
processing of their acknowledgment petition.
    Court orders impact other petitioners in the process and preempt 
the ability of the Department to manage the acknowledgment program and 
its resources on a uniform and equitable basis. They impact: (i) the 
petitioner; (ii) the interested parties; (iii) the general public; (iv) 
the nature and quality of the review of the petition; (v) those 
petitioners on active consideration; (vi) those petitioners with higher 
priority on the ready list; and (vii) the ability of the Department to 
manage the acknowledgment program and its resources.
    By requiring the Department to give priority to one petition over 
another, court orders have forced us to divert limited resources. Based 
upon our experience, our adherence to the Court orders has interrupted, 
delayed, and adversely impacted the petitioners currently on active 
consideration and those who are high on the ready list and entitled to 
priority in consideration over petitioners under Court orders.
    Court orders also adversely impact interested parties and the 
petitioners themselves. The interested parties identified with a 
specific petition include the States, states attorneys general, 
surrounding towns, and recognized tribes. Certain court orders require 
the Department to prioritize petitions and truncate the timeframes in 
the regulations for interested parties and petitioners to submit 
comments on the proposed finding and to receive technical assistance. 
Court orders abbreviate the time period for responding to comments and 
accelerate the completion of the proposed findings and final 
determinations.
    In the Mashpee litigation, the Department informed the Court that 
``[t]he lack of staff and truncated evaluation times will result in a 
proposed finding for the Mashpee petitioner that will differ 
substantially in both form and content from the proposed findings of 
petitions already processed and evaluated under the 1994 regulations.'' 
For instance, in Mashpee the proposed finding scheduled to be issued 
this year, does not have a cultural anthropologist assigned to its 
research team, as the existing cultural anthropologists were already 
assigned to other cases with court schedules.
    Finally, court imposed deadlines can be unrealistic. In Muwekma and 
in the Connecticut cases, the petitioners and interested parties have 
requested extensions from the court because they were unable to meet 
the shortened deadlines. Typically, the petitioner, interested parties, 
and other parties submit FOIA requests to the Department for copies of 
records, such as petition materials and BAR research documents that 
they will use to comment meaningfully on the proposed finding. Because 
the requested records are often extensive, the six (6) months provided 
for the comment period is barely long enough for the Department to 
review for privacy concerns and release the requested records, for the 
requesters to receive and review the records, and for the requesters to 
analyze these records and submit comments to the Department on the 
proposed finding. Due to these logistical factors, it is likely that 
the interested parties and the petitioner will need to request 
extensions of the comment period to obtain time for receiving and 
analyzing requested copies of records for the purpose of adequately 
responding to the proposed finding.
    Thank you for the opportunity to testify on this issue. We will be 
happy to answer any questions you may have concerning the Federal 
acknowledgment process.
                Senate Committee on Indian Affairs,
                                        Washington, DC, May 2, 2002
Mr. William G. Meyers, III
Solicitor, Department of the Interior
Washington, DC.

    Dear Solicitor Meyers: I am writing with regard to the activities 
of the Branch of Acknowledgment and Research [BAR] and the authority 
exercised by the Assistant Secretary--Indian Affairs [AS-IA] with 
regard to the development and issuance of Proposed Findings and Final 
Determinations on petitions for Federal acknowledgment filed by Indian 
groups pursuant to 25 CFR Part 83.
    As you know, in recent years there has been substantial publicity 
about the process by which petitions for acknowledgment are considered 
by the Department. Since 1987, there have been numerous congressional 
hearings on the Federal acknowledgment process and intermittent calls 
for the reform of the BAR process. As recently as this session various 
proposals have been introduced seeking to reform the Federal 
acknowledgment process. See for example the ``Indian Tribal Federal 
Recognition Administrative Procedures Act of 2001'' (S. 504), and the 
``Tribal Recognition and Indian Bureau Enhancement Act of 2001'' (S. 
1392).
    In addition, recent decisions in the Federal courts are having an 
impact on the ability of the BAR to review and make recommendations on 
petitions for acknowledgment. The process of acknowledgment is one 
involving research, analysis and recommendations by BAR staff and, 
consideration by the Assistant Secretary in his decisionmaking process.
    Clearly, the Assistant Secretary is entitled to place some degree 
of reliance on the recommendations of his professional staff. At the 
same time, it must be recognized that the acknowledgment decisions are 
matters that carry serious consequences for petitioning groups and 
their members. At bottom, what I am interested in knowing is what, as a 
matter of law, your office believes the legal authority and discretion 
of the Assistant Secretary to be in considering the recommendations of 
the BAR staff. I am also interested in your view of the proper role 
that your office should play in advising the AS-IA in these matters.
    If you have questions, please contact Paul Moorehead, my staff on 
the Committee on Indian Affairs at (202) 224-2251. I look forward to 
hearing from you on these important matters.

            Sincerely,
                                   Hon. Ben Nighthorse Campbell,
                                   Vice Chairman.

                               

      

```