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THE OBAMA ADMINISTRATION’S 

PART 83 REVISIONS AND HOW 

THEY MAY ALLOW THE 

INTERIOR DEPARTMENT TO 

CREATE TRIBES, NOT RECOGNIZE THEM 

OVERSIGHT HEARING 

BEFORE THE

SUBCOMMITTEE ON INDIAN, INSULAR AND 

ALASKA NATIVE AFFAIRS 

OF THE

COMMITTEE ON NATURAL RESOURCES 

U.S. HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

Wednesday, April 22, 2015 

Serial No. 114–4 

Printed for the use of the Committee on Natural Resources 

( 

Available via the World Wide Web: http://www.fdsys.gov 

or 

Committee address: http://naturalresources.house.gov 

(II) 

COMMITTEE ON NATURAL RESOURCES 

ROB BISHOP, UT, Chairman 

RAU ́ L M. GRIJALVA, AZ, Ranking Democratic Member 

Don Young, AK 

Louie Gohmert, TX 

Doug Lamborn, CO 

Robert J. Wittman, VA 

John Fleming, LA 

Tom McClintock, CA 

Glenn Thompson, PA 

Cynthia M. Lummis, WY 

Dan Benishek, MI 

Jeff Duncan, SC 

Paul A. Gosar, AZ 

Rau ́l R. Labrador, ID 

Doug LaMalfa, CA 

Bradley Byrne, AL 

Jeff Denham, CA 

Paul Cook, CA 

Bruce Westerman, AR 

Garret Graves, LA 

Dan Newhouse, WA 

Ryan K. Zinke, MT 

Jody B. Hice, GA 

Aumua Amata Coleman Radewagen, AS 

Thomas MacArthur, NJ 

Alexander X. Mooney, WV 

Cresent Hardy, NV 

Grace F. Napolitano, CA 

Madeleine Z. Bordallo, GU 

Jim Costa, CA 

Gregorio Kilili Camacho Sablan, CNMI 

Niki Tsongas, MA 

Pedro R. Pierluisi, PR 

Jared Huffman, CA 

Raul Ruiz, CA 

Alan S. Lowenthal, CA 

Matt Cartwright, PA 

Donald S. Beyer, Jr., VA 

Norma J. Torres, CA 

Debbie Dingell, MI 

Ruben Gallego, AZ 

Lois Capps, CA 

Jared Polis, CO 

Vacancy 

Jason Knox, Chief of Staff 

Lisa Pittman, Chief Counsel 

David Watkins, Democratic Staff Director 

Sarah Parker, Democratic Deputy Chief Counsel 

SUBCOMMITTEE ON INDIAN, INSULAR AND ALASKA NATIVE AFFAIRS 

DON YOUNG, AK, Chairman 

RAUL RUIZ, CA, Ranking Democratic Member 

Dan Benishek, MI 

Paul A. Gosar, AZ 

Doug LaMalfa, CA 

Jeff Denham, CA 

Paul Cook, CA 

Aumua Amata Coleman Radewagen, AS 

Rob Bishop, UT, ex officio 

Madeleine Z. Bordallo, GU 

Gregorio Kilili Camacho Sablan, CNMI 

Pedro R. Pierluisi, PR 

Norma J. Torres, CA 

Rau ́l M. Grijalva, AZ, ex officio 

(III) 

CONTENTS 

Page 

Hearing held on Wednesday, April 22, 2015 ......................................................... 1 

Statement of Members: 

Ruiz, Hon. Raul, a Representative in Congress from the State of 

California ....................................................................................................... 3 

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

Young, Hon. Don, a Representative in Congress from the State of Alaska . 2 

Prepared statement of ............................................................................... 3 

Statement of Witnesses: 

Blumenthal, Hon. Richard, a United States Senator from the State of 

Connecticut .................................................................................................... 6 

Cladoosby, Brian, President, National Congress of American Indians, 

Embassy of Tribal Nations, Washington, DC ............................................. 21 

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

Gobin, Glen, Vice Chairman and Business Committee Chair, Tulalip 

Tribes, Tulalip, Washington ......................................................................... 36 

Prepared statement of ............................................................................... 38 

Martin, Robert, Morongo Band of Mission Indians, Banning, California .... 33 

Prepared statement of ............................................................................... 34 

Mitchell, Donald C., Attorney at Law, Anchorage, Alaska ........................... 40 

Prepared statement of ............................................................................... 41 

Sharp, Fawn, President, Quinault Indian Nation, Taholah, Washington ... 13 

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

Washburn, Kevin K., Assistant Secretary, Indian Affairs, U.S. Department of the Interior, Washington, DC ........................................................ 9 

Prepared statement of ............................................................................... 10 

Additional Materials Submitted for the Record: 

Courtney, Hon. Joe, a Representative in Congress from the State of 

Connecticut, Prepared statement of ............................................................ 68 

Jepsen, George, Attorney General, State of Connecticut, May 4, 2015 

Letter to Chairman Young ........................................................................... 69 

List of documents submitted for the record retained in the Committee’s 

official files .................................................................................................... 71 

RPA—Regional Plan Association, April 21, 2015 Letter to Congressman 

Hakeem Jeffries ............................................................................................ 70 

Thompson, Hon. Mike, a Representative in Congress from the State of 

California, Prepared statement of ............................................................... 69 

(1) 

OVERSIGHT HEARING ON THE OBAMA ADMINISTRATION’S PART 83 REVISIONS AND 

HOW THEY MAY ALLOW THE INTERIOR 

DEPARTMENT TO CREATE TRIBES, NOT 

RECOGNIZE THEM 

Wednesday, April 22, 2015 

U.S. House of Representatives 

Subcommittee on Indian, Insular and Alaska Native Affairs 

Committee on Natural Resources 

Washington, DC 

The subcommittee met, pursuant to notice, at 4:47 p.m., in room 

1324, Longworth House Office Building, Hon. Don Young [Chairman of the Subcommittee] presiding. 

Present: Representatives Young, Benishek, Gosar, LaMalfa, 

Cook, Radewagen, Bishop; Ruiz, and Torres. 

Also present: Representatives Courtney and Esty. 

Mr. YOUNG. The committee will come to order. I do apologize, ladies and gentlemen, for the delays. I have no control over the voting. If I could talk the Speaker to give me that control, we would 

have a pretty good-run system. But that is not going to happen. 

[Laughter.] 

Mr. YOUNG. They don’t particularly like my opinions about time. 

We are averaging about 28 minutes per vote now. It is supposed 

to be 15 and 2. And no one quite understands that. 

But again, everybody is here, and I thank you for your patience. 

I will have an opening statement, and when the Ranking Member 

gets here, I will—therefore, I ask unanimous consent that all Members with opening statements be made part of the hearing record, 

if they are submitted to the committee by 5:00 p.m. today. 

Before we begin, I would like unanimous consent to allow our colleagues from Connecticut, Congresswoman Elizabeth Esty and 

Congressman Joe Courtney, to participate in our hearings today. 

[No response.] 

Mr. YOUNG. Hearing no objection, so ordered. Today the 

subcommittee will examine—welcome, Doctor. 

Dr. RUIZ. Thank you. 

Mr. YOUNG. Congratulations, by the way. 

Dr. RUIZ. Thank you. 

Mr. YOUNG. I have not had a chance to do that. Of course, a 

picture. He has a new baby girl. 

Dr. RUIZ. Two. 

Mr. YOUNG. Two? Whoa. 

Dr. RUIZ. Girls. 

Mr. YOUNG. Doggone it. Never mind, I won’t say anything. 

2 

STATEMENT OF HON. DON YOUNG, A REPRESENTATIVE IN 

CONGRESS FROM THE STATE OF ALASKA 

Mr. YOUNG. The subcommittee will examine proposed revisions 

to a rule that will relax and eliminate key criteria by which the 

Department determines whether a group is an Indian tribe within 

the meanings of Federal law. The Department’s rule is contained 

as Part 83 of Title 25 of the Code of Federal Regulations. Accordingly, this is sometimes called the ‘‘Part 83 Process,’’ or the 

‘‘Federal Acknowledgment Process.’’ 

Federal recognition is not an act of symbolism. It carries with it 

a number of unique benefits, rights, and immunities for Indian 

tribes, including sovereign immunity in state and Federal courts, 

and a right to conduct gaming. The federalist system in the United 

States is affected because state jurisdiction is divested when land 

is acquired in trust for a newly recognized tribe. 

The impact of recognition affects Congress. When a new tribe is 

recognized, Congress must exercise increased appropriations to ensure that our trust responsibilities toward existing tribes, as 

required by law, are not diminished by the hundreds of tribes currently recognized. 

Finally, recognition affects other tribes. This is especially true for 

treaty tribes whose solemn treaty rights were negotiated with the 

United States and may be diminished by the recognition of splinter 

groups. 

For these reasons, the highest standards for extending recognition to a single new tribe must be applied, or the integrity and the 

statute of every recognized tribe will be undermined and diminished. Unfortunately, the proposed rule to Part 83 does not uphold 

high standards. I think, personally, it guts them. The proposal is 

fundamentally flawed, if implemented, the rule will lead to the executive branch creation of tribes, not the acknowledgment of tribes 

as authorized by Congress. 

As the Assistant Secretary highlights in his prepared statement, 

‘‘I have been among those calling for reforms in the recognition 

process.’’ But contrary to what the Assistant Secretary will testify, 

I call for reforming the procedures, not relaxing or eliminating the 

criteria for extending recognition. 

Moreover, I have cautioned the Department to review the source 

of its authority to maintain the Part 83 process. There is some dispute over the source of the Secretary’s authority to recognize tribes. 

One thing is clear: Congress has not established the criteria in the 

Department’s rule. 

In a March 26 letter signed by me, Chairman Bishop, and three 

Democratic colleagues, we advised Secretary Jewell that Part 83 

procedures ‘‘are not based on standards or guidelines established 

by Congress, whose power to regulate Indian affairs under Article 

1, Section 8 of the Constitution have been characterized by the 

Supreme Court as plenary and exclusive.’’ The letter further asks 

the Secretary to refrain from issuing final regulation until this 

committee has conducted necessary oversight and engaged with the 

Department’s officials to evaluate how to best address the controversial issues associated with recognizing new tribes. 

In spite of this respectful request, Mr. Kevin Washburn, the 

Department forwarded the rule 2 days ago to the Office of ManageVerDate Mar 15 2010 07:51 Sep 15, 2015 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 J:\114TH CONGRESS\INDIAN, INSULAR & ALASKA NATIVE AFFAIRS\04-22-15\94320.TXT
3 

ment and Budget for a final review. It, frankly, appears that this 

is a snub to this committee’s oversight function, and it is a snub 

to me, personally, and I do not take that lightly. 

[The prepared statement of Mr. Young follows:] 

PREPARED STATEMENT OF THE HON. DON YOUNG, CHAIRMAN, SUBCOMMITTEE ON

INDIAN, INSULAR, AND ALASKA NATIVE AFFAIRS

The subcommittee will examine proposed revisions to a rule that will relax—and 

eliminate—key criteria by which the Department determines whether a group is an 

Indian tribe within the meaning of Federal law. The Department’s rule is contained 

in Part 83 of Title 25 of the Code of Federal Regulations. Accordingly, it is sometimes called the ‘‘Part 83 process’’ or the ‘‘Federal Acknowledgment Process.’’ 

Federal recognition is not an act of symbolism. It carries with it a number of 

unique benefits, rights, and immunities for Indian tribes, including sovereign immunity in state and Federal courts, and the right to conduct gaming. The federalist 

system of the United States is affected because state jurisdiction is divested when 

land is acquired in trust for a newly recognized tribe. 

The impact of recognition affects Congress. When a new tribe is recognized, 

Congress must increase appropriations to ensure that our trust responsibilities toward existing tribes, as required by law, are not diminished for the hundreds of 

tribes currently recognized. 

Finally, recognition affects other tribes. This is especially true for treaty tribes 

whose solemn treaty rights negotiated with the United States may be diminished 

by the recognition of splinter groups. 

For these reasons, the highest standards for extending recognition to a single new 

tribe must be applied or the integrity and stature of every recognized tribe will be 

undermined and diminished. 

Unfortunately, the proposed rule to Part 83 does not uphold high standards. It 

guts them. The proposal is fundamentally flawed. If implemented, the rule will lead 

to the executive branch creation of tribes, not the acknowledgment of tribes as authorized by Congress. 

As the Assistant Secretary highlights in his prepared statement, I have been 

among those calling for reforms in the recognition process. But contrary to what the 

Assistant Secretary will testify, I called for reforming the procedures, not for relaxing and eliminating the criteria for extending recognition. 

Moreover, I have cautioned the Department to review the source of its authority 

to maintain the Part 83 process. There is some dispute over the source of the 

Secretary’s authority to recognize tribes. One thing is clear: Congress has not established the criteria in the Department’s rule. 

In a March 26th letter signed by me, Chairman Bishop and three Democratic colleagues, we advised Secretary Jewell that the Part 83 procedures—quote—‘‘are not 

based on standards or guidelines established by Congress, whose power to regulate 

Indian affairs under Article I, Section 8 of the Constitution has been characterized 

by the Supreme Court as ‘plenary’ and ‘exclusive’.’’ 

The letter further asks the Secretary to refrain from issuing final regulations 

until this committee has conducted necessary oversight and engaged with the 

Department’s officials to evaluate how to best address the controversial issues associated with recognizing new tribes. 

In spite of this respectful request, the Department forwarded the rule 2 days ago 

to the Office of Management and Budget for a final review. This appears to be a 

snub of this committee’s oversight function, and it is a snub that cannot be taken 

lightly. 

I now recognize the Ranking Member for any statement he may have. 

Mr. YOUNG. I now recognize the Ranking Member for any 

statement he may have. 

STATEMENT OF THE HON. RAUL RUIZ, A REPRESENTATIVE IN 

CONGRESS FROM THE STATE OF CALIFORNIA 

Dr. RUIZ. Thank you, Mr. Chairman. First, I want to thank 

Senator Blumenthal for joining us to offer his views. I also want 

to give a special thanks to Chairman Robert Martin from the 

4 

Morongo Band of Mission Indians from the great state of California 

and the great District 36 for coming here to testify. And I would 

like to thank all of the other tribal leaders who have come from far 

and wide to address this topic. 

Federal recognition is extremely important and valuable to a 

tribe’s economic and social condition. Recognition entitles tribes to 

distinctive benefits, including eligibility to participate in many 

Federal programs, receipt of services from Federal agencies, and 

sovereign governmental status regarding local jurisdiction and taxation. Most notably, however, Federal recognition enables tribes to 

petition the Secretary of the Interior to take land into trust for 

their benefit. 

Today we will be discussing the issue where the Federal acknowledgment process is set forth in Part 83 of Title 25 of the Code 

of Federal Regulations, better known as just ‘‘Part 83,’’ and the 

changes proposed by the Department of the Interior. 

Almost from the date of its inception, the Federal acknowledgment process has been plagued with problems. It has been criticized as being too slow, too expensive, inefficient, burdensome, 

intrusive, less than transparent, and unpredictable. There are 

many instances of tribes waiting decades to get a determination 

from the Department of the Interior. This process requires petitioners to dedicate thousands of hours at great expense to provide 

evidence to satisfy the mandatory criteria. Producing evidence can 

be an extremely difficult process for a group of people who, sometimes for hundreds of years, have had their sites, artifacts, and 

documents amassed, and often destroyed by various researchers, 

collectors, museum developers, et cetera. 

At a House hearing in 1994, Bud Shepard, the primary author 

of the original acknowledgment regulations stated, ‘‘I suppose that 

I would be redundant in saying that the regulations do not work. 

I think that they have never worked. Even during my tenure in office we realized that there were problems with the regulations.’’ 

The House of Representatives has held at least 10 hearings on 

the Federal acknowledgment process, or legislation to modify the 

process. And that is what brings us here today. The Administration 

has finally acted and put forth its proposed changes to the Federal 

acknowledgment process. This proposal has sparked a fierce debate 

in Indian Country, both for and against, and has brought to the 

forefront the issues of tribal sovereignty, history, and identification. 

The process must be made more transparent, less cumbersome, 

and more predictable. But, in doing so, we must not lower the bar 

on the standards for Federal recognition. As the Administration 

moves forward with promulgating a final rule, they must not lose 

sight of the integrity of the process. Our trust responsibility requires that we, as a Nation, do our due diligence when making 

these determinations. We may not all agree on the specifics, or 

even on the portions of the proposed rule before us today, but we 

all agree that it is a flawed system that needs to be addressed, and 

that this process needs to be fixed so that we can honor our commitments to our native people. 

I look forward to the testimony that will be provided today and 

to a spirited discussion. So, thank you very much, Mr. Chairman, 

and I yield back my time. 

5 

[The prepared statement of Dr. Ruiz follows:] 

PREPARED STATEMENT OF THE HON. RAUL RUIZ, RANKING MEMBER, SUBCOMMITTEE

ON INDIAN, INSULAR, AND ALASKA NATIVE AFFAIRS

Thank you Mr. Chairman. First, I want to thank Senator Blumenthal (D-CT) for 

joining us to offer his views. I also want to give a special thanks to Chairman 

Robert Martin from the Morongo Band of Mission Indians from the great state of 

California, and the great 36th Congressional District, for coming here to testify. And 

I would like to thank all of the other tribal leaders who have come from far and 

wide to address this topic. 

Federal recognition is extremely important and valuable to a tribe’s economic and 

social condition. Recognition entitles tribes to distinctive benefits, including eligibility to participate in many Federal programs, receipt of services from Federal 

agencies, and sovereign governmental status regarding local jurisdiction and taxation. Most notably, however, Federal recognition enables tribes to petition the 

Secretary of the Interior to take land into trust for their benefit. 

Today we will be discussing the issues with the Federal acknowledgment process 

set forth in Part 83 of Title 25 of the Code of Federal Regulations—better known 

as just ‘‘Part 83’’—and the changes proposed by the Department of the Interior. 

Almost from the date of its inception, the Federal acknowledgment process has 

been plagued with problems. It has been criticized as being too slow, too expensive, 

inefficient, burdensome, intrusive, less than transparent and unpredictable. There 

are many instances of tribes waiting decades to get a determination from the 

Department of the Interior. 

This process requires petitioners to dedicate thousands of hours at great expense 

to provide evidence to satisfy the mandatory criteria. Producing evidence can be an 

extremely difficult process for a group of people who, sometimes for hundreds of 

years, have had their sites, artifacts, and documents amassed, and often destroyed, 

by various researchers, collectors and museum developers. 

At a House hearing in 1994, Bud Shepard, the primary author of the original acknowledgment regulations, stated, ‘‘I suppose that I would be redundant in saying 

that the regulations do not work. I think that they have never worked. Even during 

my tenure in office, we realized that there were problems with the regulations.’’ 

The House of Representatives has held at least 10 hearings on the Federal acknowledgment process or legislation to modify the process. And that is what brings 

us here today. The Administration has finally acted and put forth it’s proposed 

changes to the Federal acknowledgement process. 

This proposal has sparked a fierce debate in Indian Country, both for and against, 

and has brought to the forefront the issues of tribal sovereignty, history and 

identification. 

The process must be made more transparent, less cumbersome, and more predictable, but, in doing so, we must not lower the bar on the standards for Federal recognition. As the Administration moves forward with promulgating a final rule, they 

must not lose sight of the integrity of the process. Our trust responsibility requires 

that we as a Nation do our due diligence when making these determinations. 

We may not all agree on the specifics, or even on portions of the proposed rule 

before us today, but we all agree that it is a flawed system that needs to be 

addressed, and that this process needs to be fixed so that we can honor our commitments to our Native People. 

I look forward to the testimony that will be provided today and to a spirited 

discussion. 

Thank you Mr. Chairman, and I yield back. 

Mr. YOUNG. I thank the gentleman. It is an honor to introduce 

a Senator that walked across the aisle to the House side. 

[Laughter.] 

Mr. YOUNG. Miracles never cease, but Blumenthal—thank you, 

Senator, for being here. And you are up. And you can take as long 

as you want, because you are a Senator, and I know how you all 

get. 

[Laughter.] 

Mr. YOUNG. I might tap a little after 10 minutes. But, please, 

Senator, go ahead. 

6 

STATEMENT OF THE HON. RICHARD BLUMENTHAL, A UNITED 

STATES SENATOR FROM THE STATE OF CONNECTICUT 

Senator BLUMENTHAL. Thanks, Mr. Chairman. As difficult as the 

walk was, I am honored to be here today, as I am always honored 

to come across the aisle to this body, where the people are so ably 

represented. And especially to be here with two of the best 

Members of this House, if I may say so, my colleagues, Representatives Courtney and Esty, who have taken a very strong interest, as 

reflected by their presence here today, in the subject that brings us 

together. And I want to thank you, Mr. Chairman, and Ranking 

Member Ruiz for the courtesy and the opportunity to be with you 

today as you exercise this really critically oversight function in the 

best tradition of the U.S. Congress. 

And I would almost say that the remarks that you have made, 

Mr. Chairman, summarize very cogently a number of the points 

that I wish to make today. But I want to thank a number of the 

leaders of the Native American tribal communities who are with us 

today. I want to thank some of the representatives of my own state 

who are here. And I also want to thank Kevin Washburn, a very 

distinguished member of the executive branch, the Assistant 

Secretary in the Department of the Interior Bureau of Indian 

Affairs, and also a leader in the Chickasaw Tribal Nation. 

And we are here at a critical turning point, as you remarked, Mr. 

Chairman. The proposed rules have been submitted to the OIRA, 

as it is called. It has a time limit for considering these proposed 

rules. In the meantime, there is continued uncertainty and doubt 

about what the rules will be. Clearly, the proposed rules that were 

issued on May 29, 2014—you have referred to them—were unacceptable. Not just unacceptable as a matter of policy, but actually 

illegal, as contrary to law. 

And I have taken a strong interest in these rules over, literally, 

two decades. As Attorney General of my state of Connecticut, I appeared before congressional bodies, I went to court, I participated 

in tribal recognition proceedings before agencies of the Department 

of the Interior. So I have a very strong familiarity and background 

in this area. And I think that where we can all agree is that the 

process is broken. The process needs reform. It has been, as Ranking Member Ruiz stated, expensive, inefficient, burdensome, intrusive, non-transparent, inconsistent, and unpredictable. Those are 

the words that Secretary Washburn uses to describe the present 

process. 

Mr. YOUNG. Stop for a minute. Whoever has those phones on, you 

know how I feel about that. Shut them off, or get out of the room, 

one or the other. It is against the House rules, it is impolite, and 

it is rude. 

Senator, you may proceed. 

Senator BLUMENTHAL. Thank you, Mr. Chairman. So, the agreement really is, I think, perhaps including everyone in this room, at 

least myself and, I think, the people who have spoken so far—and 

I am quoting Secretary Washburn, that we ‘‘need to expedite the 

process, and to upgrade the fairness, consistency, and transparency,’’ which means changing the process, not the rules. 

The proposed rules, and the changes they would make, in effect, 

not only lower the bar, they eviscerate and desecrate the bar, dilute 

7 

them to the point of being virtually meaningless. And just as examples, for the first time ever, previously denied petitions could be reopened. The starting date for proving continuous tribal existence 

would be changed from 1789 to 1934, which, even the Department 

of the Interior and Congress have rejected as a proposal in the 

past. 

The requirement for external identification as a tribe would be 

effectively wiped out. State reservations could be used as a proxy, 

or a substitute for proving tribal existence, even though this 

approach has been consistently rejected by the Interior board of appeals and the courts in Connecticut cases where we have litigated 

it. Petitioners could rely on multiple 20-year gaps in evidence. The 

burden of proof would be relaxed and interested parties would be 

virtually wiped out of the process, despite the key role that they 

may have played in previous determinations. 

This proposed rule is a disservice to everyone involved in the 

process. My hope is that there have been substantial revisions in 

it, as the revised draft has been submitted now to OIRA and the 

Office of Management and Budget. And I hope that the changes in 

that proposed rule are sweeping, significant, and far-reaching, so 

as to preserve the rules that exist now. 

I just want to finish on this note, Mr. Chairman, and I appreciate your courtesy in giving me a little bit more time. You know, 

the simple fact is that if these rules are not significantly changed, 

we are going to see years of litigation, which will further delay recognition proceedings, add additional uncertainty and doubt to the 

results and, in fact, undermine the sense of trustworthy and legitimate process that tribal groups deserve, states need, and Members 

of Congress have an obligation to provide. 

And one of the changes in the rule, in fact, eliminates a part of 

the process that currently expedites decisions, because the rule as 

originally proposed would delay final decisions on tribal recognition 

by eliminating the administrative appeal process, and forcing parties to go directly to court. We need to be careful as to what we 

do to the process, as well as what we may do to the rules. I think 

that we are potentially on the verge of a disaster, if these rules 

have not been significantly changed. 

But my hope, based on what I have heard, is that the Department of the Interior has listened, has heeded what it has heard in 

the 3,000 comments submitted by September 30, the deadline for 

the comments to be given to the Department of the Interior, that 

the rule of law will be upheld. And I think that is the critical point 

here. Congress has set the rule of law. It set criteria. And those 

criteria need to be respected, in part because of our respect for the 

importance of tribal recognition and the elements of sovereignty 

that it grants. 

I have great respect for the sovereignty of our Native American 

tribes. And that is why I want the rule of law to be upheld as it 

applies to this process, so that we do not, in effect, eviscerate the 

credibility and the trustworthiness of recognition, which those 

groups already recognized have been given, and that they deserve. 

The credibility, trustworthiness, and legitimacy of this process can 

be preserved if these Department of the Interior proposals are 

8 

sweepingly and significantly changed before they are issued out of 

OIRA. 

Thank you, Mr. Chairman. I would be happy to answer any questions, but I know you have other testimony, and I really do appreciate this opportunity to testify, and to share with you views that 

I think are reflective of our entire delegation. We work very closely 

together, including my colleague in the United States Senate, 

Senator Chris Murphy, and two of my colleagues who are here 

today. 

[No official prepared statement was submitted by Senator 

Blumenthal.] 

Mr. YOUNG. Thank you, Senator. I appreciate your testimony. I 

would request one thing from you—I don’t have a question of you. 

Being that you are experienced in this arena, and with the 

Attorney General and your participation, I hope you take the time 

to communicate your concerns if this rule comes out the way you 

don’t like it, so we can look at that, and maybe we can figure out 

a way to rectify some of the mistakes the Department may make. 

I don’t know, I haven’t seen the rule, so I have no knowledge of 

what is going on, the proposed new one. So, just do that, keep that 

in mind. We are on the House side, and we will be addressing this 

issue through this committee, one way or the other. We may be 

happy, I don’t know. 

Senator BLUMENTHAL. I would be happy to share our views with 

you, Mr. Chairman. I can tell you I will be one of the first in line 

at the courthouse door if I believe that these rules are inconsistent 

with the statutes. I will be supporting action to strike them down. 

And I am sure there will be litigation resulting from it, so we won’t 

be shy about expressing our views and the lack of transparency. 

None of us know what these proposals are that have been submitted to OIRA. 

Mr. YOUNG. Thank you. 

Senator BLUMENTHAL. And I think that is troubling. 

Dr. RUIZ. I just want to say thank you, Senator Blumenthal, and 

we look forward to working with you and having further discussions about the importance of getting this right. 

Mr. YOUNG. With that, you are excused. 

Senator BLUMENTHAL. Thank you. 

Mr. YOUNG. And welcome, Mr. Chairman. I am glad to see you 

here. Would you like to sit in the chair? Are you OK? 

[Laughter.] 

Mr. BISHOP. But I am sitting in a chair. 

Mr. YOUNG. Oh, that is true. But it is not as comfortable as this 

one. OK, thank you, sir. 

Senator, thank you. 

Senator BLUMENTHAL. Thank you very much, Mr. Chairman, and 

Mr. Chairman. 

Mr. YOUNG. Now we have the panel coming forth, Kevin 

Washburn, Assistant Secretary, Indian Affairs, Department of the 

Interior; Brian Cladoosby, President, National Congress of 

American Indians, Embassy of Tribal Nations; Chairman Robert 

Martin, Morongo Band of Mission Indians, Banning, California— 

that is in your district? 

Dr. RUIZ. Yes. 

9 

Mr. YOUNG. Oh, OK. I should have let you introduce him, I am 

sorry. 

Mr. Glen Gobin, Vice Chairman and Business Committee Chair, 

Tulalip Tribes, Tulalip, Washington; The Honorable Fawn Sharp, 

President of the Quinault Indian Nation, Taholah, Washington; 

and Mr. Don Mitchell, Attorney at Law, Anchorage, Alaska. 

And I remind all of you, you have 5 minutes. And I may extend 

it to some degree. 

I would suggest one thing to the members of the committee, if 

possible. Mr. Mitchell has written a very, I would say, telling memo 

on this. And if he will issue that to you, if it is not in the testimony, read it, because his testimony is too long. That is what I am 

saying this for. So we have to figure that out. 

But, anyway, Kevin, you are up, Mr. Secretary. 

STATEMENT OF KEVIN K. WASHBURN, ASSISTANT SECRETARY, 

INDIAN AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR, 

WASHINGTON, DC 

Mr. WASHBURN. Chairman, thank you so much, Ranking 

Member. And I would also be willing to offer my chair to Chairman 

Bishop, too, although I don’t know if it would be as comfortable. 

[Laughter.] 

Mr. WASHBURN. Chairman, this is very important work. We have 

a trust responsibility to Indian tribes. And if there is a legitimate 

tribe out there who we have not recognized, then that is an injustice. And that is why we do this work, because we have a trust responsibility to tribes. 

It is very difficult work. We have a diligent staff of experts, historians, and ethnologists, anthropologists and genealogists, that is, 

who use careful procedure, and they use peer review. These are 

people who, if they weren’t doing this work, they would be teaching 

at universities or doing research at the Library of Congress or 

something like that. It is very hard work, and sometimes very rewarding, although sometimes they deliver bad news. 

In fact, in the history of this process, 34 groups have been denied 

recognition, and only 17 have been recognized. During the time of 

this group’s work, the Office of Federal Acknowledgment, Congress 

itself has recognized far more tribes than the Department has 

through this process. 

We talked about some of the adjectives to apply to the process, 

that it is too slow, that it is too expensive, inefficient, burdensome, 

and so on. And we have heard that many times before. In part, 

that is a reflection of the rigor of the process. It is a very rigorous 

process, and it should be a rigorous process, because legitimacy and 

integrity is exceedingly important here. We don’t want anybody to 

get through the process that is not a legitimate tribe, because, you 

know, the trust responsibility is at stake. 

And our goal with this process is to maintain that integrity and 

that rigor, but also address these other issues that Senator 

Blumenthal has raised in the past, and, Chairman, you have raised 

in the past, and so many others have raised in the past. And this 

is definitely evidence that no good deed goes unpunished, because 

we have been yelled at for 20 years about how this process is broken, and we have taken a real effort to try to fix it. 

10 

We have used a process that is—well, we have used more process 

than we have in virtually any other rulemaking we have ever done, 

including 11 meetings with tribes and with the public around the 

country over the course of two different drafts. 

In our first draft, our discussion draft that we put out just to 

start the discussion, we put a lot of ideas in there. And, frankly, 

we have backed off of some of those ideas. Our proposed rule was 

more conservative than what we originally put out in the discussion draft. And no one here has seen it, so, you know, I am the only 

one who has. But our final rule will be yet again more conservative 

than what we put out in the proposed rule, because we have been 

listening. We have gotten lots of comments, and we have been listening to those comments, and we are reacting accordingly. 

We do believe that we have found a way to improve transparency, timeliness, and efficiency. In some respects, that will 

produce quicker rejections, quicker disapprovals of these groups, 

and that will be a good thing, too, because those people can get on 

with their lives. But it is important to us to maintain the legitimacy and the rigor of the process at all costs. And we do intend 

to do that. And we have heard loud and clear the concerns about 

changing the criteria, and we are endeavoring to make sure that 

we listen to the comments that we have heard. 

I think I can probably stop there and yield back a minute-anda-half for the other witnesses. Thank you. 

[The prepared statement of Mr. Washburn follows:] 

PREPARED STATEMENT OF KEVIN K. WASHBURN, ASSISTANT SECRETARY—INDIAN

AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR

‘‘I think we can all agree that reforms to expedite the process and to upgrade 

fairness, consistency, and transparency are warranted.’’ 

Congressman Don Young (R-AK), H. Hrg. No. 110–47 (10/03/07). 

Good afternoon Chairman Young, Ranking Member Ruiz, and members of the 

subcommittee. My name is Kevin Washburn, and I am a member of the Chickasaw 

Nation of Oklahoma, and currently serve as the Assistant Secretary—Indian Affairs 

at the Department of the Interior (Department). Thank you for the opportunity to 

provide an overview of the Department’s efforts to improve the Department’s 

Federal acknowledgment process. We are endeavoring to provide reforms to accomplish the goals that Chairman Young has identified in the Department’s Federal acknowledgement process. 

As the committee is well aware, Congress possesses the plenary power and authority to grant (or terminate) the Federal recognition of Indian tribes. The work 

of Congress in this area is legitimate and important. Notwithstanding the plenary 

power of Congress in tribal recognition, the Department also plays a role in this 

area. Because the Department must provide programs and services to eligible 

Indian tribes in implementing its responsibilities under Federal law, the Department must routinely decide whether to acknowledge a group as an Indian tribe. As 

a practical matter, Congress and the executive branch have proceeded on simultaneous tracks to consider acknowledgement of Indian tribes. 

When the Department, rather than Congress, acts to acknowledge a petitioning 

group as an Indian tribe, it is imperative that the Department’s work is trustworthy 

and that the ensuing decisions are perceived by the public as legitimate. The 

Department’s administrative process for acknowledging a petitioner as an Indian 

tribe is set forth at Part 83 of Title 25 of the Code of Federal Regulations (Part 83 

Process), ‘‘Procedures for Establishing that an American Indian Group Exists as an 

Indian Tribe.’’ These regulations, first promulgated in 1978, provide a formal and 

rigorous process for establishing that an Indian group exists as an Indian tribe. 

Since 1978, the Department has recognized 17 tribes and denied 34 groups 

through the Part 83 Process. The Indian tribes most recently recognized by 

Congress are the Federated Indians of Graton Rancheria and the Shawnee Tribe, 

both in 2000. The Indian tribes acknowledged most recently through the Part 83 

11 

1 Cong. Rec. H9459 (10/05/98). 

2 H. Hrg. No. 110–47 (10/03/07). 

3 H. Hrg. No. 110–47 (10/03/07). 

4 H. Hrg. No. 110–47 (10/03/07). 

5S. Hrg. 112–684 (7/12/12). 

6S. Hrg. 111–470 (11/4/09). 

7S. Hrg. 111–470 (11/4/09). 

8S. Hrg. 110–686 (9/25/08). 

9S. Hrg. 111–470 (11/4/09). 

10S. Hrg. 111–470 (11/4/09). 

Process are the Mashpee Wampanoag Tribe in 2007 and the Shinnecock Indian 

Nation in 2010. 

Over the course of resolving more than 50 petitions for Federal acknowledgment, 

the Part 83 Process has been controversial and frequently criticized. The good work 

and leadership of previous subcommittees and predecessor Natural Resources 

Committees produced a voluminous record of both perceived shortcomings of the 

Part 83 Process and potential solutions. In Congressional hearings, members of this 

chamber have repeatedly explained for the past two decades that the process is broken and in need of reform. These concerns have been identified on both sides of the 

aisle and in both chambers of Congress. Well over 15 years ago, Chairman Don 

Young described the process as ‘‘slow, cumbersome, and enormously expensive[.]’’ 1

Congressman Tom Cole has made similar statements, explaining that the process 

is controversial, complex, bureaucratic, and ‘‘has not worked well.’’ 2 Congressman 

Eni Faleomavaega said that the process ‘‘needs reform’’ and described it as ‘‘cumbersome.’’ 3 Congressman Dale Kildee also said that the ‘‘process is broken’’ and also 

expressed concern about the time it takes for decisions.4

Similar assertions have come from members of the other chamber, including, for 

example: Senate Indian Affairs Chairman John Barrasso (urging progress in fixing 

the acknowledgement system),5 Senate Indian Affairs Ranking Member Jon Tester 

(‘‘the process is broken’’),6 Senate Indian Affairs former Ranking Member Lisa 

Murkowski (‘‘the process is one that just does not work’’),7 then Senate Indian 

Affairs Chairman Byron Dorgan (‘‘it is quite clear the process for acknowledgment 

is broken.’’),8 Senator Tom Udall (discussing ‘‘the pitfalls and the long and complicated and even unclear process of Federal acknowledgement’’),9 and Senator Bill 

Nelson (describing ‘‘a process that needs to be repaired and that needs to be improved’’).10 The work of House and Senate leaders on legislation and oversight hearings over the years has been enormously helpful in charting a path forward. 

To summarize all of the many comments we have heard over the years from 

Members of Congress, the process is slow, expensive, inefficient, burdensome, intrusive, non-transparent, inconsistent, and unpredictable. 

Of course, we have heard similar concerns expressed by the National Congress of 

American Indians, which has wide representation across Indian country, as well as 

numerous individual Indian tribes, petitioning groups, states and local governments, 

and other members of the public. Because of these criticisms, the Department believed that it was sensible to develop a reform initiative. The Department has taken 

the criticisms to heart as it has considered steps toward reform. 

I began working on this issue almost as soon as I undertook my position as Assistant Secretary. In March of 2013, I shared with this committee the progress the 

Department had made to identify guiding principles of improvement: transparency, 

timeliness, efficiency, and flexibility. We also shared our path forward—issuance of 

a discussion draft of potential changes in the spring of 2013, consultation and public 

input on the discussion draft, preparation of a proposed rule, followed by another 

round of consultation and public input on the proposed rule. 

Our efforts to obtain tribal and public input have been more robust than our process for any other rulemaking in the last 6 years. We have held 22 meetings (11 tribal consultations and 11 public meetings) and 4 nationwide teleconferences. Over the 

past 2 years, we have received thousands of comments on this regulatory initiative, 

including comments from states and local governments, federally recognized Indian 

tribes, inter-tribal organizations, non-federally recognized tribes, and members of 

the public. While this extensive public process has required us to move more slowly 

than we would have liked (and thus prevented us from issuing a final rule in 2014 

as I had optimistically forecast), our goal is to issue a final rule this year. 

BACKGROUND OF THE CURRENT FEDERAL ACKNOWLEDGMENT PROCESS

The day-to-day work of implementing the Part 83 Process regulations is performed by the Office of Federal Acknowledgment (OFA), which is located within the 

Office of the Assistant Secretary—Indian Affairs. OFA makes acknowledgment recVerDate Mar 15 2010 07:51 Sep 15, 2015 Jkt 000000 PO 00000 Frm 00015 Fmt 6633 Sfmt 6621 J:\114TH CONGRESS\INDIAN, INSULAR & ALASKA NATIVE AFFAIRS\04-22-15\94320.TXT
12 

ommendations to the Assistant Secretary. OFA is currently staffed with a Director 

and a professional staff consisting of four anthropologists, four genealogists, four 

historians, and an administrative assistant. Generally, a team composed of one professional from each of these three disciplines is constructed to review each petition. 

It is difficult, detail-oriented work performed by experts. 

The Part 83 Process regulations set forth seven mandatory criteria that a petitioner must satisfy. The Department considers a criterion satisfied if the available 

evidence establishes a reasonable likelihood of the validity of the facts relating to 

that criterion. Conclusive proof of the facts relating to a criterion is not required 

and the Department does not apply a ‘‘preponderance of the evidence’’ standard to 

each criterion. 

Although these criteria have remained largely unchanged since 1978, the Department in 1994 changed the criterion of external identification as an American Indian 

entity to require that it be demonstrated since 1900 rather than first sustained contact to avoid problems with historical records in earlier periods while retaining the 

requirement for substantially continuous identification as an American Indian entity. The Department also added a section relating to previous Federal acknowledgment for those petitioners that had evidence such as treaty relations with the 

United States or treatment by the Federal Government as having collective rights 

in tribal lands or funds. 

PRINCIPLES GUIDING IMPROVEMENTS IN THE FEDERAL ACKNOWLEDGMENT PROCESS

Following years of criticism described, in part, above, the Department began an 

intensive internal review of the Part 83 Process regulations at the beginning of the 

Obama administration in 2009, including obtaining input from the Office of the 

Assistant Secretary—Indian Affairs, OFA, and the Office of the Solicitor. From our 

review, it is clear that much of the time and expense of the Part 83 Process flows 

directly from an ever-increasing documentary burden and the lack of clarity of the 

process. We accepted the criticism in good faith and sought ways to address the criticism. By 2012, the Department developed consensus that improvements to Part 83 

Process must address certain guiding principles: 

• Transparency—ensuring that standards are objective, consistent and that 

the process is open and is easily understood by petitioning groups and 

interested parties. 

• Timeliness—moving petitions through the process, responding to requests 

for information, and reaching decisions as soon as possible, while ensuring 

that the appropriate level of review has been conducted. 

• Efficiency—conducting our review of petitions to maximize results from 

expended Federal resources and to be mindful of the resources available to 

petitioning groups. 

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

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

histories of tribal communities. 

Once the Department identified the principles for reform, we created an internal 

workgroup to develop options to improve the Part 83 Process under these guiding 

principles. As a result of extensive meetings of this core workgroup, the Department 

released a discussion draft on June 21, 2013, and announced public meetings and 

tribal consultation sessions. Throughout July and August 2013, the Department 

hosted tribal consultation sessions for representatives of federally recognized Indian 

tribes and separate public hearing sessions for interested individuals or entities at 

five locations across the country. 

During these sessions, serious efforts were undertaken to capture meaningful 

comments on our discussion draft and other suggestions for reform. A professional 

court reporter transcribed each session. The Department made the transcripts available on its Web site and posted each written comment it received also on its Web 

site. At the request of states, Indian tribes, and others, the original comment deadline of August 16, 2013, was extended to September 30, 2013, to allow additional 

time to provide input. Tribal and public engagement at this stage of the reform initiative was incredibly robust. Commenters submitted more than 200 unique written 

comment submissions but, in total, more than 4,000 commenters provided input 

through form letters and signed petitions. 

When the comment period on the discussion draft closed, the Department’s internal workgroup began reviewing each written and oral comment on the discussion 

draft. During this review process, which also involved regular team meetings, it 

began to formulate a draft proposed rule. Prior to publication, the draft proposed 

rule was reviewed by OMB and Federal agencies. 

13 

On May 29, 2014, the Department published the proposed rule in the Federal 

Register. The publication also announced that the Department would be hosting additional tribal consultation sessions and public meetings at six locations across the 

country in July 2014. In response to requests for extension, the Department extended the original comment deadline of August 1, 2014, to September 30, 2014. In 

response to requests for additional meetings at additional locations, the Department 

announced the addition of two more tribal consultation sessions and two more public 

hearings to be held by teleconference in August and early September of 2014. The 

Department again made transcripts of all sessions available on its Web site and 

made all written comments available on www.regulations.gov. Tribal and public engagement was again robust. Commenters provided more than 300 unique comment 

submissions on the proposed rule, and more than 3,000 commenters provided input 

through signatures on form letters or petitions. 

Since September 30, 2014, when the comment period on the proposed rule closed, 

the Department’s internal workgroup has been reviewing the comments and drafting a final rule. The internal workgroup has included representatives of the Office 

of the Assistant Secretary—Indian Affairs, OFA, the Office of the Solicitor, the 

Office of Hearings and Appeals, and the U.S. Department of Justice. The comments 

provided have been extraordinarily helpful to the Department as it moves forward 

drafting a final rule. Just as the proposed rule was the product of extensive comments on the discussion draft, we anticipate that the final rule will reflect additional changes following comments on the proposed rule. As I previously testified, 

the work of this committee and the Senate Committee on Indian Affairs in previous 

Congresses has been extraordinarily helpful to inform our thinking as we move forward with a final rule. 

CONCLUSION

I would like to thank you for the opportunity to provide my statement on the process of updating the Federal acknowledgment regulations. I will be happy to answer 

any questions the subcommittee may have. 

Mr. YOUNG. Thank you, Kevin. I appreciate that. Your words 

sound good, and I hope we are able to look at this later on and say 

everything is hunky-dory. But that is why we are having the 

oversight. 

Ms. Fawn Sharp, I understand you have another very important 

engagement down at the Hawk and Dove, and—— 

[Laughter.] 

Mr. YOUNG. Can I join you? 

Ms. SHARP. Absolutely. 

Mr. YOUNG. I am going to recognize you, and not disrespect the 

other panel, but because you do have a previous engagement, I will 

let you go next. 

Ms. SHARP. Yes, I appreciate that. Thank you very much. 

STATEMENT OF FAWN SHARP, PRESIDENT, QUINAULT INDIAN 

NATION, TAHOLAH, WASHINGTON 

Ms. SHARP. Chairman Young, Ranking Member Ruiz, and members of the subcommittee, my name is Fawn Sharp, President of 

the Quinault Indian Nation, and I truly appreciate and am honored 

for this opportunity to testify. 

I am not here today to oppose or challenge the right of any group 

to seek a political relationship with the United States. Instead, I 

am here to defend the sovereignty of the Quinault Nation, and our 

exclusive authority to govern our lands, territories, and people. 

For more than a century, the Quinault Nation has been under 

attack from descendants of the Chinook peoples. We have had all 

branches of government—we have been faced with these various 

attacks in the court, in the Congress, and through the administraVerDate Mar 15 2010 07:51 Sep 15, 2015 Jkt 000000 PO 00000 Frm 00017 Fmt 6633 Sfmt 6602 J:\114TH CONGRESS\INDIAN, INSULAR & ALASKA NATIVE AFFAIRS\04-22-15\94320.TXT
14 

tive process. The solemn promises that we have with the United 

States are detailed in the Treaty of Olympia. That treaty provides 

an extensive number of issues for which the United States recognizes our exclusive authority over our people and territory. 

We are forced to spend considerable time and resources at great 

expense to defend against these repeated assaults on our tribal sovereignty. The Federal courts and the Administration have consistently found that the Quinault Nation has the exclusive authority 

to govern our reservation, and to regulate the exercise of treaty 

rights under the Treaty of Olympia. 

The BIA’s proposed revisions to the Federal acknowledgment 

process hold the potential to reopen these settled decisions, which 

will force us, once again, to re-litigate and defend our treaty and 

sovereignty rights. For the past 47 years, the BIA has used the 

Federal acknowledgment process to restore or reaffirm a government relationship with tribes through an administrative process. 

The stated purpose is to streamline the process, to increase 

transparency, efficiency, and consistency. However, several of the 

proposed revisions undercut these goals by reopening petitions that 

had been finalized after decades of litigation, and by fundamentally 

changing the mandatory criteria for acknowledgment that could adversely affect existing tribes, such as Quinault. 

Today I will focus on two provisions: the provision authorizing repetitions for groups previously denied acknowledgment; and the 

provision that presumes the community and political authority criteria on—showing that the U.S. held lands for ancestors of the petitioner at any point. 

First, the Quinault Nation strongly opposes the proposal that 

would allow previously denied groups the opportunity to repetition. This provision would only serve to lengthen and undermine the Federal acknowledgment process, prevent interested 

parties from voicing concerns, and it will reopen final decisions 

that have been relied upon by existing tribes. 

Department officials have stated that the purpose for reforming 

the regulations was not to hit the reset button. However, this provision does exactly that. It permits groups to hit the reset button, 

while ignoring the vested interests of existing tribes. 

Considerations of efficiency and finality, and the fundamental 

legal principle of res judicata support maintaining the existing prohibition against re-application by groups previously denied. 

Second, the Quinault Nation opposes the revision to permit a 

showing that the U.S. held land for the petitioner as conclusive evidence to meet the distinct community and political authority criteria. In 2002, the Interior Department rejected similar factors as 

meeting the mandatory criteria in the petition submitted by the 

Chinook descendants. The Department based its reconsidered final 

determination on more than a century of court decisions, and the 

findings of historical and legal experts. 

The BIA’s proposed revisions hold great potential to overturn 

these decisions, and force the Quinault Nation to once again relitigate these attacks on our sovereignty. As a result, we strongly 

oppose adding the factor that the United States has held land for 

the petitioners as dispositive evidence. 

15 

In closing, I want to make it clear that the Quinault Nation has 

a great deal of respect for the Chinook Indian people. However, the 

issues we raise today relate to the longstanding and unique obligations that the United States owes to the Quinault Nation. Our 

Nation’s inherent interests emanate from that relationship, and are 

outlined in the treaty with the United States. We have invested 

nearly a century in defending our treaty rights and sovereignty 

from legal, administrative, and legislative challenges. Under no circumstances should the Administration authorize a process that 

would force us to re-litigate these past settled decisions. The 

Quinault Nation simply cannot support the revisions, as they hold 

the potential to reopen our treaty and sovereign rights. 

In addition, the revisions fail to uphold and establish the 

safeguards to protect the Federal Government’s treaty and trust 

obligation to the Quinault Nation. 

In sum, the proposed revisions, while well-intended, are flawed 

and misguided. 

I again want to thank the subcommittee for this opportunity to 

testify, and I am prepared to answer any questions that you may 

have. Thank you. 

[The prepared statement of Ms. Sharp follows:] 

PREPARED STATEMENT OF FAWN R. SHARP, PRESIDENT, QUINAULT INDIAN NATION

Chairman Young, Ranking Member Ruiz, and members of the subcommittee, I am 

Fawn R. Sharp, President of the Quinault Business Committee, the elected 

governing body of the Quinault Indian Nation (‘‘Quinault’’ or ‘‘Nation’’). On behalf 

of the Nation, I thank you for the opportunity to testify about the Bureau of Indian 

Affairs’ (‘‘BIA’’) proposed revisions to 25 C.F.R. Part 83, the Federal Acknowledgment Process (‘‘FAP’’). 

BACKGROUND/HISTORY OF THE QUINAULT INDIAN NATION

Located in the northwest corner of the United States, the Quinault Nation was 

one of the last Native nations in the United States to be contacted by the European 

nations. Less than 1 year before the foundation of the United States, the first recorded contact between the Quinaults and non-Indians occurred on July 13, 1775, 

when the Spanish vessel Sonora anchored several miles from the mouth of the 

Quinault River. Not long after first contact, our Nation was sadly subjected to the 

same greed for our homelands and natural resources that tribes across the continent 

faced. 

Upon its formation, the United States acknowledged the existing inherent sovereign authority of Indian tribes over their lands. The Federal Government entered 

into hundreds of treaties with Native nations to secure peace and trade agreements, 

to foster alliances, and to build a land base for the newly formed United States. 

Through these treaties, tribes ceded hundreds of millions of acres of our homelands. 

In return, the United States promised to provide for the education, health, public 

safety, and general welfare of Indian people. For the Quinault and other tribes, the 

United States also promised to preserve our rights to fish and hunt our aboriginal 

homelands and accustomed areas. 

The solemn promises that the United States made to the Quinault Nation were 

detailed in the Treaty of Olympia, signed on July 1, 1855 and on January 25, 1856 

(11 Stat. 971). The Treaty acknowledged Quinault’s status as a sovereign Nation 

with inherent rights to govern our lands, our resources, and our people. This includes access to our usual and accustomed lands and waters and the right to comanage the natural resources outside of our Reservation borders. The United States 

has unique legal treaty and trust responsibilities to keep these promises to the 

Quinault Indian Nation. 

The inherent self-governing authority of all Indian tribes is recognized in the U.S. 

Constitution. The Commerce Clause provides that ‘‘Congress shall have power to 

. . . regulate commerce with foreign nations, and among the several states, and 

with the Indian tribes.’’ Tribal citizens are referred to in the Apportionment Clause 

(‘‘Indians not taxed’’) and excluded from enumeration for congressional representaVerDate Mar 15 2010 07:51 Sep 15, 2015 Jkt 000000 PO 00000 Frm 00019 Fmt 6633 Sfmt 6621 J:\114TH CONGRESS\INDIAN, INSULAR & ALASKA NATIVE AFFAIRS\04-22-15\94320.TXT
16 

tion. The 14th Amendment repeats the original reference to ‘‘Indians not taxed.’’ 

These provisions acknowledge that Native Americans were citizens of and subject 

to the authority of their tribal governments and not citizens of the United States. 

Finally, the Constitution acknowledges that Indian treaties and the promises made 

therein are the supreme law of the land. By its very text, the Constitution establishes the framework for the Federal government-to-government relationship with 

Indian tribes. 

Over the past two centuries, the Federal Government has consistently violated 

these solemn obligations. In the late 1800s the Federal policy of forced Assimilation 

authorized the taking of Indian children from their homes. Many of our ancestors 

were sent to boarding schools where they were forbidden from speaking their language or practicing their religion. The officially sanctioned philosophy was to ‘‘kill 

the Indian, save the man.’’ The concurrent policy of Allotment sought to destroy 

tribal governing structures, sold off treaty-protected Native homelands, and devastated our economies. 

Under the authority of the Allotment policy and subsequent related laws, the 

Federal Government destroyed thousands of acres of Quinault Cedar forests making 

our homelands virtually unrecoverable. The aftermath of these policies continues to 

plague the Quinault Nation to this day. 

THE FEDERAL ACKNOWLEDGMENT PROCESS

Like the power to recognize foreign governments, the United States has the 

authority to determine which groups will be recognized as Indian tribes for governmental and political purposes. The Federal Government can establish this relationship in one of three ways: through the Federal courts, through an Act of Congress, 

and through the Federal acknowledgment process (‘‘FAP’’), 25 C.F.R. Part 83 (Prior 

to 1871, treaties were often used to establish these political relationships). 

The BIA promulgated the FAP in 1978 to establish standards for tribes not otherwise acknowledged that respect the great significance of a decision by the United 

States to enter into a political relationship with an Indian tribe. The stated purpose 

of the FAP ‘‘is to establish a departmental procedure and policy for acknowledging 

that certain American Indian groups exist as tribes, [which affords] the protection, 

services, and benefits of the Federal Government.. . . Acknowledgment shall also 

mean 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 as well as the responsibilities, powers, limitations and obligations of such tribes.. . .’’ 25 C.F.R. Part 83.2. The current FAP ‘‘is 

intended to apply to groups that can establish a substantially continuous tribal existence and which have functioned as autonomous entities throughout history until 

the present.’’ 25 C.F.R. 83.3. 

The importance of these regulations and the process cannot be overstated. The 

Federal administrative process to reaffirm or restore the political relationship between a tribe and the United States impacts not only the newly acknowledged tribe 

but can also impact existing federally recognized tribes. The newly acknowledged 

tribe will have sovereign authority to establish a land base, exercise civil and criminal jurisdiction over those lands, and will have a formal government-to-government 

relationship with the United States. Conversely, that same decision may have impacts on existing tribal governments, their rights, and their unique relationship 

with the United States. Of great importance to the Quinault Nation, the Department’s decisions may have the potential to adversely impact our treaty rights and 

the ability to govern actions on our Reservation. 

THE PROPOSED REVISIONS TO THE FAP: 79 FEDERAL REGISTER 30766–81 (MAY 29, 2014)

The stated purpose of BIA’s FAP revisions is to streamline the process to increase 

transparency, consistency, and efficiency. Quinault supports these goals. While some 

of the proposed revisions foster these goals, several of the proposed revisions undercut these goals by re-opening petitions that have been finalized after decades of 

debate and by fundamentally changing the mandatory criteria for Federal acknowledgment that could adversely impact existing tribal governments. 

The following comments and concerns with the proposed revisions to the FAP are 

best considered against the long held positions of the Quinault Indian Nation in response to attacks on our treaty rights and the authority to govern the Quinault 

Reservation that have been repeatedly lodged by descendants of the Chinook. 

Individuals claiming Chinook descendancy have made claims in the U.S. Courts 

and before Congress while attacking the Quinault Nation’s status as the federally 

recognized governing entity of the Quinault Indian Reservation. In 1988, Chinook 

and Cowlitz testified before Congress against the return of North Boundary lands 

17 

to the Quinault Nation. The two groups claimed that the Federal Government has 

improperly recognized the Quinault Nation as the tribal government over the 

Reservation and that eight tribes, including the Chinook have equal rights to share 

in the governance of the Reservation. In 1989, Chinook and other tribal groups filed 

suit in the U.S. District Court requesting that the Secretary of Interior be required 

to organize a new tribal organization to govern the Quinault Indian Reservation. 

The groups claimed to have equal rights with the Quinault Nation to govern the 

Quinault Indian Reservation. 

The Quinault Nation has consistently maintained that Chinook descendants do 

not satisfy Federal standards for recognition of the Chinooks as an independent 

tribe. The Interior Department concluded that the Chinook descendants have not 

existed as a separate social and political community before 1990. Over a hundred 

years of legal disputes have consistently found that the Chinook descendants have 

lacked a separate identity. Instead, in 1906, the Court of Claims found that the 

Chinook had long ago ceased to exist as a tribe. In 1928, the U.S. District Court, 

in the Halbert case found that there was no Chinook tribal organization. Even as 

the Federal Government provided for allotments on the Quinault Indian Reservation, those were based on Chinook descent, and not as a member of an existing 

Chinook tribal body. The BIA’s experts recommended against Chinook recognition 

based on the extensive records. 

The Quinault Nation has been forced to expend considerable resources to defend 

itself against such repeated assaults on its sovereignty. These are just a couple of 

examples of the ongoing issues that demonstrate the historic disputes the Chinooks 

have with the Quinault Indian Nation. The Quinault Nation spent nearly a century 

defending our treaty and self-governing rights against these attacks. Federal courts 

and administrative decisions have repeatedly upheld the exercise of Quinault treaty 

rights against claims of the Chinook. These decisions have found that only the 

Quinault Indian Nation has authority to govern the Quinault Reservation and to 

regulate the exercise of treaty rights reserved to the Quinault under the Treaty of 

Olympia. 

The BIA’s proposed revisions to the FAP regulations hold the potential to re-open 

these settled decisions and could force the Quinault Nation to re-litigate and again 

defend our solemn treaty rights and inherent sovereign authority to govern our 

homelands. 

Previously Denied Applicants May Re-Petition 

Proposed rule § 83.4(b) authorizes a group previously denied acknowledgment 

under Part 83 to re-petition for Federal acknowledgment under the revised rules 

once finalized. A petitioner may re-petition only if ‘‘[a]ny third parties that participated as a party in an administrative reconsideration or Federal Court appeal concerning the petitioner has consented in writing to the re-petitioning.’’ In addition, 

requests to be allowed to re-petition are to be reviewed by the Department’s Office 

of Hearings and Appeals, and decided on the basis of preponderance of evidence that 

changes in the regulations would produce a different result or there was a 

misapplication of the ‘‘reasonable likelihood’’ standard of proof. 

The proposal to authorize re-petitioning is unsound for a number of reasons. It 

will only serve to lengthen and undermine the Federal acknowledgment process, 

prevent interested parties from voicing concerns with applications to re-petition 

under the revised rules, and will re-open final decisions that have been relied upon 

by such interested parties. 

For example, despite the fact that previously denied petitions may have had multiple opposing parties, the language in proposed § 83.4(b) indicates that only one 

prior opposing third party would be required to consent, even if the others objected. 

The Department has repeatedly stated that the purposes of the proposed revisions 

are to increase efficiency, clarity, and transparency while maintaining the same requirements as the present regulations. However, § 83.4(b) clearly anticipates that 

the changes in the regulations will result in the acknowledgment of previously rejected petitioners. (See Proposed 83(b)(I)(ii)(A): ‘‘The petitioner proves, by a preponderance of the evidence, that a change from the previous version of the regulations 

to the current version of the regulations warrants reconsideration of the final determination.’’). As discussed in detail below, the proposed rule makes major changes 

to the acknowledgment process and criteria that would result in the acknowledgment of groups that do not meet the existing criteria for acknowledgment. 

The Clinton administration considered and rejected a similar proposal to authorize groups to re-petition under the 1994 revisions to the FAP. That administration 

reasoned, ‘‘there should be an eventual end to the present administrative process. 

Those petitioners who were denied went through several stages of review with multiple opportunities to develop and submit evidence. Allowing such groups to return 

18 

to the process with new evidence would burden the process for the numerous remaining petitioners. The changes in the regulations are not so fundamental that 

they can be expected to result in different outcomes for cases previously denied.’’ 

Federal Register Doc. No: 94–3934 (page unknown) (Feb. 25, 1994) (http:// 

www.gpo.gov/fdsys/pkg/FR-1994-02-25/html/94-3934.htm). 

With regard to the current proposed revisions, Department officials have stated 

publicly that the purpose for reforming the regulations ‘‘was not to hit the reset button’’ for tribes that have already gone through the process. The Department has acknowledged that when third parties invest time and resources into a process they 

develop equity in the outcome. As a result, those outcomes cannot be ignored. However, as noted above, under the proposed re-petitioning provision as written, opposition from third parties to a re-petition can be circumvented by gaining consent from 

another third party. 

Finally, Department officials have also publicly acknowledged that constitutional 

questions remain with regard to the third-party consent provisions included in the 

re-petitioning process. If the third party veto is found unconstitutional, it could result in striking the consent provisions while permitting previously denied petitioners to re-petition under the relaxed revised rules. 

The Quinault Indian Nation strongly opposes the proposed changes to Part 83 

that would allow previously denied groups the opportunity to re-petition under the 

revised FAP rules. As noted above, the Quinault Nation has defended our treaty 

rights and rights to govern our Reservation against attacks from descendants of the 

Chinook for decades. Quinault invested significant time and resources to successfully defend these rights. Considerations of efficiency and finality and the fundamental legal principle of res judicata support maintaining the existing prohibition 

against reapplication by groups previously denied. The Nation urges the Department to retain the current policy prohibiting groups from re-petitioning and eliminating the provisions related to re-petitioning from any final rule. 

Revised Standards for ‘‘Community’’ and ‘‘Political Authority’’ 

The proposed rule would substantially revise standards for determining whether 

a petitioning group meets the mandatory criteria for ‘‘community’’ and ‘‘political authority’’. The proposed revisions also permit additional forms of evidence to meet criteria (b) and (c), which make the demonstration of these criteria no stronger than 

that of a social club that holds elections by its membership. Together, these proposed revisions would fundamentally change these criteria to the point that it could 

adversely impact existing tribal governments and the Department’s treaty and trust 

obligations to all of Indian Country. 

The ‘‘mandatory criteria’’ under the current FAP regulations require a petitioner 

to show: (b) that a ‘‘predominant portion of the petitioning group comprises a distinct community and has existed as a community from historical times until the 

present’’; and (c) that it has ‘‘maintained political influence or authority over its 

members as an autonomous entity from historical times until the present.’’ 25 

C.F.R. Part 83.7(b), (c). 

The current rule defines community to mean ‘‘any group of people which can demonstrate that consistent interactions and significant social relationships exist within 

its membership and that its members are differentiated from and identified as distinct from nonmembers. Community must be understood in the context of the history, geography, culture and social organization of the group.’’ Part 83.1. It also 

defines the term ‘‘historical’’ to mean ‘‘dating from first sustained contact with nonIndians.’’ Id. 

The proposed rule would replace the ‘‘historical times’’ requirements of both (b) 

and (c), and establish ‘‘1934’’ as the new starting date for proving that a group 

meets the community and political authority criteria. 

In the rulemaking for the only previous revisions to the 1978 FAP, the Clinton 

administration rejected a proposal to change the starting point for meeting the 

‘‘distinct community’’ criterion from ‘‘historical times to the present’’ to ‘‘1934’’. 

‘‘The purpose of the acknowledgment process is to acknowledge that a 

government-to-government relationship exists between the United States 

and tribes which have existed since first contact with non-Indians. 

Acknowledgment as a historic tribe requires a demonstration of continuous 

tribal existence. A demonstration of tribal existence only since 1934 would 

provide no basis to assume continuous existence before that time. Further, 

the studies of unrecognized groups made by the Government in the 1930s 

were often quite limited and inaccurate. 

19 

Groups known now to have existed as tribes then, were portrayed as not 

maintaining communities or political leadership, or had their Indian 

ancestry questioned. Thus, as a practical matter, 1934 would not be a useful starting point.’’ 

Federal Register Doc. No: 94–3934 (page unknown) (Feb. 25, 1994) (http:// 

www.gpo.gov/fdsys/pkg/FR-1994-02-25/html/94-3934.htm). 

Of vital importance to the Quinault Nation, the proposed revised standards for 

recognition have the potential to undermine the Nation’s Treaty rights affirmed in 

U.S. v. Washington, 641 F.2d 1368, 1374 (9th Cir. 1981) (‘‘Washington II’’, a successor case to the historic Boldt decision). The Ninth Circuit in U.S. v. Washington, rejected the argument that ‘‘because their ancestors belonged to treaty tribes, the 

appellants benefited from a presumption of continuing existence.’’ The court further 

defined as a single, necessary and sufficient condition for the exercise of treaty 

rights, that tribes must have functioned since treaty times as ‘‘continuous separate 

and distinct Indian cultural or political communities.’’ Washington II, 641 F.2d at 

1374. 

The simple demonstration of ancestry is not sufficient for the exercise of treaty 

rights, and it should not be sufficient to meet the mandatory criteria for Federal 

recognition. 

Acknowledging groups that have failed to continuously maintain a community or 

exercise political control over its membership as federally recognized Indian tribes, 

devalues and undermine the status of all Indian tribes as sovereign political entities 

with significant governmental authority. These proposed changes hold the potential 

to redefine tribes as racial, rather than political entities. 

Holding Lands ‘‘at any point in time from 1934 to the present’’ 

A major proposed revision to the mandatory criteria is listed in proposed Parts 

83.11(b)(3)(ii) and (c)(3)(ii). If adopted, these proposals would conclusively determine 

that a showing that ‘‘the United States has held land for the petitioner or collective 

ancestors at any point in time from 1934 to the present’’ is evidence to meet the 

‘‘distinct community’’ and ‘‘political authority’’ criteria. See Proposed Parts 

§ 83.11(b)(3)(ii) and (c)(3)(ii). 

Proposed Parts § 83.11(b)(3)(ii) and (c)(3)(ii) fail to adequately explain how ‘‘held 

land for the petitioner or collective ancestors at any point in time from 1934 to the 

present’’ equates to a petitioner showing that it existed as a distinct community that 

has maintained political influence or authority without substantial interruption. 

These proposed revisions fail to include any qualifications for the term ‘‘held land’’ 

or a description of the basis for acquiring and holding such land, and thus are far 

too broad. Without more, this provision does not require the petitioner to show evidence of tribal existence or even implied Federal recognition. Where land was clearly purchased based on tribal existence and recognized status, this would equate with 

previous Federal recognition, and should be included as evidence for that point in 

time, but not as evidence for continued tribal existence after that point in time. The 

fact that the United States ‘‘held land’’ for a group of individuals does not mean that 

coordinated activities are occurring on the land or that there is a distinct government established to maintain the land. In addition, the fact that the United States 

held land for a petitioner in 1934 does not mean that the petitioner maintained existence as a community or exercised political authority over the group after that 

date. As a result, this section could apply to some petitioners that are made up of 

descendants of tribes for which a reservation was established (and continues to 

exist), but where these descendants had long since ceased to be affiliated with the 

tribe on the reservation or to form a community outside of it. 

For example, in the Northwest and elsewhere, reservations were established or 

enlarged by treaties and executive orders for historic tribes. Many members of those 

historic tribes integrated into the reservation communities of tribes that are currently recognized by the United States, while others did not. Proposed 

§ 83.11(b)(3)(ii) and (c)(3)(ii) would provide that petitioners demonstrate both community and political influence and authority without any additional evidence, if the 

United States has held land in trust for the petitioner or the petitioner’s collective 

ancestors at any time between 1934 and the present. 

Similar factors were specifically rejected as meeting criteria (b) and (c) in the petition submitted by the Chinook Indian Nation/Chinook Tribe (‘‘CIN/CT’’) pursuant to 

Part 83. 

In the case of the Quinault Nation, the United States opened our Reservation for 

allotment through several Acts of Congress. ‘‘The 1911 Quinault Allotment Act authorized allotments for ‘‘members’’ of certain ‘tribes’ affiliated with the Quinault and 

Quileute tribes ‘in’ an 1855/56 treaty. The Department granted allotments to indiVerDate Mar 15 2010 07:51 Sep 15, 2015 Jkt 000000 PO 00000 Frm 00023 Fmt 6633 Sfmt 6621 J:\114TH CONGRESS\INDIAN, INSULAR & ALASKA NATIVE AFFAIRS\04-22-15\94320.TXT
20 

vidual Chinooks without requiring membership in a Chinook tribe, and contended 

at the time that a Chinook tribe no longer existed.’’ See Reconsidered Final 

Determination Against Federal Acknowledgment of the CIN/CT, at 16 (July 5, 

2002). In denying the CIN/CT application for acknowledgment, the Secretary found 

that reference to the Chinook and ‘‘other tribes’’ as eligible for allotments was, by 

itself, insufficient to substantiate that the Chinook then comprised an existing tribe 

acknowledged by Congress as a distinct tribe still in existence. 

In 1912, Congress heard from the Chinook descendants through their attorney. 

The topic was U.S. payments for cessions described in an 1851 treaty negotiated 

with the then existing Chinook people. Congress never ratified the treaty, and when 

it considered payments to Chinook people, Congress considered payments only being 

made to descendants of a tribe that no longer existed. 

In 1925, Congress enacted another piece of claims legislation that authorized several ‘‘Tribes or Bands of Indians,’’ including the ‘‘Chinook,’’ to bring claims ‘‘as parties plaintiff’ against the United States. Act of February 12, 1925. In 1934, the 

Court of Claims then found claims filed by the Chinook descendants pursuant to 

this Act to be without merit. 

Finally, Federal courts in the 1931 Halbert v. United States litigation found that 

the Chinook did not constitute an Indian tribe. At the District Court level in the 

Halbert case, the United States argued that the Chinook descendants were without 

tribal affiliation or tribal relations, and implied that they were ‘‘descendants who 

have separated from tribal life.’’ The District Court, accepting the factual premise 

of the government’s argument, concluded that the Chinook tribe had ‘‘no tribal 

organization.’’ While not directly addressing the issue, the U.S. Supreme Court essentially upheld the District Court’s ruling that the Chinook held no ‘‘. . . tribal 

organization [but instead] are ‘remnants of bands and tribes.’ ’’ 

These court rulings and legislative interpretations weighed heavily in the Interior 

Department’s denial of recognition of the Chinook descendants. The Secretary found 

that the Chinook failed to satisfy the mandatory criteria under the FAP to meet the 

‘‘distinct community’’ and ‘‘political authority’’. See Department of the Interior, 

Reconsidered Final Determination Against Federal Acknowledgment of the Chinook 

Indian Tribe/Chinook Nation (CIT/CN) (July 5, 2002) (online at http://www.bia.gov/ 

cs/groups/xofa/documents/text/idc-001489.pdf). The Department, in the Reconsidered 

Final Determination, also properly relied on and deferred to the expertise of the 

Bureau of Acknowledgment and Recognition’s 1997 Proposed Findings in reaching 

these conclusions. 

Despite adverse decisions, the Chinook people have consistently maintained that 

they should be federally recognized, are eligible to exercise Quinault treaty hunting 

and fishing rights, and possess the rights to govern actions and activity on the 

Quinault Indian Reservation. The BIA’s proposed FAP revisions hold great potential 

to overturn these decisions and force the Quinault Nation to re-litigate these attacks 

on our sovereignty. As a result, we strongly oppose the proposed revisions to change 

the starting date to prove ‘‘community’’ and ‘‘political authority’’ to ‘‘1934’’, and we 

strongly oppose adding the factor that ‘‘the United States has held land for the petitioner or collective ancestors at any point in time from 1934 to the present’’ as dispositive evidence of meeting the ‘‘distinct community’’ and ‘‘political authority’’ 

criteria. 

CONCLUSION

The Quinault Indian Nation does not oppose or challenge the right of any group 

to seek a political relationship with the Federal Government. However, we must oppose Federal actions that hold the potential to jeopardize the Quinault Indian 

Nation’s treaty rights or inherent rights to govern our homelands. The BIA’s proposed FAP revisions, if made final in their current form, will re-open settled decisions, force us to re-litigate and defend our treaty and sovereign rights. In addition, 

the proposed revisions fail to uphold or establish safeguards to protect the Federal 

Government’s treaty and trust obligations to existing federally recognized tribes. 

The Quinault Nation has a great deal of respect for the Chinook Indian people. 

The issues that we raise today relate to the fundamental principle that the United 

States has a unique relationship with all Indian tribes, which includes each tribe’s 

unique position deeply rooted in historic and cultural values. The Quinault Nation 

has a longstanding and unique relationship with the United States. Our Nation’s 

inherent rights emanate from that relationship, which are outlined in our Treaty 

with the United States. 

The Quinault Nation has invested nearly a century in defending our treaty rights 

and sovereignty from legal, administrative, and legislative challenges. Under no cirVerDate Mar 15 2010 07:51 Sep 15, 2015 Jkt 000000 PO 00000 Frm 00024 Fmt 6633 Sfmt 6621 J:\114TH CONGRESS\INDIAN, INSULAR & ALASKA NATIVE AFFAIRS\04-22-15\94320.TXT
21 

cumstances should the Administration dredge up the past and force us to re-litigate 

these past settled decisions. 

The Quinault Indian Nation cannot support the proposed revisions to the FAP as 

they hold the potential to threaten the Quinault treaty rights reserved under the 

Treaty of Olympia. In sum, the proposed revisions to the BIA Federal Acknowledgment Process—while well intended—are flawed. 

I again thank the subcommittee for this opportunity to testify today and urge you 

to work with the Administration to ensure that if the revised FAP regulations are 

made final that they address the concerns discussed in this statement. 

Mr. YOUNG. Fawn, I just make one suggestion. You are going to 

be late. 

Ms. SHARP. Yes. 

Mr. YOUNG. And we would—if we have questions, with the committee’s indulgence, we will submit those to you, and we expect an 

answer back. 

Ms. SHARP. Yes. I will commit to answer those. Thank you. 

Mr. YOUNG. Thank you. And you are excused. Oh, I love that— 

I am an old school teacher. ‘‘You are excused,’’ you know? 

All right. Mr. Cladoosby, Brian, National Congress of American 

Indians, Embassy of the Tribal Nations. 

STATEMENT OF BRIAN CLADOOSBY, PRESIDENT, NATIONAL 

CONGRESS OF AMERICAN INDIANS, EMBASSY OF TRIBAL 

NATIONS, WASHINGTON, DC 

Mr. CLADOOSBY. Chairman Young, Ranking Member Ruiz—— 

Mr. YOUNG. Make sure your microphone is on. 

Mr. CLADOOSBY. Yes. Get closer? 

Mr. YOUNG. Yes. 

Mr. CLADOOSBY. Chairman Young, Ranking Member Ruiz, members of this committee, on behalf of the National Congress of 

American Indians, thank you for the opportunity to discuss this 

central issue in the relationship between tribes and the Federal 

Government. My name is Brian Cladoosby. My traditional name is 

Spee-pots. I am President of the National Congress of American 

Indians. I have served as a leader in Indian Country for 30 years, 

including 18 years as the chairman of my tribe. 

NCAI has always had a balanced position on Federal recognition. 

Indian tribes are protective of their status as sovereigns, and there 

have never been enough Federal resources to meet the trust responsibilities to those tribes who are currently recognized. 

NCAI certainly does not support the creation of new Indian 

tribes, and does not believe the proposed rule would allow for this. 

But NCAI does support an effective and efficient administrative 

system to recognize existing tribes. 

But the leadership of NCAI has always known that Indian tribes 

exist who have never been recognized by the Federal Government 

and should be. That is the purpose of Interior’s acknowledgment 

process, originally created in 1978. This process has deteriorated 

over the decades since the regulations were adopted. It fails even 

the simplest metric: time. 

The most recent Federal acknowledgment decisions have been 

pending for sometimes more than 35 years, and such delays are the 

norm. NCAI strongly supports the revisions to the Federal acknowledgment regulations, because they address a basic need for 

22 

efficiency to quickly issue denials to applications that lack merit, 

and to focus on legitimate applications. 

In recent years, significant concerns have also been raised when 

actions during the acknowledgment process created the appearance 

that political forces influenced the decisions. NCAI and its members are committed to a fair and equitable process that results in 

a timely determination. The proposed rule creates an avenue for 

appeal to an administrative law judge that should help in addressing concerns about politicization. 

While the proposed rule will improve the process, the fundamental standards remain the same. The acknowledgment process 

is intended to recognize those tribes that have existed since historic 

times as living, political, and cultural groups, and to deny recognitions to groups that have not. The NCAI membership has 

supported the proposed changes through NCAI resolution, TUL– 

13–002, supporting the Bureau of Indian Affairs proposed reform 

of the Federal recognition process, which I have attached to my 

testimony. 

When tribal applications for Federal acknowledgment increased 

during the 1970s, NCAI called a special convention of its members 

to discuss Federal acknowledgment. It was a controversial issue, 

just like it is today. But the tribal leaders worked through it, and 

came up with a united position. Our members expressed their support for the establishment of Federal standards and an accountable 

decisionmaking process. They believed that a tribe should demonstrate a continuous history of tribal relations in order to receive 

Federal acknowledgment. The principles articulated at that convention developed into the current Federal acknowledgment process 

that is codified at 25 CFR Part 83. 

At the NCAI conference in 1978, the BIA’s Director of Bureau of 

Acknowledgment and Recognition, Bud Shepard, said to the tribal 

leadership—and I am quoting—‘‘We envision that we will have 

somewhere around 150 applicants, and depending on the staff that 

is assigned to the project, we estimate about 4 years to do the bulk 

of the work.’’ Today it is 37 years later, and the BIA has resolved 

only 51 applications—34 have been denied and only 17 granted. 

The most recent decisions have been on applications that were 

pending for more than 35 years. This is a broken system, and the 

process needs to work much more efficiently. 

NCAI supports procedural amendments to fix these problems, 

and supports the maintenance of very high standards for Federal 

acknowledgment. We are grateful that you have devoted the time 

to consider this pressing issue, and we thank you for your diligent 

efforts on behalf of Indian Country on this and so many other 

issues. 

Thank you very much, Mr. Chairman. And if you have any 

questions, I would be more than happy to answer. 

[The prepared statement of Mr. Cladoosby follows:] 

23 

1 Annual Report of the Commissioner of Indian Affairs, 1872, quoted in the Final Report of 

the American Indian Policy Review Commission, p. 466. 

PREPARED STATEMENT OF BRIAN CLADOOSBY, PRESIDENT, NATIONAL CONGRESS OF

AMERICAN INDIANS

On behalf of the National Congress of American Indians, thank you for the opportunity to discuss this central issue in the relationship between tribes and the 

Federal Government. My name is Brian Cladoosby and I am President of the 

National Congress of American Indians. I have served as a leader in Indian Country 

for 30 years, including 15 years as Chairman of my tribe. 

NCAI has always had a balanced position on Federal recognition. Indian tribes 

are protective of their status as sovereigns, and there have never been enough 

Federal resources to meet the trust responsibilities to those tribes who are currently 

recognized. NCAI certainly does not support the creation of new Indian tribes, and 

does not believe that the proposed rule would allow for this. 

But the leadership of NCAI has always known that Indian tribes exist who have 

never been recognized by the Federal Government and should be. That is the purpose of Interior’s acknowledgement process originally created in 1978. This process 

has deteriorated over the decades since the regulations were adopted. It fails even 

the simplest metric: time. As the committee is aware, the most recent Federal acknowledgment decisions have been pending for 35 years. Such delays are the norm. 

NCAI strongly supports the revisions to the Federal acknowledgment regulations 

because they address a basic need for efficiency, to quickly issue denials to applications that lack merit and to focus on legitimate applications. 

In recent years significant concerns have also been raised when actions during the 

acknowledgment process created the appearance that political forces influenced the 

decisions. NCAI and its members are committed to a fair and equitable process that 

results in a timely determination. The proposed rule creates an avenue for appeal 

to an Administrative Law Judge that should help in addressing concerns about 

fairness. 

While the proposed rule will improve the process, the fundamental standards remain the same. The acknowledgement process is intended to recognize those tribes 

that have existed since historic times as living political and cultural groups, and to 

deny recognition to groups that have not. The NCAI membership has supported the 

proposed changes through NCAI Resolution TUL–13–002, Supporting the Bureau of 

Indian Affairs Proposed Reform of the Federal Recognition Process, which I have attached to my testimony. 

HISTORICAL BACKGROUND ON FEDERAL RECOGNITION OF INDIAN TRIBES

The first Federal-tribal relations were created through treaties under the U.S. 

Constitution. Many tribes, however, never entered a treaty with the United States. 

These tribes were either too peaceful to be considered a military threat, too small 

or isolated to be noticed, or possessed nothing that the United States desired. Other 

tribes simply refused to enter into a treaty with the United States. By 1871 treatymaking was replaced by the making of agreements, and the making of agreements 

ceased in practice by 1913. These methods of establishing recognition were thus 

closed to many tribes. The Commissioner of Indian Affairs foresaw trouble when he 

wrote in 1872: 

This action of Congress . . . presents questions of considerable interest and 

much difficulty, viz: What is to become of the rights of the Indians to the 

soil over portions of territory which had not been covered by treaties at the 

time Congress put an end to the treaty system? What substitute is to be 

provided for that system, with all its absurdities and abuses: How are 

Indians, never yet treated with, but having in every way as good and 

complete rights to portions of our territory as had the Cherokees, Creek, 

Choctaw and Chickasaws, for instance, to the soil of Georgia, Alabama and 

Mississippi, to establish their rights? 1

The process of Federal recognition was altered by the passage of the Indian 

Reorganization Act in 1934. For almost 50 years after the Indian Reorganization Act 

(IRA), the Bureau of Indian Affairs (BIA) employed an informal acknowledgement 

process based on the ratification of tribal constitutions. A tribe would submit an IRA 

constitution to the Secretary of the Interior. If the Secretary approved the constitution, that approval constituted Federal acknowledgement of the tribe. For years, the 

Secretary based the decision on criteria listed in Felix S. Cohen’s Handbook of 

24 

2Letter from Interior Solicitor Kent Frizzell (Feb. 26, 1975). 

3For an in depth discussion, see ‘‘An Historical Perspective on the Issue of Federal Recognition and Non-Recognition,’’ Institute for the Development of Indian Law, Prepared for the 

National Congress of American Indians in conjunction with the NCAI Conference on Federal 

Recognition, March 28–30, 1978. 4Quote from the Director of the Bureau of Acknowledgement and Recognition, Bud Shepard, 

in the transcript for the NCAI Conference on Federal Recognition, March 28, 1978. 

Federal Indian Law. However, the factors listed in the Handbook were not considered exhaustive. By the 1970s, the Interior Solicitor indicated he did not think the 

Handbook factors were adequate, and he was concerned that the ‘‘Department ha[d] 

no established procedures for making the recognition determination.’’ 2

NCAI AND FEDERAL ACKNOWLEDGEMENT

As tribal applications increased during the 1970s, NCAI called a special convention of its members to discuss Federal acknowledgement. It was a controversial 

issue, but the tribal leaders worked through it and came up with a united position. 

Our members expressed their support for the establishment of Federal standards 

and an accountable decisionmaking process. They believed that a tribe should demonstrate a continuous history of tribal relations in order to receive Federal acknowledgement. The principles articulated at that convention developed into the current 

Federal acknowledgement process that is codified at 25 C.F.R. Part 83.3

At the NCAI conference in 1978, the BIA indicated it would work quickly to resolve applications for Federal acknowledgment. ‘‘We envision that we will have 

somewhere around 150 applicants and depending on the staff that’s assigned to the 

project, we estimate about 4 years to do the bulk of the work . . .’’ 4

Today it is 37 years later and the BIA has resolved only 51 applications. Thirtyfour have been denied and only 17 granted. The most recent decisions have been 

on applications that were pending for more than 35 years. 

The documentation required also adds to the delay and raises questions about the 

acknowledgement process. The number and scope of the documentation requirements place an untenable burden on tribes attempting to engage in good faith with 

the Secretary. These requests defy the historical and cultural realities of tribal existence over the last centuries. They appear to change with each passing year. 

Most troublingly, there are significant questions about the fairness and integrity 

of the process. In recent years, significant concerns have been raised among our 

members and the public at large when actions during the acknowledgment process 

created the appearance that political forces shaped the nature of the process and 

influenced the outcome of acknowledgement decisions. 

The profound importance of Federal acknowledgement makes the problems 

throughout the acknowledgment process all the more pressing. We urge you to support a fair and equitable acknowledgment process that ensures prompt action based 

on impartial criteria. 

NCAI’s position on Federal acknowledgement remains unchanged since its formative convention on the issue over 30 years ago. NCAI and its members are committed to high standards for Federal acknowledgement, but also a fair and equitable 

process free of political considerations that results in a timely determination on each 

application for Federal acknowledgement. 

We continue to believe the central question in Federal acknowledgement is whether the tribe has maintained tribal relations from historic times. All inquiries in the 

process should be targeted to answering this narrow question. The inquiry should 

not be so broad that the acknowledgement process functionally closes the door on 

deserving tribes by requiring an impossibly large amount of evidence of disparate 

activities over vast stretches of time. The process should include consideration of the 

historical and cultural realities informing each tribe’s relationship with the Federal 

Government. 

NCAI urges the committee to support reforming the process to ensure timely, 

transparent, and fair consideration of each application. 

RECONSIDERATION AND THIRD PARTY VETO

The proposed regulation will allow those applicants who were previously denied 

to resubmit their applications under the revised rules. Because the standards in the 

rule are unchanged and only the procedures are improved, NCAI supports this 

change. Those tribes who were denied because of undue political influence should 

have another chance. 

25 

Notwithstanding the proposed change, the Department would also allow states 

and local governments to decide whether tribal nations can re-petition for recognition, and by doing so, the Department has given states and others a veto over 

Federal decisionmaking. For example, the Eastern Pequot Tribal Nation would need 

to obtain the consent of the state of Connecticut and each of 29 towns simply to 

be allowed to re-petition for recognition under the proposed regulations. Delegating 

such authority to states and others is an abdication of the Department’s trust responsibility for tribal nations and creates a dangerous precedent which empowers 

third parties to interfere in the exercise of the Department’s trust responsibility. 

NCAI opposes the third party veto pursuant to NCAI Resolution ATL–14–012. 

CONCLUSION

The current Federal acknowledgement process is broken. Despite the best intentions of those that created the process and those that currently administer it, the 

process simply does not work. It subjects tribes to unconscionably long delays and 

unreasonable documentary requests. It establishes a seemingly objective list of criteria but provides no guarantees of objectivity or fairness in their application. These 

problems cause incalculable harm. The length of the process leaves tribes suspended 

in limbo, unable to guarantee services to their members or to prove to state and 

local governments that the Federal Government recognizes the tribe’s sovereignty. 

The lack of transparency casts doubt on the Federal Government’s willingness to 

faithfully perform its trust responsibilities. And the increasing demands on tribes 

in the process inflict hundreds of hundreds of thousands of dollars of unnecessary 

costs every year. 

NCAI supports the procedural amendments to fix these problems, and supports 

the maintenance of very high standards for Federal acknowledgment. We are grateful that you have devoted the time to consider this pressing issue, and we thank 

you for your diligent efforts on behalf of Indian country on this and so many other 

issues. 

Attachments: 

NCAI Resolutions TUL–13–002, ATL–14–012, PHX–08–055 

26 

27 

28 

29 

30 

31 

32 

Mr. YOUNG. Thank you, Brian. 

Robert Martin, Morongo Band of Indians, my good friend’s tribe, 

I think. Just remember that when election comes up, OK? 

[Laughter.] 

Mr. YOUNG. I am campaigning for you. 

33 

STATEMENT OF ROBERT MARTIN, MORONGO BAND OF 

MISSION INDIANS, BANNING, CALIFORNIA 

Mr. MARTIN. Mr. Chairman, Dr. Ruiz, and members of the 

subcommittee, thank you for providing the Morongo Tribe this opportunity to testify before you today. 

The issue we are discussing is fundamental to all of Indian 

Country: the standard by which the United States determines 

which groups of native peoples should be treated as sovereign governments. After having reviewed the proposed revisions to the 

Federal acknowledgment regulations, we fear that the proposed 

changes threaten the fabric that currently binds all tribal nations. 

In short, the proposed revisions would dramatically weaken the 

Federal acknowledgment process and, in doing so, undermine the 

significance of tribal sovereignty. As such, we ask that the Department of the Interior withdraw the proposed rule in its entirety. 

In our view, one of the most egregious changes in the proposed 

rule would only require petitioners to demonstrate tribal existence 

since 1934. This is nonsensical. Tribal governments possess inherent sovereignty, not because Congress granted it, but because we 

existed as independent sovereigns before the United States adopted 

its own Constitution. The Supreme Court has recognized that one 

aspect of our inherent sovereignty, sovereign immunity, is coextensive with that of the United States. 

That is why presently the Federal acknowledgment regulations 

require a demonstration of tribal existence from the founding of the 

United States in 1789, or first sustained contact if later than 1789. 

We are concerned that by weakening this standard the Department 

is redefining what it means to be a sovereign tribal government in 

this country. 

We strongly believe that the source of our sovereignty comes 

from the fact that our government existed long before the 

Constitution and our first contact with settlers in the area. We 

simply can’t understand the rationale behind this change, and we 

urge the Department to maintain its existing standard. 

Our second major concern is the watering down of the requirement for external identification. Under the existing rules, petitioners must provide evidence of identification by external sources 

since 1900. This helps the government differentiate historic tribes 

from groups who only recently asserted tribal heritage. The proposed revisions would replace the strong standard with a lesser requirement that a petitioner provide only a brief narrative with 

supporting documentation. 

We can’t understand why a legitimate petitioner couldn’t produce 

external documentation of its existence. Consequently, we believe 

it is critical that the existing criteria for external identification by 

outside observers such as scholars, media, and state and local governments be preserved. 

Third, we are greatly concerned that the Department’s proposal 

allows groups to use evidence with substantial interruption. The 

proposal goes on to explain that this means the Department would 

allow evidentiary gaps of 20 years or more. This is a far cry from 

the current, more rigorous standard that requires a substantially 

continuous existence, and we do not believe the Department adequately justifies the need to weaken the current rules. 

34 

The fourth and final issue we are concerned about is that the 

Department’s proposal would allow previously denied petitioners 

an opportunity to re-petition. This would mean that, in addition to 

the 68 California groups whose petitions are pending before the 

Department of the Interior, the 6 California petitioners that have 

already been denied acknowledgment will have an opportunity to 

go through the process again under much less stringent standards. 

We hope this committee will encourage the Department to 

rethink the proposal, to revisit these applications, because doing so 

would create two classes of tribes: one that can meet the current 

exacting standards, and those who can’t. As this committee knows, 

creating two classes of tribal governments is a recipe for disaster 

in Indian Country. 

It is worth noting that many of the petitioners in our state appear to be from California’s densest urban areas. We don’t believe 

that this is a coincidence. We fear that lower recognition standards 

could lead to an influx of reservation-shopping proposals. For your 

reference, with my written testimony I included a map illustrating 

our locations of the 68 petition groups in California. As you will 

see, there are currently four groups petitioning for Federal recognition in the urban areas of our home Riverside County alone. 

Please know that we appreciate how difficult it is to expedite the 

acknowledgment process while preserving the rigorous standards 

needed to ensure that tribes can continue to enjoy benefits of sovereignty. A strong process is the only way Indian Country can fully 

distinguish the difference between being a tribe with inherent governmental rights and powers and being a group of individuals that 

is nothing more than what the Supreme Court calls private voluntary organizations. The legitimacy of the Federal acknowledgment process, no matter how cumbersome, must be protected. 

Thank you for your consideration of our concerns. 

[The prepared statement of Mr. Martin follows:] 

PREPARED STATEMENT OF ROBERT MARTIN, CHAIRMAN, MORONGO BAND OF

MISSION INDIANS

Mr. Chairman, Doctor Ruiz and members of the subcommittee, thank you for providing the Morongo Tribe with this opportunity to testify before you today. As you 

know, the Morongo Tribe is located in Riverside County, California, about 20 miles 

west of Palm Springs. 

The issue we are discussing is fundamental to all of Indian Country—the 

standard by which the United States determines which groups of native peoples 

should be treated as sovereign governments. Establishing a standard that is too restrictive potentially denies legitimate groups the unique rights provided to a sovereign government. Conversely, setting the bar too low undermines the political 

relationship between federally acknowledged tribes and the United States. 

After having reviewed the proposed revisions to the Federal acknowledgment regulations, the Morongo Tribe believes the Department is setting the bar far too low. 

We fear that the proposed changes threaten the fabric which currently binds all 

tribal nations and we ask that the Department of Interior withdraw the proposed 

rule in its entirety. 

The Morongo Tribe does not take this issue lightly. In fact, along with a number 

of tribes throughout the United States, we asked some of the most well respected 

scholars within the field of tribal acknowledgement to help us understand the technical aspects of the proposed rule. 

The assessments by these experts confirmed our own concerns and conclusions 

that the proposed revisions would fundamentally change both the criteria and 

procedures used to review petitions for Federal acknowledgement. And in short, the 

proposed revisions would dramatically weaken the Federal acknowledgement process and in doing so, undermine the significance of tribal sovereignty. 

35 

In our view, one of the most egregious changes in the Proposed Rule is that the 

proposal would only require petitioners to demonstrate tribal existence since 1934. 

This is nonsensical. 

Tribal governments possess inherent sovereignty, not because Congress granted 

it, but because we existed as independent sovereigns before the United States adopted its own Constitution. The Supreme Court has recognized that one aspect of our 

inherent sovereignty, sovereign immunity, is coextensive with that of the United 

States. That is why presently, the Federal acknowledgement regulations require a 

demonstration of tribal existence from the founding of the United States in 1789, 

or first sustained contact, if later than 1789. 

The Morongo Tribe is concerned that by weakening this standard, the Department 

is redefining what it means to be a sovereign tribal government in this country. We 

strongly believe that the source of our sovereignty comes from the fact that our government existed long before the Constitution and our first contact with settlers in 

the area. We simply cannot understand the rationale behind this change, and we 

urge the Department to maintain its existing standard. 

Our second major concern is the watering down of the requirements for external 

identification. 

Under the existing rules, petitioners must provide evidence of identification by external sources since 1900. This helps the government differentiate historic tribes 

from groups who only recently assert tribal heritage. 

The proposed revisions would replace this strong standard with a lesser requirement that a petitioner provide only a brief narrative with supporting documentation. We cannot understand why a legitimate petitioner could not produce external 

documentation of its existence. Consequently, we believe it is critical that the existing criterion for external identification by outside observers such as scholars, media, 

and state and local governments be preserved. 

Third, we are greatly concerned that the Department’s proposal allows groups to 

use evidence with ‘‘substantial interruption.’’ The proposal goes on to explain that 

this means the Department would allow evidentiary gaps of 20 years or more. This 

is a far cry from the current, more rigorous standard that requires a ‘‘substantially 

continuous existence’’ and we do not believe the Department adequately justifies the 

need to weaken the current rules. 

The fourth and final issue we are concerned about is that the Department’s 

proposal would allow previously denied petitioners an opportunity to re-petition. 

This would mean that in addition to the 68 California groups whose petitions are 

pending before the DOI, the 6 California petitioners that have already been denied 

acknowledgment will have an opportunity to go through the process again under 

much less stringent standards. We hope this committee will encourage the Department to rethink the proposal to revisit these applications, because doing so would 

create two classes of tribes—ones that can meet the current exacting standards and 

those who cannot. As this committee knows, creating two classes of tribal governments is a recipe for disaster in Indian Country. 

It is worth noting that many of the petitioners in our state appear to be from 

California’s densest urban areas. The Morongo Tribe does not believe this is a coincidence; we fear the lower recognition standards could lead to an influx of reservation shopping proposals. For your reference, with my written testimony I included 

a map illustrating the locations of the 68 petitioning groups in California. As you 

will see, there are currently four groups petitioning for Federal recognition in the 

urban areas of our home Riverside County, alone. 

Please know that the Morongo Tribe appreciates how difficult it is to expedite the 

acknowledgement process while preserving the rigorous standards needed to ensure 

that tribes can continue to enjoy the benefits of sovereignty. A strong process is the 

only way Indian Country can fully distinguish the difference between being a tribe 

with inherent governmental rights and powers, and being a group of individuals 

that is nothing more than what the Supreme Court calls ‘‘private, voluntary organizations.’’ (United States v. Mazurie, 419 U.S. 544 (1975). The legitimacy of the 

Federal acknowledgement process, no matter how cumbersome, must be protected. 

Thank you for your consideration of our concerns. 

Attachment: Map 

36 

Mr. YOUNG. Thank you, Mr. Martin. 

Glen Gobin. 

STATEMENT OF GLEN GOBIN, VICE CHAIRMAN AND BUSINESS 

COMMITTEE CHAIR, TULALIP TRIBES, TULALIP, WASHINGTON 

Mr. GOBIN. Good afternoon, Chairman Young, Ranking Member 

Ruiz, and committee members. My name is Glen Gobin, ViceChairman of the Tulalip Tribes. I would like to thank you for the 

opportunity to testify on the proposed rule that revises the Federal 

acknowledgment process. 

37 

The Tulalip Tribes are the successors in interest to the 

Snohomish, Snoqualmie, Skykomish, and a number of other dependent allied bands who have occupied Puget Sound Region in 

Washington State since time immemorial. And we are signatory to 

the 1855 treaty at Point Elliot. Under the terms of that treaty, 

these tribes moved to the Tulalip Indian Reservation. In 1934 these 

same tribes, under the Indian Reorganization Act, chose to use the 

name Tulalip Tribes, as used today. 

Tulalip Tribes is very concerned with the proposed rule change. 

In Washington State, there are 29 federally recognized tribes, 7 of 

which obtained Federal recognition under the acknowledgment 

process. Other groups were denied because they failed to demonstrate having maintained some resemblance of community structure and political authority since historical times, and were merely 

fractions of Indian descendants whose ancestors willingly chose to 

remain off reservation, where they assimilated into the larger society. Some of these groups claim to be who the Tulalip Tribes are 

today, or other tribes in the region. We can only conclude that the 

process has and is working, albeit lengthy. 

When a group receives new Federal recognition as a sovereign 

Indian tribe, there can be significant practical impacts to existing 

tribes. There are competing cultural resource claims, where a new 

group claims authority over an existing tribe’s cultural resources. 

There are off-reservation aboriginal areas and natural resources 

that may become subject to competing claims. And there are additional impacts on already underfunded trust obligations. The real 

potential for conflict grows when a group seeks Federal recognition 

that is not recognized by other tribes and does not meet the basic 

minimum standard for recognition as a sovereign nation. 

I would like to address two points that we make in our written 

testimony. These are lowing the standard to obtain recognition, and 

allowing previously denied petitioners the ability to re-petition. 

First, lowering the standard by changing the starting point to 

1934 as a basis of evaluation creates a presumption of continuous 

community and political existence since before that time. And such 

a presumption is nowhere to be seen in fact or law. This requirement is purposeful, and clearly distinguishes between more recently formed groups and those petitioners who have maintained 

some resemblance of community structure and political authority 

long before 1934. The Department’s primary explanation for this 

change is to reduce the administrative burden upon the Department, as well as the petitioner. The process for Federal acknowledgment should not be an easy process. And the consideration of 

administrative burdens is inappropriate, and should play no part 

for determining or establishing recognition. 

The proposed rule would allow groups who have previously been 

denied acknowledgment another opportunity, under certain circumstances, to re-petition under this new, lower standard. When 

they have already had full and fair consideration, it did not meet 

the standards. We are not opposed to legitimate petitioners receiving recognition under the current standards, but lowering the 

standards devalues and undermines the existing sovereign Indian 

tribes who have maintained existence in the face of past Federal 

assimilation and termination policies. 

38 

The proposed rule goes well beyond what we feel were the intended and contemplated revisions. We ask the Department to reconsider the proposed rule, not lower the standards. Rather, move 

forward with procedural revisions that will address time frames, 

transparency, and consistency in decisionmaking processes. 

Again, I thank the committee for the opportunity to share some 

concerns from Tulalip Tribes. 

[The prepared statement of Mr. Gobin follows:] 

PREPARED STATEMENT OF GLEN G. GOBIN, VICE CHAIRMAN, TULALIP TRIBES

Good afternoon Chairman Young, Ranking Member Ruiz and committee members, 

my name is Glen Gobin, Vice-Chairman of the Tulalip Tribes. I would like to thank 

you for the opportunity to testify on the Department of Interior’s proposed rule that 

changes the Federal acknowledgment process. 

INTRODUCTION

The Tulalip Tribes are the successors in interest to the Snohomish, Snoqualmie, 

Skykomish, and a number of allied bands, who have occupied the Puget Sound region in Washington State since time immemorial, and were signatory to the 1855 

Treaty of Point Elliot. Under the terms of the treaty, these tribes moved to the 

Tulalip Indian Reservation and in 1934 under the Indian Reorganization Act, chose 

to use the name the ‘‘Tulalip Tribes’’ which is named for a bay on the Reservation. 

The Tulalip Tribes is very concerned with the proposed revision to 25 CFR Part 

83 which extend well beyond an intention to streamline the process. Instead, the 

proposed rule lowers the standard of proof by which groups can establish recognition 

as a sovereign Indian tribe. Indeed, the revisions to the acknowledgment process 

would have a direct effect of watering down the acknowledgment determination 

itself, undermining the existing sovereign Indian tribes who have been in existence 

since time immemorial and who have maintained a tribal existence in the face of 

past Federal assimilation and termination policies. 

In Washington State there are 29 federally recognized tribes, seven of which obtained Federal recognition under the Part 83 process. Other groups have petitioned 

but were denied because they could not demonstrate a continuous distinct community and political existence since historical times until the present. Some of these 

groups claim to be tribes who make up the Tulalip Tribes, or other tribes in the 

region. We can only conclude that the acknowledgment process has, and is working, 

albeit through a rigorous review process. 

Moreover, when a group receives new Federal recognition as a sovereign Indian 

tribe, there can be significant practical impacts for existing tribes. There may be 

competing cultural resource claims where a new group claims authority over an existing tribe’s cultural resources. There are off reservation aboriginal areas and 

natural resources that may become subject to competing claims. And, there are additional impacts on already underfunded trust obligations. This real potential for 

conflict grows when a tribe seeks Federal recognition that is not recognized by other 

tribes and does not meet basic minimum standards for recognition as a sovereign 

tribe. 

For these reasons, the Tulalip Tribes opposes the proposed rule and has provided 

detailed comments to the Department of Interior on two occasions. We offer the following comments below to address a few of the more substantial revisions to Part 

83. 

1. Tulalip Opposes the Proposed Revision because it Lowers the Existing Standard 

for Establishing Recognition 

The proposed rule allows a petitioning group to establish tribal existence by merely giving a ‘‘brief narrative’’ with minimal evidentiary support stating its existence 

as a tribe during the ‘‘historical period,’’ defined as 1900 or earlier. This weakens 

the acknowledgment process by allowing acknowledgment of racial groups formed 

in recent history with no demonstration of continuous existence or identity throughout history as a sovereign Indian government, and based only on self-proclaimed 

identification with scant evidentiary support. The sovereign rights of American 

Indian tribes that are recognized through the acknowledgment process must be 

based on credible evidence demonstrating continuous existence as a sovereign 

Indian nation throughout history, not only in recent times. 

Deleting 83.7(a), that requires that a petitioner demonstrate that it has been 

identified as an Indian entity since 1900, is unnecessary because if a petitioner can 

39 

1Statement of Larry Roberts, Transcript of July 15, 2014 Tribal Consultation meeting, pg. 46. 

meet the existing criteria in § § 83.7(b) and 83.7(c), it should be able to meet 

§ 83.7(a). Furthermore, the year 1934 provides no basis to assume continuous community and political existence before that time and effectively creates a presumption 

of existence. Such a presumption is nowhere to be seen in fact or law. An individual’s native ancestry and some resemblance of tribal existence starting in 1934 until 

present do not and should not entitle a group to a government-to-government relationship with the United States. 

The proposed rule also contravenes settled case law. For example, in U.S. v. 

Washington, a petitioner unsuccessfully argued, ‘‘because their ancestors belonged 

to treaty tribe, they benefited from a presumption of continuing existence.’’ The 

Federal court rejected this argument and found that a tribe must have functioned 

since treaty times as a ‘‘continuous separate and distinct Indian cultural or political 

communities’’ (641 F.2d 1374 (9th Circuit 1981)), concluding that a simple demonstration of ancestry is not sufficient; however, the proposed rule ignores this, and 

potentially allows Federal acknowledgment based on ancestry and some form of organization starting in 1934, this lower standard should not entitle a group to a sovereign government-to-government relationship with the United States. 

The Department of Interior’s primary explanation for this change is to reduce the 

administrative burden upon the Department as well as the petitioner. The process 

for Federal acknowledgement should not be an easy process, and the rationale of 

lowering administrative burdens is inappropriate to support a less than comprehensive process for determining and establishing Federal recognition as an Indian tribe. 

2. Tulalip Opposes the Proposes Revision that Allow Groups to Repetition for 

Recognition 

The proposed revision allows groups who have previously been denied acknowledgment, after full and fair consideration, another opportunity under certain circumstances to re-petition. The Department maintains that the proposed revisions do 

not lower the criteria for recognition; however, if the standard for recognition and 

review is not lower, then there is no purpose in allowing these groups who have already been through the acknowledgement process to re-petition. Again, criticisms of 

the acknowledgement process in the Congressional Record focus on the lack of timeliness, efficiency, and transparency, not the standards applied or the outcome of the 

acknowledgment decisions, yet the proposed rule will allow groups to reapply who 

have previously been determined not to be a tribe by the administration or the 

Federal courts. 

Furthermore, because the proposed revisions to § 83.7(b) is vaguely worded, the 

Bureau has admittedly failed to fully understand the effects of its allowance for repetitioning under the new regulations. In particular, § 83.4(b)(1)(ii)(A) merely 

requires a re-petitioning group to show that a change in the regulations ‘‘warrants 

reconsideration of the final determination,’’ without providing any guidance as to 

how this standard should be applied or what kinds of changes are deserving of reconsideration. The Bureau itself admits that it has not done any analysis as to how 

these new regulations would affect past acknowledgment decisions, so the effect of 

this provision allowing for re-petitioning under the new regulations has not been 

fully understood.1 Essentially, the Bureau proposes to open the door to an unknown 

number of petitioners for reconsideration based on a vague and poorly understood 

standard. 

CONCLUSION

We are not opposed to legitimate petitioners receiving recognition under the current standards, but lowering the standards devalues and undermines the status of 

all Indian tribes, as sovereign political entities. The Tulalip Tribes does not support 

the majority of the Department’s proposed revisions and we ask the Department to 

reconsider the proposed rule. Instead of lowering the standards for Federal recognition, we urge the government to limit revisions to correct procedural deficiencies 

that address time frames, transparency, and consistency in decisionmaking processes. The integrity of the Federal acknowledgment process should be upheld and 

maintained because with the exception of procedural deficiencies, the current substantive standards for Federal acknowledgement as a sovereign Indian tribe are fair 

and appropriate. 

40 

Mr. YOUNG. Thank you, Glen. 

Mr. Mitchell, Don. 

STATEMENT OF DONALD C. MITCHELL, ATTORNEY AT LAW, 

ANCHORAGE, ALASKA 

Mr. MITCHELL. Thank you, Mr. Chairman. As the Chairman may 

recall, since he was on the dais that afternoon, I first testified in 

front of this committee in 1977. And that was so long ago that, at 

the time, I had an almost full head of brown hair, and the 

Chairman had not a speck of gray in his beard. That is how long 

ago it was. 

Over the years that have morphed into decades since, I have testified in front of the committee on numerous occasions about 

numerous subjects. And, most recently, in 2009 and 2011, the committee invited me to appear to discuss the Carcieri v. Salazar U.S. 

Supreme Court decision, in which the court found that the BIA had 

been flagrantly ignoring the intent of Congress as expressed in the 

text of Section 19 of the Indian Reorganization Act of 1934. 

I appreciate the opportunity to come back with another invitation 

to talk about the proposed regulations that Assistant Secretary 

Washburn has published in the Federal Register. But, unlike 

Senator Blumenthal and the other witnesses who have expressed 

to you serious policy concerns about the content of those regulations, I have a more fundamental concern. And my concern is that 

the entire BIA recognition process has been invalid and unlawful 

since it was invented in 1978. 

I understand that that is a serious statement. Unlike Assistant 

Secretary Washburn, I have never been the dean of a law school. 

But, like Assistant Secretary Washburn, I attended one. And like 

every law student, I have had classes in constitutional law and in 

administrative law. And there are three basic black-letter rules 

that I would hope that the Assistant Secretary would agree are 

uncontroverted in those legal areas. 

The first is that the legislative authority of the United States of 

America is vested by the Constitution exclusively in the Congress, 

not in the executive branch. Exclusively in the Congress. 

The second principle is that Congress can delegate its legislative 

authority to an executive branch agency, but it must do so in a 

statute. That statute must clearly communicate the delegation of 

authority. 

And then, the third principle is that statute must contain standards that guide the Federal executive’s exercise of the authority 

that has been conveyed by Congress. 

In my written testimony I pointed out that none of the statutes 

that the BIA relies on today and relied on in 1978, if you read 

those statutes, they do not convey authority to do any of what the 

BIA has done. 

In 1975—there is a letter attached to my testimony from the 

head of the BIA branch of tribal regulations saying that the solicitor had advised Secretary of the Interior, Rogers Morton, that the 

BIA had no such authority. 

And this situation is not different from Carcieri. In Carcieri, the 

BIA did not like a policy decision that Congress had made in 

Section 19 of the Indian Reorganization Act. So, rather than comVerDate Mar 15 2010 07:51 Sep 15, 2015 Jkt 000000 PO 00000 Frm 00044 Fmt 6633 Sfmt 6602 J:\114TH CONGRESS\INDIAN, INSULAR & ALASKA NATIVE AFFAIRS\04-22-15\94320.TXT
41 

ing to you and having that Act amended, they just decided to ignore the law. In this particular situation, the Department, in 1978, 

decided that it wanted to start inventing new Indian tribes, but it 

didn’t have the authority from Congress to do that, so it just pretended that it did. And, as I talked about in my written testimony, 

Representative Teno Roncalio, at an oversight hearing just like this 

one in 1978, said to the equivalent of Assistant Secretary 

Washburn, ‘‘What is the authority? ’’ And the answer was that, 

well, there are these two statutes that Congress passed back in the 

1840s—the 1840s—that give us this authority to invent new tribes. 

So, Mr. Chairman, in closing, the purposeful violation by an executive branch agency of the constitutional doctrine of separation of 

powers is a serious matter. And it is serious enough that, whether 

or not you want to take what I have just given to you as the gospel 

or not, it is serious enough that you should make an independent 

investigation to come to your own conclusion as to what I have just 

told you is legally true. Thank you, Mr. Chairman. 

[The prepared statement of Mr. Mitchell follows:] 

PREPARED STATEMENT OF DONALD CRAIG MITCHELL, ATTORNEY AT LAW, 

ANCHORAGE, ALASKA

Mr. Chairman, members of the subcommittee, my name is Donald Craig Mitchell. 

I am an attorney in Anchorage, Alaska, who has been involved with Native 

American legal and policy issues from 1974 to the present day in Alaska, on Capitol 

Hill, inside the U.S. Department of the Interior, and in the Federal courts. 

From 1977 to 1993 I served, first as Washington, DC counsel, and then as general 

counsel for the Alaska Federation of Natives, the statewide organization Alaska 

Natives organized in 1967 to urge Congress to settle Alaska Native land claims by 

enacting the Alaska Native Claims Settlement Act (ANCSA). From 1984 to 1986 I 

was counsel to the Governor of Alaska’s Task Force on Federal-State-Tribal 

Relations. In 1997 I was retained by Alaska Senator Ted Stevens to represent the 

Senator before the U.S. Supreme Court during the petition stage in Alaska v. Native 

Village of Venetie Tribal Government, one of the most important Indian law cases 

involving Alaska that the Court has considered. And from 2000 to 2009 I was a 

legal advisor to the president of the Alaska Senate and speaker of the Alaska House 

of Representatives regarding Alaska Native and Native American issues, including 

the application of the Indian Gaming Regulatory Act in Alaska. 

I also have written a two-volume history of the Federal Government’s involvement 

with Alaska’s Indian, Eskimo, and Aleut peoples from the Alaska purchase in 1867 

to the enactment of ANCSA, Sold American: The Story of Alaska Natives and Their 

Land, 1867–1959, and Take My Land Take My Life: The Story of Congress’s Historic 

Settlement of Alaska Native Land Claims, 1960–1971. In 2006 the Alaska Historical 

Society named Sold American and Take My Land two of the most important books 

that have been written about Alaska. And most recently, I have finished writing a 

book on the history of Indian gaming, which contains a chapter devoted to the tribal 

recognition issue. 

I first testified before the Committee on Interior and Insular Affairs (as the 

Committee on Natural Resources then was known) in 1977. Over the years since 

I have testified before this subcommittee and the full committee approximately a 

dozen times, most recently in 2009, and then again in 2011, when I was invited to 

discuss Carcieri v. Salazar, the 2009 decision of the U.S. Supreme Court in which 

the Court construed the intent of the 73d Congress embodied in section 19 of the 

Indian Reorganization Act of 1934. 

I appreciate having been invited again to discuss tribal recognition generally, as 

well as the proposed amendments to 25 C.F.R. 83.1 et seq. that Assistant Secretary 

of the Interior for Indian Affairs Kevin Washburn published in the Federal Register 

on May 29, 2014. 

42 

With respect to those subjects I would like to make five points. 

1. Since 1977 When the American Indian Policy Review Commission 

Recommended That Congress ‘‘Recognize All Indian Tribes as Eligible for 

the Benefits and Protections of General Indian Legislation and Policy’’ 

Congress Has Not Addressed the Question of Whether, as a Matter of 

National Policy, Congress Should Create New ‘‘Federally Recognized 

Tribes,’’ and, If It Should, What Standards Congress Should Employ to 

Decide Whether to Do So in a Particular Case. 

The U.S. Supreme Court repeatedly has instructed that the Indian Commerce 

Clause in the U.S. Constitution grants Congress—not the President, and certainly 

not the Assistant Secretary of the Interior for Indian Affairs—‘‘plenary and exclusive 

power over Indian affairs.’’ (emphasis added). And throughout the 19th century 

Congress exercised its Indian Commerce Clause power to achieve a facinorous objective: the clearing of the public domain of the Native Americans who occupied it. 

On the recommendation of President Andrew Jackson, in 1830 Congress authorized the President to persuade Native Americans who occupied land east of the 

Mississippi River to agree to ‘‘voluntarily’’ relocate to land west of the river. Then 

beginning around 1850 Congress’ policy was to persuade Native Americans who occupied land west of the Mississippi River to agree—again ‘‘voluntarily’’—to be 

sequestered on reservations that were withdrawn from the public domain for their 

occupation. And when the members of a particular ethnological tribe refused to 

agree to be sequestered, they were compelled by force of arms to settle on the reservation to which they had been assigned. According to historian Robert Utley: 

‘‘Virtually every major war of the two decades after Appomattox was fought to force 

Indians on to newly created reservations or to make them go back to reservations 

from which they had fled.’’ 

By 1890 the public domain had been cleared and the objective of Congress’ Indian 

policy became the assimilation of the Native Americans on reservations who had 

served the clearing (and Native Americans in California and other locations who 

had not been sequestered on reservations) into the economy and society of the 

Nation in which the reservations were located. To that end, in 1887 Congress enacted the General Allotment Act, which authorized the President to subdivide land 

within a reservation into allotments whose restricted titles were conveyed to heads 

of families, single persons both over and under 18 years of age, and orphan children. 

And in 1934 the 73d Congress enacted the Indian Reorganization Act (IRA). 

In 2011 when he testified before this subcommittee on behalf of the Department 

of the Interior in support of H.R. 1234, a bill whose enactment would have reversed 

the Carcieri v. Salazar decision, Principal Deputy Assistant Secretary of the Interior 

for Indian Affairs Donald ‘‘Del’’ Laverdure represented to the subcommittee that the 

73d Congress enacted the IRA ‘‘to halt the Federal policy of Allotment and 

Assimilation ’’ (emphasis added). 

However, that statement is historically incorrect. 

The Senate and House Committees on Indian Affairs whose members wrote the 

statutory text that the 73d Congress enacted as the IRA published the transcripts 

of their hearings and mark-up sessions. Those transcripts indicate that, to the man 

and single woman, the members of both committees were committed to assimilation 

as the objective of Congress’ Indian policy and that they agreed ‘‘to halt the Federal 

policy of Allotment’’ because they were convinced by Commissioner of Indian Affairs 

John Collier that the allotment of reservations had failed to advance the achievement of the assimilation objective. 

To cite two of many examples: 

First, section 13(b) of Title I of the original bill Commissioner Collier sent to the 

73d Congress defined the term ‘‘Indian’’ as all ‘‘persons of one fourth or more Indian 

blood.’’ When, after they rejected the Commissioner’s bill, the members of the 

Senate Committee on Indian Affairs wrote their own bill, Montana Senator Burton 

Wheeler, the chairman of the committee, amended the ‘‘Indian’’ definition to increase the blood quantum requirement to ‘‘one-half or more Indian blood’’ because, 

as Chairman Wheeler explained to the other members, ‘‘What we are trying to do 

is to get rid of the Indian problem rather than add to it.’’ Senator Wheeler’s amendment was, and today remains, codified in section 19 of the IRA. 

Second, after the 73d Congress enacted the IRA, when Senator Wheeler and other 

members of the Senate Committee on Indian Affairs realized that Commissioner 

Collier and the Bureau of Indian Affairs (BIA) bureaucracy were implementing the 

statute in a manner that contravened the achievement of Congress’ assimilationist 

43 

policy, they spent the next 12 years attempting (unsuccessfully) to repeal their own 

bill because, as the members of the committee explained in 1944, 

after 10 years of operation under the so-called Wheeler-Howard Act, we do 

not find a single instance in which Indians, under and through that act, 

have attained a greater degree of self-determination . . . The Indian Bureau 

has directly controlled the tribal government of every Indian tribe for the 

past 10 years . . . It has purchased into Federal trust status with tribal and 

Federal funds, large parcels of expensive lands, which it attempts to manage 

for the Indian groups and, through such enterprises, to control their whole 

economy. 

S. Rep. No. 78–1031, at 7 (1944). 

In 1946 the Senate Committee on Indian Affairs held its final hearing on a bill 

whose enactment would have repealed the IRA. Six years later, in 1953 the 83d 

Congress, without a single dissenting vote, passed House Concurrent Resolution No. 

108—the so-called ‘‘termination resolution’’—which reaffirmed that it was ‘‘the 

policy of Congress, as rapidly as possible, to make the Indians within the territorial 

limits of the United States subject to the same laws and entitled to the same privileges and responsibilities as are applicable to other citizens of the United States, 

to end their status as wards of the United States, and to grant them all of the rights 

and prerogatives pertaining to American citizenship.’’ 

The history of Congress’ consistent Indian policy set out above is relevant to this 

subcommittee’s consideration of the tribal recognition issue in the present day because it is evidence that into the 1970s Congress had no interest in creating new 

‘‘federally recognized tribes’’ by enacting statutes that would confer that legal status 

on new groups composed of individuals of varying degrees of Native American descent who did not reside within the boundaries of an existing reservation. 

However, in 1972 that situation changed. 

In 1994 when he appeared before this subcommittee to discuss the tribal recognition issue, Senator John McCain observed that, to that date, Congress’ creation of 

new ‘‘federally recognized tribes’’ had involved ‘‘little or no application of objective 

standards or criteria’’ and had relied ‘‘almost exclusively on the political strength 

of the congressional delegation of the state in which the Indian tribe happens to be 

located.’’ 

That, beginning in 1968, was the situation in Arizona. 

The San Carlos Apache Tribe is a federally recognized tribe whose members live 

on the San Carlos Apache Reservation in southeastern Arizona. In 1889 several 

families whose members were members of the San Carlos Apache Tribe left the San 

Carlos Apache Reservation and established an encampment on the East Verde River 

6 miles north of Payson, a ranching and mining town west of the reservation. By 

1968, 64 individuals who were descendants of members of the families that left the 

San Carlos Apache Reservation in 1889 were living near Payson squatting on land 

in the Tonto National Forest. 

To provide those individuals a location at which to build a permanent community, 

in 1968 Representative Sam Steiger, whose congressional district included Payson, 

introduced a bill whose enactment by Congress would authorize the ‘‘Payson Band 

of Yavapai-Apache Indians’’ to select 85 acres of land in the forest as a site for a 

village. The bill also ‘‘recognized’’ the Band ‘‘as a tribe of Indians within the purview 

of the [IRA].’’ 

In 1971 when the House Committee on Interior and Insular Affairs reported 

Representative Steiger’s bill, before it did so the committee rewrote the bill to remove the Band’s ‘‘recognition’’ as a federally recognized tribe because the Department of the Interior had informed the committee that ‘‘we do not now recognize this 

group and believe that we should not now recognize them. If this group wishes to 

avail itself of Indian services, they need only to remove themselves to the 

San Carlos Indian Reservation, which they have refused to do for a number of 

reasons.’’ See H.R. Rep. No. 92–635 (1971). 

In the end, because they apparently wanted to ensure that the members of the 

Payson Band could receive services from the BIA and the Indian Health Service 

without having to move to the San Carlos Apache Reservation, the members of the 

Conference Committee who wrote the version of Representative Steiger’s bill that 

Congress enacted into law (and whose membership, in addition to Representative 

Steiger, included Arizona Senator Paul Fannin) designated the members of the 

Band—which later was renamed the Tonto Apache Tribe—as a federally recognized 

tribe. See Pub. L. No. 92–470 (1972). 

44 

Over the succeeding 40-plus years Congress has enacted other statutes that have 

designated groups composed of individuals of purported Native American descent as 

‘‘federally recognized tribes.’’ See e.g., Mashantucket Pequot Indian Claims Settlement Act, Pub. L. No. 98–134 (1983); Auburn Indian Restoration Act, Title II, Pub. 

L. No. 103–434 (1994); Paskenta Band Restoration Act, Title III, Pub. L. No. 103– 

454 (1994); Graton Rancheria Restoration Act, Title XIV, Pub. L. No. 106–568 

(2000). 

In most, if not all, of those cases, Congress enacted those statutes without recorded votes and only because, as Senator McCain noted, ‘‘the congressional delegation of the state in which the Indian tribe happens to be located’’ had decided they 

wanted Congress to create their particular ‘‘federally recognized tribe.’’ 

To cite what is perhaps the best known example: In 1983 President Ronald 

Reagan vetoed the Mashantucket Pequot Indian Claims Settlement Act. The 

President did so because the Department of the Interior objected to Congress designating the group of individuals who called themselves the Mashantucket Pequot 

Tribe as a ‘‘federally recognized tribe,’’ among other reasons because, as William 

Coldiron, the Solicitor of the Department of the Interior, explained to this committee: ‘‘We don’t even know that they are Indians.’’ 

Nevertheless, in the end, President Reagan relented because Connecticut Senators 

Lowell Weicker and Christopher Dodd and all six members of Connecticut’s congressional delegation wanted the Mashantucket Pequot Indian Claims Settlement Act 

enacted into law. 

In a similar regard, it merits mention that on March 18 the members of the 

Senate Committee on Indian Affairs voted to report S. 465, which, if passed by the 

114th Congress and signed into law by President Obama, will create six new 

‘‘federally recognized tribes’’ in Virginia. The members did so over the opposition of 

Senator John Barrasso, the chairman of the committee. But S. 465 was reported because Virginia Senators Tim Kaine and Mark Warner, who had introduced S. 465, 

wanted the bill reported. 

In summary, since 1972 Congress has created new ‘‘federally recognized tribes’’ 

by enacting statutes ad hoc and, as Senator McCain noted, with ‘‘little or no application of objective standards or criteria’’ and based ‘‘almost exclusively on the political 

strength of the congressional delegation of the state in which the Indian tribe happens to be located.’’ 

Because, as discussed below, Congress’ creation of new ‘‘federally recognized 

tribes’’ has significant policy and budgetary consequences, the subcommittee should 

consider holding hearings to obtain information about issues like sovereign immunity and other policy consequences and about the budgetary consequences. And after 

obtaining that information the subcommittee should develop a coherent, objective, 

and comprehensive policy pursuant to which the subcommittee will evaluate bills 

whose enactments would create new ‘‘federally recognized tribes.’’ 

2. Congress Has Not Delegated the Secretary of the Interior Authority to 

Create New ‘‘Federally Recognized Tribes’’ in Congress’ Stead. As a 

Consequence, the Regulations the Secretary Promulgated in 1978, and 

Amended in 1994, in Which he Gave Himself That Authority Were and Are 

Ultra Vires. 

In 1975 Congress created an 11-member American Indian Policy Review 

Commission (AIPRC) that South Dakota Senator James Abourezk and Washington 

Representative Lloyd Meeds, who at the time was the chairman of this subcommittee, co-chaired, and on which the present chairman of this subcommittee 

served. The resolution that created it directed the AIPRC to ‘‘conduct a comprehensive review of the historical and legal developments underlying the Indians’ unique 

relationship with the Federal Government in order to determine the nature and 

scope of necessary revision in the formulation of policies and programs for the benefit of Indians.’’ 

After conducting its review, in 1977 the AIPRC submitted a report to Congress. 

In chapter 11 the report lamented that ‘‘There are more than 400 tribes within the 

Nation’s boundaries and the Bureau of Indian Affairs services only 289. In excess 

of 100,000 Indians, members of ‘unrecognized’ tribes, are excluded from the protection and privileges of the Federal-Indian relationship.’’ To remedy that situation, the 

report recommended that Congress adopt ‘‘a statement of policy affirming its intention to recognize all Indian tribes as eligible for the benefits and protections of general Indian legislation and Indian policy,’’ and that Congress ‘‘by legislation create 

a special office . . . independent from the present Bureau of Indian Affairs, entrusted with the responsibility of affirming tribes’ relationships with the Federal 

Government and empowered to direct Federal-Indian programs to these tribal 

communities.’’ (emphasis added). 

45 

1Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 388 F. Supp. 649 (D. Me. 1975), 

aff’d, 528 F.2d 370 (1st Cir. 1975). In Passamaquoddy the District Court held that Congress 

intended the word ‘‘tribe’’ in the Nonintercourse Act of 1793 to mean tribe in its ethnological 

sense, rather than tribe in its political sense. Contrary to Assistant Solicitor Keep’s assertion, 

that holding has nothing to do with the question of whether prior to 1977 Congress had enacted 

a statute that delegated the Secretary of the Interior authority to create new federally recognized tribes in Congress’ stead. 

Those recommendations were consistent with the Indian Commerce Clause, which 

grants Congress—and not the executive branch—‘‘plenary and exclusive power over 

Indian affairs.’’ They also were consistent with the attached 1975 letter in which 

the chief of the BIA Branch of Tribal Relations states: ‘‘[F]ormer Secretary [of the 

Interior Rogers] Morton and Solicitor Kent Frizzell were not sufficiently convinced 

that the Secretary of the Interior does in fact have legal authority to extend recognition to Indian tribes absent clear Congressional action.’’ 

To implement the recommendations in the AIPRC report regarding the creation 

of new ‘‘federally recognized tribes’’, in 1977 Senator Abourezk introduced S. 2375. 

The bill established a ‘‘special investigative office’’ inside the Department of the 

Interior to ‘‘review all petitions for acknowledgment of tribal existence presently 

pending before the Bureau of Indian Affairs.’’ The bill also delegated the Secretary 

of the Interior authority to ‘‘designate [a petitioning] group as a federally acknowledged Indian tribe.’’ 

In 1978 Representative Charles Rose introduced S. 2375 in the House as 

H.R. 11630 and H.R. 13773. 

A year earlier and a month after the AIPRC issued its report, on June 16, 1977 

the BIA published a proposed rule that contained regulations whose promulgation 

as a final rule would delegate the Commissioner of Indian Affairs authority to 

‘‘determine that an Indian group is a federally recognized tribe.’’ See 42 Federal 

Register 30,647 (1977). On June 1, 1978 the BIA published a revised version of its 

proposed rule that contained regulations whose promulgation as a final rule would 

delegate the Assistant Secretary of the Interior for Indian Affairs that authority. See 

43 Federal Register 23,743 (1978). 

Two months after the BIA’s publication of its revised proposed rule, on August 

10, 1978 the Subcommittee on Indian Affairs and Public Lands of the House 

Committee on Interior and Insular Affairs held a hearing on H.R. 13773. 

One of the witnesses was Deputy Assistant Secretary of the Interior for Indian 

Affairs Rick Lavis who informed the subcommittee that the Department of the 

Interior opposed H.R. 13733 because ‘‘We believe the existing structure in the 

Bureau of Indian Affairs is competent and capable of carrying this [i.e., the task of 

tribal recognition] out.’’ When Representative Teno Roncalio, the chairman of the 

subcommittee, asked, ‘‘You feel that you can make recognition for the tribes without 

statutory requirement of Congress? ’’, Secretary Lavis answered: ‘‘We are operating 

on the assumption that the statutory authority already exists.’’ 

When Chairman Roncalio then asked for a ‘‘quick citation’’ of that statutory authority, Secretary Lavis deferred to Scott Keep, an Assistant Solicitor, who 

responded: ‘‘Mr. Chairman, it is from a general interpretation of the various laws 

including the Passamoquoddy case 1 and also the Indian Reorganization Act and the 

way that has been implemented.’’ Mr. Keep also informed the Chairman that ‘‘The 

Department also takes the position that sections such as 25 United States Code, sections 2 and 9, giving the Secretary and the Commissioner of Indian Affairs responsibility for Indian affairs gives him the authority to determine who is encompassed 

in that category.’’ 

Two weeks after the hearing, on August 24, 1978 the BIA promulgated its 

proposed regulations as a final rule. 

As Assistant Solicitor Keep had predicted, the final rule identified 5 U.S.C. 301 

and 25 U.S.C. 2 and 9 as the statutes in which the BIA believed that Congress had 

delegated the BIA authority to promulgate regulations in which the Assistant 

Secretary of the Interior for Indian Affairs granted himself the authority to create 

new ‘‘federally recognized tribes’’ unilaterally by final agency action. See 43 Federal 

Register 39,362 (1978). 

But the texts of those statutes indicate that Congress intended their enactments 

to delegate the Assistant Secretary no such authority. 

The U.S. Supreme Court has instructed that, while Congress may enact a statute 

in which it delegates a portion of its legislative power to the executive branch, the 

constitutional doctrine of separation of powers requires that the text of the statute 

contain an ‘‘intelligible principle to which the person or body authorized to [exercise 

the delegated authority] is directed to conform’’ and that a statute that delegates 

legislative authority is invalid if its text contains ‘‘an absence of standards for the 

46 

guidance of [Executive Branch action], so that it would be impossible in a proper 

proceeding to ascertain whether the will of Congress has been obeyed.’’ See J.W. 

Hampton, Jr. & Company v. United States, 276 U.S. 394, 409 (1928); Yakus v. 

United States, 321 U.S. 414, 426 (1944). And see also Louisiana Public Service 

Commission v. FCC, 476 U.S. 355, 374 (1986) (reiterating that ‘‘[a]n agency may not 

confer power on itself’’). 

The texts of 5 U.S.C. 301 and 25 U.S.C. 2 and 9 not only do not contain any intelligible principles or identifiable standards to guide the Assistant Secretary’s decisionmaking regarding his creation of new ‘‘federally recognized tribes,’’ the texts 

cannot fairly be read to delegate the Assistant Secretary any authority to create new 

tribes. Because they do not, the regulations the BIA promulgated in 1978, the 

amendments to those regulations it promulgated in 1994, and, if they are published 

in a final rule, the new amendments the BIA published in the Federal Register on 

May 29, 2014 as a proposed rule were and are ultra vires. 

5 U.S.C. 301 

5 U.S.C. 301 states: ‘‘The head of an Executive department or military department 

may prescribe regulations for the government of his department, the conduct of its 

employees, the distribution and performance of its business, and the custody, use, 

and preservation of its records, papers, and property.’’ On its face that statutory text 

contains no delegation of authority to create new ‘‘federally recognized tribes,’’ and, 

if arguendo it does, the text contains no standards to guide the exercise of that 

authority. 

25 U.S.C. 2 

Congress enacted 25 U.S.C. 2 172 years ago. See ch. 174, sec. 1, 4 Stat. 564 (1832). 

As now codified, the text of the statute reads: ‘‘The Commissioner of Indian Affairs 

shall, under the direction of the Secretary of the Interior, and agreeably to such regulations as the President may prescribe, have the management of all Indian affairs 

and of all matters arising out of Indian relations.’’ If arguendo in 1832 Congress intended that text to delegate the Commissioner legislative authority to create new 

‘‘federally recognized tribes’’ in Congress’ stead, the text contains no standards to 

guide the exercise of that authority. 

25 U.S.C. 9 

Congress enacted 25 U.S.C. 9 170 years ago. See ch. 162, sec. 17, 4 Stat. 738 

(1834). As now codified, the text of the statute reads: ‘‘The President may prescribe 

such regulations as he may think fit for carrying into effect the various provisions 

of any act relating to Indian affairs, and for the settlement of the accounts of Indian 

affairs.’’ If arguendo in 1834 Congress intended that text to delegate the President 

legislative authority to create new federally recognized tribes in Congress’ stead, the 

text contains no standards to guide the exercise of that authority. In addition, the 

text of the statute only grants the President legislative authority to prescribe regulations to carry into effect the provisions of an ‘‘act relating to Indian affairs.’’ What 

was the act relating to Indian affairs that the promulgation of the regulations in 

1978 carried into effect? There was no such act. 

43 U.S.C. 1457 

In 1994 when the BIA amended the regulations it promulgated in 1978 it added 

43 U.S.C. 1457 to the list of statutes it believes delegates the BIA authority to promulgate the regulations. See 59 Federal Register 9293 (1994). But the text of 43 

U.S.C. 1457 simply charges the Secretary of the Interior with responsibility for ‘‘the 

supervision of public business relating to’’ 13 different subject areas, one of which 

is ‘‘Indians.’’ That is the sum of the statute. Nothing in the text of 43 U.S.C. 1457 

delegates to the Secretary authority to create new federally recognized tribes. And 

if arguendo Congress did intend 43 U.S.C. 1457 to delegate the Secretary that authority, the text contains no standards to guide the exercise of that authority. 

25 U.S.C. 479a–1 

On May 29, 2014 when the BIA published its most recent proposed rule, which, 

if published as a final rule will amend 25 C.F.R. 83.1 et seq., the regulations it promulgated in 1978 and amended in 1994, it added 25 U.S.C. 479a–1 to the list of 

statutes it believes delegates the BIA authority to promulgate the regulations. 25 

U.S.C. 479a–1 is section 104 of the Federally Recognized Tribe List Act (FRITLA), 

which Congress enacted in 1994. The text of the statute reads: ‘‘The Secretary [of 

the Interior] shall publish in the Federal Register a list of all Indian tribes which 

the Secretary recognizes to be eligible for the special programs and services provided by the United States to Indians because of their status as Indians.’’ 

47 

Nothing in that statutory text delegates the Secretary new authority to create 

new federally recognized tribes. And Congress intended no such result. The text of 

the FRITLA was written, and then was reported as an amendment in the nature 

of a substitute for the original text of H.R. 4180, by this committee. When it 

reported its amendment, the committee informed the House (and the BIA) that ‘‘If 

enacted, H.R. 4180 would make no changes in existing law.’’ See H.R. Rep. No. 

103–781, at 6 (1994). So why the BIA now would represent that this committee intended Congress’ enactment of 25 U.S.C. 479a–1 to delegate the Secretary new authority to create new federally recognized tribes is inexplicable. 

3. In 1994 the BIA amended the Regulations It Promulgated in 1978 in 

Order to Make It Easier for the Assistant Secretary of the Interior for 

Indian Affairs to Designate a Group Composed of Individuals of Native 

American Descent as a ‘‘Federally Recognized Tribe.’’ 

25 C.F.R. 54.7 (1978) required a petition filed by an ‘‘Indian group’’ to establish 

that the group had satisfied seven eligibility criteria. One of the most important was 

that the petition demonstrate that a ‘‘substantial portion’’ of the group’s membership ‘‘inhabits a specific area or lives in a community viewed as American Indian 

and distinct from other populations in the area, and that its members are descendants of an Indian tribe which historically inhabited a specific area.’’ See 25 C.F.R. 

54.7(b) (1978). 

In 1994 when the BIA amended its regulations, after designating 25 C.F.R. 

54.7(b) (1978) as 25 C.F.R. 83.7(b) (1994), it rewrote that eligibility criterion to state 

that a petition now need demonstrate only that ‘‘a predominant portion of the petitioning group comprises a distinct community and has existed as a community from 

historical times until the present.’’ The regulations then defined the term ‘‘community’’ to mean ‘‘any group of people which can demonstrate that consistent interactions and significant social relationships exist within its membership and that its 

members are differentiated from and identified as distinct from nonmembers.’’ See 

25 C.F.R. 83.1 (1994). 

In its final rule the BIA explained the purpose of that change as follows: ‘‘The 

old definition implied a geographic community, while the revised one focuses on the 

social character of the community.’’ See 59 Federal Register 9287 (1994). In other 

words, a ‘‘federally recognized tribe’’ henceforth could be a social club whose members live scattered in towns and cities across a state, and indeed throughout the 

Nation. 

For example, in 2000 Assistant Secretary of the Interior for Indian Affairs Kevin 

Gover granted a petition that a group that calls itself the Cowlitz Indian Tribe had 

filed and designated the group as a federally recognized tribe. See 65 Federal 

Register 8436 (2000). 

Today, the headquarters of the Cowlitz Indian Tribe is located in an office building in Longview, Washington, a town on the Interstate 5 freeway 48 miles north 

of Portland, Oregon. In 1995 when a BIA anthropologist investigated the Cowlitz 

Indian Tribe, the anthropologist discovered that 1,030 of the group’s 1,577 members 

lived in 133 different towns and cities throughout the state of Washington, 184 

members lived in Oregon, 120 members lived in California, and that the group’s 483 

other members lived in 34 other states as far south as Alabama and Florida and 

as far east as New Jersey, New York, and Connecticut. If in 1994 the BIA had not 

rewritten 25 C.F.R. 54.7(b) (1978) to remove the eligibility criterion that required 

a ‘‘substantial portion’’ of the members of a group to ‘‘inhabit a specific area’’ that 

diaspora would have been disqualifying. 

4. If They Are Promulgated in a Final Rule, the Changes to the Eligibility 

Criteria in 25 C.F.R. 83.7 (1994) That the BIA Has Proposed in the Proposed 

Rule It Published in the Federal Register on May 29, 2014 Will Further 

Loosen the Eligibility Criteria and, as a Consequence, Will Increase the 

Number of Petitions the Assistant Secretary of the Interior Will Grant in 

the Future. 

For example: 

25 C.F.R. 83.7(a) (1994) requires a group to demonstrate that it ‘‘has been identified as an American Indian entity on a substantially continuous basis since 1900.’’ 

(emphasis added). Proposed 25 C.F.R. 83.11(a) (2014) requires a group to ‘‘describe 

its existence as an Indian tribe, band, nation, pueblo, village, or community at any 

point in time during the historical period.’’ (emphasis added). And proposed 25 

C.F.R. 83.1 (2014) defines ‘‘historical’’ to mean ‘‘1900 or earlier.’’ 

25 C.F.R. 83.7(b) (1994) requires a group to demonstrate that ‘‘a predominant portion of the petitioning group comprises a distinct community and has existed as a 

48 

community from historical times until the present.’’ (emphasis added). Proposed 25 

C.F.R. 83.11(b) (2014) requires a group to ‘‘demonstrate that it existed as a distinct 

community from 1934 until the present without substantial interruption.’’ (emphases 

added). 

25 C.F.R. 83.7(c) (1994) requires a group to demonstrate that it ‘‘maintained political influence or authority over its members as an autonomous entity from historical 

times until the present.’’ (emphasis added). Proposed 25 C.F.R. 83.11(c) (2014) requires a group to demonstrate that it ‘‘maintained political influence or authority 

from 1934 until the present without substantial interruption.’’ (emphases added). 

Note: a group no longer will need to demonstrate that it maintained political influence or authority ‘‘over its members.’’ 

25 C.F.R. 83.7(e) (1994) requires a group to demonstrate that its ‘‘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.’’ Proposed 25 C.F.R. 83.11(e) (2014) requires a group to demonstrate that ‘‘at 

least 80 percent of [its] membership . . . consist[s] of individuals who can demonstrate that they descend from a tribe that existed in historical times or tribes that 

combined and functioned in historical times.’’ (emphasis added). Note: a group no 

longer will need to demonstrate that combined tribes functioned ‘‘as a single autonomous political entity.’’ 

5. The Creation of New ‘‘Federally Recognized Tribes’’ Has Significant 

Policy and Budgetary Consequences. 

It is reasonable to assume that, because it is proposing to loosen the eligibility 

criteria in 25 C.F.R. 83.7 (1994), the BIA believes that the creation of additional 

new ‘‘federally recognized tribes’’ should be encouraged. But the creation—either by 

Congress or by the Assistant Secretary of the Interior for Indian Affairs—of a new 

federally recognized tribe has significant policy and budgetary consequences of 

which Congress should be aware. Two of the most important are: 

Sovereign Immunity 

Decades ago the U.S. Supreme Court decided that every ‘‘federally recognized 

tribe’’ has sovereign immunity that it may invoke to prevent the tribe and its businesses and employees from being sued without the tribe’s consent in both the 

Federal and the state courts. 

In Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., a decision the 

U.S. Supreme Court issued in 1998, after noting that it was the Court, rather than 

Congress, that invented the rule that federally recognized tribes have sovereign immunity and that the Court had done so ‘‘almost by accident,’’ three dissenting justices condemned the rule as ‘‘unjust,’’ and pondered why federally recognized tribes 

should ‘‘enjoy broader immunity than the states, the Federal Government, and foreign nations? ’’ While the six other justices decided that the doctrine of stare decisis 

required the Court to continue to adhere to the rule, they settled on that result begrudgingly and only after noting that ‘‘There are reasons to doubt the wisdom of 

perpetuating the doctrine,’’ and that those reasons ‘‘might suggest a need to abrogate tribal immunity, at least as an overarching rule.’’ Despite their misgivings, in 

the end those justices decided that, rather than the Court abrogating tribal immunity as an overarching rule, the Court should ‘‘defer to the role Congress may wish 

to exercise in this important judgment.’’ 

But since the Kiowa Tribe decision, this committee and the Senate Committee on 

Indian Affairs have expressed no interest in investigating whether, in the second 

decade of the 21st century, it is appropriate to allow a federally recognized tribe to 

invoke sovereign immunity. While sovereign immunity is a subject that is beyond 

the scope of this hearing, the subcommittee should be aware that sovereign immunity is implicated each time a new federally recognized tribe is created. 

Who Is, or Should Be, an ‘‘Indian’’ ? 

As noted above, in 1934 Congress decided that an individual is an ‘‘Indian’’ for 

the purposes of the IRA only if he or she is ‘‘of one-half or more Indian blood.’’ And 

in 1971 Congress decided that an individual is an ‘‘Alaska Native’’ for the purposes 

of the Alaska Native Claims Settlement Act only if he or she is ‘‘of one-fourth degree 

or more Alaska Indian, Eskimo, or Aleut blood, or combination thereof.’’ But in 1978 

the BIA decided that a group should be eligible to petition the Assistant Secretary 

of the Interior for Indian Affairs to designate the group as a new ‘‘federally recognized tribe’’ as long as the group is composed of individuals who each have any percentage of Native American blood quantum because they each have an ancestor who 

was a member of ‘‘a tribe which existed historically or from historical tribes which 

49 

combined and functioned as a single autonomous entity.’’ See 25 C.F.R. 54.7(c) 

(1978). 

In 1994 when it amended the regulations it promulgated in 1978, the BIA maintained its ‘‘any percentage of Native American blood quantum’’ standard. See 25 

C.F.R. 83(e) (1994). However, in the amendments to its regulations that it published 

in the Federal Register on May 29, 2014 as a proposed rule the BIA proposed that 

a group should be eligible to petition the Assistant Secretary of the Interior for 

Indian Affairs to designate the group as a new ‘‘federally recognized tribe’’ even if 

up to 20 percent of the individuals who are members of the group do not have any 

Native American blood quantum whatsoever. See 25 C.F.R. 83.11(e) (2014). 

As a matter of policy, is it appropriate for a group to be designated as a new 

‘‘federally recognized tribe’’ because the individuals who are members of the group 

each had single great or great-great or great-great-great grandparent who was a 

Native American? What the answer to that question should be is a policy decision 

for the Congress that is beyond the scope of this hearing, other than to note that 

the question is implicated each time a new federally recognized tribe is created. 

However, the policy concern Oklahoma Senator Don Nickles expressed about the 

BIA’s tribal recognition process in 1993 during the confirmation hearing of Bruce 

Babbitt to be Secretary of the Interior merits the subcommittee’s consideration. At 

the time Senator Nickles was a member of both the Senate Committee on Indian 

Affairs and the Senate Committee on Appropriations, where he served as Ranking 

Member of the Subcommittee on Interior and Related Agencies. Senator Nickles 

advised Secretary-Designate Babbitt that 

I also think you need to look at blood quantums, because you are going to 

find that as you visit [IHS] hospitals and others, that we do not have blood 

quantum requirements. And the net result is two generations from now you 

are going to have individuals that are 1/132 that are going to be demanding 

full health care benefits for the remainder of their lives, and it is going to 

be enormously expensive. It is an open-ended full expense entitlement. So, 

keep that in mind. It is a growing, expanding, building base. The Indian 

population has exploded. And one of the reasons is because there is not a 

qualification for or a requirement on quantum. 

In conclusion, Mr. Chairman, insofar as the BIA’s creation of new ‘‘federally recognized tribes’’ is concerned, since 1978 the BIA has maintained that that is a quasiprivate matter that concerns only the BIA and the groups that have filed petitions 

that request recognition. However, as I noted at the outset, the Indian Commerce 

Clause in the U.S. Constitution grants Congress—and not the BIA—plenary and 

exclusive power over Indian affairs. And because it does, it is past time for Congress 

to reassume control of the tribal recognition process. 

Attachment: 

December 18, 1975 Letter from U.S. Department of the Interior, Bureau of Indian 

Affairs to Huron Potawatomi Athens Indian Reservation 

50 

Mr. YOUNG. I appreciate it. It is customary—I may break my 

custom just a little bit, because the Full Chairman is looking at his 

iPod, ignoring me. 

[Laughter.] 

51 

Mr. YOUNG. Mr. Chairman, do you have any questions? As a 

courtesy, I am asking you, the Chairman of the Full Committee. Do 

you have any questions you would like to ask the witnesses? 

Mr. BISHOP. I do, Mr. Chairman. I would actually feel more 

comfortable waiting my turn, but if you want me to—— 

Mr. YOUNG. No, I don’t, really. 

[Laughter.] 

Mr. YOUNG. Do you want to go ahead, or not? 

Mr. BISHOP. All right, let me just ask one to Secretary 

Washburn, if I could. I appreciate listening to the testimony that 

was here. 

Chairman Young noted that, I think it was on March 26 of this 

year, there was a bipartisan letter that was sent to Interior from 

this committee. It was also signed by Mr. Courtney and Ms. Esty, 

and I think Mr. Thompson, as well. It expressed our concern with 

the proposed revision, especially to Part 83, and urged the Department to—if I quote right—‘‘refrain from issuing final regulations 

until we have conducted the oversight necessary to evaluate thoroughly the issues associated with recognition.’’ 

Despite the bipartisan concerns that this proposed revision will 

pose a direct threat to the integrity of the tribal recognition process 

and the unique stature of tribes, within 48 hours we find the 

Department had already sent the rule over to OMB for final 

approval. 

So, I guess the two questions. The first one is, Mr. Assistant 

Secretary, are the concerns that we presented to you not important? You know, I don’t have a lot of time. I think that can be yes 

or no. Are our concerns not important to you? 

Mr. WASHBURN. Chairman, that is not fair. Of course your 

concerns are important. 

Mr. BISHOP. All right. Then the question for the second one is— 

I am not going to ask you why you failed to respond to those concerns before submitting the revisions to OMB, but I will ask you, 

will you commit to pull back Part 83 revisions you submitted to 

OMB, so that we can conduct the appropriate oversight and address the concerns held by this committee and others? 

Mr. WASHBURN. Chairman, we have been criticized for moving 

too slow, and you are asking us to stop, in essence. And we have 

been working on this for 2 years. So, respectfully, I won’t commit 

to doing that. 

Mr. BISHOP. You won’t pull it back, even though we responded 

to you, recognizing full well that we are talking about a legislative 

function here, not an executive function. You will not commit to 

pulling those back until we do the proper oversight on that. That 

is what you just told me. 

Mr. WASHBURN. Chairman, I have a stack of letters also saying, 

‘‘You’ve got to get this done.’’ We need reform in this area. And 

there are five people that signed your letter, and you are Chairman 

of a very important committee, as is Chairman Young. But we have 

been working this process a very long time. And this very subcommittee has held numerous oversight hearings over the last four 

or five or six or seven Congresses on this issue. 

So, there has been a lot of oversight. And, in fact, that is where 

we got a lot of our ideas, past bills that have passed out of this 

52 

committee. Those were some of the ideas that we used to craft our 

proposals. So there has been an enormous amount of effort, and we 

are going to try to get this done. 

We believe that a lot of the issues that have been raised here 

today have been addressed and will satisfy folks in the final rule. 

Not all of them, but some of them certainly have been addressed. 

And it is a difficult compromise, because we have people all over 

the political map on this. But my job is to do what I think is right, 

and I think we have reached that. 

Mr. BISHOP. You earlier said that no good deed or work goes 

unpunished. I am still waiting for the good deed or the good work. 

And, sir, I am not concerned with the speed or the number that you 

have. I am concerned that we do it the right way. I insist that we 

do it the right way. One way or another, we are going to push you 

until we do it the right way. And, whether that is quick or not, I 

don’t care. But it must be the right way. 

I will yield back, Mr. Chairman. 

Mr. WASHBURN. I share that commitment, Chairman. 

Mr. YOUNG. I thank—— 

Mr. BISHOP. Wait. If you share it, are you going to pull it back, 

then? 

Mr. WASHBURN. I share the commitment to doing it the right 

way. And I promise you that I will do it the right way, as I see 

best. I have been given a—— 

Mr. BISHOP. So you are going to pull it back. 

Mr. WASHBURN. I don’t plan to pull it back. 

Mr. BISHOP. Then we didn’t do it the right way. Thank you. 

Mr. YOUNG. Thank the Chairman, and I appreciate it. And now 

we will recognize the Ranking Member, as is customary—go ahead. 

Dr. RUIZ. Thank you so much, Mr. Chairman. And thank you, 

Chairman Bishop, for being here today. I look forward to working 

with the both of you this cycle closely, and making sure we do this 

the right way. 

Mr. Washburn, this proposed rule has been called a clarification 

of existing practices within BIA related to what standards are necessary for recognition. Earlier you talked about making sure that 

we maintain its rigor, and we talked about the threat of lowering 

the bar. 

So, can you tell me whether or not it is BIA’s current practice 

to consider evidence from 1934 as being sufficient historical evidence of tribal existence and community? 

Mr. WASHBURN. No. Under the current rule, the unreformed rule, 

no, 1934 is not the date when that begins. 

Dr. RUIZ. OK. So then, if this is not BIA’s current practice, then 

are you not, in effect, lowering the bar from recognition by changing that date? 

Mr. WASHBURN. Well, you are quoting from a proposed rule, a 

proposed rule that we now have had hundreds of comments on. So, 

we have heard a lot of comments about that date of 1934. Incidentally, we pulled that date of 1934 from legislation that passed this 

committee in a previous Congress. That will teach me to listen to 

you guys. 

We have looked carefully at that date. We have looked at other 

dates. Some people said it should be 1877. Some people said it—— 

53 

Dr. RUIZ. Well, what is the point—the trust responsibility that 

we have for sovereign nations prior to the establishment of our 

country is to respect those nations that we have the responsibility 

for. So how will you determine—and I know that this is the process, but isn’t the date and the continuity of evidence based on the 

original first Americans? 

Mr. WASHBURN. Well, it is. It is just a matter of how many years 

do you think they need to show their existence and their continuity. And 1934 is a date that would show eight decades of 

continuity. It wouldn’t be someone that sprung from whole cloth 

yesterday. That would be 81 years. 

If we went back to 1915, that would be a century. And we currently go back to, in essence, 1789 for some tribes, as Senator 

Blumenthal recognized. But we didn’t hardly have—California 

wasn’t even part of the United States in 1789. So the date has to 

be necessarily somewhat flexible. And we have been trying to figure out what would be the right date, so that we get the rigor that 

we need, but not impose undue responsibilities. 

One last thing on that. We thought 1934 to the present was an 

adequate time period because we have never had a tribe that has 

passed through the process—or, indeed, has failed the process— 

that could show that it existed since 1934, but couldn’t show existence prior to that. So the 1934 to the present was a pretty good 

proxy for all of history, it turns out. But it is very expensive to go 

back before 1934. It is very expensive. It requires thousands of dollars worth of historians to do that work. 

So, we are trying to lower the cost, but maintain the rigor. And 

that is why, in the proposed rule, we suggested the 1934 date. But 

again, we have heard a lot of comments about that date. And—— 

Dr. RUIZ. I am going to ask another question. This is for Mr. 

Cladoosby. 

In general, NCAI has been supportive of the proposed rule, but 

there is a sticking point when it comes to the reconsideration of denied recognitions, the so-called third-party veto, which would allow 

states and local governments the power to deny the request for 

reconsideration. I agree with you, that is indeed a dangerous 

precedent. 

So, in your opinion, if it stays in the final rule, would this provision empower states and local governments to press for veto power 

over tribal affairs, such as water settlements and land into trust? 

Mr. CLADOOSBY. Well, the tribes that were previously denied, it 

is my understanding, Mr. Assistant Secretary, they cannot resubmit only if the denial is because of a third-party intervention and 

that third party is now willing to support a petition for review. So, 

you know, that is—— 

Dr. RUIZ. So, Mr. Washburn, how do you feel that this provision 

would empower other entities to press for veto power over tribal 

affairs? 

Mr. WASHBURN. Well, what we were trying to do with that notion 

that became the third-party veto is basically to recognize that the 

people who have fought recognition also have some equities. They 

sometimes spent thousands and thousands of dollars to fight recognition. And it was—what they said was, ‘‘It is unfair to us, because we have spent tens of thousands, or even hundreds of 

54 

thousands of dollars to fight this group, and were successful.’’ And 

now, if the Department lets them just start over, then they are 

back at square one, even though they have invested so much 

money on something they cared deeply about. And that is, ultimately, what that provision was intended to get at, recognize those 

equities. 

Ultimately, what we have heard from a lot of people is that provision may be unconstitutional or illegal. So, we have taken that 

into consideration, because we certainly want a rule that is defensible in court. 

Dr. RUIZ. Sounds like there is a lot of reconsideration going on 

here. And there is going to be a lot of editing of these proposed 

rules. And there are going to be some concessions that I am going 

to really be interested in reviewing, once that becomes transparent. 

So, I appreciate all of you here. And, Chairman Martin, good to see 

you today. 

Mr. YOUNG. I feel a little bit—I am watching Kevin Washburn 

right now. He is the only one who has seen this rule. So we are 

sort of poking in the skunk hole right now, not knowing for sure 

that it is in there or not. So I do appreciate the testimony. And I 

saw him grinning a couple times, so I don’t know what he is doing, 

frankly, but we will find out later. 

I believe—well, if he came in late, you know—well, I will 

recognize the Vice Chairman, because it is a lady. Have you got 

questions you would like to ask now or later? 

Mrs. RADEWAGEN. Thank you, Mr. Chairman. I do have 

questions. 

Mr. YOUNG. OK. 

Mrs. RADEWAGEN. My question is for Chairman Martin. Do you 

think it is better for Congress to determine the appropriate standards for tribal recognition than for an unelected Assistant 

Secretary of the Interior to do it? 

Mr. MARTIN. No, I don’t. How we look at this is it is a weakening 

of the standards that have been placed for all the tribes that are 

recognized today, it is who we are. I talked earlier about it being 

inherent sovereignty of the tribe. And when groups come in that 

want to be recognized as a tribe, they haven’t been where we are. 

How did they get where they are? I don’t know those answers, or 

have the answers to those questions. So, no, I don’t think it is the 

Secretary’s place, with all due respect. 

Mrs. RADEWAGEN. Thank you. Thank you, Mr. Chairman. I yield 

back. 

Mr. YOUNG. Thank you, ma’am. 

Mr. Courtney, welcome, by the way. I mean we always like new 

blood. 

[Laughter.] 

Mr. COURTNEY. Thank you, Mr. Chairman. I really appreciate 

the invitation to be here today, and also the fact that you responded to a number of us who requested this hearing. I don’t 

think you needed much persuasion to do it, but as you pointed out 

in your opening remarks, these rules just have a huge impact that 

will go on for decades, as we have heard from Mr. Mitchell quoting 

the prior experience here. So this hearing is, I think, a very important one for our Nation. 

55 

I had an opening statement, which I am going to ask to be submitted for the record. And basically, in a nutshell, eastern 

Connecticut was the place where a number of these applications 

that Senator Blumenthal referred to earlier—and that he worked 

for years as the Attorney General. So we have some pretty sort of 

battle-scarred veterans, in terms of people that went through the 

process, small towns that, frankly, did not have the budgets to deal 

with large legal expenses, and certainly didn’t have the inherent 

legal expertise. But they learned fast the hard way, going through 

this process. 

And, as Senator Blumenthal said, I think that many were frustrated by the process, in terms of how opaque it was, the fact that 

it took a long time, that the Department really didn’t help much, 

in terms of interested parties with just sort of really common-sense 

assistance, in terms of guidelines, explanations of procedures. 

Mr. Washburn, these local leaders have prepared a 12-point list 

of suggestions which are very mild, and very common sense. Obviously, we are in a different era, technology-wise, in terms of having 

the Internet and Web sites available for best practices and 

webinars. So I am going to submit, again, their list of 12 suggestions, both to committee staff and to your office. And I would appreciate a response. They were not incorporated in the proposed 

regulations. And, frankly, I am not even sure they require regulations. Again, it is really just about the way the Department operates for people who, again, are impacted by applications, and just 

want to understand better the way that they can weigh in. 

But one of the changes that you proposed which, again, I think 

sort of caught people by surprise was the ability of local communities to participate in this process as full parties with standing. 

In the case of the Eastern Pequots, which Senator Blumenthal, 

again, took all the way to a Federal district court judgment, the 

towns played a critical role in terms of their participation in that 

litigation. 

Looking at your proposed rules, they really are now going to be 

almost commentators, as opposed to full parties or participants. 

And I would just ask for your comment because, again, they have 

to deal with all the issues of land use, of just sort of being a referee, in terms of neighbors dealing with each other. In my opinion, 

there is nothing—there was hardly any participant that is more 

justified, in terms of standing. And it seems like we are going backwards, as far as their ability to fulfill that function. 

Mr. WASHBURN. Thank you, Mr. Courtney. I wouldn’t agree with 

that at all. We have worked hard to ensure that local governments 

have a voice. We know that any group that we recognize as a tribe 

is going to have to have a relationship with their local communities 

that they work with. And those state and local communities deserve a voice in the process. 

And, as you sort of recognized, nowadays it is easier to be more 

transparent about these things. We sometimes get boxes and boxes, 

literally tens of linear feet of documents. But nowadays it is 

possible to put those sorts of things on the Web, and we think 

those kind of things can make it more transparent, and make it 

easier for anyone to participate. But certainly cities and local 

governments. 

56 

Mr. COURTNEY. So it is your testimony—just want to make sure 

I have this clear—that, again, a community like Ledyard, 

Connecticut, or North Stonington, which, again, the Eastern 

Pequot petition would have impacted, and who were full participants with lawyers, et cetera, they would continue to have that 

right to participate in the recognition administrative process? 

Mr. WASHBURN. Well, they have a—we will take information 

from wherever it comes. So, I am not sure I would set them up 

above others, because tribes also have a right, if there are tribes 

locally that have an interest in the issue. 

There are a lot of people that are interested when we take these 

kinds of actions, or are considering these kinds of actions. And certainly, yes, neighboring cities are among those groups of people 

that we believe are interested, and we hope to hear from whenever 

we are making these kinds of decisions. 

Mr. COURTNEY. Thank you. Again, Mr. Chairman, we are obviously going to learn more very soon, and I look forward to working 

with you and the committee when those rules become—— 

Mr. YOUNG. I thank the gentleman. 

Mr. COURTNEY [continuing]. Public. 

Mr. YOUNG. And because you are directly affected, make sure, if 

you see something that is questionable, contact the committee. 

Come back and sit any time. 

Mr. LaMalfa, you are next. 

Mr. LAMALFA. Thank you, Mr. Chairman. 

First, Assistant Secretary Washburn, again, going back to your 

proposed rules, of course I am greatly concerned, as are many on 

the committee, that this would allow for previously rejected tribes 

to reapply under new, lower standards if they had not made the 

cut before. 

So there is a specific petition in southern California that we are 

looking at. The Juaneno Band of Indians in southern California 

have submitted multiple petitions as far back as 1982. In 2007, the 

BIA issued an initial negative determination on these petitions, 

finding the band failed four out of seven key criteria. In 2011, the 

BIA issued a final negative determination, finding the Juaneno 

Band still failed four of seven criteria, after having nearly 4 years 

to try and rectify the problems, get more information, et cetera. 

This Band appealed this decision to the Interior Board of Indian 

Appeals, IBIA. The IBIA denied their appeal again in June 2013, 

finding it baseless, which would seem like that would be, probably, 

the end of the process. But in December 2013, you and Secretary 

Jewell decided against ending the process. Instead, opened the door 

for having them try again under new, weaker standards in these 

proposed new rules. 

So, what I am trying to figure out, and many of my colleagues 

here, how can you justify continuing to use limited agency time and 

taxpayer dollars on the Juaneno Band, when they clearly do not 

meet the standards? How many second chances are you going to 

give them? 

Mr. WASHBURN. Well, again, this is an issue that we got a lot of 

feedback on. You will see how we resolved that when the final rule 

comes out, and I invite oversight on that final rule, because that 

is this committee’s and this Congress’s responsibility. 

57 

Mr. LAMALFA. May I ask what does ‘‘a lot of feedback’’ mean? I 

mean where does that come from? 

Mr. WASHBURN. We received numerous comments. I mean, we 

put that proposed rule, that is notice and comment rulemaking. So 

we put the proposed rule out publicly, and we invited comments. 

And we received—— 

Mr. LAMALFA. You measure by volume of comments, or does 

there have to be some substance to each of the comments from people that have a stake in it, or have a background? Because I can 

see plenty of comments in a newspaper online article that I don’t 

take very seriously. 

Mr. WASHBURN. No, no, no—— 

Mr. LAMALFA. So, seriously, what is that? 

Mr. WASHBURN. We had people that actually wrote us letters 

that really carefully looked at this, including the people at this 

table, many—several of the people at this table. And they and their 

lawyers looked through this and made substantive comments and 

gave us their very legitimate concerns, again, some of which, in 

some of the areas we have accepted, and not all of which we have 

accepted, because there is lots of disagreement. 

We found that, on any given issue, there was a range of opinion 

about how we should handle those. But it was our job to assimilate 

all those, listen to all those, and then do the best we could, make 

the right call. So that is one of the areas where we got some of the 

most comments. So—— 

Mr. LAMALFA. Are you getting comments that say that this is to 

the detriment of existing tribes that have met the test at a higher 

level, and then they are seeing others that would perhaps, if approved under new, more lax rules, how are they supposed to feel 

about that, about the fairness of that? 

Mr. WASHBURN. Well, we certainly received comments like that. 

And we take those to heart. 

Mr. LAMALFA. That is the vast majority of other tribes that 

would probably make those kinds of comments? 

Mr. WASHBURN. Well, honestly, again, we received comments all 

over the map on that very issue. You know, and I will tell you, the 

way this came up was we had originally, in the discussion draft, 

had changes to the criteria. What I am hearing now is it is OK to 

change the process, but don’t change the standards, the criteria. 

In the original discussion draft we talked about changing the 

standards and the criteria, and my view at the time was, well, if 

we are really just changing the criteria, if someone that had been 

through the process failed because of a criteria, and we change that 

criteria later, and they would have succeeded under the new criteria, it was only fair to say if they can prove that, they should be 

able to go through the process. It seemed only fair. So, that is kind 

of where the idea of re-petitioning came from. 

But again, it has been quite controversial—— 

Mr. LAMALFA. Well, criteria is really the key element above the 

process. I mean, if you are qualified to be a brain surgeon because 

you have been through enough years of schooling, it isn’t that, oh, 

you just went through a process to get a license. You have to have 

reached the level. The same would be here, that—changing the important aspects of previous history, historical records, what makes 

58 

up a community, those are very important cornerstones. And if that 

is what is being changed, then it is really not right for the tribes 

that have demonstrated that in the past. 

Mr. WASHBURN. Well, you are absolutely right, Mr. LaMalfa. And 

I would say that there have been advances in brain surgery, 

though, and we need to recognize advances as well, as we think 

about how to apply these standards. 

But I think you are right. I don’t disagree with your fundamental 

point that these standards are—while not set by Congress—and I 

would invite Congress to take a look at passing a bill that actually 

provides standards, because Congress absolutely has plenary authority here, and has the right to do so. If you all give us standards, we will apply those, rather than the ones that we are trying 

to come up with. This is not an easy task—— 

Mr. LAMALFA. Part of the task of the committee here today in 

getting to that, and you kind of nicely told our overall Committee 

Chairman to pound sand on that a while ago. 

Mr. WASHBURN. Well, it is a difficult task, and I am willing to 

live with what I do. And I expect oversight from you, once we publish a rule. And you can tell me whether you disagree with it, and 

you can overrule it. You can pass a rule yourself, if you disagree, 

because I think these are hard questions, and there are views all 

over the country on what the right answers are. And I think I am 

in the hot seat; I would invite you to sit in it. 

Mr. LAMALFA. Oh, OK we will heat it up. I yield back, Mr. 

Chairman. 

Mr. YOUNG. I thank the gentleman. And, you know, one of the 

things that I am hearing here, I am hoping that the revised rule 

will meet a lot of the criticisms that have been made by the witnesses. We do have another responsibility. Like Mr. Mitchell said, 

what has been done, is it illegal? 

So, we may write a bill. Now, I don’t think the Secretary has authority to do this, but if we pass it and it gets through the Senate, 

which—I think it would be very possible—will the Administration 

sign it? That is a real question. So I want you to think. 

Ms. Esty, you are up. Welcome to the committee for a short 

period of time. 

Ms. ESTY. Thank you very much, Mr. Chairman. I want to thank 

you and Ranking Member Ruiz for calling this important hearing, 

and allowing me to join you and participate, as it is very important 

to my state and to my district. 

I also want to thank my friend, now departed, the senior Senator 

from Connecticut, Richard Blumenthal, who is, as you know, a 

long-time, passionate advocate for American families, Connecticut 

families, and is well versed in the issues we are addressing here 

today. 

I would also like to thank Secretary Washburn and the whole 

team who came, all of our witnesses today. These are difficult and 

challenging issues, and I trust all of us, and believe all of us are 

attempting to do the right thing and proceed forward in fairness 

for native peoples and all Americans in this. 

Last month, as you have already heard, I joined Chairman 

Young, Chairman Bishop, Congressman Mike Thompson, and 

Congressman Joe Courtney, in writing a letter to the Department 

59 

of the Interior, and we asked the Department to refrain from 

issuing final rules until we have an opportunity to have full oversight. That is why I and, I suspect, others of us here today are distressed that those rules were sent over yesterday, prior to this 

hearing. But I am grateful that we have the opportunity today to 

flesh out some of these issues and to air our concerns about the implications, intended and unintended, of the proposed changes. 

While I understand there is a desire to improve the current tribal recognition process, I have very serious concerns about the rules 

as proposed, as we have seen—understanding we have not seen 

what was sent over yesterday. 

I have heard from folks in the town of Kent, that is in my district, that allowing a previously denied tribe, as we have, a second 

bite of the apple would be tremendously disruptive, economic and 

quality of life implications that are really profound for one of a 

number of communities across this country. 

And I think we are all in agreement here, certainly on the dais, 

about the need for fairness. But fairness includes predictability and 

reliability. And I think it is those risks being undermined if, as in 

the case of the tribes we are looking at, previously fully adjudicated 

tribes have an opportunity to re-litigate. And that unpredictability 

is extremely costly, and poses psychic impacts on the communities 

they would have to go—as well as major economic impact to relitigate. 

So, we, as a Congress, have a responsibility to conduct a thorough and fair oversight so we can fully understand those implications. And I share the Chairman’s and my colleagues’ hopes that 

the final rules address the concerns we have raised here today. 

So, Secretary Washburn, a quick question for you. The proposed 

revisions that we saw most recently to the tribal recognition process allow for tribes that have previously received negative final 

determinations to re-petition. We know well that the Federal recognition process can be time-consuming and expensive. How can we 

be sure that the process will be fair for tribes seeking Federal recognition in the future, if the recognition process is now allowed to 

be opened up to tribes that have been denied in the past? 

Mr. WASHBURN. So the question is how is it fair to tribes in the 

future if it is reopened to petitioning groups in the future, if it is 

reopened to tribes in the past. Help me understand your concern. 

Is it that we have people that are waiting in line to be considered, 

and if we let the past people who have failed the process come back 

in, that the people that are already waiting in line would have to 

wait longer? Is that it? 

Ms. ESTY. It is also the predictability issue. You are saying now, 

if we change the criteria—as I understand your answer just moments ago, was if the criteria changed, fairness dictates that we 

allow tribes to reapply under the new criteria. There is, you know, 

sort of a res judicata question of at what point does this process 

end? When will we get finality? How can we have assurance that 

the new and improved process isn’t again going to be asked, ‘‘Let’s 

change it again, let’s change the criteria’’ ? And that prolongs the 

uncertainty, makes it extremely difficult for communities, and for 

tribes themselves. 

60 

So, that is the question of what kind of finality do we have if we 

are changing criteria. 

Mr. WASHBURN. Well, fair enough, and that is a concern that we 

have heard. I know that everyone wants us to be finished with this 

process eventually that any group that deserves to be recognized 

gets its hearing, in essence, and then we make a decision, and then 

we move on. And I don’t know when that day will come. We have 

a hard-working staff at the Department of the Interior that is pedaling as fast as they can to get through these petitions, and we are 

trying to make it easier on them, to make the process somewhat 

more efficient. 

But I think we all share the interest in finality that we can get 

to the end of that list, eventually. Thank you. 

Mr. YOUNG. I thank the young lady. If you wish to stay, you can. 

And maybe we will have a second round, if you wish to do so. As 

I have offered to Mr. Courtney and yourself, your interest in this 

is deeply appreciated. If you see something that is a little bit questionable, bring it to our attention. 

Ms. ESTY. Thank you very much. 

Mr. YOUNG. OK. Mr. Gosar, you are next. 

Dr. GOSAR. Thank you, Mr. Chairman. 

Assistant Secretary Washburn, good to see you again. Sorry the 

Cats didn’t beat the Badgers again. 

Now, I am going to go back to the numbers of conversations you 

just brought up. You testified that there were 3,000 comments, and 

more than 300 unique comment submissions on this proposed rule. 

Right? 

Mr. WASHBURN. Yes. Yes, that is right. 

Dr. GOSAR. So were there more comments in favor or in 

opposition to the rule? 

Mr. WASHBURN. You know, it is hard to say, because they were 

very substantive comments and they didn’t say, ‘‘We are in favor,’’ 

or opposed, necessarily. I would say the vast majority of them 

favored reform in some way, but they would say, ‘‘But we don’t like 

this part of what you suggested,’’ or, ‘‘We don’t like that part.’’ 

Some of them said, ‘‘In fact, we have another way we would rather 

you did it.’’ 

So, I think the majority of people were interested in reform of the 

rules, just like we have heard from Congress for the past 20 years. 

Dr. GOSAR. Got you. So, of the 300 or so petitions the BIA has 

on file that indicate at least an intent to eventually file for recognition, how many new tribes do you expect to become federally 

recognized over the next 10 years, as a result of the relaxed requirements put forth in your proposed rule? 

Mr. WASHBURN. I think that number is high that you quoted, Mr. 

Gosar, Dr. Gosar. But—— 

Dr. GOSAR. There were 300 unique submissions. 

Mr. WASHBURN. That is comments on our rule. Those aren’t 

petitioners. I am sorry, maybe I just misheard you. So, I—— 

Dr. GOSAR. So what you have is an inventory that you currently 

have under your purview. How many do you think will, based upon 

these new rules in the next 10 years? 

Mr. WASHBURN. Oh, we hope that the process becomes a little bit 

faster than it has been. We would like to say it was a lot faster. 

61 

And one of the things that our proposal does, and I think the final 

rule will do, is increase the speed of disapprovals, for example. 

There are seven criteria, and they are difficult criteria, some of 

them. So, we have suggested changes that would allow a disapproval if someone clearly doesn’t meet one of the criteria. 

Dr. GOSAR. I can understand that. But have you done an analysis 

of the effects of this? 

Mr. WASHBURN. Well, we have. It is hard to know exactly what 

the effects are. We have been doing this process for 35 years, and 

we have denied 34 petitions and recognized 17, which is one every 

2 years has been recognized, basically. But, one every year has 

been denied, in essence, on average. 

So, we hope that it goes a little faster than that, going forward. 

But our changes, I think, will be incremental, rather than 

dramatic. 

Dr. GOSAR. So, in your opinion, in establishing a protocol, what 

is your essential element of formulating a decision or a process? I 

thought I heard time. 

Mr. WASHBURN. I would say legitimacy and integrity. Time—it is 

a very bureaucratic process. And, we have people with graduate degrees doing very difficult, painstakingly detailed work. 

Dr. GOSAR. I am glad you said that, because if we are reopening 

the criteria, don’t you think that body—I mean the gentleman over 

here, Mr. Mitchell, made a pretty serious allegation of the plenary 

power of Congress, and that you really don’t have that jurisdiction. 

So if you are changing the criteria, don’t you think you ought to 

come to us first? 

Mr. WASHBURN. Well, this body has consented to this work for 

over 35 years. 

Dr. GOSAR. How do you justify that? 

Mr. WASHBURN. Well—— 

Dr. GOSAR. Because, I mean, I keep hearing this, but I fundamentally need to see that, Assistant Secretary. And that is one 

of the things I would like to ask of you, is please delineate for me 

that decision, that process, and why Congress or where Congress 

actually gave you that statutory application. 

And number two is whether they also fund you for that aspect. 

Because it has to satisfy twice from that standpoint to meet the 

anti-deficiency clause in that regard. 

Mr. WASHBURN. Well, we certainly have been provided funding, 

year in and year out, from the appropriations—well, from 

Congress. 

Dr. GOSAR. That specifically said for this reason? 

Mr. WASHBURN. Absolutely. And, in fact, you increased 

funding—— 

Dr. GOSAR. Well—— 

Mr. WASHBURN [continuing]. Within the past 10 years, because 

we weren’t moving fast enough. So you gave us more money to hire 

more historians and more anthropologists and more genealogists. 

So you have increased funding for the acknowledgment process. 

Dr. GOSAR. But I think—I guess my point is changing back to 

where you are looking at the criteria here, it changes the whole dynamics here. You just don’t have free reign to change those criteria. 

That criteria needs to come back—if you change that criteria, you 

62 

have to come back here, because that is not given to you, statutorily. So it changes the whole ball game. That is what the 

Chairman was trying to allude. And I think that is what the attorney over here, Mr. Mitchell, was trying to do. 

But I would like you to—as—you know, I know the Chairman— 

I just want to finish this last thought. 

Mr. YOUNG. OK. 

Dr. GOSAR. I want to have you provide to this committee the outline of where in statute, what in statute gives you the detail to go 

forward on this application. And I thank you. 

Mr. YOUNG. I will tell the gentleman I don’t believe the Secretary 

is quite correct about—there is no line item, I believe, in the budget for the program. It goes to the Secretary, and then they disperse 

the money for this recognition process. But it is not a line item 

from the Congress. 

Mrs. Torres. 

Mrs. TORRES. Thank you, Mr. Chairman. And this question is for 

Assistant Secretary Washburn. 

Among the 81 pending applications for recognition listed on the 

Office of Federal Acknowledgments Web site, there are still a number of applications that have been pending for a very prolonged period of time, 20-plus years. Can you expand on the impact the new 

rules would have on these types of longstanding applications? And 

what ability does local government and tribes have under the proposed rules to provide the Department with meaningful feedback 

during this application process? 

Mr. WASHBURN. Yes, Madam Torres, thank you. Let me just say 

this. We do have a number of listed applicants, in essence, on our 

Web site. Some of those applicants we don’t even have a good address for. They sent us a letter of intent many years ago, said, ‘‘We 

are interested in applying.’’ And that is a problem, because no 

doubt some community somewhere got spun up about that, got 

upset about that, when they learned that there might be an Indian 

tribe within their midst, and we have never heard from them since. 

So, one of the changes that we have proposed in our rule is not 

to count that as an application, if they have just sent us one letter 

and we have never heard from them again. So we now will consider—under the proposal, at any rate, we will consider a petition 

only when they have submitted a documented petition that contains information under each of the seven criteria. We won’t take 

them seriously until they do that. So, ultimately, at the end of this, 

we won’t have 81 on that list. We will have a far fewer number of 

groups that are serious about trying for acknowledgment. 

We do have a fair bit of opportunity for state and local governments to participate in the process, to address your second question. We currently notify the governor and the attorney general in 

the state, and invite comments from local governments as well. 

And that would stay the same. The only difference is, under our 

proposal, we will make that information a lot more transparent by 

putting it up on a Web site, and we will allow people to register 

if they want to be informed, and we will let them know when there 

has been information—when there has been a petition submitted, 

and when we receive that. So, we are working to make the process 

much more transparent. 

63 

Mrs. TORRES. So what process—help me understand the process 

that you will follow regarding these one-pager applications that you 

no longer have a current—a good address. Will you have an outreach effort? Will you have a public effort, where somebody could 

look at a Web site or somebody can hear a PSA and find out that 

their application will no longer be taken seriously? 

Mr. WASHBURN. Well, we have always been willing to provide 

technical assistance. But what we got early on, frankly, were a lot 

of people, a lot of groups, writing us saying, ‘‘We want to be considered,’’ and then we never heard from them again. And they just 

never bothered to document their petition. And it is hard to take 

that seriously, because they just haven’t given us any information 

to go on and, very likely, because they don’t have that information. 

So, we want that to be clear. We don’t want to have the world 

anticipating an application from someone who really doesn’t have 

the goods, who doesn’t have the evidence to back up that application. 

Mrs. TORRES. Thank you, and I yield back my time. 

Mr. YOUNG. Colonel Cook, the Marines will report for duty, sir. 

Mr. COOK. I am here. 

[Laughter.] 

Mr. COOK. Thank you, Mr. Chair. You know, I have been listening to all this, and I am thinking, God, 50 years ago, if these rules 

were in place, I might have decided to try to become a lawyer, with 

all the money that will be made available with all these lawsuits, 

than going into the Marine Corps. No, I am only kidding. I will always go into the Marine Corps first, before. 

Chairman Martin, I want to review the bidding a little bit on the 

process. But my problem is we have a lot of tribes in my area in 

southern California. By changing this, of course, there is going to 

be more litigation now, more lawyers, all these battles, and everything else. And, of course, one of the things that might not be addressed right now is casino shopping. 

And there is a certain city—sorry—in—there is no one here in 

Nevada, I guess—in Nevada that probably has a relationship with 

a tribe that might have a very, very shaky claim on an aboriginal 

area that just so happens to be located on a freeway on the way 

to Las Vegas. And for certain reasons, they would fund or be in 

partnership with that tribe that has very—at least none that I 

have found in the past, and you know which one I am talking 

about. And do you think this will encourage some of these folks 

to—this interpretation, new process—to go out, find some members 

that claim they are part of this tribe, and—because we have a 

great relationship in California with the tribes. 

I am a strong, strong supporter, not because of the casinos, but 

because of some of the injustices that have been done for years. 

This is money that could be going to schools, to things that the 

tribe does on the reservation. And this really, really bothers me, 

changing this whole process. And I want to get your take. 

The Chairman talked about another bite to the apple, you heard 

a lot of this. And if you can just give me your feelings on this, 

because—— 

Mr. MARTIN. Well, thank you, Congressman. I definitely think 

that it opens it up for what we call reservation shopping. We have 

64 

been up front, vocal, all along for several years now on reservation 

shopping, whenever it happens in our area, or in another area in 

California, we have been opposed to that. 

And I do believe this could cause the opportunity for more of that 

to happen when a small tribe that is isolated out, for no fault of 

their own, but they are not in a business area that would allow 

them to have revenue from a casino, gets an opportunity to go into 

the convergence of two highways on a very large city, and gets 

promised a lot of money, sure, they are going to try and do everything they can. They are going to try and prove a nexus to that 

area. 

But we are opposed to that. I see lawsuits, a huge cost. I think 

if, and I think the Secretary alluded to this, that of the seven criteria, if these tribes or these tribal groups are coming and they 

can’t get past, let’s say, number two, or number one, then you stop 

it there. Don’t let them come back for 20 years. That has to be a 

huge cost to the government in expert witness time and lawyers 

time. And I wouldn’t keep allowing that to happen. I just see that 

as a huge problem that they have. 

And, yes, I do definitely feel that that is going to cause more 

problems than we have today. 

Mr. COOK. I appreciate you answering that. I yield back. 

Mr. MARTIN. Thank you. 

Mr. YOUNG. Mr. Mitchell, you testified contrary to the BIA’s position in 1932 and 1834 when it enacted Section 2 and 9 of Title 25, 

that Congress did not intend these statutes to delegate the 

Secretary of the Interior authority to create new, federally recognized tribes. But in the James v. Department of Health and Human 

Service, the decision of the U.S. Court of Appeals for the District 

of Columbia Circuit issued in 1987, didn’t that court say that 

Congress did intend Section 2 and 9 of Title 25 to delegate the 

Secretary that authority? 

Mr. MITCHELL. Mr. Chairman, the answer to that question is yes, 

but no. 

Mr. YOUNG. Want to run for office? 

[Laughter.] 

Mr. MITCHELL. The District of Columbia Circuit in the James 

case—generally speaking, every time someone like me says what I 

just testified in front of the committee, what people then say is, 

‘‘Oh, but wait a minute. This has all been settled, because the 

James decision from the D.C. Circuit says that these statutes from 

the 1840s did, in fact, convey the authority.’’ 

There is a problem with that, and that is that, while, if you read 

that decision, there is language that says that, yes, there is—the 

Secretary has these 1978 regulations and Congress gave them the 

authority to do all that in those 1840 statutes. The problem with 

that is that if you read the decision, you will find that the plaintiffs 

never challenged the validity of the 1978 regulations. The court 

just said that in passing on its way to dealing with completely unrelated issues that were in the case. That is what I would hope 

Assistant Secretary Washburn would agree with me is called in our 

business dictum, which means it doesn’t mean anything, legally. It 

is interesting, but it doesn’t mean anything. 

65 

In addition, the world being an oddly small place, if you read 

that decision you will see that the lawyers who represented the 

Jameses, the faction of this unrecognized tribe that was the plaintiff, that the lawyers were a father and son team named William 

and Robert Hahn out of Boston. Through total serendipity, Bill 

Hahn is a social acquaintance of mine. And when I realized that 

he had been the counsel for the plaintiffs in this case, because of 

why it is always thrown out and misstated, in terms of its legal 

precedent, I called Bill. And he told me what I just told you, which 

is, ‘‘No, we never challenged the validity of the Secretary’s regulations. None of that was ever briefed. And the complaint in that 

case, and all the briefing is out in a cardboard box in my garage 

in Boston. If anybody would like me to go get it and send it down 

to the committee, tell them I would be happy to go and find it.’’ 

So, the point being is that your question is a good one, because 

that comes up all the time. But, as I said, the answer is that that 

case actually does not hold what some of the language in it says. 

Mr. YOUNG. OK. Second, Don, the Assistant Secretary of the Interior for Indian Affairs has granted since 1978 petitions that have 

created 17 new federally recognized tribes. If you are correct that 

the Assistant Secretary had no authority to do that, what would 

you recommend this committee do? 

Mr. MITCHELL. Well, I think there are two things. First of all, 

you shouldn’t believe for a moment anything I have told you. And 

what you—— 

Mr. YOUNG. That is an honest lawyer, I can tell you that right 

now. 

[Laughter.] 

Mr. MITCHELL. No, no. But what you ought to do is you ought 

to go find someone who does not have a dog in the fight, like the 

solicitor at the Department of the Interior, somebody who is knowledgeable and does not have a dog in the fight, to take a look at 

what I did, in fact, testify to, and to give you some advice as to 

whether or not my position regarding that separation of powers 

issue is legally correct. 

Now, for example, the General Accounting Office would be a good 

place to ask. The Library of Congress provides that service to 

Congress. You could ask them. There is a constitutional subcommittee of the House Judiciary Committee. I have never been 

over to that committee, but I would assume that they have, on 

staff, lawyers who are experts in the Constitution, but who do not 

know an Indian tribe from a piece of sheetrock. So they could tell 

you whether the legal theory I have told you is correct, without— 

it doesn’t make any difference whether it is Indians or anything 

else. And I think that you should get that advice. And I am prepared to predict that that advice will be what I have told you, but 

you should get that advice from those people. 

Now, second, what is going to happen here is that, if I am correct, you have 17 groups that believe that they are Indian tribes, 

several of which have either already built multi-hundred-milliondollar casinos, and at least one, the Cowlitz Indian Tribe in 

Washington, certainly aspires to build a casino. And, eventually, 

some bright lawyer is going to figure out what I figured out. And, 

if, in fact, those groups are not federally recognized tribes because 

66 

the people that recognize them didn’t have the authority, then 

those groups also are not ‘‘Indian tribes’’ within the definition of 

that term in the Indian Gaming Regulatory Act. And, boy, is that 

going to be fun to watch. 

And the other way it may happen is that one of the legal 

attributes of tribal status is that a real federally recognized tribe 

has sovereign immunity. Sovereign immunity is asserted all the 

time by Indian tribes to try and screw—and there is no other word 

for it—people who, if they had been victimized by the Federal 

Government or the state government, would have a remedy in 

court. 

Well, one of these days, one of these 17 tribes, in maybe a slip 

and fall case where somebody slips in their casino and breaks their 

neck, one of them is going to get in one of those lawsuits and they 

are going to assert sovereign immunity, and the attorney representing the plaintiff is going to say, ‘‘Really? Well, you have sovereign immunity if you are a federally recognized tribe. How, 

exactly, did you get to be a federally recognized tribe?’’ 

‘‘Well, the Bureau of Indian Affairs told us that we were.’’ 

‘‘Really? Where did the Bureau of Indian Affairs get that legal 

authority? ’’ And that is going to be fun to watch. 

Mr. YOUNG. Thank you. And I just read in the paper the other 

day that there is a shortage of lawyers. I don’t believe it. 

[Laughter.] 

Mr. YOUNG. But thanks for the comment. And I would suggest, 

and I am not saying this, if you want to read something quite interesting, read his testimony. It is different. I can tell you that, 

right now. 

And who am I recognizing? 

Mr. MITCHELL. Mr. Chairman? 

Mr. YOUNG. Yes? 

Mr. MITCHELL. Just one last comment on that point. What I did 

try and do in that testimony, staying barely within the committee’s 

page limit, was to give you at least my view of the history of the 

whole tribal recognition process, starting from 1834 up through, as 

I said, 1978. And in terms of context, at least, that is my best shot 

in a compact period of time. It is obviously not a Law Review article or a book. But if you want more historical context on this very 

important issue, I would commend my own writing to you. 

Mr. YOUNG. OK. Who hasn’t—the Chairman, he asked a question. You want to ask some more? Oh, you have another question, 

that is right, don’t you? That is good. Would you like to ask it? 

Mr. BISHOP. Yes, let me just ask one final one here. 

First of all, let me thank all of you for being here. You have come 

at great expense, and great time, and inconvenience. I do appreciate it—I think your voices have been at least recognized by us, 

and have been very, very similar in what is going on. I just have 

one last technical question for Mr. Washburn, if I could. 

Is this proposed rule considered a significant or major rule, 

under the Congressional Review Act? 

Mr. WASHBURN. Chairman Bishop, it is considered significant 

under Executive Order 12866, and that is why it is over at the 

OIRA office within OMB. I have not analyzed the question that you 

67 

are asking, but we would be happy to look at that, and get back 

to you. 

Mr. BISHOP. Does Mr. Mitchell have an answer on that? 

Mr. MITCHELL. Mr. Chairman, I have not looked at that issue. 

Mr. BISHOP. Thank you. Yield back. 

Mr. YOUNG. I thank the Chairman of the Full Committee. I now 

recognize the Minority leader. 

Dr. RUIZ. Yes, Mr. Chairman, I ask unanimous consent that the 

letter dated April 21, 2015 from the Regional Plan Association be 

entered in the record on behalf of the gentleman from New York, 

Mr. Jeffries. 

And I also ask unanimous consent that the statement of the gentleman from California, Mr. Thompson, be included in the record. 

[No response.] 

Mr. YOUNG. Without objection, so ordered. 

Dr. RUIZ. Thank you. 

Mr. YOUNG. Any other questions that you would like to ask? 

[No response.] 

Mr. YOUNG. The Members—well, make it short, because—the 

Hawk and Dove is waiting for me. Go ahead. 

[Laughter.] 

Ms. ESTY. Thank you, Mr. Chairman. Just two quick questions 

for Secretary Washburn that are very specific to Connecticut. 

The first has to do with the controlling effect of mere existence 

of a state reservation. As far as I know, I think Connecticut is the 

only state with that. And we have had a full adjudication. The 

IBIA and the Department rejected the use of Connecticut State 

designation as tantamount to Federal recognition. So that is first. 

And the other, can you clarify? There seems some ambiguity 

about whether splinter groups of tribes that have previously been 

denied, whether they would have the opportunity to apply. It seems 

clear that splinter groups of currently acknowledged ones would 

not, but it is ambiguous, as far as that rule. 

Those are the two quick questions, please. 

Mr. WASHBURN. Thank you, Madam Esty. We believe that the 

existence of a state reservation or state recognition is certainly relevant in some respects, and we have been wrestling with what do 

we do with that, because, frankly, the states have different ways 

of arriving at recognition, or a reservation. And so we have been 

wrestling with that. 

Splinter groups, our current rule takes efforts not to recognize 

splinter groups, or not to create an avenue for splinter groups to 

get independent recognition. And that is important to us. We don’t 

intend to change that at all. 

And let me just add. I have heard some really troubling things 

at this hearing, and I want you to know that the Administration 

strongly believes that the 17 groups that it has recognized as 

Indian tribes are, indeed, legitimate Indian tribes. And we treat 

them just like any other Indian tribe. 

I also would point out that the Constitution just says ‘‘Indian 

tribes.’’ It doesn’t name any Indian tribes. And so the question, 

then, is, ‘‘Who is that? ’’ And the executive branch has a responsibility to figure that out sometimes, because we have a trust responVerDate Mar 15 2010 07:51 Sep 15, 2015 Jkt 000000 PO 00000 Frm 00071 Fmt 6633 Sfmt 6602 J:\114TH CONGRESS\INDIAN, INSULAR & ALASKA NATIVE AFFAIRS\04-22-15\94320.TXT
68 

sibility to Indian tribes. And so, it is very important for us to 

exercise that. 

And even before 1978, before this process, we recognized Indian 

tribes that maybe didn’t have a treaty. So, if you are saying that 

those tribes are illegitimate, the Administration would strongly disagree with that, because there are tribes that don’t have treaties 

that are, nevertheless, legitimate Indian tribes in the United 

States. 

Mr. YOUNG. Only one comment, Kevin, that the Administration 

does not have the trust authority with Indian tribes. It is the 

Congress, only the Congress, not the Administration. 

And I want to stress that within this Congress we have the authority to do as we should, as a trust relationship with the Indian 

tribes. That is the law. 

And with that, I want to thank the Members and the witnesses, 

and the committee is adjourned. 

[Whereupon, at 6:38 p.m., the subcommittee was adjourned.] 

[ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]

PREPARED STATEMENT OF THE HONORABLE JOE COURTNEY, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF CONNECTICUT

Chairman Young and Ranking Member Ruiz, thank you for the opportunity to 

participate in today’s hearing on the proposed regulatory changes to the Bureau of 

Indian Affairs (BIA) tribal recognition process. As you know, on March 26, 2015, I 

joined a number of my colleagues requesting that your subcommittee conduct such 

a hearing due to the serious consequences that clearly will occur if the proposed rule 

change by BIA is actually made law. 

As the Congressman for eastern Connecticut, which has experienced impact that 

tribal recognition can result in, I speak for the vast majority of my constituents in 

warning that any change in law must be handled with care. We are the home of 

two American Indian tribes that were lawfully federally recognized in the 1980s and 

1990s and also the home of two tribal applicants who failed to achieve recognition. 

The former tribes, the Mohegan and the Mashantucket Pequot, achieved their status through the BIA process (Mohegan) and an Act of Congress (Mashantucket 

Pequot)—both constitutionally recognized outcomes. 

The two tribes that did not succeed in gaining Federal recognition—the Golden 

Hill Paugussett and the Eastern Pequot—pursued their application administratively 

over a long period of years. One of the tribes, the Eastern Pequot, went all the way 

to Federal District Court after exhausting their administrative appeals. 

It was our experience that there is a need for change—for example, more 

transparency, local participation, and a more expeditious process are warranted. 

Some of those goals are addressed in the BIA’s proposed rule change. Unfortunately, the BIA goes far beyond merely changing process—it also changes 

substantive law by radically rewriting criteria for recognition, and by allowing applications that have already been adjudicated to potentially start all over again, with 

new criteria. Such a rewrite of the rules violate well established legal principles that 

protect the finality of judgments which all Americans have an interest in upholding. 

I believe the changes in criteria do not belong in an administrative rule change. 

Such a change in substantive law is the province of the Congress in which the constitution vests the role of tribal recognition. 

I look forward to seeing the testimony and committee record that today’s hearing 

generates. I submit for the record letters and comments from local communities that 

have been part of eastern Connecticut’s recent history with the BIA. 

Thank you for this opportunity. 

69 

PREPARED STATEMENT OF THE HONORABLE MIKE THOMPSON, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF CALIFORNIA

Thank you Chairman Young and Ranking Member Ruiz for allowing me to enter 

my statement for the record. A hearing at the House Committee on Ways and 

Means has kept me from being there in person and I welcome the opportunity to 

submit the views and concerns of my District on this important subject from my 

Congressional District. 

Like the members of this committee, I support tribal recognition and land use for 

legitimate claims. When congressionally recognized tribes follow established procedures and prove rightful privilege, they should have full rights and responsibilities. 

We have seen communities and tribes come together in many positive ways throughout the state of California. 

Unfortunately, some groups seek to use the courts or petitions to the executive 

branch to circumvent Congress and gain recognition. In my own District, we’ve seen 

one tribe that was congressionally derecognized try to do just this. Fortunately, a 

U.S. District Court Judge ruled against the Mishewal Wappo tribe in their suit 

against the Federal Government seeking status restoration. Had the tribe been successful in its suit, land in Napa County would have been placed into Federal trust, 

exempting it from all local and state regulations. 

More than 50 years after the Wappo tribe was congressionally derecognized, an 

attempt to circumvent Congress and the U.S. Department of Interior by going 

through the courts rightfully failed. The motivation behind the lawsuit was clear. 

By the group’s own admission, if the lawsuit was successful, it would have attempted to build a casino in Napa or Sonoma Counties. This ruling respects separation of powers, complies with established statute of limitations law, and protects our 

region’s important agricultural lands from Las Vegas-style gambling. 

Earlier this year, I was pleased to join my colleagues on this committee in sending 

a letter to Secretary of Interior Sally Jewel expressing strong concerns with the proposed changes to Part 83. We noted that the Department’s proposed rules fail to 

address many of the issues that have been identified and could create new problems 

that lead to unintended and unjustifiable outcomes. It is our hope that the Administration will work closely with Congress to draft rules that are consistent with 

congressional precedent and take into consideration the needs of the rightfully recognized tribes and their surrounding communities. 

We all commit to working together to improve the process to review recognition 

claims. Unfortunately, the proposed rule could unintentionally make it easier for illegitimate claims to be granted and, as a result, give unfair advantage to newly recognized tribes and have negative consequences for our communities for properly 

recognized tribes. 

I stand ready to work with Chairman Young, Ranking Member Ruiz, and the 

Administration to find a commonsense and bipartisan solution. 

STATE OF CONNECTICUT, 

OFFICE OF THE ATTORNEY GENERAL,

HARTFORD, CONNECTICUT, 

MAY 4, 2015. 

Hon. DON YOUNG, Chairman, 

House Subcommittee on Indian, Insular and Alaska Native Affairs, 

1324 Longworth House Office Building, 

Washington, DC 20515. 

Re: Oversight Hearing on ‘‘The Obama Administration’s Part 83 Revisions and How 

They May Allow the Interior Department to Create Tribes, Not Recognize 

Them’’ 

DEAR CHAIRMAN YOUNG: 

On behalf of the State of Connecticut, I request that the attached Comments of 

the State of Connecticut on the Proposed Rulemaking Revising the Regulations 

Governing Federal Tribal Acknowledgment in 25 C.F.R. Part 83 be made part of the 

record for the above-referenced hearing conducted by the House Subcommittee on 

Indian, Insular and Alaska Native Affairs on April 22, 2015. 

As was demonstrated by the testimony at the hearing, in particular from Senator 

Richard Blumenthal, the proposed changes to the federal tribal acknowledgment 

regulations are unjustified and threaten serious adverse consequences for 

70 

Connecticut. For the first time in the nearly forty-year history of the acknowledgment regulations, the Interior Department is making wholesale, dramatic changes 

in the substantive requirements for acknowledgment as an Indian tribe. These 

changes will have the effect of seriously weakening and undermining the core acknowledgment criteria. 

Moreover, as applied to previously denied Connecticut petitioners, they would appear to have the effect of reversing prior acknowledgment decisions for reasons that 

were expressly rejected in those decisions. Rather than improving transparency, predictability and finality, the proposed changes may undo settled and sensible acknowledgement decisions on which the State and others have relied. To reverse 

those decisions would impose substantial and unjustifiable disruption on local communities and the State of Connecticut as a whole. The changes proposed cannot be 

justified in the name of reform and expediency and are contrary to the principles 

that have long governed federal tribal acknowledgement. 

The attached Comments, which were submitted to the Department as part of its 

rulemaking process, detail the numerous serious problems in the Department’s 

flawed approach to changing the acknowledgment regulations. 

I thank you for addressing this very serious issue. 

Sincerely yours, 

GEORGE JEPSEN, 

Attorney General. 

[Comments are being retained in the Committee’s Official Files] 

RPA—REGIONAL PLAN ASSOCIATION, 

NEW YORK, NY 10003, 

APRIL 21, 2015. 

Hon. Congressman Hakeem Jeffries 

Eighth District of New York 

Central Brooklyn District Office 

55 Hanson Place, Suite 603 

Brooklyn, NY 11217 

Dear Congressman Jeffries: 

RPA has begun work on a long-range comprehensive plan that will tackle our region’s most urgent challenges, including climate change, fiscal uncertainty and economic opportunity. As RPA works to identify challenges and opportunities, we take 

stock of policies and practices with the potential to significantly affect our communities and quality of life. 

I am writing to you as a member of the House Judiciary Committee regarding 

the proposed changes to Part 83 of title 25 of the Code of Federal Regulations by 

the Department of Interior. Specifically, the rules changes could potentially make 

way for more casino development in the tri-state region. This is a questionable form 

of economic development with substantial negative effects on vulnerable communities and adverse consequences on local planning and land use. 

On September 30, 2014, RPA wrote to Assistant Secretary Washburn requesting 

detailed public impact assessments and hearings on the rules changes, especially as 

they relate to potential changes to land use planning and economic development in 

our and other affected communities. The Department of Interior has not to date provided the additional information or held additional public outreach. 

We would appreciate if you would inquire about the tribal recognition procedure 

and the proposed rule changes, which could have profound land use and economic 

development impacts in affected communities. We have also become aware of concerns raised about long-standing discriminatory practices by on tribe being considered for recognition, which must be taken into account. 

Thank you for your attention to this matter. 

Sincerely, 

ELLIOT G. SANDER, 

Chairman. 

TOM WRIGHT, 

President. 

71 

[LIST OF DOCUMENTS SUBMITTED FOR THE RECORD RETAINED IN THE

COMMITTEE’S OFFICIAL FILES]

• September 30, 2014—Comments of Connecticut Local 

Governments on Proposed Revisions to Tribal Acknowledgment and Office of Hearings and Appeals Regulations—RIN 

1076–AF18 and RIN 1094–AA54. 

• September 30, 2014—Comments of the State of Connecticut 

to the BIA on the Proposed Rule Making Revising Regulations Governing Federal Tribal Acknowledgment in 25 C.F.R. 

Part 83. 

• April 19, 2015—Statement for the Record submitted by 

Eastern Pequot Tribal Nation, Chairman Dennis Jenkins, 

with Comments submitted to the BIA on proposed Federal 

recognition. 

• April 21, 2015—Statement for the Record submitted by 

Alliance of Colonial Era Tribes, Rev. John Norwood 

(Nanticoke-Lenape). 

• April 22, 2015—Statement for the Record submitted by MAChis Lower Creek Indian Tribe of Alabama. 

• April 22, 2015—Statement for the Record submitted by 

Muscogee (Creek) Nation, Principal Chief George Tiger. 

• April 22, 2015—Statement for the Record submitted by 

Piedmont American Indian Association, Lower Eastern 

Cherokee Nation SC, Chief Gene Norris. 

• April 22, 2015—Statement for the Record submitted by 

Southeast Mvskoke Nation, Inc. 

• May 1, 2015—Statement for the Record submitted by County 

of San Diego—Office of Strategy and Intergovernmental 

Affairs, Director Geoff Patnoe. 

• May 4, 2015—Statement for the Record submitted by Sault 

Ste. Marie Tribe of Chippewa Indians, Aaron A. Payment. 

• May 5, 2015—Statement for the Record submitted by 

Chairwoman Carolyn Lubenau, Snoqualmie Indian Tribe. 

• May 5, 2015—Statement for the Record submitted by city of 

Hawaiian Gardens, Councilmember Victor Farfan. 

• May 5, 2015—Statement for the Record submitted by Jena 

Band of Choctaw Indians, Tribal Chief B. Cheryl Smith. 

• May 6, 2015—Statement for the Record submitted by United 

South and Eastern Tribes, Inc., Jamestown S’Klallam Tribe, 

W. Ron Allen, Chairman, Affiliated Tribes of Northwest 

Indians, California Association of Tribal Governments, 

Council of Athabascan Tribal Governments, Inter Tribal 

Association of Arizona, Maniilaq Association, Midwest 

Alliance of Sovereign Tribes, Native American Rights Fund. 

• May 6, 2015—Statement for the Record submitted by 

Stillaguamish Tribe of Indians, Chairman Shawn Yanity. 

• May 6, 2015—Statement for the Record submitted by 

Schaghticoke Tribal Nation, Chief Richard Velky. 

72 

• May 6, 2015—Statement for the Record submitted by the 

Towns of Ledyard, North Stonington, and Preston, 

Connecticut. 

• May 6, 2015—Statement for the Record submitted by United 

Houma Nation of Louisiana. 

• May 6, 2015—Statement for the Record submitted by 

Jamestown S’Klallam Tribe, W. Ron Allen, Chairman. 

• May 6, 2015—Statement for the Record submitted by 

Squaxin Island Tribe, Director Ray Peters. 

• May 6, 2015—Statement for the Record submitted by SelfGovernance Communication and Education Tribal 

Consortium. 

• May 6, 2015—Statement for the Record submitted by 

Choctaw Nation of Oklahoma. 

Æ