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[House Report 115-953]
[From the U.S. Government Publishing Office]

115th Congress }                                          { REPORT
                        HOUSE OF REPRESENTATIVES
  2d Session   }                                          { 115-953

======================================================================
 
                     TRIBAL RECOGNITION ACT OF 2018

                                _______
                                

 September 20, 2018.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

Mr. Bishop of Utah, from the Committee on Natural Resources, submitted 
                             the following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 3744]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Natural Resources, to whom was referred 
the bill (H.R. 3744) to provide that an Indian group may 
receive Federal acknowledgment as an Indian tribe only by an 
Act of Congress, having considered the same, report favorably 
thereon with an amendment and recommend that the bill as 
amended do pass.
    The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Tribal Recognition Act of 2018''.

SEC. 2. FINDINGS.

  Congress finds as follows:
          (1) Article I, section 8, clause 3 of the Constitution 
        (commonly known as the Indian Commerce Clause) gives Congress 
        authority over Indian affairs.
          (2) Such authority is plenary and exclusive.
          (3) Such authority may not be exercised by the judicial 
        branch or by the executive branch (except to the extent that 
        such authority has been expressly delegated to the executive 
        branch by an Act of Congress).

SEC. 3. DEFINITIONS.

  As used in this Act:
          (1) Assistant secretary.--The term ``Assistant Secretary'' 
        means the Assistant Secretary of Indian Affairs, or that 
        officer's authorized representative.
          (2) Autonomous.--The term ``autonomous'' means the exercise 
        of political influence or authority independent of the control 
        of any other Indian governing entity. Autonomous must be 
        understood in the context of the history, geography, culture, 
        and social organization of the petitioning group.
          (3) Community.--The term ``Community'' means any group of 
        people who 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.
          (4) Continental united states.--The term ``continental United 
        States'' means the contiguous 48 States and Alaska.
          (5) Continuously or continuous.--The term ``continuously or 
        continuous'' means extending from first sustained contact with 
        non-Indians throughout the group's history to the present 
        substantially without interruption.
          (6) Documented petition.--The term ``documented petition'' 
        means the detailed arguments made by a petitioner to 
        substantiate its claim to continuous existence as an Indian 
        tribe, together with the factual exposition and all documentary 
        evidence necessary to demonstrate that these arguments address 
        the mandatory criteria.
          (7) Historically, historical, or history.--The term 
        ``historically, historical, or history'' means dating from 
        first sustained contact with non-Indians.
          (8) Indian group or group.--The term ``Indian group or 
        group'' means any Indian or Alaska Native aggregation within 
        the continental United States that the Secretary of the 
        Interior does not acknowledge to be an Indian tribe. Indian 
        tribe, also referred to herein as tribe, means any Indian or 
        Alaska Native tribe, band, pueblo, village, or community within 
        the continental United States that the Secretary of the 
        Interior has lawfully acknowledged as an Indian tribe.
          (9) Indigenous.--The term ``indigenous'' means native to the 
        continental United States in that at least part of the 
        petitioner's territory at the time of sustained contact 
        extended into what is now the continental United States.
          (10) Informed party.--The term ``informed party'' means any 
        person or organization, other than an interested party, who 
        requests an opportunity to submit comments or evidence or to be 
        kept informed of general actions regarding a specific 
        petitioner.
          (11) Interested party.--The term ``interested party'' means 
        any person, organization, or other entity who can establish a 
        legal, factual, or property interest in an acknowledgment 
        determination and who requests an opportunity to submit 
        comments or evidence or to be kept informed of general actions 
        regarding a specific petitioner. ``Interested party'' includes 
        the Governor and attorney general of the State in which a 
        petitioner is located, and may include, but is not limited to, 
        local governmental units, and any recognized Indian tribes and 
        unrecognized Indian groups that might be affected by an 
        acknowledgment determination.
          (12) Letter of intent.--The term ``letter of intent'' means 
        an undocumented letter or resolution by which an Indian group 
        requests Federal acknowledgment as an Indian tribe and 
        expresses its intent to submit a documented petition.
          (13) Petitioner.--The term ``petitioner'' means any entity 
        that has submitted a letter of intent to the Secretary 
        requesting acknowledgment that it is an Indian tribe.
          (14) Political influence or authority.--The term ``political 
        influence or authority'' means a tribal council, leadership, 
        internal process, or other mechanism which the group has used 
        as a means of influencing or controlling the behavior of its 
        members in significant respects, and making decisions for the 
        group which substantially affect its members, and representing 
        the group in dealing with outsiders in matters of consequence. 
        This process is to be understood in the context of the history, 
        culture, and social organization of the group.
          (15) Previous federal acknowledgment.--The term ``previous 
        Federal acknowledgment'' means action by the Federal Government 
        clearly premised on identification of a tribal political entity 
        and indicating clearly the recognition of a relationship 
        between that entity and the United States.
          (16) Secretary.--The term ``Secretary'' means the Secretary 
        of the Interior or that officer's authorized representative.
          (17) Sustained contact.--The term ``sustained contact'' means 
        the period of earliest sustained non-Indian settlement or 
        governmental presence in the local area in which the historical 
        tribe or tribes from which the petitioner descends was located 
        historically.

SEC. 4. GROUPS ELIGIBLE TO SUBMIT PETITIONS.

  (a) Eligible Groups.--Indian groups indigenous to the continental 
United States that are not federally recognized Indian tribes on the 
date of the enactment of this Act may submit a petition under this Act.
  (b) Ineligible Groups.--The following may not submit a petition under 
this Act:
          (1) Splinter groups, political factions, communities, or 
        groups of any character that separate from the main body of a 
        federally recognized Indian tribe, unless they can establish 
        clearly that they have functioned throughout history until the 
        present as an autonomous tribal entity, even if they have been 
        regarded by some as part of or have been associated in some 
        manner with a federally recognized Indian tribe.
          (2) Indian tribes, organized bands, pueblos, Alaska native 
        villages, or communities that have been lawfully acknowledged 
        to be federally recognized Indian tribes and are receiving 
        services from the Bureau of Indian Affairs.
          (3) Groups that petitioned and were denied Federal 
        acknowledgment under part 83 of title 25, Code of Federal 
        Regulations, including reorganized or reconstituted petitioners 
        previously denied, or splinter groups, spin-offs, or component 
        groups of any type that were once part of petitioners 
        previously denied.
          (4) Groups for which a documented petition has not been filed 
        pursuant to section 9 by the date that is 5 years after the 
        date of the enactment of this Act.
  (c) Groups With Petitions in Progress.--This Act, including the 
criteria in section 7, shall apply to any Indian group whose documented 
petition was submitted and not denied on the date of the enactment of 
this Act.

SEC. 5. FILING A LETTER OF INTENT.

  Any eligible Indian group in the continental United States that 
believes it should be acknowledged as an Indian tribe and that it can 
satisfy the criteria in this Act may submit a letter of intent 
requesting acknowledgment that an Indian group exists as an Indian 
tribe. The letter of intent submitted under this section--
          (1) shall be filed with the Assistant Secretary;
          (2) may be filed in advance of, or at the same time as, a 
        group's documented petition; and
          (3) shall be produced, dated, and signed by the governing 
        body of an Indian group.

SEC. 6. DUTIES OF THE ASSISTANT SECRETARY.

  (a) Guidelines.--The Assistant Secretary shall make available 
guidelines for the preparation of documented petitions. These 
guidelines--
          (1) shall include an explanation of the criteria, a 
        discussion of the types of evidence which may be used to 
        demonstrate particular criteria, and general suggestions and 
        guidelines on how and where to conduct research;
          (2) shall include an example of a documented petition format 
        which shall provide guidance, but not preclude the use of any 
        other format; and
          (3) may be supplemented or updated as necessary.
  (b) Research and Preparation of Petition.--The Assistant Secretary--
          (1) shall provide petitioners with suggestions and advice 
        regarding preparation of the documented petition; and
          (2) shall not be responsible for the actual research on 
        behalf of the petitioner.

SEC. 7. CRITERIA FOR FEDERAL ACKNOWLEDGMENT.

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

SEC. 8. PREVIOUS FEDERAL ACKNOWLEDGMENT.

  (a) In General.--Unambiguous previous Federal acknowledgment shall be 
acceptable evidence of the tribal character of a petitioner to the date 
of the last such previous acknowledgment. If a petitioner provides 
substantial evidence of unambiguous Federal acknowledgment, the 
petitioner shall only be required to demonstrate that it meets the 
requirements of section 7 to the extent required by this section. A 
determination of the adequacy of the evidence of previous Federal 
action acknowledging tribal status shall be made during the technical 
assistance review of the documented petition conducted pursuant to 
section 10(b).
  (b) Evidence.--Evidence to demonstrate previous Federal 
acknowledgment includes evidence that the group--
          (1) has had treaty relations with the United States;
          (2) has been denominated a tribe by an Act of Congress or 
        Executive order; and
          (3) has been treated by the Federal Government as having 
        collective rights in tribal lands or funds.

SEC. 9. NOTICE OF RECEIPT OF A PETITION.

  (a) In General.--Not later than 30 days after receiving a letter of 
intent, or a documented petition if a letter of intent has not 
previously been received and noticed, the Assistant Secretary shall 
acknowledge to the sender such receipt in writing. Notice under this 
subsection shall--
          (1) include the name, location, and mailing address of the 
        petitioner and such other information to identify the entity 
        submitting the letter of intent or documented petition and the 
        date it was received;
          (2) serve to announce the opportunity for interested parties 
        and informed parties to submit factual or legal arguments in 
        support of or in opposition to the petitioner's request for 
        acknowledgment or to request to be kept informed of all general 
        actions affecting the petition; and
          (3) indicate where a copy of the letter of intent and the 
        documented petition may be examined.
  (b) Notice to State Governments.--The Assistant Secretary shall 
notify, in writing--
          (1) the Governor and attorney general of the State or States 
        in which a petitioner is located; and
          (2) any recognized tribe and any other petitioner that--
                  (A) appears to have a historical or present 
                relationship with the petitioner; or
                  (B) may otherwise be considered to have a potential 
                interest in the acknowledgment determination.
  (c) Publication.--Not later than 60 days after receiving a letter of 
intent, or a documented petition if a letter of intent has not 
previously been received and noticed, the Assistant Secretary shall 
have the notice required under this section published--
          (1) in the Federal Register; and
          (2) in a major newspaper or newspapers of general circulation 
        in the town or city nearest to the petitioner.

SEC. 10. PROCESSING OF THE DOCUMENTED PETITION.

  (a) Review.--Upon receipt of a documented petition, the Assistant 
Secretary--
          (1) shall cause a review to be conducted to determine the 
        extent to which the petitioner has met the criteria set forth 
        in section 7;
          (2) shall include consideration of the documented petition 
        and the factual statements contained therein;
          (3) may initiate other research for any purpose relative to 
        analyzing the documented petition and obtaining additional 
        information about the petitioner's status; and
          (4) may consider any evidence which may be submitted by 
        interested parties or informed parties.
  (b) Technical Assistance.--
          (1) Prior to review of the documented petition under 
        subsection (a), the Assistant Secretary shall conduct a 
        preliminary review of the petition in order to provide 
        technical assistance to the petitioner.
          (2) The review under paragraph (1) shall be a preliminary 
        review for the purpose of providing the petitioner an 
        opportunity to supplement or revise the documented petition 
        prior to the review under subsection (a). Insofar as possible, 
        technical assistance reviews under this paragraph will be 
        conducted in the order of receipt of documented petitions. 
        However, technical assistance reviews will not have priority 
        over active consideration of documented petitions.
          (3) After the technical assistance review, the Assistant 
        Secretary shall notify the petitioner by letter of any obvious 
        deficiencies or significant omissions apparent in the 
        documented petition and provide the petitioner with an 
        opportunity to withdraw the documented petition for further 
        work or to submit additional information.
          (4) If a petitioner's documented petition claims previous 
        Federal acknowledgment or includes evidence of previous Federal 
        acknowledgment, the technical assistance review shall also 
        include a review to determine whether that evidence is 
        sufficient to meet the requirements of previous Federal 
        acknowledgment.
  (c) Response to Technical Assistance Review.--
          (1) Petitioners may respond in part or in full to the 
        technical assistance review letter or request, in writing, that 
        the Assistant Secretary proceed with the active consideration 
        of the documented petition using the materials already 
        submitted.
          (2) If the petitioner requests that the materials submitted 
        in response to the technical assistance review letter be again 
        reviewed for adequacy, the Assistant Secretary shall provide 
        the additional review.
          (3) If the assertion of previous Federal acknowledgment under 
        section 8 cannot be substantiated during the technical 
        assistance review, the petitioner may respond by providing 
        additional evidence. A petitioner that claims previous Federal 
        acknowledgment and fails to respond to a technical assistance 
        review letter under this subsection, or whose response fails to 
        establish the claim, shall have its documented petition 
        considered on the same basis as documented petitions submitted 
        by groups not claiming previous Federal acknowledgment. 
        Petitioners that fail to demonstrate previous Federal 
        acknowledgment after a review of materials submitted in 
        response to the technical assistance review shall be so 
        notified. Such petitioners may submit additional materials 
        concerning previous acknowledgment during the course of active 
        consideration.
  (d) Consideration of Documented Petitions.--The Assistant Secretary 
shall--
          (1) review documented petitions in the order that they are 
        determined ready for review;
          (2) establish and maintain a numbered register of documented 
        petitions which have been determined ready for active 
        consideration;
          (3) maintain a numbered register of letters of intent or 
        incomplete petitions based on the original date the item was 
        received by the Department of the Interior; and
          (4) use the register of letters of intent or incomplete 
        petitions to determine the order of review by the Assistant 
        Secretary if two or more documented petitions are determined 
        ready for review on the same date.
  (e) Report.--Not later than 1 year after notifying the petitioner 
that review of the documented petition has begun, the Assistant 
Secretary shall--
          (1) submit a report including a summary of the evidence, 
        findings, petition, and supporting documentation, to the 
        Committee on Natural Resources of the House of Representatives 
        and the Committee on Indian Affairs of the Senate;
          (2) notify the petitioner and interested parties that the 
        review is complete and the report required under paragraph (1) 
        has been submitted;
          (3) provide copies of the report to the petitioner and 
        interested parties; and
          (4) provide copies of the report to informed parties and 
        others upon written request.

SEC. 11. CLARIFICATION OF FEDERAL RECOGNITION AUTHORITY.

  (a) Act of Congress Required.--An Indian group may receive Federal 
acknowledgment (or reacknowledgment) as an Indian tribe only by an Act 
of Congress. The Secretary may not grant Federal acknowledgment (or 
reacknowledgment) to any Indian group.
  (b) Previous Acknowledgment.--This Act shall not affect the status of 
any Indian tribe that was federally acknowledged before the date of the 
enactment of this Act.

SEC. 12. FORCE AND EFFECT OF REGULATIONS.

  Part 83 of title 25, Code of Federal Regulations, shall have no force 
or effect, and section 1.2 of title 25, Code of Federal Regulations, 
with respect to any regulation promulgated by the Secretary pursuant to 
this Act, shall have no force or effect.

SEC. 13. TRUST LAND REAFFIRMATION.

  All land taken into trust by the United States under or pursuant to 
the Act of June 18, 1934 (25 U.S.C. 5101 et seq.), before February 24, 
2009, for the benefit of an Indian tribe that was federally recognized 
on the date that the land was taken into trust is hereby reaffirmed as 
trust land.

                          PURPOSE OF THE BILL

    The purpose of H.R. 3744 is to provide that an Indian group 
may receive Federal acknowledgment as an Indian tribe only by 
an Act of Congress.

                  BACKGROUND AND NEED FOR LEGISLATION

    H.R. 3744 reclaims the Article I authority of Congress over 
recognizing tribes from the Executive Branch, which has 
appropriated this power. The bill establishes a statutory 
process for the Department of the Interior to examine evidence 
submitted by groups seeking recognition as tribes within the 
meaning of federal law, and for Congress to make a final 
determination on extending recognition. The status of a tribe 
federally recognized prior to the date of enactment of the bill 
shall be unaffected.
    Article I, Section 8, Clause 3 of the Constitution grants 
to Congress power to ``regulate commerce . . . with the Indian 
tribes.'' Supplemented by the treaty-making power\1\ in the 
Constitution, the so-called ``Indian Commerce Clause'' 
delegates to Congress what the Supreme Court has said is 
``plenary'' power over Indian affairs.\2\ Inherent in this 
delegation of authority to Congress is the power to recognize a 
tribe, as well as the prerogative not to extend recognition.
---------------------------------------------------------------------------
    \1\Treaty making with the Indian tribes was abolished by Congress 
in 1871 (``. . . Provided, That hereafter no Indian nation or tribe 
within the territory of the United States shall be acknowledged or 
recognized as an independent nation, tribe, or power with whom the 
United States may contract by treaty . . .'' [U.S. Statutes at Large, 
16:566])
    \2\According to the Supreme Court, Congress's power regarding 
Indian tribes ``has always been deemed a political one, not subject to 
be controlled by the judicial department of the government.'' Lone Wolf 
v. Hitchcock, 187 U.S. 553 (1903) at 565.
---------------------------------------------------------------------------
    The U.S. Supreme Court has held that the Indian Commerce 
Clause does not grant Congress unfettered authority to 
designate groups of individuals as ``Indian tribes'' or 
individuals as ``Indians'' in that Congress may not exercise 
such authority arbitrarily.\3\ The Court, however, has not 
determined the minimum qualifications an individual must meet 
to be an ``Indian'' within the meaning of federal law.
---------------------------------------------------------------------------
    \3\See United States v. Sandoval, 231 U.S. 28, at 46 (1913).
---------------------------------------------------------------------------
    Recognition of a tribe is a solemn act of the United States 
government, with long-term consequences not only to a tribe's 
members, but to other tribes, States and non-Indian citizens. A 
tribe is eligible for a variety of federal services and 
benefits, including operation of a casino on its lands, and 
absolute sovereign immunity against anyone except the federal 
government. It usually obtains federal protection in 
controversies where States, local governments, or private 
citizens are adverse parties. A tribe may exercise special 
political authority over its territory and its Indian members. 
Land acquired in trust for a tribe preempts State and local 
government jurisdiction over such property. Considerable funds 
are required from Congress to administer lands held in trust 
for Indians, and to provide other services and benefits, 
including free health care from the Indian Health Service.
    Establishing federal relations with tribes is a political 
question and is therefore reserved to the political branch: 
Congress. In the 1970s Congress considered but failed to enact 
legislation to establish a statutory framework for the 
recognition of tribes. In 1978 the Bureau of Indian Affairs 
(BIA) unilaterally crafted regulations (today contained in 25 
CFR Part 83) to recognize any group that can meet seven 
mandatory criteria to establish a continuous existence as an 
autonomous Indian tribe throughout history to the present.
    Far from creating uniform standards for the recognition of 
tribes, the BIA has modified and occasionally wholly waived its 
Part 83 procedures, with the most recent revisions finalized 
under the Obama Administration. Ostensibly designed to increase 
transparency and efficiency in the BIA recognition process,\4\ 
at an April 22, 2015, Subcommittee on Indian, Insular and 
Alaska Native Affairs hearing,\5\ the then-proposed rule was 
the focus of criticism from bipartisan Members of the House and 
Senate, and from several federally-recognized tribes. Criticism 
focused on the proposed rule's relaxation of the criteria, and 
a lowering of the burden of proof a petitioner must meet to be 
acknowledged as a tribe.
---------------------------------------------------------------------------
    \4\http://www.bia.gov/cs/groups/xofa/documents/text/idc1-
031255.pdf.
    \5\http://naturalresources.house.gov/calendar/
eventsingle.aspx?EventID=398320.
---------------------------------------------------------------------------
    The final rule published in the Federal Register on July 1, 
2015,\6\ addressed some of the concerns raised by tribes, non-
tribal stakeholders, and certain Members of Congress, but the 
rule remains flawed in two major respects: (1) the standards 
and criteria, finalized by administrative fiat, are not 
authorized by Congress; and (2) the criteria and the burden of 
proof a petitioner must meet were lowered.
---------------------------------------------------------------------------
    \6\80 Federal Register 37861 (July 1, 2015).
---------------------------------------------------------------------------
    In addition to these problems is the BIA's failure to 
implement its regulations in a consistent, impartial, and 
transparent manner. In several cases the BIA has sidestepped or 
formally waived the Part 83 procedures to create tribes. In one 
such case, the Inspector General of the Department of the 
Interior reported that it ``could not find any discernible 
process used'' by the BIA in extending recognition to a certain 
group.\7\ In 2002 the Inspector General investigated 
allegations of misconduct in the recognition process in which 
``six tribal recognition decisions by Clinton Administration 
BIA appointees . . . were contrary to the recommendations made 
by the career staff . . .''\8\ Gaming was at the heart of the 
alleged misconduct.
---------------------------------------------------------------------------
    \7\https://www.doioig.gov/sites/doioig.gov/files/
Tejon_ROI_FINAL_PUBLIC.pdf.
    \8\https://www.gpo.gov/fdsys/pkg/GPO-DOI-IGREPORTS-01-i-00329/pdf/
GPO-DOI-IGREPORTS-01-i-00329.pdf.
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    Congress is not without its own shortcomings in tribal 
recognition. The committees of jurisdiction do not typically 
have the capacity to analyze copious quantities of detailed and 
often complicated historical documents necessary to evaluate a 
petition from a group claiming continuous status as an Indian 
tribe dating to the 18th or 19th century. A group of 
individuals could be recognized legislatively as an Indian 
tribe even if Congress has not comprehensively evaluated, if it 
even possesses, evidence that documents the group as a distinct 
Indian community. Establishing a process by which experts in 
the fields of Indian law and policy, history, and genealogy 
could examine petitions of groups seeking federal recognition 
would benefit Congress in its determinations whether to extend 
recognition.
    H.R. 3744 creates a consistent and publicly transparent 
process of evaluating recognition petitions under statutorily 
establish criteria, and ensures Congress exercises its plenary 
power over tribal recognition with the best historical 
information and analysis possible from the Department of the 
Interior.
    H.R. 3744 is identical to Title I of H.R. 3764 of the 114th 
Congress, favorably reported by the Committee on Natural 
Resources on December 7, 2016.\9\
---------------------------------------------------------------------------
    \9\H. Rept. 114-847.
---------------------------------------------------------------------------
    During the markup of H.R. 3744, the Committee adopted an 
amendment filed by the Ranking Minority Member to ratify the 
trust status of lands acquired for tribes by the Secretary of 
the Interior prior to the date of the Supreme Court's judgment 
in Carcieri v. Salazar (555 U.S. 379 (2009)), or February 25, 
2009. In Carcieri, the Court resolved a dispute over the 
Secretary's use of Section 5 of the Indian Reorganization Act 
of 1934 (IRA)\10\ as general authority (typically exercised 
through the BIA) to acquire land in trust for any tribe. The 
Court held Section 5 of the IRA applies to tribes recognized 
and under federal jurisdiction on the date of enactment of that 
act, or 1934, not to tribes under federal jurisdiction after 
that date. To date, the Department of the Interior has refused 
to disclose to the Committee a list of tribes and trust lands 
affected by Carcieri.
---------------------------------------------------------------------------
    \10\25 U.S.C. 5108 (formerly classified as 25 U.S.C. 465)
---------------------------------------------------------------------------
    The Ranking Member's amendment would remove any doubt as to 
the trust status of lands acquired for tribes prior to the 
Court's issuance of Carcieri. However, the amendment fails to 
resolve serious concerns stemming from the absence of any 
identifiable standards or guidelines (besides the one limit 
identified in Carcieri) governing the Secretary's power under 
the IRA to acquire land in trust, including lands for off-
reservation casinos. Concerns with Section 5 of the IRA are 
broad and bipartisan. For example, 21 States filed a brief in 
support of Governor Carcieri of Rhode Island in the IRA 
controversy before the Supreme Court.\11\ Seventeen State 
Attorneys General (of both parties and ranging from so-called 
deep Blue to deep Red States) have written the Committee to 
complain that the ``current process [for taking land into 
trust] does not provide for meaningful analysis or weighing of 
input of states and local units of government and is void of 
binding limits on the discretion of the secretary [sic].''\12\ 
The current Democratic Leader of the Senate has previously 
written the Obama Administration to warn the Secretary of the 
Interior not to ``undercut'' the Supreme Court's Carcieri 
decision or the authority of Congress with respect to the trust 
land process.\13\
---------------------------------------------------------------------------
    \11\The State of Rhode Island's position in Carcieri was further 
supported by an amicus brief signed by the Council of State 
Governments, National League of Cities, U.S. Conference of Mayors, 
National Association of Counties, and the International City/County 
Management Association.
    \12\``A Communication from the Chief Legal Officers'' of Alaska, 
Colorado, Connecticut, Florida, Hawaii, Iowa, Kansas, Massachusetts, 
Michigan, Mississippi, Ohio, Rhode Island, South Carolina, South 
Dakota, Tennessee, Texas, and Utah, sent to the Chairmen and Ranking 
Members of the Committees on Natural Resources of the House of 
Representatives and on Indian Affairs of the Senate, dated April 24, 
2009.
    \13\Letter from Senator Charles E. Schumer to Secretary Ken 
Salazar, dated March 8, 2010.
---------------------------------------------------------------------------
    With these concerns in mind, the Chairman of the Committee, 
in the interest of compromising to advance the larger policy 
reforms contained in H.R. 3744, offered to accept the Carcieri 
amendment in exchange for the Ranking Minority Member's support 
of the bill as amended. The Ranking Minority Member rejected 
the offer, thereby leaving tribes whose lands may be in legal 
jeopardy hanging. The Chairman decided to accept the Ranking 
Member's Carcieri amendment, keeping open his offer to Members 
willing to set aside partisanship to forge a compromise on 
federal Indian policies relating to recognition and trust 
lands.

      SECTION-BY-SECTION ANALYSIS OF H.R. 3744 AS ORDERED REPORTED

Section 1. Short title

    Provides that this Act may be cited as the ``Tribal 
Recognition Act of 2018''.

Section 2. Findings

    Clarifies and reassert Congress's authority under Article 
I, Section 8, Clause 3 of the Constitution over the recognition 
of Indian tribes.

Section 3. Definitions

    Sets forth definitions used in the bill. Definitions are 
similar to those used in the Part 83 regulations except that in 
H.R. 3744, the term ``Historical, historically, or history'' 
means dating from first sustained contact with non-Indians. The 
newly revised Part 83 regulations define ``Historical'' to mean 
before 1900.

Section 4. Groups eligible to submit petitions

    Allows any non-recognized group to have its petition 
examined by the Secretary of the Interior. Groups not allowed 
to petition include: splinter groups or political factions of 
Indians tribes; tribes, bands or similar communities already 
lawfully recognized; and groups previously denied recognition 
under Part 83 (including any reorganized or reconstituted 
group).

Section 5. Filing a letter of intent

    Specifies how a group may submit a petition to the 
Assistant Secretary-Indian Affairs.

Section 6. Duties of the Assistant Secretary

    Requires the Assistant Secretary to make guidelines for the 
preparation of documented petitions available, and to research 
the documented petitions. Prohibits the Assistant Secretary 
from performing research on behalf of petitioners.

Section 7. Criteria for federal acknowledgment

    Provides detailed minimum criteria the Assistant Secretary 
shall apply in examining groups' petitions for recognition.

Section 8. Previous federal acknowledgment

    Provides that unambiguous federal acknowledgment (or 
recognition) of a group as an Indian tribe shall be acceptable 
evidence of the tribal character of a petition to the date of 
the last such recognition. Specifies what kind of evidence may 
constitute unambiguous federal acknowledgment.

Section 9. Notice of receipt of a petition

    Directs the Assistant Secretary to notify State 
governments, recognized tribes, and other interested parties 
when the Assistant Secretary has received a petition, and 
requires that within 60 days, such notice be published in the 
Federal Register and in major newspapers of general circulation 
in the town or city nearest to the petitioner.

Section 10. Processing of the documented petition

    Sets forth how the Assistant Secretary shall process a 
petition, including making technical review assistance 
available to the petitioner. Requires the Assistant Secretary 
to review documented petitions in the order in which they are 
ready for review, and that within one year after a petitioner 
is notified its petition is ready for review, the Assistant 
Secretary shall submit a report (including a summary of 
evidence, findings, petition, and supporting documentation) to 
the House Committee on Natural Resources and the Senate 
Committee on Indian Affairs. The petitioner and other 
interested parties shall also be notified of the submission of 
the report/findings to the Congressional committees and be 
provided copies upon request.

Section 11. Clarification of federal recognition authority

    Provides that recognition of a tribe may be granted only by 
Act of Congress and prohibits the Secretary of the Interior 
from recognizing any tribe. This Act shall not affect the 
status of any Indian tribe that was federally recognized before 
the date of enactment of this Act.

Section 12. Force and effect of regulations

    Part 83 of title 25, Code of Federal Regulations, and 
section 1.2 of title 25, Code of Federal Regulations (with 
respect to any regulation promulgated by the Secretary of the 
Interior pursuant to this Act) shall have no force or effect.

Section 13. Trust land affirmation

    Provides that all land taken into trust by the United 
States under or pursuant to the Act of June 18, 1934 (25 U.S.C. 
5101 et seq.) before February 24, 2009, for the benefit of an 
Indian tribe that was federally recognized on the date that the 
land was taken into trust is hereby reaffirmed as trust land.

                            COMMITTEE ACTION

    H.R. 3744 was introduced on September 12, 2017, by 
Congressman Rob Bishop (R-UT). The bill was referred to the 
Committee on Natural Resources and within the Committee to the 
Subcommittee on Indian, Insular and Alaska Native Affairs. The 
Subcommittee held a hearing on the bill on September 26, 2017. 
On June 13, 2018, the Committee on Natural Resources met to 
consider the bill. Congressman Rob Bishop offered an amendment 
designated #1; it was adopted by voice vote. Congressman Raul 
M. Grijalva (D-AZ) offered an amendment designated 001; it was 
adopted by voice vote. No further amendments were offered, and 
the bill, as amended, was ordered favorably reported to the 
House of Representatives by a bipartisan roll call vote of 20 
ayes to 14 noes, as follows:

            COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS

    Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of 
rule XIII of the Rules of the House of Representatives, the 
Committee on Natural Resources' oversight findings and 
recommendations are reflected in the body of this report.

      COMPLIANCE WITH HOUSE RULE XIII AND CONGRESSIONAL BUDGET ACT

    1. Cost of Legislation and the Congressional Budget Act. 
With respect to the requirements of clause 3(c)(2) and (3) of 
rule XIII of the Rules of the House of Representatives and 
sections 308(a) and 402 of the Congressional Budget Act of 
1974, the Committee has received the following estimate for the 
bill from the Director of the Congressional Budget Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, August 6, 2018.
Hon. Rob Bishop,
Chairman, Committee on Natural Resources,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 3744, the Tribal 
Recognition Act of 2018.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Robert Reese.
            Sincerely,
                                                Keith Hall,
                                                          Director.
    Enclosure.

H.R. 3744--Tribal Recognition Act of 2018

    H.R. 3744 would repeal the current process used by the 
Department of the Interior (DOI), to determine if Indian groups 
can be recognized as Indian tribes. The current process has 
been in place since 2015. Under the bill an Indian group could 
become a federally recognized Indian tribe only through the 
enactment of legislation to that effect.
    The bill also would outline new administrative procedures 
for Indian groups to petition DOI for federal recognition. 
Those procedures would be similar to the procedures that 
existed before 2015. Using information from DOI, CBO estimates 
that implementing the procedures required in H.R. 3744 would 
not significantly change DOI's administrative costs over the 
2019-2023 period because personnel currently working to 
recognize Indian groups as Indian tribes would be shifted to 
process the tribal recognition petitions prior to submitting 
them to the Congress. In 2018, DOI allocated about $2 million 
for administrative expenses related to Indian tribal 
recognition.
    Enacting H.R. 3744 would not affect direct spending or 
revenues; therefore, pay-as-you-go procedures do not apply.
    CBO estimates that enacting H.R. 3744 would not increase 
net direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2029.
    H.R. 3744 would impose no intergovernmental or private-
sector mandates as defined in the Unfunded Mandates Reform Act.
    The CBO staff contact for this estimate is Robert Reese. 
The estimate was reviewed by H. Samuel Papenfuss, Deputy 
Assistant Director for Budget Analysis.
    2. General Performance Goals and Objectives. As required by 
clause 3(c)(4) of rule XIII, the general performance goal or 
objective of this bill is to provide that an Indian group may 
receive Federal acknowledgment as an Indian tribe only by an 
Act of Congress.

                           EARMARK STATEMENT

    This bill does not contain any Congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined 
under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of 
the House of Representatives.

                    COMPLIANCE WITH PUBLIC LAW 104-4

    This bill contains no unfunded mandates.

                       COMPLIANCE WITH H. RES. 5

    Directed Rule Making. This bill does not contain any 
directed rule makings.
    Duplication of Existing Programs. This bill does not 
establish or reauthorize a program of the federal government 
known to be duplicative of another program. Such program was 
not included in any report from the Government Accountability 
Office to Congress pursuant to section 21 of Public Law 111-139 
or identified in the most recent Catalog of Federal Domestic 
Assistance published pursuant to the Federal Program 
Information Act (Public Law 95-220, as amended by Public Law 
98-169) as relating to other programs.

                PREEMPTION OF STATE, LOCAL OR TRIBAL LAW

    This bill is not intended to preempt any State, local or 
tribal law.

                        CHANGES IN EXISTING LAW

    If enacted, this bill would make no changes to existing 
law.

                            DISSENTING VIEWS

    H.R. 3744 would make Congress the sole authority for 
recognizing or restoring Native American tribes. Aside from 
further delaying an already interminable process, the bill 
would consolidate the power of tribal recognition in the hands 
of a very few Members of Congress, including the Chairman of 
this Committee. The importance of federal recognition cannot be 
overstated, and that is why simply leaving an act of Congress 
as the only path forward for tribal recognition is dangerous 
and misguided.
    There is no argument that congress has the authority to 
federally recognize Native American tribes, but the authority 
of the Department of the Interior is also well established.
    The Secretary of the Interior's authority to acknowledge 
the existence of Indian tribes is deeply rooted in the laws 
passed by Congress and the structure of the Constitution. 
Congress rightly granted the Assistant Secretary of Indian 
Affairs the authority to ``have management of all Indian 
affairs and of all matters arising out of Indian 
relations.''\1\ This includes the authority to administratively 
acknowledge Indian tribes. This authority is well established 
and has been upheld by the courts.\2\
---------------------------------------------------------------------------
    \1\25 U.S.C. Sec.  2 and Sec.  9, and 43 U.S.C. Sec.  1457.
    \2\See, e.g, Miami Nation of Indians of Indiana, Inc. v. United 
States Dep't of the Interior, 255 F.3d 342, 346 (7th Cir. 2001); James 
v. United States Dep't of Health & Human Servs., 824 F.2d 1132, 1137 
(D.C. Cir. 1987).
---------------------------------------------------------------------------
    The Congressional findings that supported the Federally 
Recognized Indian Tribe List Act of 1994 reiterated that Indian 
tribes could be recognized ``by the administrative procedures 
set forth in part 83 of the Code of Federal Regulations 
denominated `Procedures for Establishing that an American 
Indian Group Exists as an Indian Tribe,''' and described the 
relationship the United States has with federally recognized 
tribes.\3\ In addition to the power delegated by Congress, the 
Executive Branch has independent constitutional authority to 
recognize Tribal Nations through the Constitution's Treaty 
Clause.\4\
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    \3\See Public Law 103-454 Sec. 103(2), (3), (8) (Nov. 2, 1994).
    \4\U.S. Const, art. II, Sec.  2, cl. 2.
---------------------------------------------------------------------------
    H.R. 3744 seeks to upset this recognized authority by 
stipulating that only Congress has the authority to recognize 
Indian tribes. The bill obscures its true intent by setting 
forth its own process by which a tribe can petition the 
Department of the Interior for recognition. However, the only 
requirement at the end of that process would be for the 
Department to ``submit a report including a summary of the 
evidence findings, petition, and supporting documentation, to 
the Committee on Natural Resources of the House of 
Representatives and the Committee on Indian Affairs of the 
Senate.'' Therefore, the role of the Department of the Interior 
would be limited and would not include the ability to recognize 
tribes administratively.
    Ranking Member Raul Grijalva offered an amendment to ensure 
that all land taken into trust prior to the Carcieri decision 
in 2009 is reaffirmed as tribal trust land. The amendment was 
accepted by voice vote. While enactment of this provision would 
be a positive development to tribes that face frivolous 
lawsuits related to the Carcieri decision, its inclusion does 
not change our opposition to the Underlying legislation.
    Many tribes have still not established or reaffirmed their 
relationship with the federal government. The Department of the 
Interior's process provides the only non-partisan, research-
based approach to determining the validity of tribal claims--a 
rigorous, time-consuming process that is based on hard science 
and meticulous investigation. Taking that avenue away and 
leaving an act of Congress as the only option for recognition, 
will only result in further delays and difficulties for tribes. 
Most dangerous of all, it will leave tribal recognition 
decisions vulnerable to political whims and the influence of 
special interests.
    For these reasons, we oppose H.R. 3744.

                                   Raul M. Grijalva,
                                           Ranking Member, Committee on 
                                               Natural Resources.
                                   Alan Lowenthal.
                                   Ruben Gallego.
                                   Colleen Hanabusa.
                                   Nydia M. Velazquez.
                                   Grace F. Napolitano.
                                   Jimmy Gomez.
                                   Donald S. Beyer, Jr.
                                   Darren Soto.

                                  [all]
```