[House Hearing, 108 Congress]
[From the U.S. Government Printing Office]




 
FEDERAL RECOGNITION AND ACKNOWLEDGMENT PROCESS BY THE BUREAU OF INDIAN 
                                AFFAIRS

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

                           OVERSIGHT HEARING

                               before the

                         COMMITTEE ON RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                      ONE HUNDRED EIGHTH CONGRESS

                             SECOND SESSION

                               __________

                       Wednesday, March 31, 2004

                               __________

                           Serial No. 108-89

                               __________

           Printed for the use of the Committee on Resources



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                         COMMITTEE ON RESOURCES

                 RICHARD W. POMBO, California, Chairman
       NICK J. RAHALL II, West Virginia, Ranking Democrat Member

Don Young, Alaska                    Dale E. Kildee, Michigan
W.J. ``Billy'' Tauzin, Louisiana     Eni F.H. Faleomavaega, American 
Jim Saxton, New Jersey                   Samoa
Elton Gallegly, California           Neil Abercrombie, Hawaii
John J. Duncan, Jr., Tennessee       Solomon P. Ortiz, Texas
Wayne T. Gilchrest, Maryland         Frank Pallone, Jr., New Jersey
Ken Calvert, California              Calvin M. Dooley, California
Scott McInnis, Colorado              Donna M. Christensen, Virgin 
Barbara Cubin, Wyoming                   Islands
George Radanovich, California        Ron Kind, Wisconsin
Walter B. Jones, Jr., North          Jay Inslee, Washington
    Carolina                         Grace F. Napolitano, California
Chris Cannon, Utah                   Tom Udall, New Mexico
John E. Peterson, Pennsylvania       Mark Udall, Colorado
Jim Gibbons, Nevada,                 Anibal Acevedo-Vila, Puerto Rico
  Vice Chairman                      Brad Carson, Oklahoma
Mark E. Souder, Indiana              Raul M. Grijalva, Arizona
Greg Walden, Oregon                  Dennis A. Cardoza, California
Thomas G. Tancredo, Colorado         Madeleine Z. Bordallo, Guam
J.D. Hayworth, Arizona               George Miller, California
Tom Osborne, Nebraska                Edward J. Markey, Massachusetts
Jeff Flake, Arizona                  Ruben Hinojosa, Texas
Dennis R. Rehberg, Montana           Ciro D. Rodriguez, Texas
Rick Renzi, Arizona                  Joe Baca, California
Tom Cole, Oklahoma                   Betty McCollum, Minnesota
Stevan Pearce, New Mexico
Rob Bishop, Utah
Devin Nunes, California
Randy Neugebauer, Texas

                     Steven J. Ding, Chief of Staff
                      Lisa Pittman, Chief Counsel
                 James H. Zoia, Democrat Staff Director
               Jeffrey P. Petrich, Democrat Chief Counsel

                                 ------                                

                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on Wednesday, March 31, 2004........................     1

Statement of Members:
    Johnson, Hon. Nancy, a Representative in Congress from the 
      State of Connecticut.......................................     5
        Prepared statement of....................................     7
    Kildee, Hon. Dale E., a Representative in Congress from the 
      State of Michigan, Prepared statement of...................    56
    Pombo, Hon. Richard W., a Representative in Congress from the 
      State of California........................................     1
        Prepared statement of....................................     2
    Rahall, Hon. Nick J., II, a Representative in Congress from 
      the State of West Virginia.................................     3
        Prepared statement of....................................     4

Statement of Witnesses:
    Cambra, Rosemary, Chairperson, Muwekma Ohlone Indian Tribe, 
      San Francisco Bay Area, California.........................    24
        Prepared statement of....................................    26
    Fleming, R. Lee, Director, Office of Federal Acknowledgment, 
      Bureau of Indian Affairs, U.S. Department of the Interior..    78
        Prepared statement of....................................    80
        Responses to questions submitted for the record..........    81
    Gumbs, Lance, Tribal Trustee, Shinnecock Indian Nation.......    20
        Prepared statement of....................................    22
    Marshall, Glenn, President, Mashpee Wampanoag Tribe..........    15
        Prepared statement of....................................    17
    Martin, Tim, Poarch Band of Creek Indians, Nashville, 
      Tennessee..................................................    63
        Prepared statement of....................................    65
    Spilde, Katherine, Ph.D., Harvard Project on American Indian 
      Economic Development.......................................    67
        Prepared statement of....................................    69
    Taylor, Wilford ``Longhair,'' Tribal Chief, MOWA Band of 
      Choctaw Indians............................................    30
        Prepared statement of....................................    32

Additional materials supplied:
    Benedict, Jeff, President, Connecticut Alliance Against 
      Casino Expansion, Inc., Statement submitted for the record.    90
    Blumenthal, Hon. Richard, Attorney General, State of 
      Connecticut, Statement submitted for the record............    95
    Charley, Benjamin, Tribal Chairman, Dunlap Band of Mono 
      Indians, Letter submitted for the record...................    98
    Jones, Laura, Ph.D., Campus Archaeologist, Stanford 
      University, Senior Scholar, The Carnegie Foundation, Letter 
      submitted for the record...................................   100
    Mullane, Nicholas H., First Selectman, Town of North 
      Stonington, Connecticut, Statement submitted for the record   101
    Shays, Hon. Christopher, a Representative in Congress from 
      the State of Connecticut, Statement submitted for the 
      record.....................................................     9
    Simmons, Hon. Rob, a Representative in Congress from the 
      State of Connecticut, Statement submitted for the record...    10
    Towns of Ledyard, North Stonington, and Preston, Connecticut, 
      Letter submitted for the record............................   105


OVERSIGHT HEARING ON THE FEDERAL RECOGNITION AND ACKNOWLEDGMENT PROCESS 
                    BY THE BUREAU OF INDIAN AFFAIRS

                              ----------                              


                       Wednesday, March 31, 2004

                     U.S. House of Representatives

                         Committee on Resources

                            Washington, D.C.

                              ----------                              

    The Committee met, pursuant to notice, at 10:05 a.m. in 
Room 1324, Longworth House Office Building, Hon. Richard W. 
Pombo, [Chairman of the Committee] presiding.
    Members present: Representatives Pombo, Duncan`, Jones, 
Tancredo, Hayworth, Osborne, Flake, Rehberg, Cole, Pearce, 
Rahall, Kildee, Pallone, Christensen, Inslee, and Baca.

  STATEMENT OF THE HON. RICHARD W. POMBO, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF CALIFORNIA

    The Chairman. The Committee on Resources will come to 
order. The Committee is meeting today to hear testimony on the 
Federal Recognition and Acknowledgment Process by the Bureau of 
Indian Affairs.
    Under Rule 4(g) of the Committee Rules, any oral opening 
statements at hearings are limited to the Chairman and the 
Ranking Minority Member. This will allow us to hear from our 
witnesses sooner and help Members keep to their schedules. 
Therefore, if other Members have statements, they can be 
included in the hearing record under unanimous consent.
    The purpose of today's hearing is to examine the 
administrative process used by the Bureau of Indian Affairs to 
determine which groups are federally recognized tribes. This 
job is performed by the Office of Federal Acknowledgment, which 
used to be called the Branch of Acknowledgment and Research.
    The theme of today's hearing is simple. Most everyone here 
thinks that the current system used to determine recognition is 
broken, so how do we fix it? This is an extremely important 
question because Federal recognition establishes a formal 
relationship between tribes and the United States which has 
major implications for the Federal Government, for the members 
of the recognized tribe, and for other tribes, states and 
communities.
    Prior to the adoption of the administrative process in 
1978, the Department of Interior and Congress usually judged 
petitions for recognition on a case-by-case basis. And back in 
the 19th Century recognition was established through treaties 
and executive orders. While Congress retains its plenary power 
under the Constitution to recognize tribes, the BIA 
administrative process was established to provide an objective, 
uniform means of judging whether a group is really a tribe that 
has been in continuous existence since European settlers 
arrived. It was also created in order to process a large number 
of petitions that were pending and anticipated to be filed.
    Unfortunately, as today's testimony will bear out, the 
system is fraught with major shortcomings. The acknowledgment 
process was supposed to resolve many petitions per year. In 
reality, less than two, on average, are completed per year.
    One of today's witnesses represents a tribe that began its 
quest for recognition in the 1970s. In spite of having its 
record complete and ready, the tribe is being told it may have 
to wait 10 or more years for a decision. The tribe could wait a 
half century before obtaining a final determination. Regardless 
of whether the tribe's petition should be approved or denied, 
there needs to be a conclusion to this. It costs valuable 
taxpayer dollars and denies justice.
    Another problem with the current system is how 
determinations are made. There is a set of criteria used to 
judge the merits of each petition for recognition but as the 
testimony of today's witnesses will assert, the criteria are 
not always objectively applied. Whether or not this is caused 
by a weakness in the regulations or by a personnel problem in 
the Department remains to be seen.
    The Committee is searching for solutions, solutions that 
result in final determinations based on factual evidence, not 
on subjective whim, and final determinations made without undue 
delay. No one should wait three decades to process an 
application for anything. Many people's home mortgages are paid 
in that time.
    Perhaps the solution is to transplant the work involved in 
the recognition process from the BIA into an independent 
commission. The final determination can still be made by the 
Secretary or another government official specifically assigned 
this duty by Congress.
    I look forward to today's testimony and hearing from our 
witnesses and hope that we can find solutions to this serious 
problem.
    [The prepared statement of Mr. Pombo follows:]

        Statement of The Honorable Richard W. Pombo, Chairman, 
                         Committee on Resources

    The purpose of today's hearing is to examine the administrative 
process used by the Bureau of Indian Affairs to determine which groups 
are federally recognized tribes. This job is performed by the Office of 
Federal Acknowledgment, which used to be called the Branch of 
Acknowledgment and Research.
    The theme of today's hearing is simple: Most everyone here thinks 
the current system used to determine recognition is broken, so how do 
we fix it?
    This is an extremely important question because federal recognition 
establishes a formal relationship between tribes and the United States, 
which has major implications for the federal government, for the 
members of the recognized tribe, and for other tribes, states, and 
communities.
    Prior to the adoption of the administrative process in 1978, the 
Department of the Interior and Congress usually judged petitions for 
recognition on a case-by-case basis. And back in the 19th century, 
recognition was established through treaties and executive orders.
    While Congress retains its plenary power under the Constitution to 
recognize tribes, the BIA's administrative process was established to 
provide an objective, uniform means of judging whether a group is 
really a tribe that has been in continuous existence since Europeans 
settlers arrived. It was also created in order to process a large 
number of petitions that were pending and anticipated to be filed.
    Unfortunately, as today's testimony will bear out, the system is 
fraught with major shortcomings. The acknowledgment process was 
supposed to resolve many petitions per year. In reality, less than two 
on average are completed per year.
    One of today's witnesses represents a tribe that began its quest 
for recognition in the 1970's. In spite of having its record complete 
and ready, the tribe is being told it may have to wait 10 or more years 
for a decision. The tribe could wait a half-century before obtaining a 
final determination. Regardless of whether the tribe's petition should 
be approved or denied, there needs to be a conclusion to this. It costs 
valuable taxpayer dollars, and denies justice.
    Another problem with the current system is how determinations are 
made. There is a set of criteria used to judge the merits of each 
petition for recognition, but as the testimony of today's witnesses 
will assert, the criteria are not always objectively applied. Whether 
or not this is caused by a weakness in the regulations, or by a 
personnel problem in the Department remains to be seen.
    This Committee is searching for solutions, solutions that result in 
final determinations based on factual evidence, not on subjective whim. 
And final determinations made without undue delay. No one should wait 
three decades to process an application for anything. Many people's 
home mortgages are paid in that time.
    Perhaps the solution is to transplant the work involved in the 
recognition process from the BIA into an independent commission. The 
final determination can still be made by the Secretary or another 
government official specifically assigned this duty by Congress.
    I look forward to the testimony of today's witnesses and hope that 
we can find solutions to this serious problem.
                                 ______
                                 
    The Chairman. I would now like to recognize the Ranking 
Member, Mr. Rahall, for his opening statement.

 STATEMENT OF THE HON. NICK J. RAHALL, II, A REPRESENTATIVE IN 
            CONGRESS FROM THE STATE OF WEST VIRGINIA

    Mr. Rahall. Thank you, Mr. Chairman, and thank you for 
having this very important hearing today.
    As we consider the topic of the hearing, I believe that it 
should be put into its historical context. First the European 
settlers tried to exterminate all American Indians. Shortly 
after, the United States Government banished Indians to remote 
reservations and endeavored to abolish their documentation, 
culture and livelihood and established often unfair treaties 
and settlements. And in more modern times we set up a system 
where Indian tribes must prove to the same United States 
Government that made these often disreputable treaties that 
they are truly descendants of this country's original 
inhabitants and can show the documentation to prove it.
    I do not think that this is what American Indians had in 
mind well over 100 years ago when they agreed to laying down 
arms and turn over to the Federal Government their land, 
including sacred burial grounds, places of worship, sources of 
livelihood.
    As it stands, that is the system in place and the fact of 
the matter is that Federal recognition carries with it a 
sovereign status that is essential to a tribe's long-term 
survival, including control by Indians over their lands and 
decisions affecting the lifestyle of their members.
    Further, federally recognized tribes enjoy a unique 
government-to-government status with the United States 
Government and are eligible to receive services and funding for 
better health care, housing, education, law enforcement, and 
transportation. Yet the descendants of those who agreed to lay 
down their arms and come to terms with the U.S. Government are 
now faced with a Federal recognition process that does not work 
in a fair or timely fashion and it has become too complicated 
and too costly.
    Since the Bureau of Indian Affairs was charged with the 
recognition process in 1978, only 16 applications have been 
approved and they were approved after a tribe has often had to 
wait up to 20 years for a decision.
    Now I am by no means suggesting that every application is 
bona fide or that every single application has merit. At the 
same time, it does appear that the process is sorely in need of 
becoming more efficient.
    I look forward to today's panel and again thank the 
Chairman for conducting these hearings.
    [The prepared statement of Mr. Rahall follows:]

   Statement of The Honorable Nick J. Rahall, II, Ranking Democrat, 
                         Committee on Resources

    Mr. Chairman, as we consider the topic of this hearing, I believe 
that it should be put into its historical context.
    First, European settlers tried to exterminate all American Indians. 
Shortly after, the United States government banished Indians to remote 
reservations, endeavored to abolish their documentation, culture, and 
livelihood and established often unfair treaties and settlements.
    And in more modern times, we set up a system where Indian tribes 
must prove to the same United States government that made these often 
disreputable treaties that they are truly descendants of this country's 
original inhabitants and can show the documentation to prove it.
    I do not think this is what the American Indian had in mind well 
over one hundred years ago when they began agreeing to lay down arms 
and turn over to the Federal government their land-including sacred 
burial grounds, places of worship, sources of livelihood.
    As it stands, that is the system in place and the fact of the 
matter is that Federal recognition carries with it a sovereign status 
that is essential to a tribe's long-term survival including control by 
Indians over their lands and decisions affecting the lifestyle of their 
members.
    Further, Federally recognized tribes enjoy a unique government-to-
government status with the United States government and are eligible to 
receive services and funding to better health care, housing, education, 
law enforcement and transportation.
    Yet, the descendants of those who agreed to lay down their arms and 
come to terms with the United States government are now faced with a 
federal recognition process that does not work in a fair or timely 
fashion and has become far too complicated and costly.
    Since the Bureau of Indian Affairs was charged with the recognition 
process in 1978, only 16 applications have been approved. And they were 
approved after a tribe has often had to wait up to twenty years for a 
decision.
    I am by no means suggesting that every single application is bona 
fide, and that every single application has merit. At the same time, it 
does appear that the process is sorely in need of becoming more 
efficient.
                                 ______
                                 
    The Chairman. Thank you.
    I'd now like to introduce our first witness but before I do 
that I just wanted to announce to those of you that are in the 
audience today that Room 1334, which is right down the hallway, 
is open and you can hear the audio of the hearing if you would 
like to. So if anybody gets to the point that they'd like to 
sit down, the other hearing room is open and the audio is open 
down there.
    Our first witness today representing the 5th District of 
Connecticut, The Honorable Nancy Johnson. Let me take this time 
to remind all of today's witnesses that under our Committee 
Rules oral statements are limited to 5 minutes. Your entire 
statement will appear in the record.
    Congresswoman Johnson, welcome to the Committee. It is nice 
to have you today and when you are ready, you can begin.

   STATEMENT OF THE HON. NANCY JOHNSON, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF CONNECTICUT

    Ms. Johnson. Thank you very much. I am sorry that my voice 
is a little off today but I very much appreciate the 
opportunity to testify. I also respect the history of the 
tribal nations in our country but something has gone terribly 
wrong with the tribal recognition process.
    First of all, it has become driven by casino money, big, 
big bucks, and in my part of the country the people affected by 
that are small governments, governments of towns with 2,000, 
3,000, 4,000 people. Those towns are heavily impacted by a 
tribal recognition decision made here. Local cities and towns 
already with tight budgets because in Connecticut those small 
town budgets fund the local schools, so there's tremendous 
pressure on these local budgets, they also have to then deal 
with the traffic problems, the heavier road maintenance, the 
heavier traffic control, the heavier fire control, all of the 
things that you have to deal with if you're adjacent to a 
reservation, and yet they aren't being given any help to have 
the resources necessary to do the research that's so essential 
to a balanced, fair tribal decision.
    When we faced this issue in the environmental area, and 
remember the Superfunds and the big companies were saying what 
the plan would be for cleaning up the site, we gave citizen 
groups grants so they would have the money to get the same 
scientific back-up, so they would know that the solution would 
be fair and balanced and in their interest, as well.
    We need to do that with these small towns. Their mill rates 
are skyrocketing just to fund the litigation and the research 
that's necessary when there is a tribal determination going on 
in their area. It's unbalanced. You're letting casino dollars 
roll into areas where there weren't tribal traditions and 
overwhelm the process in the local, state, and also down here.
    We cannot let big money just drive this. We have to balance 
that equation so the local people who know the history and also 
have resources locally that could give them information that 
would be relevant, so the balance is there, so the process is 
fair.
    I understand the importance of timeliness, absolutely, but 
there's no way that the people down here can do the kind of 
research they need to counter the research coming in as a 
result of gambling money in the timeframes required.
    So we need to balance the inputs. We need to have a fairer 
process so that both sides can offer their information about 
the recognition of the tribe.
    And then the standards absolutely have to be clarified and 
adhered to. We have a terrible situation in Connecticut. A 
tribe in my district was recognized. The proposed recognition 
said it could not be recognized; then the final recognition 
completely reversed the decisions in the proposal and even 
acknowledged that there was not adequate information to make 
clear that for 60 years there was any political continuity. 
They completely reversed precedent on the issue of whether a 
state reservation indicated continuity and helped to meet the 
standards. In some of those years there was no functional 
entity on the land and while the states managed the lands like 
they do parks and things like that, they didn't do it with 
Indian leadership.
    So while they have criteria and in their first proposed 
decision they said this application doesn't meet the criteria, 
in their final decision, even though they recognized the 
additional information and said the additional information 
didn't close all the holes, they went ahead and proposed 
recognition with all the consequences for the small towns and 
all the consequences for the absolutely catastrophically jammed 
interstates in Connecticut.
    There has to be clear standards. There has to be a fair 
process that is not arbitrary and is not controlled and run by 
high-paid lobbyists here in Washington.
    So I call on the Committee to invalidate the Schaghticoke 
decision, to impose a moratorium on BIA acknowledgment 
decisions pending a comprehensive review of BIA process and the 
issuance of recommendations for improvement, that you take 
steps to bring into public view the financial and gaming 
interests behind the Federal recognition petitions, that 
fourth, you examine how the Federal process usurps, usurps the 
traditional power of local governments to control economic 
development, implement long-term planning policies, and provide 
public safety and educational services, and fifth, that you 
prohibit the liening of property claimed by a tribe because 
while the Federal law does not allow them to take land that 
they claim--they have no eminent domain--the way they do it is 
they put liens everywhere.
    It brings the whole town to a standstill. Retired people 
cannot sell their property. Small businesses cannot sell their 
property. The value of the land declines. That means that the 
tax revenues of the town decline. The schools are still there. 
The kids are still there. The police still have to be paid. The 
roads still have to be repaired.
    They have brought whole sections of Connecticut to an 
absolute economic state of paralysis by liening property, so as 
I have been told, they should be held to the standard that they 
buy property like anyone else, and then the issue of bringing 
it into trust is something that the law governs through a 
process down here. Fine, but in that case do not allow the 
liening of land claimed in Connecticut they claim five, six 
towns.
    So what is happening is a handful of people backed by very 
big money are claiming lands that in some instances have been 
farmed by people for hundreds of years, same family.
    This is a serious issue. The process has to be looked at. 
It has to be rebalanced. I agree it should be timely, that the 
tribes have a right to be addressed in a timely fashion, but we 
cannot do that unless the process is rebalanced so all the 
information can come down to Washington together and the 
standards can be clear and transparent.
    Nothing less will do because these recognition decisions 
are taking people's property in our country right and left. 
These recognition decisions are imposing on small local 
governments high costs that no local government can withstand 
for police, for fire, and it is wiping out public education in 
these towns.
    So we are facing an extremely serious situation. In the 
small State of Connecticut we have two big, established tribes 
but we have lots of little ones now looking to also imitate 
because of the casinos. In just 1 week each of our casinos on 
just the slots took in $60 million. That is what is driving 
this--big money. And that is just the only money we know about.
    So I do not begrudge the Indians economic opportunity and 
help and all those things, but their economic opportunity ought 
to be integrated with the economics of the region, as well, 
because the costs that are being imposed on small towns are 
absolutely crushing.
    So I wish you well in your work. I hope you will take 
seriously the need to put a moratorium on this process until we 
can figure out a more balanced, equitable and a process that 
moves more rapidly for all concerned, but a process that is 
more equitable and in which the standards are consistent and 
adhered to.
    Thank you for your time. I appreciate it.
    [The prepared statement of Ms. Johnson follows:]

   Statement of The Honorable Nancy L. Johnson, a Representative in 
                 Congress from the State of Connecticut

    Mr. Chairman and members of the Committee, thank you for inviting 
me to testify today on the important subject of the Bureau of Indian 
Affairs' federal recognition process. This subject is creating 
tremendous controversy in my home State of Connecticut. While this 
issue has stirred grave concerns in numerous other states dealing with 
the federal recognition process, I wish to focus on the substantial 
impact it is having on my constituents in Connecticut.
    Over the last two years, BIA has issued final determinations 
granting federal recognition to two groups in Connecticut: the 
``Historic Eastern Pequot'' tribe, located in North Stonington, a town 
represented by my colleague Rep. Rob Simmons. The second was the 
Schaghticoke Tribal Nation, in the town of Kent in my district. The 
Schaghticokes have expressed interest in building a casino resort in 
Danbury or Waterbury in my district, or in Bridgeport, represented by 
my colleague Rep. Christopher Shays.
    In addition, BIA will also soon issue a final determination on the 
petition on the Golden Hill Paugussett group, located in Colchester and 
Bridgeport.
    It is an unfortunate reality that the tribal recognition process 
has become for many but a means to the end of profiting from casino 
gambling. Petitioning tribes make it publicly known that their ultimate 
interest is in casino gambling, and millions of dollars are flowing in 
from out-of-state gaming interests to fund recognition petitions. We 
cannot, as a matter of public policy, fail to understand this nor the 
extraordinary impact recognition--often on very slender threads of 
evidence--is having on local governments and local taxpayers.
    Casinos in Connecticut have far-reaching consequences. Our major 
highways are already choked during rush hour and would be completely 
overwhelmed with the 24-hours-a-day, seven-days-a-week traffic of a new 
casino in Bridgeport, Danbury, or Waterbury. Local cities and towns, 
already facing budget crunches, would be forced to pay for far more 
frequent road repairs and construction, traffic control, and increased 
fire and police protection. In effect, local property taxpayers would 
be forced to support the economic development decisions of 
``sovereign'' entities that do not have to pay all the costs of their 
decisions, nor the cost of public education, which is primarily funded 
through local property taxes in Connecticut. When asked recently about 
the benefits of the existing casino in Ledyard, Connecticut, to his 
community, the former Mayor of Ledyard said there have been none. Yet 
the costs have been great.
    The issue today, Mr. Chairman, is one of both ends and means. While 
Connecticut residents overwhelming oppose the goal of more casinos, 
they also now suspect the integrity of the recognition process. Their 
loss of trust in this process is a serious matter, and for good reason, 
they consider this process arbitrary at best, dishonest at worst.
    Problems within the BIA process are well-known and have been 
documented by well-respected, independent agencies. In 2001, the U.S. 
General Accounting Office reported that the recognition process is 
characterized by inconsistency, unfairness, and delay. A subsequent 
report by the Interior Department Inspector General about the 
recognition process cites troubling irregularities, the use of 
political influence in what should be an objective process, and the 
questionable practice of recently-departed BIA officials lobbying for 
petitioning tribal groups.
    Some of these problems are brought into stark relief in the case of 
the recognition of the Schaghticoke tribal group. In December 2002, the 
BIA issued a proposed finding that the recognition of the Schaghticoke 
group did not meet all seven criteria for federal recognition, and that 
its tenuous relationship with the State of Connecticut did not add 
evidentiary weight to the group's claim. On January 29, 2004, however, 
the BIA reversed itself and issued a final determination that the 
Schaghticoke tribe had satisfied the seven federal criteria for 
recognition. In reaching this conclusion, BIA contradicted its own 
reasoning in its proposed finding by determining that the tribal 
group's relationship with the state did, in fact, bolster their 
petition. In addition, the BIA argued in its final determination that 
the tribe had satisfied a previously unmet criterion while admitting 
insufficient evidence had been provided to justify it. This reversal 
left many of us in Connecticut bewildered and eager for answers. Since 
then, my colleagues in Connecticut and I have written to the GAO, to 
Interior Secretary Gale Norton, and to the Interior Department's 
Inspector General requesting an investigation and answers to the 
questions raised by this inexplicable reversal.
    Shockingly, we received answers to some of our questions in the 
form of a disturbing decision memorandum, written by BIA staff two 
weeks before its final determination was handed down and only revealed 
this month. In it, BIA staff admit that the Schaghticoke group did not 
meet the criterion for continuous political influence for two periods 
encompassing 64 years of its history, an admission also reflected in 
the final determination. The memorandum says plainly, ``The petitioner 
has little or no direct evidence to demonstrate that criterion 
83.7(c),'' the political influence criterion, ``has been met between 
1820 and 1840 and between approximately 1892 and 1936.'' The memorandum 
also admits that BIA precedent holds that the state's relationship with 
the group, which has essentially been a symbolic function, does not add 
evidentiary weight to the group's claim.
    Rather than deny the Schaghticoke petition in the final 
determination, as it had in the proposed finding and as the regulations 
and precedent would suggest, the BIA memorandum lays out a strategy to 
overturn existing precedent and abrogate federal regulations. The 
memorandum admits that BIA knew the petition did not meet the standards 
outlined in the ``regulations and existing precedent,'' and that they 
would have to be ignored or reevaluated in order to approve the 
petition. Indeed, the memorandum reads, recognition ``would require a 
change in how continuous state recognition with a reservation was 
treated as evidence.'' Two weeks after that memorandum was written, the 
BIA issued a final determination recognizing the Schaghticoke and 
opening the door to casino gambling in Western Connecticut.
    My constituents in Connecticut, as well as many Americans across 
the country, are strongly opposed to further casino gambling in their 
area. But they also strongly object to the clearly faulty, unfair, and 
arbitrary process that seems to respond more to the millions spent by 
casino interests than to the law. The relatively paltry sums small 
towns can spend with local property taxes as their sole sources of 
financing are simply no match for the big money behind the big business 
of casino gambling.
    I believe immediate action is necessary to restore the credibility, 
predictability, and integrity of the overall tribal recognition process 
and address what is, in my view, a flawed and illogical decision 
regarding the Schaghticoke tribal group. Specifically, I recommend the 
Department of the Interior do the following:
    1.  Invalidate the Schaghticoke decision and issue a new final 
determination that is consistent with federal recognition regulations 
and existing precedent;
    2.  Impose an immediate moratorium on all BIA acknowledgment 
decisions pending a comprehensive review of BIA processes and the 
issuance of recommendations for improvement;
    3.  Take steps to bring into public view the financial and gaming 
interests behind federal recognition petitions;
    4.  Examine how the federal process usurps the traditional power of 
local governments to control economic development, implement long-term 
planning policies, and provide public safety and education services; 
and
    5.  Prohibit the liening of property claimed by a tribe as it 
dramatically undermines property values and paralyzes home and land 
sales throughout the affected region.
    In conclusion, it is widely-held and well-documented that the BIA 
recognition process is faulty. Certainly, Connecticut residents have 
lost faith in that process and worry that it will result in new casinos 
in areas that neither want them nor can support them.
    The question before this Committee and this Congress is what to do 
to address this problem. Congress can no longer put off its 
responsibility to address questions of credibility, competency, and 
fairness within an agency under its jurisdiction. Only through clear, 
concrete and effective action can Congress right this ship; restore 
credibility to the process; and ensure that federal recognition 
petitions are dealt with objectively, consistently, and fairly for both 
petitioning groups and local communities.
    Thank you for considering my testimony today.
                                 ______
                                 
    The Chairman. Thank you. I know that you are very 
passionate about this. We have had the opportunity to discuss 
this in great detail in the past and the Committee does take 
this issue extremely seriously and it is part of the 
jurisdiction of this Committee that we will work through on a 
bipartisan basis to deal with this problem.
    Ms. Johnson. Thank you, Mr. Chairman. I also meant to 
mention that Mr. Shays and Mr. Simmons would like to submit 
their written testimony.
    The Chairman. Without objection, it will be included in the 
record.
    [The prepared statements of Messrs. Shays and Simmons 
follow:]

   Statement of The Honorable Christopher Shays, a Representative in 
                 Congress from the State of Connecticut

    Mr. Chairman and members of the Committee, thank you for allowing 
me to submit testimony on the Bureau of Indian Affairs' (BIA) federal 
recognition process.
    It has become clear that the recognition process is neither 
transparent nor accountable and needs to be significantly reformed.
    I have long said we must live with the BIA's decisions on federal 
recognition, as long as they are made using the proper gauges. In 
recent weeks, however, evidence has surfaced that even petitioning 
tribes that fail to meet the seven established criteria for federal 
recognition may be recognized in spite of rather significant 
shortcomings in their petitions.
    The fact is, the federal recognition process creates sovereign 
nations and, in doing so, has far-reaching social, political and 
economic consequences--even more so when casinos are involved, which is 
becoming more and more often the case. Without transparency and 
accountability in the process, the integrity of the BIA, and by 
extension the federal government, is eroded.
    On January 29, 2003, the BIA announced its decision to recognize 
the Schaghticoke Tribal Nation of Kent, Connecticut, as a federal 
tribe, even though it seemed clear they did not meet the BIA criteria 
for proving continuity from pre-colonial times.
    Then, on March 12, The Hartford Courant made public a memo 
circulated within the Department of Interior two weeks before the 
Schaghticokes were federally recognized indicating that the 
Schaghticokes were granted recognition without having met the 
established criteria.
    The memo demonstrated the agency knew the tribe lacked political 
continuity for a period of 64 years in the 19th and 20th centuries. The 
memo also raised questions about whether several people whose names 
were on the petition were ever actually members of the tribe.
    Even more disturbing, the memo provided BIA directions for 
recognizing the tribe in spite of these facts.
    The unfortunate reality highlighted by this example is that the BIA 
quite clearly did not decide this case on its merits--and I fear this 
instance was not an anomaly.
    Indian gaming is a $23 billion industry, and its expansion hinges 
on the federal recognition process.
    Private investors and powerful casino developers stand to make 
fortunes when a tribe is recognized. And all too often they have 
encouraged tribes to petition, even when they might not otherwise have 
united to do so because they do not meet established recognition 
criteria.
    Our nation has a responsibility to uphold certain unbreakable 
obligations to the continent's native peoples, but I believe the 
process has been corrupted by big money gaming interests that have 
literally started assembling tribes with the hopes that they can 
eventually reap huge profits from an Indian casino.
    In this way, a process designed to afford due rights and privileges 
to legitimate petitioners has almost become an administrative vehicle 
to print money.
    Furthermore, legitimate tribal interests are finding themselves in 
a process where they cannot hope to gain recognition without being able 
to spend lavish sums of money on lobbying--an obfuscation, if not a 
mockery, of the original intent of the federal recognition process. 
Simultaneously, a shadow has unfairly been cast over all of the tribes 
that have met the criteria and achieved due recognition.
    The bottom line is, granting federal recognition is a very serious 
decision that requires a thoughtful and transparent process, but back 
in 2001, the General Accounting Office found the BIA's process for 
doing so to be inconsistent, slow and unfair.
    The Department of Interior's Inspector General also found political 
influence and pervasive irregularities have corrupted the recognition 
process.
    These factors combine to project a resounding message: a full-scale 
reform of the federal recognition process with the objective of 
restoring transparency and accountability to a system that has become 
quite corrupt is long overdue.
    In her testimony before your Committee today, Congresswoman Nancy 
Johnson made several recommendations for ways to restore the 
credibility, predictability and integrity this broken system has come 
to lack.
    Specifically, she recommended reevaluating the Schaghticoke 
decision, this time applying all established criteria to determine the 
validity of the petition; imposing a moratorium on future recognition 
decisions pending a review of the BIA process; and making public the 
financial forces that support petitioning tribes.
    I wholeheartedly support my distinguished colleague's suggestions 
and hope they will be adopted by the Department of Interior.
    Thank you for considering my testimony.
                                 ______
                                 

 Statement of The Honorable Rob Simmons, a Representative in Congress 
                     from the State of Connecticut

    Mr. Chairman and members of the Committee, thank you for holding 
this hearing, and for allowing Rep. Nancy Johnson, the dean of the 
Connecticut congressional delegation, to testify on behalf of our home 
state. She has worked tirelessly on this issue and I appreciate her 
bringing this issue to the forefront.
    Mr. Chairman, my home State of Connecticut has been, and continues 
to be, affected by our federal Indian recognition process. My district, 
Connecticut's Second Congressional District, is host to two of the 
world's largest casinos: Foxwoods Resort Casino, run by the 
Mashantucket Pequot Tribe, and Mohegan Sun, run by the Mohegan Tribe.
    Connecticut has seen both the benefits and the adverse effects of 
tribal recognition. One benefit is that Indian gaming has produced jobs 
at a time when defense contracting and manufacturing have been on the 
decline. Foxwoods Resort and Mohegan Sun purchase goods and services, 
and contribute upwards of $300 million a year into the state budget. 
Tribal members have also been personally generous with their wealth, 
supporting numerous community projects and charities.
    But there is also a considerable negative impact. In Connecticut, 
recognition means the right to operate a casino and that places 
pressure on local municipalities who have no right to tax, zone or plan 
for these facilities. Small rural roads are overburdened with traffic, 
understaffed local police departments are routinely working overtime, 
and volunteer fire and ambulance services are overwhelmed with 
emergency calls. The small towns that host and neighbor these casinos 
are simply overwhelmed by this strain.
    In year's prior, many in Connecticut questioned the presence of 
tribal casinos because they wondered whether the federal process was 
fair. The people of Connecticut no longer wonder. They know the federal 
system is broken.
    BIA's recent actions involving groups in Connecticut seeking status 
as Indian tribes under federal law demonstrate that the acknowledgment 
process is unfair and corrupt. This, of course, is not the fault of the 
petitioning groups, some of whom I have considered friends and 
neighbors for many years. It is the fault of the federal government. 
Congress must act promptly to correct these problems.
    Over the last two years, BIA has issued final determinations that 
would grant federal tribal status to two groups in Connecticut. The 
first of these was the ``Historic Eastern Pequot'' tribe, located in 
the town of North Stonington in my congressional district. The second 
was the Schaghticoke Tribal Nation, in the town of Kent in the 
congressional district of Ms. Johnson.
    The BIA also will soon issue decisions for the Golden Hill 
Paugussett group, located in Colchester and Bridgeport, and the two 
Nipmuc groups, located in Massachusetts, but targeting land in 
northeastern Connecticut.
    With such significant decisions pending before a federal body, it 
is our duty in Congress to ensure that a fair and objective procedure 
is used to make these decisions. Tribes need to be granted the federal 
status they deserve and accorded their sovereign rights, but the 
determination to acknowledge such tribes cannot be made under false 
pretenses and without regard for the overall economic, social and 
political consequences that will result. Unfortunately, that is exactly 
what is happening under the flawed and biased BIA system.
    Nowhere are these problems with BIA's acknowledgment procedure more 
apparent than in Connecticut. The record is clear that BIA is breaking 
its own rules to reach their own desired outcome and that of 
petitioning groups and their wealthy financial backers. The recent 
Schaghticoke decision is a case in point. BIA specifically admits in an 
internal agency memorandum that the Schaghticoke group does not satisfy 
the acknowledgment criteria. Nonetheless, BIA violated its own 
regulations to reverse a previous ruling and find in favor of the 
Schaghticoke group.
    It did so by creating a presumption in favor of acknowledgment for 
petitioner groups in Connecticut based simply on the fact that the 
State has held land for Indians. BIA equated this simple act by the 
State undertaken primarily as a welfare function with the existence of 
a continued political relationship between the State and the Indian 
beneficiaries of the land. BIA admits in its own internal decision 
document that such a result is not allowed under its regulations, but 
nevertheless proceeded to rule in favor of the Schaghticoke petition. 
Just as egregious, the memorandum went on to specifically lay out 
potential avenues under which regulations could be averted and final 
recognition could be conferred.
    BIA followed a similar pattern in the Eastern Pequot decision in 
2002. In that case, BIA went so far as to forcibly combine two 
petitioner groups who openly opposed each other. Only by doing so was 
BIA able to issue a favorable decision. BIA also invoked the mistaken 
assumption that the simple existence of a state reservation was 
sufficient grounds for the two Pequot petitioner groups to meet the 
acknowledgment criteria.
    Most recently, the New York Times detailed in a front-page story 
the ties between powerful money interests and petitioner groups. 
Included in this article was a troubling reference to the business 
relationship between the current head of BIA, David Anderson, and the 
primary backer of the Massachusetts and Connecticut Nipmuc groups, Lyle 
Berman. Mr. Anderson and Mr. Berman were founding partners of what is 
now Mr. Berman's casino development company, Lakes Entertainment. Lakes 
Entertainment has provided nearly $4 million to the Nipmucs in their 
effort to obtain federal recognition.
    There is a laundry list of other problems and abuses arising from 
the acknowledgment process in recent years. These include actions under 
the previous Administration such as changing the acknowledgment 
procedures without notice or public comment, discriminating against 
interested parties opposed to acknowledgment by not revealing critical 
evidentiary deadlines, issuing incomplete proposed rulings so as to 
prevent comment on key findings, and even signing post-dated favorable 
determinations after the change in Administrations.
    How could so many serious problems arise? The answer starts with 
the most basic principle of our system of government. Congress is 
vested with the power to recognize tribes. That power has never been 
delegated to the Executive Branch.
    In addition, Congress has never taken the constitutionally 
necessary step of defining and placing in statute the standards under 
which BIA could rule on tribal acknowledgment petitions. Absent this 
statutory guidance from Congress, BIA has simply made up its own rules. 
It administers those rules as it sees fit, even ignoring them when 
necessary to reach a desired result. The system is out of control.
    For many years, the acknowledgment process has been criticized for 
being too slow, too expensive and too academic. While those are valid 
concerns, the bigger problem is that BIA's acknowledgment process also 
has lost its credibility. Decisions of such importance can no longer be 
left to this agency.
    Strong and immediate action is necessary to address those problems. 
In my conversations with numerous citizens throughout the State of 
Connecticut, including leaders like Nick Mullane, Connecticut's State 
Attorney General Richard Blumenthal, Bob Congdon, Wes Johnson, Susan 
Mendenhall, and others, I've heard the following recommendations:
      Impose a moratorium on all BIA acknowledgment decisions;
      Enact a law that establishes an independent, objective 
process for making findings of fact regarding tribal acknowledgment 
requests;
      Define and place in law the acknowledgment standards that 
will be used in this process;
      As part of that process, require all petitioners to 
identify the sources of their funding, the contractual arrangements 
with financial backers, and the amount of money spent;
      Prohibit all ex-parte contacts between parties to an 
acknowledgment process and the entity responsible for review;
      Require all recommended decisions on acknowledgment 
petitions to be acted upon by Congress; and
      Establish a funding mechanism that assists interested 
party state and local governments in participating in such reviews.
    In conclusion, Federal recognition policies are turning the 
``Constitution State'' into the ``casino state.'' We want more control 
over the process. We want to close the loopholes. We want relief 
provided to our localities for what can be a very expensive battle on a 
very uneven playing field.
    The victims of the situation include all parties to the 
acknowledgment process--petitioning groups, states, local communities, 
and the public. It is time for Congress to step in and solve this 
problem by reforming the system by statute. This is the only way to 
ensure fair, objective and credible decisions.
    Thank you for considering this testimony.
                                 ______
                                 
    The Chairman. Mr. Rahall?
    Mr. Rahall. Thank you, Mr. Chairman.
    I thank the gentlelady from Connecticut for her testimony, 
as well. She brings a great deal of empathy and understanding 
of the issue here.
    I can understand the cutbacks that many state, local and 
city governments are facing today. We are certainly 
experiencing that in my area of the country, as well, with the 
cutbacks coming from Washington and with the tax breaks 
emanating from this city, it makes it very hard for the state 
and local governments to make ends meet these days and we are 
putting additional burdens upon them. There is no doubt about 
it.
    Ms. Johnson. I thank you. You know, this is so difficult 
that the Indians living on the reservation did not support the 
petition because they are afraid of what it is going to mean 
for their reservation, their way of life, the traditions they 
are trying to preserve.
    So we are not getting a fair record into Washington and we 
need to make sure we do that because we are overriding very 
fundamental rights granted in our Constitution to citizens of 
this country and that should not be. Thank you very much?
    The Chairman. Mr. Pallone?
    Mr. Pallone. I respect the gentlewoman's opinion but I have 
to take issue, both on a theoretical level as well as a 
practical level, about what she said, and then I did have a 
question, Mr. Chairman.
    On the theoretical level, I have a real problem with the 
way you have addressed this because I believe that the issue of 
sovereignty predates states, predates local governments. The 
bottom line is the Constitution recognizes Indian tribes as 
sovereign nations and that really has nothing to do with the 
status of states or the status of local governments.
    So I have a real problem with our government at the Federal 
level providing funding, if you will, to local units of 
government or to states to help them make a case against 
sovereignty once the BIA has made that decision or that 
preliminary decision, primarily because the issue of 
sovereignty is a Federal issue. It is not a state issue. The 
Federal government should decide essentially on its own whether 
or not a tribe is sovereign.
    And the problem with most of these cases is that state and 
local governments over the years and the Federal Government, as 
well, have done their best to try to terminate the rights of 
American Indians and to eliminate their sovereignty and for us 
to sit here and say that somehow the states or the local 
government should have some input or should be able to 
influence in some way the decision the BIA makes about whether 
a nation is sovereign and should be recognized as such I think 
is wrong and I think essentially violates the Constitution.
    Now that is the theoretical problem. The practical problem 
is that I think the way the gentlewoman portrays tribes as 
somehow wealthy and able to have all this money to make their 
case is essentially just the opposite. If I could use the 
Eastern Pequots, and I do not know whether or not she opposes 
their recognition, but I know that when I visited them what I 
found essentially was a handful of people who had very little 
resources and ability to influence what goes on.
    Now for all I know they may have some casino money or 
somebody who has promised them money that they can hire but 
they had a small land area historically, they have clear 
indications with the graves on the site and the fact that they 
have existed as a tribe and they are entitled to sovereign and 
recognition, but they had a very difficult time over the 20 or 
30 years when they have been trying to get their recognition in 
getting the resources and being able to hire people to make the 
case.
    So this idea that the tribes are somehow with all this 
money and all this power and all this ability and the local 
municipalities have nothing, I think it is just the opposite. I 
do not think it makes any sense for us to give money to towns 
to be able to make that case because we do not give the money 
to the tribes to be able to appeal decisions or make those 
cases.
    So I think that theoretically I do not agree with the 
gentlewoman in terms of the state or the local role in this 
decision. I do not think there should be one. I think this is a 
Federal issue.
    Second, practically speaking, I think it is just the 
opposite. Many of these tribes have a hard time making their 
case and getting the money to be able to make the record 
straight.
    I just wanted to ask a question which sort of relates to 
the practical aspect. We know that the BIA does not have a lot 
of resources. Why is it appropriate for the Department of the 
Interior to foot the bill for municipal appeals, which is what 
I think the gentlelady is saying in her bill, but not for 
tribes who appeal unfavorable decisions? Would the gentlewoman 
who now advocates that the towns get money to take the appeal, 
would she have a problem with the tribes getting money in the 
same way to make their appeal from the government?
    Ms. Johnson. You misunderstand me from the beginning, so 
let me back up a little bit.
    I certainly am not challenging the concept of sovereignty. 
I am saying that in a part of the country where we are 
recognizing tribes for the first time in hundreds of years you 
have to look at the facts to see if they meet the criteria. So 
you want advocates of recognition and opponents of recognition 
to be able to get their facts on the table so the Federal 
Government can make an honest decision about whether there is a 
tribe that meets the criteria to be recognized.
    So I would not object to Indians being given the resources 
and the town being given the resources but if you accept public 
resources, you then would have to not accept additional 
resources.
    My goal is to try to balance this so that when the Federal 
Government looks at the tribal recognition issue it looks at it 
with its experience but it also looks at it with local 
knowledge of the history and life of the people because the 
criteria demands some continuity of existence. So if you do not 
have equal resources, you are not getting equal facts.
    Now I am not knowledgeable about this process in the West 
so much but in the East, it was not an issue until gambling 
made such a big hit. Now we have two big casinos, two big 
recognized tribes. I am not challenging that. The reason I am 
challenging the recognition of the Schaghticokes is because the 
process has been an absolute travesty. In my written statement 
I went through this in a far more orderly fashion than I did in 
my summary but for instance, there was a memorandum from staff 
in the BIA to the decisionmakers about how it did not meet the 
criteria but if you still wanted to recognize them, this is how 
you could do it. They say, for instance, ``The petitioner has 
little or no direct evidence to demonstrate that criteria 
83.7(c), the political influence criteria, has been met between 
1820 and 1840 or between 1892 and 1936,'' and that is a long 
time. The memorandum also admits that the BIA precedent holds 
that the state's relationship with a group, which has 
essentially been a symbolic function, ``does not add 
evidentiary weight to the group's claim.''
    So you have this proposed decision, then you have the final 
decision, and in between you have this memorandum that says 
they do not meet the criteria but if you still want to do it, 
this is how you do it.
    Now to put people's property rights at risk, to put the 
viability of local government services at risk, is simply an 
outrage in the face of that kind of a memo. That is why I say 
you need a moratorium because you need to look back at this 
process. One possible component of the solution would be in 
every case to make sure that the sides have the resources they 
need to bring forward the information. If you did that you 
would want to ban outside money, I guess, so everybody had the 
same.
    But you have to recognize that gambling has changed this 
because it is big, big money and the take is so large, they do 
not care how much money they invest in the recognition process. 
So they not only----
    The Chairman. The gentleman's time has expired.
    Ms. Johnson. You get it.
    The Chairman. Are there further questions of the witness?
    Well, thank you, Mrs. Johnson.
    Ms. Johnson. Thank you for the opportunity. I do appreciate 
it.
    The Chairman. Thank you for your testimony.
    Ms. Johnson. I know our perspective from the Northeast is 
different but the impact is going to be very, very different. 
It is all right if they are tribes that truly meet the criteria 
but not if they are tribes that do not. Thank you.
    The Chairman. Thank you.
    I would like at this time to call up our second panel 
consisting of Glenn Marshall, President of the Mashpee 
Wampanoag Tribe, Lance Gumbs, Tribal Trustee of the Shinnecock 
Indian Nation, Rosemary Cambra, Chairperson of the Muwekma 
Ohlone Indian Tribe, and Wilford ``Longhair'' Taylor, Tribal 
Chief of the MOWA Band of Choctaw Indians. I should note that 
these witnesses are members of tribes that are seeking or have 
sought recognition but have not yet received it.
    The Committee has a practice of swearing in all witnesses, 
so if I could ask you to please stand and raise your right 
hand.
    [The witnesses were duly sworn.]
    The Chairman. Thank you very much. Let the record show that 
they all answered in the affirmative.
    Mr. Marshall, we are going to begin with you. I again 
remind our witnesses that your entire written statement will be 
included in the record but if you could try and keep your oral 
testimony to 5 minutes it will help us a great deal to stay on 
schedule. So Mr. Marshall, thank you.

            STATEMENT OF GLENN MARSHALL, PRESIDENT, 
                    MASHPEE WAMPANOAG TRIBE

    Mr. Marshall. Thank you, Mr. Chairman, members of the 
Committee. I appreciate the opportunity to testify today. My 
name is Glenn Marshall and I am the President of the Mashpee 
Wampanoags.
    Our tribal offices are located on Cape Cod in Massachusetts 
in a town that bears our name. Most of our 1,468 members live 
in close proximity to our ancestral lands. Our history is rich 
and closely intertwined with the history of America. Our local 
villages have existed for 5,000 years and we are best known for 
having greeted the Pilgrims at that best known spot in 
Plymouth. Despite what you might think, we do not regret 
opening our arms to those settlers, although I have joked in 
the past that we loaned the Pilgrims the moorings to land their 
boats and we have been paying for it ever since.
    Seriously, we are proud of our participation in that 
historic event and our prominent role in American history did 
not end there. Our tribe has answered the call to defend 
America, fighting in every conflict starting with the fight for 
independence and the war on terrorism. The first casualty of 
the Revolutionary War was Crispus Attucks, a Mashpee. I am 
joined today in the audience by my Chief, Vernon Lopez, who 
fought at D-Day. I myself am a survivor of the Surge of Khe 
Sanh and many incursions into Vietnam.
    Mr. Chairman, hundreds of the Mashpees have given their 
country their fullest measure of devotion in battle and we have 
shared our land and blood and served our nation with 
distinction and pride. We have also been good neighbors in our 
local community. We maintain the oldest Christian church 
building on Cape Cod, the Old Indian Meeting House.
    I have with me here today a book that dates prior to the 
Commonwealth of Massachusetts that tells us we have had a 
continuum of presence in the Commonwealth of Massachusetts and 
this great country since the beginning of time. I could have 
brought an older book that dates to the 1600s--it has our 
genealogy, it has our governance of our tribe here--but it was 
too fragile to travel. It makes me angry that we are not able 
to bring these books and show the members of Congress and the 
people within the BIA.
    Because of that church, we are known as the praying 
Indians. We use this facility for special services now only. 
Most of our services are done in Algonquin and in dialect.
    It has taken me a long time to understand the workings of 
the government. I am sorry that we could not bring more 
evidence, but I knew that our time would be short.
    We are here for one simple reason. Twenty-nine years ago 
the Mashpees asked the Federal Government to confirm in law 
what everybody knows to be true, that we are a tribe, and 29 
years later we are still waiting. When we filed our letter 
stating our intention to seek Federal recognition in 1975 the 
BIA's response was prompt, stating that Mashpee would be among 
the first to be considered. Only 14 others had filed prior to 
that time. Three years later the BIA finalized their 
recognition rules and regulations and we certainly never 
expected it would take more than 30 years. We immediately 
initiated our formal petition and it was not complete until 
1990. We spent years trying to navigate through the confusing 
regulations, unresponsive bureaucracies of the BIA and further, 
just knocking on doors everywhere and getting the same answer. 
Looking back, it is not surprising that our tribe, with few 
resources and even fewer academics, struggled to understand the 
nuances of the process.
    Since 1996 when our petition went on active, we have 
watched it stay dormant. We have watched other tribes who were 
lower on the consideration list leapfrog over us and get 
determinations from the BIA. We followed the rules and 
regulations set forth by the BIA, still with no decision.
    Finally, we abandoned that and we took our case to court. 
We started well. In 2001 a Federal judge ordered that we would 
have a final decision December 21, 2002. The bureau pushed. The 
Court of Appeals reversed that decision and directed the court 
to find a new and fresh evaluation as to whether the delay had 
been unreasonable. Our litigation continues and they say that 
we will not be recognized or have a decision for seven to 14 
more years within the bureau process.
    Mr. Chairman, we have no desire to be in court. We would 
have settled this out many, many times over in the last 4 
years, since 1996, since 1975.
    The system needs to be fixed. There are several ways that 
we can do it. I have some ideas. I would love to share them 
with you. But the time-consuming, costly litigation helps no 
one. It absolutely helps no one. It does not help the tribe. It 
does not help the community. It does not help the Commonwealth 
of Massachusetts and it certainly does not help the United 
States of America.
    When I look at the Lady of Liberty I see a black eye 
underneath the right eye and it says Mashpee Wampanoag for the 
travesty this country has permitted to happen to us. Mr. 
Chairman, I beg you for your help and there are situations here 
that we can fix.
    There are only 27 tribes left that filed for recognition 
prior to 1988. I say that those tribes should be the ones that 
are looked at first. Anyone that filed after 1988, let us go 
through the queue. Let us make them stand up to their 
regulations or let us find some outside independent folks that 
can do some of the legwork that they do, academics. We have 
some of the most wonderful colleges with academic archives for 
colonial history; it would not take long.
    Thank you very much, Mr. Chairman.
    [The prepared statement of Mr. Marshall follows:]

    Statement of Glenn Marshall, President, Mashpee Wampanoag Tribe

    Mr. Chairman, members of the committee, I thank you for the 
opportunity to offer these remarks today. I am President of the Mashpee 
Wampanoags, the largest tribe in the Commonwealth of Massachusetts. Our 
tribal offices are located on Cape Cod, Massachusetts, in the town 
which bears our name. We are a tribe of 1,468 members, most of whom 
live in close proximity to our ancestral lands. I present myself today 
on their behalf in order to share our story. I hope my remarks will not 
only narrate the historical significance of the Mashpee and our record 
of service to the United States, but will also demonstrate the 
compelling factual case for federal recognition. It is my hope that 
these remarks help present a more clear picture of our tribe's 
experiences, and, in turn, a clear picture of the reality of the 
federal recognition process.
    The vision of the Pilgrim forefathers disembarking from the 
Mayflower at Plymouth Rock is the starting point for many people's idea 
of significant history in the New World. More exactly, it is a pivotal 
point in American history. It started a new chapter, but it is only a 
brief moment in a much longer narrative of life on this continent. That 
story is one of men and women whom have lived for thousands of years 
prior to the arrival of Europeans. Archeologists have discovered 
evidence to support the claim that local Mashpee villages have existed 
for 5,000 years with an unbroken continuum of habitation to the 
present. Our extensive history, therefore, is not predicated on the 
single instance in which our ancestors greeted the Pilgrims as they 
landed upon the shores of America. Rather, this moment enriched the 
history of the Mashpee as a community tied to the land on which we have 
existed for thousands of years. We are proud to have been part of this 
historically significant event and many since.
    Since that meeting, our history has been shared with the European 
settlers. However, our experience has not always lived up to the 
promise of that first meeting in Plymouth. In fact, our experience with 
the Bureau of Indian Affairs has only intensified the lingering taste 
of past oppression. But our commitment to this, our great country, has 
been and remains steadfast. We are proud to be Americans. We are proud 
of our country. We have not always been treated with fairness and 
equality. But, we know ourselves to be a significant tribe tied to the 
long history of this nation, and we remain firm in our faith in its 
commitment to justice.
    The fight for freedom and development of democracy has been a 
tumultuous one, often calling for men and women to fight in order to 
secure liberty. The first casualty of the Revolutionary War, Crispus 
Attucks, was a member of the Mashpee. Another distinguished Mashpee, 
Massasoit, stands point on the state seal and flag of the Commonwealth. 
In fact, the Mashpee have consistently answered the call to arms, 
fighting in every American conflict beginning with the fight for 
independence from England: 21 in the Spanish American War, 145 in World 
War I, 5 in the Haitian Insurrection, 6 in the Philippine Insurrection, 
80 in World War II (including 44 at D-Day), 61 in the Korean War, 30 
during the Cuban blockade, 50 in the Vietnam War, 6 at Grenada, 11 in 
Panama, 13 in Desert Storm and 17 in Afghanistan and the War on Terror. 
I am joined today by our Chief, Vernon Lopez, who was among the Mashpee 
fighting at D-Day; I, am a survivor of the siege of Khe Sanh, in 
Vietnam. Our ties to our community at home compliment our record of 
service and sacrifice to the country.
    Currently, sixty percent of our tribal members live in close 
proximity to the town of Mashpee. We maintain the oldest Christian 
church building on the Cape, the Old Indian Meeting House, established 
in 1673 by John Eliot. Our devotion to the church has earned us the 
name ``Praying Indians,'' and presently we use this facility for 
special occasions of worship. Our services are performed in Algonquin, 
the official Wampanoag language. Moreover, we assist other tribes in 
maintaining their traditional languages and customs. Meticulous care is 
given to preserving the nuances of our cultural traditions with hope of 
enculturation for subsequent generations. Nevertheless, the lack of a 
defined tribal land makes preservation of our traditions and cultural 
identity very difficult to maintain. Our frustration is intensified in 
the light of our progressive social and legislative history in the 
Commonwealth of Massachusetts and prior relationship with the federal 
government.
    The significance of Mashpee history in Massachusetts is confirmed 
in historical texts dating back hundreds of years. As population 
swelled in states, the idea of westward expansion became a reality. The 
United States government explored the removal of Indians from eastern 
states through the endowment of tribal lands in the west in places such 
as Oklahoma. The shortsighted and thoughtless nature of such proposals 
aside, such a consideration was rejected when considering the 
relocation of the Mashpee. A document dating from 1822, A Report to the 
Secretary of War of the United States on Indian Affairs, states in 
regard to Mashpee relocation,
        ``They are of public utility here as expert whalemen, and 
        manufacturers of various light articles; have lost their 
        sympathy with their brethren of the forest; are in possession 
        of many privileges, peculiar to a coast, indented by the sea; 
        their local attachments are strong; they are tenacious of their 
        lands; of course the idea of alienating them and removing to a 
        distance, would be very unpopular. This is evident from the 
        feelings manifested by those whom I have sounded on the 
        subject; I have no reason therefore, to believe the scheme 
        would take with them.'' 1
---------------------------------------------------------------------------
    \1\ Jedidah Morse, A Report to the Secretary of War of the United 
States on Indian Affairs (New Haven 1822).
---------------------------------------------------------------------------
    Then, the rebuff of Mashpee removal was predicated on our strong 
ties to the land and sea, as well as our fierce love for the land we 
have inhabited for so long. Now we seek to have the federal government 
recognize the Mashpee and acknowledge our history in this land, a 
history recognized in texts such as these. Yet, this is not the 
singular piece of supporting evidence in our case for federal 
recognition.
    The town of Mashpee, Massachusetts, was incorporated as a township 
in 1870 and common land allotted to Indians and non-Indians. Members of 
our tribe served in all leading roles in the town of Mashpee until 
1964, serving the town in governance positions including selectman, as 
police and firemen, and as municipal officials. During this period, we 
opened to the public our traditions in hope that others could 
understand our culture as we had been forced to understand theirs. In 
1920 we began the first community powwow, inviting citizens to 
participate in one of our most sacred customs. Over time, Massachusetts 
embraced our tribe and, most notably, recognized the Mashpee in 
statute. In fact, more recently, members of the Massachusetts 
Legislature submitted a joint resolution supporting federal 
recognition; ``Massachusetts Legislature recommends that the Federal 
Government follow the Commonwealth's lead by formally recognizing the 
Mashpee Wampanoag Tribe.'' 2 And yet, federally we have been 
unable to gain recognition.
---------------------------------------------------------------------------
    \2\ Joint Resolution Offered by State Representative Matthew C. 
Patrick, Representative Eric Turkington, Senator Robert O'Leary and 
Senator Therese Murray.
---------------------------------------------------------------------------
    Currently, our main land base consists of 55 tribally leased acres 
in the town, located near the southwestern end of Cape Cod--a small 
sliver of the 16,500 acres originally provided by England's King George 
II and reaffirmed by Plymouth Colony. In the past we have struggled to 
survive on the Cape, and continue to do so today. As Cape development 
reshaped our community and the vacation-based economy boomed, the 
Mashpee tribal members did not benefit from the growth. One of the 
fastest growing communities in the State, population soared to almost 
13,000 by 2000. Mashpee land continued to shrink and the challenge of 
retaining our identity grew.
    We, as Mashpee, struggle every day to teach our Indian culture, 
while, concurrently teaching the mores and history of the United 
States. We find it hard to resolve our history on this land and our 
dedication to this country with the lack of recognition by the 
government we helped shape. Thus, in 1932 we began the federal 
recognition process and rejuvenated our efforts in the 1970s. We have 
pursued our status in court as well as through the Bureau of Indian 
Affairs.
    The Wampanoags of Mashpee filed a letter of intent with the United 
States Department of the Interior's Bureau of Indian Affairs (BIA) in 
1975. The BIA's response was prompt, stating the Mashpee were among the 
first tribes to be considered for only fourteen others had filed prior 
to that time. However, at the time the BIA had not adopted any 
regulations setting forth official criteria for federal recognition of 
tribes.
    In 1978 the Bureau of Indian Affairs had solidified the criteria 
for achieving federal recognition. Although we understood the process 
was a long one, taking years, we initiated our formal petition. This 
process was not complete in full until 1990.
    In 1990, after years of research, the Mashpee submitted its formal 
application, compiled without the aide of scholars due to our lack of 
resources. Our lack of scholarly or professional consulting in our 
application resulted in the BIA reply that there existed obvious 
deficiencies in our argument that the Wampanoag functioned as a tribal 
entity throughout the twentieth century. Consequently, under the 
leadership of Harvard-educated Tribal President, Russell Peters, we 
went back to work. In 1996 we resubmitted our application, supported by 
hundreds of pages of documentation and several boxes of vital records. 
Through the aid of lawyers, archaeologists, genealogists and 
researchers we meticulously documented our history in the Commonwealth. 
Less than a month after our second submission, the agency deemed the 
petition ``ready for active consideration.''
    Our petition has been ready for active consideration for seven 
years--since 1996. In that time, other tribes' petitions have jumped 
our own for consideration. For example, the Muwekma, a tribe which was 
not on the ready list for consideration until 1998, has already 
received a ruling. The Department has also entered into settlements 
placing groups, including the Schaghticoke and Golden Hill Tribes, on 
expedited schedules for consideration. Moreover, the Department has 
jumped tribes such as the Pawcatuck Eastern Pequots and the Match-E-Be-
Nash-She-Wish Band of Potawatomi Indians of Michigan ahead in order to 
consider their petition in tandem with similarly situated tribes. In 
contrast, the Mashpee continue to await a decision to move forward on 
our petition.
    We have followed the rules and regulations put forth by the BIA and 
it's predecessor, the War Department. Despite our best efforts to 
comply, we remain without any sense of when we can expect completion of 
our petition or whether the BIA will meet its obligations under the 
established procedures. Thus, we felt we had no choice but to proceed 
through the courts. We are presently seeking a court order to force the 
BIA to process our petition in a timely manner. We believe that we can 
establish that the delay in processing our petition has been 
egregiously unreasonable particularly in light of the other tribes 
whose petitions have been considered before our own.
    In 2001, the U.S. District Court for the District of Columbia found 
the BIA had unreasonably delayed action on the Mashpee petition, and 
ordered the BIA to make a final finding on the petition by December 21, 
2002. The District Court decision was appealed by the BIA to the U.S. 
Court of Appeals for the D.C. Circuit. In 2003, the Court of Appeals 
remanded the case back to the District Court ``for a full and fresh 
evaluation of whether the delay Mashpee is encountering should be 
deemed ``unreasonable.'' Thus, the case is now pending once again 
before the District Court.
    The Mashpee fully expect to be successful in demonstrating that the 
BIA has unreasonably delayed action on the Mashpee petition. The 
petition has been languishing at the BIA for seven years. Unless the 
Court or Congress intervenes, the Mashpee are likely to be waiting 
seven to fourteen more years before receiving a decision. After 
considering the facts surrounding the Department's history of delay, 
its past actions, as well as the fundamental rights and privileges at 
stake in the tribal recognition process, we believe the District Court 
will again find that this delay--with no end in sight--is egregious and 
must be remedied.
    Tribes which have won court decisions forcing the BIA to review 
their file have received negative rulings. My worry, as Tribal 
President, is that the Mashpee will be reprimanded in the form of a 
negative ruling. Seventeen tribes, winning a legally forced review, 
have all been denied federal recognition since 1980. Six of those had 
lower placement on the list for consideration. Five of the denied 
tribes sought litigation to no avail. Only the Schaghticoke of 
Connecticut won their suit and received favorable consideration.
    It is our contention that the Department is adversarial at best. It 
is difficult for tribes to prove their case for recognition and, 
furthermore, there exists no readily available clarification of the 
rules and regulations to improve the process. The BIA only respond when 
something is wrong, rather than explaining their interpretation of the 
facts and application of the criteria.
    It is not only possible for the consideration process to be 
improved, but also necessary. Experts have told us that the entire 
backlog of petitions could be completed in 2 years if the Bureau worked 
efficiently and with a view toward achieving equitable resolution of 
the various pending applications. The Mashpee application could be done 
in a few months given our long history of recognition by the 
Commonwealth of Massachusetts, substantial shared history with a tribe 
recognized by the Bureau, and other factors. Yet, the Bureau proceeds, 
year after year, with no enforced standards, no clear procedures, no 
commitment to completion and no effort to secure resources to get the 
job done either internally or through a limited contractual program 
utilizing the top experts from across the country.
    With the aid of scholars and the use of historical archives the 
time frame could be truncated considerably. Schools such as Rutgers, 
University of Virginia and University of Pennsylvania, with well-
established and respected leaders in the field of Native studies, could 
review the applications of a number of tribes if each were assigned 
just two per year.
    The lack of communication on behalf of the Bureau of Indian Affairs 
has been not only frustrating, but also insulting. We feel we have 
pursued our federal recognition through the proper channels and deserve 
due process of our claim. We have observed the Bureau's lack of ability 
to adhere to its rules and regulations; yet, the tribes seeking 
recognition are made to adhere to said regulations. Capriciously, the 
BIA has moved forward on the claims of tribes which had submitted their 
applications significantly after the Mashpee with little or no 
explanation.
    Mr. Chairman, members of the committee, the denial of resolution on 
our petition carries real consequences for the members of my tribe. We 
are denied access to health care and many of the other federal benefits 
that recognition conveys. As a result, like many other native people, 
we suffer from diseases such as diabetes at levels substantially higher 
than most populations. More importantly, failure to complete our 
petition denies Mashpee tribal members the pride that only recognition 
of our tribe and its contributions to this country will convey.
    Given our record of service to this country, the Mashpee people 
have earned and deserve better treatment. We have shared our land, shed 
our blood, and have grown together as part of this nation. Still, we 
struggle every day to live on the land that has always been our home. 
We struggle to preserve a history and language that is critical to the 
telling of the story of America. And, yet, we remain committed to the 
dream that we have so long been denied, and seek only that to which we 
are justly entitled.
    As a representative of these hardworking, dedicated and proud 
Mashpee tribal members I respectfully submit these thoughts for your 
consideration. I would welcome the opportunity to discuss our tribe and 
our case for federal recognition further or furnish any requests for 
more information. I thank you for your time and consideration.
                                 ______
                                 
    The Chairman. Thank you.
    Mr. Gumbs?

           STATEMENT OF LANCE GUMBS, TRIBAL TRUSTEE, 
                    SHINNECOCK INDIAN TRIBE

    Mr. Gumbs. Mr. Chairman, Ranking Member Rahall, and members 
of the Resources Committee, thank you for inviting me to 
testify on this critical issue here today.
    Today is the first time that a member of the Shinnecock 
Indian Nation has testified before Congress since the year 
1900. In 1976 we were one of the first four tribes to file an 
application for Federal recognition. That was 25 years ago. Our 
recognition effort was stalled in part because we could not 
afford the high cost of completing our application. We were 
finally placed on the ready for active consideration list by 
the BIA on September 9, 2003. A month later we were informed 
that the Shinnecock petition is now 12th on the current list 
and according to BIA, ``Without additional resources it may 
take the OFA up to 15 years to decide all completed 
applications.'' Thus, without a change to the current process, 
the Shinnecocks will have languished in an unrecognized status 
for almost half-a-century.
    The Shinnecock Indian Nation is one of the oldest 
continuously self-governing tribes in the country and was one 
of the first to have contact with the European settlers who 
sailed into Peconic Bay in 1640. From that time on, early 
settlers have deceived our ancestor and illegally began taking 
our lands, which we repeatedly tried to prevent.
    We continued our practice of self-governance until 1792 
when New York State enacted a law entitled ``An Act for the 
Benefit of the Shinnecock Tribe of Indians Residing in Suffolk 
County.'' This Act took away our traditional self-governance 
and established a trustee form of government. Our tribal 
election process has been recorded each April by the clerk of 
the town of Southampton from 1792 to the present.
    Thus, it is well documented that the Shinnecock Indian 
Nation has had a continuous existence and contact with 
colonialists dating to the 1600s and formal relations with New 
York State since its creation. This history was reaffirmed in 
1974 when the New York State Legislature called on Congress to 
grant our tribe Federal recognition.
    In addition, a 1987 letter from the Secretary of the State 
of New York to trustees stated, ``The Shinnecock tribe is one 
of the historic tribes of Long Island which still has tribal 
existence and occupies fee simple land generally within its 
aboriginal territory and it is clear that the Federal 
government deals with the Shinnecocks as an Indian tribe.''
    You should also know that legal experts in the Federal 
recognition process from the Native American Rights Fund have 
stated that our application is one of the strongest documented 
petitions ever submitted to the OFA.
    As you know, the GAO stated in November 2001, ``The 
regulatory process is not equipped to respond in a timely 
manner; nor does the process impose effective time lines that 
create a sense of urgency.'' The GAO also noted that it takes 
the BIA an average of 15 years to resolve a petition in a 
system that was originally designed to take 2 years.
    In response to the GAO report, then Assistant Secretary of 
Indian Affairs McCaleb testified before Congress in February 
2002 that staff research positions remain vacant. That is 
completely unacceptable.
    It seems each time Congress looks into this matter there is 
a flurry of activity at BIA but ultimately little is done and 
nothing changes. I hope this time this will be different.
    What systems could be put in place to provide for 
additional funding and manpower to establish a reasonable time 
line for application decisions? For example, I am aware there 
is presently an expedited procedure to disapprove a petition. 
Why not develop a process that would expedite the approval of a 
petition if certain criteria are met, such as being 
continuously recognized by a state, as is the case with my 
tribe in New York State?
    In addition, we oppose H.R. 3838 and I am appalled that the 
Federal government would contemplate using tax dollars to 
potentially oppose tribal recognition or related issues. No 
Federal funds have been made available to assist us or any 
tribe on recognition, yet some in Congress want to fund local 
governments to oppose us. This seems another unfair tactic to 
me.
    In conclusion, please remember that we are among the first 
people of what is now New York State. Our roots have been 
traced back thousands of years and we have endured countless 
hardships since that time. Our lands have been illegally taken 
and we have been forced to walk in two worlds as we fight 
assimilation and struggle to maintain our ancestral heritage.
    At present we number 1,320 tribal members, of which 650 
reside on or about 800 livable acres of our original lands. In 
many ways the injustices that we and our fellow indigenous 
people have endured for centuries continue today under this 
broken Federal recognition process. I am here today as a 
descendent of a proud and ancient people and as an elected 
leader who has a sacred responsibility to my nation and the 
unborn seventh generation. I would respectfully request that 
you do all in your power to fix this Federal recognition 
process and to correct the past indignities and to provide for 
our future for all time. Thank you.
    [The prepared statement of Mr. Gumbs follows:]

 Statement of Lance A. Gumbs, Tribal Trustee, Shinnecock Indian Nation

    Mr. Chairman, Ranking Member Rahall and Members of the Resources 
Committee, thank you for holding this oversight hearing on Tribal 
Recognition and for inviting me to testify on behalf of the Shinnecock 
Indian Nation on this critical issue.
    The committee will hear testimony today from other tribes who have 
struggled for many years with the bureaucratic morass known as the 
federal recognition process. Many of these tribes have waited decades 
while their application has languished at what is now the Office of 
Federal Acknowledgment or, ``OFA.''
    Today is the first time that a member of the Shinnecock Indian 
Nation has testified before Congress since 1900. In 1978, we were one 
of the first four tribes to file an application for federal 
recognition--the completion of which was delayed for many years due to 
the cost involved. Twenty five years later, we were finally placed on 
the ``Ready for Active Consideration'' list by letter from the BIA 
dated September 9, 2003.
    Then in an October 2003 letter, we were informed that the 
Shinnecock Petition is now 12th on the current list and, according to 
BIA, ``without additional resources, it may take the OFA up to 15 years 
to decide all completed applications.'' Amazingly, it may take another 
15 to 20 years before a final determination is made! Thus, without a 
change to the current OFA process, the Shinnecock will have languished 
in an unrecognized status for more than half a century--a time in which 
several generations have passed on--and it appears that the present and 
future generations will also have to wait before we, the original 
inhabitants of Eastern Long Island, receive acknowledgment from the 
federal government.
    My nation, the Shinnecock Indian Nation, is one of the oldest, 
continuously self-governing tribes in the country and was one of the 
first to have contact with the European settlers when eight men, one 
woman and a child newly arrived from Lynn, Massachusetts, sailed into 
Peconic Bay in 1640. From there my Shinnecock ancestors led the group 
southward to what became the town of Southampton.
    In 1640, early settlers deceived the inhabitants of the area and 
illegally began systematically taking our land, which we repeatedly 
tried in vain to prevent.
    We continued our practice of self-governance until February 24, 
1792, when the State of New York enacted a law titled ``An Act for the 
benefit of the Shinnecock Tribe of Indians, residing in Suffolk 
County.'' This Act took away our form of self-governance and 
established a trusteeship form of government in which the minutes of 
our tribe and the elections of our trustees have been recorded each 
April by the Town of Southampton Clerk from 1792 to the present. During 
this time, the State of New York has attempted to illegally regulate 
our sovereignty by enacting numerous constitutional amendments, 
statutes, rules and regulations.
    Thus, it is well-documented that we, the Shinnecock Indian Nation, 
have had a formal relationship with colonists dating to the 1600s and 
subsequently with the State of New York, which predates contact Western 
Tribes have had with the federal government by over 200 years. This 
history was reaffirmed in 1974 when the State Legislature of New York 
unanimously adopted a resolution calling on Congress to grant our tribe 
federal recognition. In addition, a 1987 letter from the Associate 
Counsel of the Secretary of State of New York to trustees on a zoning 
issue stated that ``the Shinnecock Tribe is one of the historic tribes 
of Long Island which still has tribal existence and occupies fee simple 
land generally within its aboriginal territory...(and)...it is clear 
that the federal government deals with the Shinnecocks as an Indian 
Tribe.''
    Therefore, records show that we have had a continuous existence and 
relationship with colonial settlers and later governments for more than 
400 years and formal relations with the State of New York for more than 
200 years. Yet, because of a lack of resources and commitment by the 
government agency responsible for tribal recognition, our application 
will likely collect dust for at least two more decades before we are 
granted the recognition by the federal government that we rightly 
deserve.
    You should also know that legal experts in the federal recognition 
process from the Native American Rights Fund, which have supported 
petitions for numerous tribes, have stated that our application is one 
of the strongest documented petitions ever submitted to the OFA.
    As you know, the GAO issued a report in November 2001 stating that 
the ``basis for the BIA's...recognition decisions (are) not always 
clear ``as to what level of evidence is sufficient to demonstrate a 
tribe's continuous existence over time;'' that the ``regulatory process 
is not equipped to respond in a timely manner;'' nor does the process 
``impose effective time lines that create a sense of urgency.'' The GAO 
also recognized that it takes on average 15 years to resolve petitions 
in a system that was originally designed to take 2 years!
    In response to the GAO report, then Assistant Secretary of Indian 
Affairs Neal A. McCaleb testified before the House Government and 
Reform Oversight Committee in February 2002 that then-BAR staff 
research positions remain unfilled. From our perspective, this is 
unacceptable.
    I am certain that you will hear testimony later today that OFA and 
BIA are taking steps internally to address the GAO's and Congress's 
concerns. While these efforts are laudable, it seems a lot of noise and 
a flurry of activity occurs each time Congress looks into this matter 
and ultimately, little is done and nothing changes. I hope this time 
will be different. No matter what, it would appear that tribes 
currently ``in the pipeline'' will continue to wait--without recourse--
for their federal status for years to come.
    I would ask what mechanism exists or can be put in place to provide 
for additional funding and personnel resources in order to establish a 
reasonable time line for application decisions? For example, I am aware 
that there is presently an expedited procedure to disapprove a 
petition. Why not develop a similar process to provide for expedited 
approval of a petition if certain criterion, such as being continuously 
recognized by the state--as is the case with my tribe and the State of 
New York--are met?
    In addition, we oppose H.R. 3838, legislation introduced by Members 
from Connecticut to provide federal grants of up to $500,000 to offset 
costs to local governments facing acknowledgment, land trust or land 
claim issues. I am appalled that the federal government would 
contemplate using taxpayer dollars to potentially oppose tribal 
recognition or related issues. In fact, our recognition effort was 
stalled in part for the past twenty-five years because we could not 
afford the costs associated with completing our application. No federal 
funds have been made available to assist us, or any other tribe, with 
this costly and burdensome process, yet some in Congress want to fund 
local governments to oppose us? It would seem to me that there is a 
basic underlying issue of fairness here.
    In conclusion, please remember that we are among the ``First 
People'' of what now is New York State. Our roots have been traced back 
thousands of years and even though the survival of that original colony 
can be credited to my people, we have endured countless indignities 
since that time. Our lands have been illegally taken and we have been 
forced to walk in two worlds as we fight assimilation and struggle to 
maintain our ancestral heritage. At present, we number 1,320 tribal 
members, of which 650 or so reside on about 800 acres of our original 
lands.
    In many ways, the indignities that we and our fellow indigenous 
people have endured for centuries continue today under this broken 
federal recognition process. I am here today as the descendant of a 
proud and ancient people and also as an elected tribal leader who has a 
sacred responsibility to my people and the unborn ``seventh 
generation''.
    I would respectfully request that you do all that is in your power 
to help the first people of this land and our Nation by fixing the 
federal recognition process, not only to correct past injustices but to 
provide for our future, both tomorrow and for all time.
    Thank you.
                                 ______
                                 
    The Chairman. Thank you.
    Ms. Cambra.

          STATEMENT OF ROSEMARY CAMBRA, CHAIRPERSON, 
MUWEKMA OHLONE INDIAN TRIBE, SAN FRANCISCO BAY AREA, CALIFORNIA

    Ms. Cambra. Good morning, Mr. Chairman and members of the 
Oversight Hearing Committee. My name is Rosemary Cambra and I 
am the Chairwoman for the Muwekma Tribe of San Francisco Bay 
region. I also Co-Chair the Recognition Task Force for the 
National Congress of American Indians. I have also worked on 
the Recognition Task Force for the congressionally created 
Advisory Council on California Indian Policy between 1994 
through 1998.
    The National Congress of American Indians (NCAI) allowed a 
created working group in the year 2000 and became an official 
National Congress of American Indian task force in the year 
2001. Two Co-Chairs, the honorable Ken Hansen, who comes from a 
recognized tribe, and myself, Rosemary Cambra, from an 
unrecognized tribe. We are 100 percent supported by President 
Sue Maston and the honorable Tex Hall.
    The NCAI task force has developed several goals and 
objectives that I want to share with you today. One is to 
support and develop reform measures either through legislation 
or regulatory reform or court intervention to ensure a timely, 
a fair and efficient recognition process, to demand full and 
meaningful consultation with both recognized and nonfederally 
recognized tribes in any proposed reform measures prior to the 
enactment.
    The task force has heard testimony from many tribal groups 
expressing their frustration over the near insurmountable 
costs, in the millions, necessary to complete the BAR process, 
the enormous amount of time waiting in bureaucratic limbo, the 
nonresponsiveness by the negative attitudes of the BAR staff, 
and the obstacles and the regulations posed relative to the 
unique historical circumstances surrounding particular 
petitioning tribal groups.
    The National Congress of American Indians is trying to help 
formulate suitable alternatives and take the recognition 
process out of the BIA and supports the creation of a 
commission, as specified in Senator Campbell's bill, S. 611. 
Other alternatives include legislation for those tribes that 
have demonstrated that they are previously recognized and who 
were never terminated by any Act of Congress, as is the case in 
the restoration of the Tlingit and Haida Tribes of Alaska in 
1944--see H.R. 4180--or through Federal court systems.
    The Advisory Council on Indian Policy of California was 
created through a passage of H.R. 2144 and was signed into law 
by President Bush in October of 1992. The ACCIP finalized their 
findings in a series of reports and submitted them in 1988, as 
mandated by Congress. In those ACCIP reports it was estimated 
that 80,000 California Indians, many of whom have BIA numbers, 
currently have no legal standing because their tribes, although 
never formally terminated by Congress, no longer appear on the 
list of federally acknowledged tribes. See H.R. 4180. Presently 
these tribal groups are no longer federally acknowledged by the 
Secretary of Interior due to the dereliction of duty, neglect, 
and gross mismanagement by the BIA.
    Since the revisions of the acknowledgment regulations, 25 
C.F.R., Part 83, in 1994, at least two of these California 
tribal groups, the Muwekma Tribe and the Tsnungwe Council, have 
obtained formal determinations of previous unambiguous Federal 
recognition from the Office of Federal Acknowledgment.
    In 1998, the ACCIP made the following statement with regard 
to several of the previously recognized tribes in California. 
``The Dorrington report provides evidence of previous Federal 
acknowledgment for modern-day petitioners who can establish 
their connection to historical bands identified therein. 
Clearly, the BIA recognized its trust obligations to these 
bands when it undertook, pursuant to the authority of the 
Homeless California Indian Acts and the Allotment Act, to 
determine their living conditions and their need for land. The 
fact that some were provided with land and others were not did 
not diminish that trust.''
    ``Among those California Indian groups that have petitioned 
for Federal acknowledgment there are several who can trace 
their origins to one or more bands identified in the Dorrington 
report. The Muwekma Tribe is one whose connections to the 
Verona Band has been recently confirmed in a letter from BAR.''
    In that final report eight other tribes were also 
identified. These tribes are the Dunlap Band of Mono Indians, 
the Kern Valley Indian Community, the Tinoqui-Chalola Council, 
the American Indian Council of Mariposa County, the YOKo, the 
Shasta Nation, the Hayfork Band of Nor El-Muk Wintu Indians and 
the Tsnungwe Council.
    In the year 2000 Congressman George Miller formulated the 
California Tribal Status Clarification Act. As a potential 
follow-up to the ACCIP recommendations, in Title II of that 
proposed Act the following tribal groups were included for 
restorations as previously recognized tribes: the Lower Lake 
Koi, the Muwekma Tribe, the Tsnungwe Council, the Dunlap Band 
of Mono Indians. That bill never got out of Committee.
    The Muwekma Tribe was recognized under a series of Acts 
enacted by Congress beginning in the year 1906 to secure home 
sites for the landless Indians of California. Our tribe was 
identified in a special Indian census and we came known as the 
Verona Band of Alameda County. Our tribe fell under the 
jurisdiction of the Reno and later Sacramento agencies and 
through the dereliction of duty by Superintendent Dorrington, 
no land was ever purchased for our people.
    Our men and women have served in the United States armed 
forces from World War I to the present conflict in Iraq. Our 
men are buried in the Golden Gate National Cemetery.
    In March of 1989 the Muwekma Tribal Council submitted a 
letter of intent to petition, number 111, the Federal 
government for acknowledgment. The following month, on April 
25, 1989, our tribal council received a response from the BIA 
Tribal Government Services acknowledging the receipt of our 
letter. In that letter the Acting Chief of Tribal Services 
informed our council that ``Because of the significance and 
permanence of acknowledgment as a tribe, the process of 
evaluation is a lengthy and thorough one.''
    Mr. Chairman, I want to point out the word permanence. If I 
am not mistaken, permanence means something intended to last 
indefinitely, without change. When the Muwekma had obtained its 
determination of ``previous unambiguous Federal recognition'' 
in 1996, my tribal council had the audacity to ask the BIA the 
following question. Now if we are previously recognized, a 
recognized tribe, and have never been terminated by Congress, 
how then did we lose our status? The BIA could not and would 
not answer that question until we went to court.
    In 1998, Muwekma was placed on ready status and we realized 
we were the only tribe with previous recognition. By our 
accounting, it would have taken approximately 20 more years 
before the BIA would look at our petition.
    The tribe decided to sue the DOI and in 1999 submitted a 
complaint before the U.S. District Court in D.C., the result of 
which was the court found the BIA in violation of the 
Administrative Procedures Act and Justice Urbina stated that 2 
years was too long to wait. This action challenged the BIA's 
control over this process and we have had to pay for this 
dearly. The overall Federal acknowledgment process, including 
the research for the petition, the trips to Washington, D.C., 
the lawsuit, has cost my tribe millions.
    On September 9, 2002, the BAR denied extending the 
acknowledgment to my tribe, even though we had submitted 
evidence for each decade under each criteria. Although the BIA 
was predisposed to reject our petition, they never once refuted 
any evidence we submitted. They also failed, as promised in 
their response to Justice Urbina in our lawsuit, to explain how 
the tribe lost its acknowledgment status. We also discovered 
that they never referenced 87.6(d), reasonable likelihood of 
the facts when reviewing our petition.
    The BIA did, however, conclude----
    The Chairman. Ma'am, I am going to have to ask you to wrap 
it up on your oral testimony. We do have your entire written 
testimony that will be included in the record. I have tried to 
be lenient with the time but if I could ask you to wrap it up.
    Ms. Cambra. Yes. I would just like to conclude that 100 
percent of our living members today descend from a historical 
tribe. It has never been terminated and I am pleading from you 
today and the Committee members to grant my tribe justice, not 
to deny us justice but to grant us justice by proposing 
legislation to reaffirm my tribe. Thank you.
    [The prepared statement of Ms. Cambra follows:]

     Statement of Rosemary Cambra, Chairwoman, Muwekma Ohlone Tribe

    Good Morning Mr. Chairman and Members of the Oversight Hearing:
    Mr. Chairman, my name is Rosemary Cambra and I carry several badges 
of honor in Indian Country. I am the elected Chairwoman of the Muwekma 
Ohlone Tribe of the San Francisco Bay region since 1984 and I am the 
Co-Chair of the Recognition Task Force for the National Congress of 
American Indians (NCAI). I also had the good fortune to work on the 
Recognition Task Force for the Congressionally created Advisory Council 
on California Indian Policy between 1994 and 1998.
    As you can tell by my commitment, Mr. Chairman, I am a person 
deeply concerned about the justice issues not only confronting my 
tribe, but the plethora of issues confronting the many disenfranchised 
historic tribes throughout this country that were either previously 
recognized or whom fell through the administrative cracks, thereby 
rending both groups as Unacknowledged by the Secretary of Interior 
today.
    Today, I want to speak on four points. The first is my involvement 
as Co-Chair of the Recognition Task Force for NCAI. The second reports 
upon the implications of ACCIP reports submitted to the Congress in 
1998. The third address to long, painful and costly efforts that my 
Tribe has been engaged in both prior to and during the Recognition 
Process and the adverse ramifications for my people. And lastly, I want 
to discuss about the conflict of interest and violations under the 
Administrative Procedures Act by both BAR staff and DOI Legal Council.
NCAI Recognition Task Force
    Since 2001, I have had the honor to serve as Co-Chair on the NCAI 
Recognition Task Force. My fellow Co-Chair is The Honorable Mr. Ken 
Hansen, Chairman of the Samish Tribe from the State of Washington, 
which suffered for over 20 years in the BAR Process. Together, Mr. 
Hansen and myself, along with a cadre of devoted Native Americans and 
non-Native professionals are working towards the development of a 
meaningful alternative to the arduous, disheartening, painful and 
obviously untenable Federal Recognition process as currently executed 
by the Office of Federal Acknowledgment (previously called the BAR).
    During the course of these past several years the NCAI Task Force 
has heard the testimonies from many tribal groups expressing their 
frustration over the near insurmountable costs (in the millions) 
necessary to complete the BAR process, the enormous amount of time 
waiting in bureaucratic limbo, the nonresponsiveness by and negative 
attitudes of OFA/BAR staff, and the obstacles that the regulations pose 
relative to the unique historical circumstances surrounding that 
particular petitioning tribal group.
    As a result of this effort, the NCAI is trying to help formulate 
suitable alternatives that takes the Recognition Process out of the 
BIA/OFA and supports the creation of a commission as expressed in the 
many bills considered since 1989 and specified in Senator Campbell's 
Bill S.B. 611. Other alternatives includes legislation for those tribes 
that have demonstrated that they were previously recognized and whom 
were never terminated by any Act of the Congress as in the case of the 
restoration of the Tlingit and Haida Tribes of Alaska in 1994 (see H.R. 
4180) or through the Federal Court system.
    As a result of the above, these issues hearken back to what Bud 
Shapard, the retired Bureau Chief of the Branch of Acknowledgment and 
Research had stated in his testimony before the Congress with regards 
to the then-proposed H.R. 3430 bill. Shapard stated that:
        ''...After fourteen years of trying to make the regulations 
        which I drafted in 1978 work, I must conclude that they are 
        fatally flawed and unworkable. They take too long to produce 
        results. They are administratively too complicated. The 
        decisions are subjective and are not necessarily accurate. The 
        criteria are limited in scope and are not applicable to many of 
        the petitioning groups which are in fact, viable Indian tribes; 
        and

        ...To continue to operate under the present regulations or any 
        legislative approximation will not resolve the question of 
        unrecognized Indian tribes in this country.

        The present regulations cannot be revised, fixed, patched, 
        dabbled with, redefined, clarified or administered differently 
        to make them work. Additional money, staff, computer hardware, 
        or contracts with outside organizations will not solve the 
        problem. The problem lies within the regulations.

        In short, the regulations should be scrapped in their entirety 
        and replaced with a simpler, less burdensome, and more 
        objective solution. They should be administered by an 
        independent agency--

        The essential element, the bottom line key to any solution to 
        the question of serving unrecognized Indian tribes falls 
        directly on the Congress. If there is to be any sort of 
        permanent answer, Congress must spell out in unmistakable terms 
        who the United States will serve as Indians and Indian 
        tribes.''
    These words from former Branch Chief Shapard still ring today as 
they did 14 years ago and even with his testimony, little has changed 
in the Recognition process. Bills have been threatened to be introduced 
by concerned Congressional representatives to remove the process from 
the BIA, however, the burden on the tribes have not been alleviated, 
but instead have become increasingly more difficult and politicized.
Advisory Council on California Indian Policy (ACCIP)
    As you know, the Advisory Council on California Indian Policy was 
created through the passage of H.R. 2144 and was signed into law by 
President Bush in October 1992. Under President Clinton, the ACCIP's 
council was in place by 1994, and having authorization to spend public 
moneys, the ACCIP held hearings around the state addressing the 
critical issues confronting the California Indians. The ACCIP finalized 
their findings in a series of reports, and submitted them in 1998, as 
mandated by the Congress. It has now been over five years since those 
reports were issued to the Congress and since then, the Congress 
appears to be totally mute on any response in addressing those critical 
issues confronting California tribal groups.
    In those ACCIP reports, it was estimated that approximately 80,000 
California Indians (many of whom have BIA numbers) currently have no 
legal standing because their tribes, although never formally 
``Terminated'' by the Congress, no longer appear on the List of 
Federally Acknowledged Tribes (see H.R. 4180). Presently, these 
historic tribal groups are no longer Federally Acknowledged by the 
Secretary of Interior due to dereliction of duty, neglect and gross 
mismanagement by the BIA. Since the revisions of the Acknowledgment 
regulations (25 CFR Part 83) in 1994, at least two of these California 
tribal groups, the Muwekma Ohlone Tribe and Tsnungwe Council, have 
obtained formal determinations of ``previous unambiguous Federal 
recognition'' from the Office of Federal Acknowledgment (OFA). In fact, 
since 1996 no other tribe has been issued such a determination, and, in 
fact, the OFA has decided to eliminate such determinations under the 
end of the review process. Previous Recognition was written into the 
revised regulations to supposedly lessen the burden of a tribe. With 
the elimination of previous recognition during the Technical Assistance 
phase, the OFA has ensured that tribes will indeed be once again 
burdened with their research.
    In 1998, the ACCIP made the following statement with regards to 
several of the previously recognized tribes in California:
        ``The Dorrington report provides evidence of previous federal 
        acknowledgment for modern-day petitioners who can establish 
        their connection to the historic bands identified therein. 
        Clearly, the BIA ``recognized'' its trust obligations to these 
        Indian bands when it undertook--pursuant to the authority of 
        the Homeless California Indian Acts and the Allotment Act ``to 
        determine their living conditions and their need for land. The 
        fact that some were provided with land and others were not did 
        not diminish that trust.

        ``Among those California Indian groups that have petitioned for 
        federal acknowledgment, there are several who can trace their 
        origins to one or more of the bands identified in the 
        Dorrington report. The Muwekma Tribe is one whose connection to 
        the Verona Band has been recently confirmed in a letter from 
        the BAR....''
    In that final report, eight other tribes were also identified: 
These tribes are the Dunlap Band of Mono Indians, Kern Valley Indian 
Community, Tinoqui-Chalola Council, American Indian Council of Mariposa 
County, Yokayo, Shasta Nation, Hayfork Band of Nor El-Muk Wintu Indians 
and Tsnungwe Council. In 2000, Congressman George Miller formulated the 
California Tribal Status Clarification Act. As a potential follow up to 
the ACCIP recommendations, in Title II of that proposed Act the 
following tribal groups were included for restorations as previously 
recognized tribes: Lower Lake Koi, Muwekma Ohlone Tribe, Tsnungwe 
Council and Dunlap Band of Mono Indians. That bill never got out of 
committee. Since then nothing has come out of the Congress that 
addresses the recognition issues confronting the previously recognized 
tribes of California, with the exception of the restoration of the 
Graton Rancheria in 2002.
Muwekma Ohlone, A Previously Recognized Tribe and its Quest For 
        Restoration
    Mr. Chairman, as you may already know, the Muwekma Ohlone Tribe was 
recognized under the series of Acts enacted by the Congress beginning 
in 1906 to secure homesites for the landless Indians of California. Our 
tribe was identified in special Indian censuses and we became known as 
the Verona Band of Alameda County. Our tribe fell under the 
jurisdiction of the Reno and later Sacramento agencies and through the 
dereliction of duty by Superintendent Dorrington, no land was ever 
purchased for out people. Nonetheless, we still maintained ourselves as 
a landless tribe. Our men and women have served in the United States 
Armed Forces from World War I to the present conflict in Iraq and our 
men are buried in the Golden Gate National Cemetery.
    In March 1989, the Muwekma Tribal Council submitted a letter of 
intent to petition (#111) the Federal Government for acknowledgment. 
The following month on April 25, 1989, out Tribal Council received a 
response from the BIA Tribal Government Services acknowledging receipt 
of our letter.
    In that letter, the Act Chief of Tribal Services informed our 
council that ``Because of the significance and permanence of 
acknowledgment as a tribe, the process of evaluation is a lengthy and 
thorough one.'' Mr. Chairman, I want to point out the word 
``permanence.'' If I'm not mistaken permanence means something 
``intended to last indefinitely without change.''
    When Muwekma had obtained its determination of ``Previous 
unambiguous Federal Recognition'' in 1996, my Tribal Council had the 
audacity to ask the BIA the following question. If we are a previously 
recognized tribe and we were never terminated by any Act of the 
Congress, how did we lose our ``permanent'' Recognized status? And the 
BIA could not and would not answer our question until we went to court. 
In 1998, Muwekma was placed on Ready Status and we realized that we 
were the only tribe with previous recognition. By our accounting, it 
would have taken the BIA approximately 20 or more years before they 
would look at our petition. The Tribe decided to sue the DOI and 1999 
submitted a complaint before the U.S. District Court in D.C. The result 
was that the Court found the BIA in violation of APA and Justice Urbina 
stated that two years' wait was too long. This action challenged the 
BIA's control over this process and we have paid dearly for this. The 
overall federal acknowledgment process including the research for the 
petition, the trips to Washington, D.C. and the lawsuit has cost my 
tribe several millions of dollars.
    On September 9, 2002, the OFA/BAR denied extending Acknowledgment 
to my tribe even though we had submitted evidence for each decade under 
each criterion. Although the BIA was predisposed to reject our 
petition, they never once refuted any of the evidence that we 
submitted. They also failed, as promised in their response to Justice 
Urbina in our lawsuit; to explain how our Tribe lost it's Acknowledged 
status. Also, we discovered that they never referenced 87.6 (d) 
reasonable likelihood of the facts when reviewing our petition.
    The BIA did however conclude that our 100% of members have 
demonstrated their descent from a historical tribe the Verona band of 
Alameda Council and that the Congress never terminated us.
    When we started the Recognition process in 1984, there were around 
eighteen original members of the Verona Band alive, today there are 
only three. Today there are over 400 members enrolled in our tribe all 
of whom are directly descended from the Verona Band.
    The Federal Acknowledgment Process clearly constitutes a war of 
attrition against the many disenfranchised tribal groups that have been 
and continue to be adversely impacted by the very Federal governmental 
entity that has had fiduciary responsibility over Indian tribes.
BAR Staff and DOI Solicitor
    During the course of our interaction with the BIA since 1989, we 
found some of them to be completely evasive, fraudulent and outright 
hostile. For example, in November 1995, the BAR Branch Chief contacted 
us and we were told to come to Washington, D.C., that our letter for 
previous recognition would be issued. Five of us flew into Washington 
and when we met with this person, we were told that no such letter 
existed. We complained to AS-IA Ada Deer office, which apparently took 
action against this individual. This individual was one of the three 
BAR staff assigned to our petition.
    During the period of our successful lawsuit against the BIA between 
1999 and 2000, we discovered that the same people who bitterly opposed 
our Tribe in the lawsuit, were the same individuals who made the Final 
Determination against the Tribe. One of these people is Scott Keep, 
Solicitor from Interior. Presently we have been waiting for Mr. Keep to 
respond to our FOIA requests since the beginning of last year. We are 
also waiting for him to respond to Principal Deputy Aurene Martin's 
request for a possible alternative review of our charted petition.
    On November 7, 2001, the BAR held an ``On-The-Record Technical 
Assistance Meeting'' with representatives from my tribe. During the 
course of the Technical Assistance meeting one of our consultants 
inquired if the 1997-1998 ACCIP reports ``had a bearing'' on the BAR 
decision making process. The response by one of the BAR staff was:
        ``Well, if you want us to consider the report, you really 
        should submit it for the record.--That makes it part of the 
        record. And, furthermore, when you submit it as part of the 
        record, you can give us an explanation of how you think it 
        applies. And the we can consider that argument and your take on 
        how the report applies.'' (On-The-Record Technical Assistance 
        Meeting, page 52)
    In the Final Determination the BAR staff determined to circumvent 
such considerations by stating:
        ``Given these conclusions of the Proposed Finding under 
        criterion 83.7(a), that the period prior to 1927 is outside the 
        period to be evaluated and that the petitioner met this 
        criterion during the period after 1985, it is not necessary to 
        respond to the petitioner's comments and arguments for those 
        two time periods. Neither the petitioner nor any third party 
        challenged the conclusions of the Proposed Finding that the 
        petitioner met the criterion before 1927 and after 1985. 
        Therefore, the evaluation of criterion 83.7(a) for this Final 
        Determination will review the evidence and arguments for the 
        years between 1927 and 1985.'' (FD 2002 page 9)
    As a result, the BAR staff avoiding reviewing and considering 
numerous amounts of crucial evidence that Muwekma submitted for its 
Final Determination. The documents that the BAR staff decided to 
disregard were those that dated after 1985 and before 1931 These 
documents included the ACCIP reports, the GAO Report of November 2001, 
Congressional legislation, the BAR's own report on Recognition in 
California, and also the Bureau's correspondences from 1918 to 1931, 
that demonstrated Superintendent Dorrington's dereliction of duty and 
disregard for Office policies and the need to purchase homesites for 
Muwekma and other California Tribal bands).
    Based upon the above statement, the (is fact, most, if not all) 
Technical Assistance provided by the BAR was as useless as the treaties 
that were made between Indian Nations and the Government. On the one 
hand the BAR suggests to us to submit reports and documents for ``the 
record,'' and on the other hand, although they didn't inform us during 
the Technical Assistance meeting, that anything submitted as evidence 
prior to 1927 or after 1985 will not be considered in the Final 
Determination. This is Technical Assistance par excellence!
    Furthermore, by circumventing any evidence dating 1985 and later, 
the BAR simply and unilaterally decided that not only were they not 
going to consider the merits contained in the ACCIP reports, but they 
would not consider any of the Congressional legislation (e.g., H.R. 
4180), or the BAR's own precedents and Working Paper on California 
Acknowledgment, or the GOA report, or even the BAR's own directive to 
the ACCIP with regards to Muwekma's previous Recognition.
Solutions
    The Muwekma Ohlone Tribe supports alternatives to the current 
process. Clearly new directions such as pilot projects utilizing the 
expertise of University or Museum based scholars could be immediately 
implemented that are cost effect and nonpartisan.
    Finally, in the Tribe's Final Determination decision the BAR staff 
wrote:
        ``When a Final Determination is negative, the regulations 
        direct that the petitioner be informed of alternatives to this 
        administrative process for achieving the status of a federally 
        recognized tribe, or other means by which the petitioner's 
        members may become eligible for services and benefits as 
        Indians (25 CFR 83.10(n).--In addition, Congress may consider 
        taking legislative action to recognize petitioners which do not 
        meet the specific requirements of the acknowledgment 
        regulations but, nevertheless, have merit.'' (Pages 7-8) 
        [Emphasis added.]
    I am requesting of you, Mr. Chairman, to take this last BAR 
recommendation to heart and please introduce legislation during this 
session of Congress that restores the Acknowledged status to my tribe. 
My Elders are dying and our people just cannot afford to go through 
such costly litigation in order to secure their rights as a tribe.
    Thank you for considering these pressing issues.
                                 ______
                                 
    The Chairman. Thank you.
    Mr. Taylor?

 STATEMENT OF WILFORD ``LONGHAIR'' TAYLOR, TRIBAL CHIEF, MOWA 
                    BAND OF CHOCTAW INDIANS

    Mr. Taylor. Mr. Chairman and Committee members, good 
morning. My name is Wilford Longhair Taylor and I am the 
elected Tribal Chief of the MOWA Band of Choctaw Indians. Thank 
you for granting me the opportunity to testify on the Federal 
recognition acknowledgment process by the Bureau of Indian 
Affairs, the BIA.
    The Choctaw Indians of Mobile and Washington Counties, 
Alabama, MOWA, are descendants of American Indians who occupied 
this territory prior to European discovery. We selected the 
acronym MOWA to represent our modern-day geographic area. We 
live in an area transacted by the county line between south 
Washington and north Mobile Counties. Although the State of 
Alabama legislature officially recognized the MOWA Choctaw 
Tribe in 1979, and an official recognition proposal was 
approved by a U.S. Senate Committee in 1991, the Bureau of 
Indians Affairs later denied our petition for Federal 
acknowledgment.
    The criteria for Federal acknowledgment which a petitioning 
group must satisfy were designed to provide a uniform and 
objective view. However, the immense latitude granted to and 
demonstrated by the agency in its evaluation of the evidence 
submitted has clearly yielded arbitrary and subjective 
decisions. One example is the radically different standards 
applied in evaluating the petitions of the MOWA Choctaw and the 
Jena Band. The oral history of our venerated elders were 
discounted as allegations while the oral histories of the Jena 
Choctaws were described as even more reliable than written 
records. Identical types of written documentation that we were 
required to produce for BIA were characterized as an impossible 
and unreasonable expectation for the Jena Choctaws. Our 
petitions were evaluated within just months of each other. In 
all fairness, the same criteria should have been applied.
    The Federal recognition process was designed to take 2 
years but in reality, the process often places a petitioning 
group in an endless loop of research and expenses that for most 
tribes is overwhelming. It took 7 years for our initial 
petition to be processed. It took 10 years for the final 
determination report. If you include the years needed to 
undertake the research the BIA requires for documentation and 
our continued fight today, my people are in the 23rd year of 
this process.
    Although it is obviously not practical for me to present to 
you today my tribe's entire struggle with the recognition 
process, it is spelled out in detail in my written testimony. 
Therefore please allow me to share with you just a few comments 
of independent experts from across the country regarding our 
failed effort to achieve recognition.
    In the words of the well-known and renowned Native American 
legal scholar and member of the Standing Rock Sioux, Professor 
Vine Deloria, Jr. writes, ``The Federal acknowledgment process 
today is confused, unfair, and riddled with inconsistencies. 
Much of the confusion is due to the insistence that Indian 
communities meet strange criteria which, if applied to all 
Indian nations when they sought to confirm a Federal 
relationship, would have disqualified the vast majority of 
presently recognized groups.''
    He further writes, ``The MOWA Choctaws have a typical 
profile for Southeastern Indians. Their credentials are solid 
and the historical data that identifies them as Indians extends 
back to the days when they were integral villages in the 
Choctaw Nation. The fragmentation of the Five Civilized Tribes 
before, during, and after removal makes their history a 
fascinating story of persistence and survival but certainly 
does not eliminate them from the groups of people that should 
rightfully be recognized as Indians.''
    Dr. Richard W. Stoffle, Ph.D., an anthropologist from the 
University of Arizona, wrote to me in response to the BIA's 
decision to deny recognition, saying, ``I can only express my 
deepest disappointment in the BIA's decision. As someone who 
has reviewed your petition at length and has talked with your 
elders, there is no just argument against recognizing your 
status as an American Indian tribe. After working for 27 years 
with more than 80 American Indian tribes, it is my considered 
opinion that the MOWA Choctaw people are a persistent tribal 
society. It is difficult for me to understand how that point 
could have been missed by the BIA.''
    Dr. Kenneth York, Ph.D., a member of the Mississippi Band 
of Choctaw Indians, after critical review of our evidence 
writes, ``It is my belief as a member of the MBCI that members 
of the MOWA Band are decedents of the Great Choctaw Nation 
which was disbanded by the U.S. Government during the Indian 
Removal Period. It is my professional opinion that the MOWA 
Band has provided the documentation regarding the history, 
culture and ancestral relationship as well, if not better, as 
any tribal petition in recent years.''
    Dr. Loretta A. Cormier, Ph.D. and anthropologist at the 
University of Alabama at Birmingham, recently wrote, ``As you 
are well aware, I have had the opportunity to work among the 
MOWA Choctaws over the course of the last 3 years and have 
researched your cultural history. Let me say unequivocally that 
I have no doubt that the MOWA Choctaws are an American Indian 
community. I am astounded by the BIA's denial of Federal 
recognition and find the technical report they prepared to be 
seriously flawed in terms of its historical, cultural and even 
logical analysis of MOWA Choctaw history.''
    The work and words of these individuals, and many other 
informed professionals, should provide ample support to prove 
that the BIA's recognition process is flawed and riddled with 
inconsistencies. The Bureau of Indian Affairs, as a Federal 
government agency, has a duty to make decisions on a rational 
basis which are neither arbitrary nor capricious. I find it 
quite disturbing that the BIA can selectively pick and choose 
the evidence it uses to deny a petition and, at the same time, 
not even consider or, in fact, totally and completely disregard 
stronger, more solid compelling evidence that it normally uses 
as support to acknowledge other tribes.
    The Federal acknowledgment process was originally designed 
to be fair, objective and neutral. Today the process is 
dehumanizing and insulting. As American Indians, we are the 
only people in this country who have to prove to the United 
States government who we are. I strongly believe that as long 
as the BIA has the power to serve as judge, advocate and 
adversary, the issues we discuss today will never be resolved 
and the recognition process will continue to be widely held in 
contempt. Thank you.
    [The prepared statement of Mr. Taylor follows:]

        Statement of Wilford ``Longhair'' Taylor, Tribal Chief, 
                      MOWA Band of Choctaw Indians

    Mr. Chairman and committee members: good morning. My name is 
Wilford ``Longhair'' Taylor and I am the elected tribal chief of the 
MOWA Band of Choctaw Indians. Thank you for granting me the opportunity 
to testify on the federal recognition and acknowledgment process by the 
Bureau of Indian Affairs (BIA).
    The Choctaw Indians of Mobile and Washington Counties, Alabama, 
(MOWA) are the descendants of American Indians who occupied this 
territory prior to European discovery. We selected the acronym, MOWA, 
to represent our modern day geographic location. We live in an area 
transected by the county line between south Washington and north Mobile 
Counties. Although the State of Alabama legislature officially 
recognized the MOWA Choctaw as a tribe in 1979, and an official 
recognition proposal was approved by a U.S. Senate committee in 1991, 
the Bureau of Indian Affairs later denied our petition for Federal 
acknowledgment.
    The criteria for Federal acknowledgment which a petitioning group 
must satisfy were designed to provide a uniform and objective review. 
However, the immense latitude granted to and demonstrated by the agency 
in its evaluation of the evidence submitted has clearly yielded 
arbitrary and subjective decisions. One example is the radically 
different standards applied in evaluating the petitions of the MOWA 
Choctaw and the Jena Choctaw. The oral histories of our venerated 
elders were discounted as ``allegations'' while the oral histories of 
the Jena Choctaw were described as even more reliable than written 
records. Identical types of written documentation that we were required 
to produce for BIA were characterized as an impossible and unreasonable 
expectation for the Jena Choctaw. Our petitions were evaluated within 
just months of each other. In all fairness, the same criteria should 
have been applied.
    The Federal recognition process was designed to take two years, but 
in reality, the process often places a petitioning group in an endless 
``loop'' of research and expense that, for most tribes, is 
overwhelming. It took seven years for our initial petition to be 
processed. It took ten years for the final determination report. If you 
include the years needed to undertake the research the BIA requires for 
documentation and our continued fight today, my people are in the 
twenty-third year of this process.
    Although it is obviously not practical for me to present to you 
today my tribe's entire struggle with the recognition process, it is 
spelled out in detail in my written testimony. Therefore, please allow 
me to share with you just a few comments of independent experts from 
across the country regarding our failed effort to achieve recognition.
    In the words of the well-known and renowned Native American legal 
scholar and member of the Standing Rock Sioux, Professor Vine Deloria, 
Jr., writes ``The Federal acknowledgment process today is confused, 
unfair, and riddled with inconsistencies. Much of the confusion is due 
to the insistence that Indian communities meet strange criteria which, 
if applied to all Indian nations when they sought to confirm a Federal 
relationship, would have disqualified the vast majority of presently 
recognized groups. He further writes, ``The MOWA Choctaws have a 
typical profile for Southeastern Indians. Their credentials are solid 
and the historical data that identifies them as Indians extends back to 
the days when they were integral villages in the Choctaw Nation....the 
fragmentation of the Five Civilized Tribes before, during and after 
Removal makes their history a fascinating story of persistence and 
survival but certainly does not eliminate them from the groups of 
people that should rightfully be recognized as Indians.''
    Dr. Richard W. Stoffle, Ph.D., an anthropologist from the 
University of Arizona, wrote to me in response to the BIA decision to 
deny recognition, saying, ``I can only express my deepest 
disappointment in the BIA's decision. As someone who has reviewed your 
petition at length and has talked with your elders, there is no just 
argument against recognizing your status as an American Indian tribe.--
After working for 27 years with more than 80 American Indian tribes, it 
is my considered opinion that the MOWA Choctaw people are a persistent 
tribal society. It is difficult for me to understand how that point 
could have been missed by the BIA.''
    Dr. Kenneth York, Ph.D., a Member of the Mississippi Band of 
Choctaw Indians, after critical review of our evidence writes, ``It is 
my belief as a member of MBCI that members of the MOWA Band are 
descendents of the Great Choctaw Nation which was disbanded by the U.S. 
Government during the Indian Removal Period. It is my professional 
opinion that the MOWA Band has provided documentation regarding the 
history, culture, and ancestral relationship as well, if not better, as 
any tribal petition in recent years.''
    Dr. Loretta A. Cormier, Ph.D., an anthropologist at the University 
of Alabama at Birmingham, recently wrote, ``As you are well aware, I 
have had the opportunity to work among the MOWA Choctaw over the course 
of the last three years and have researched your cultural history. Let 
me say unequivocally that I have no doubt that the MOWA Choctaw are an 
American Indian community. I am astounded by the BIA's denial of your 
Federal recognition and find the technical report they prepared to be 
seriously flawed in terms of its historical, cultural, and even logical 
analysis of MOWA Choctaw history.''
    The work and words of these individuals, and many other informed 
professionals, should provide ample support to prove that the BIA's 
recognition process is flawed and riddled with inconsistencies. The 
Bureau of Indian Affairs, as a federal governmental agency, has a duty 
to make decisions on a rational basis, which are neither arbitrary nor 
capricious. I find it quite disturbing that the BIA can selectively 
``pick and choose'' the evidence it uses to deny a petition and, at the 
same time, not even consider or, in fact, totally and completely 
disregard stronger, more solid and compelling evidence that it normally 
uses as support to acknowledge other tribes.
    The federal acknowledgment process was originally designed to be 
fair, objective and neutral. Today, the process is dehumanizing and 
insulting. As American Indians, we are the only people in this country 
who to have to prove to the United States government who we are. I 
strongly believe that as long as the BIA has the power to serve as 
judge, advocate or adversary, the issues we discuss today will never be 
resolved and the recognition process will continue to be widely held in 
contempt.
    Thank you.
Introduction: The Choctaw of Mobile and Washington Counties, Alabama
    We, the MOWA Band of Choctaw, are a community comprised of the 
ancestors of American Indians who escaped the 1830 Indian removal act 
and remained in our traditional homeland in southwest Alabama. We chose 
the acronym ``MOWA'' to refer to our location in the area bordering 
Mobile and Washington Counties.
    Our credentials are solid and the historical data that identifies 
us as Indians extends back to the days when we were integral villages 
in the Choctaw Nation. Few people realize that not all people were 
removed when the Army marched our nation to the West. Our ancestors 
have been documented as a distinct American Indian community since 
shortly after the 1830 Indian removal act. In 1835, a government Indian 
School was built in Mount Vernon, Alabama, and described in the Library 
of Congress Historic Building Survey as built for Indians by Indian 
labor (Russell 1935 [1835]). Census records, birth certificates, sworn 
court testimony, government correspondence, military records, and 
anthropological descriptions provide written documentation of our 
continuous history in the area. However, the strongest evidence of our 
American Indian ancestry is not found in written documents, it is found 
in our lives. Our ancestors passed to us our Indian identity and 
traditions, persevering and preserving our heritage despite a long 
history of injustice and persecution.
    Our ancestors essentially became fugitives in their own homeland. 
After the Indian Removal Act of 1830, they retreated into heavily 
forested, marginally desirable land along the Tombigbee River, married 
amongst themselves, and maintained a separate community. It is critical 
to understanding the experience of our ancestors to know that such 
segregation was not only due to the amalgamation of our Indian 
ancestors who escaped removal: it was an imposed isolation. Isolation 
helped to spare our people from persecution, although not completely. 
Elders describe atrocities against our ancestors such as being hunted 
down and imprisoned; killed, dismembered and stuffed in a gopher hole; 
or taken West in periodic Indian round-ups by government-paid 
contractors. These types of events are well-documented in the 
literature (e.g., Debo 1972 [1934] and Forman 1982 [1932], Matte 2002).
    Non-Indian settlers to the area applied the term ``Cajun'' to our 
ancestors' community, a term borrowed from a nickname given to French-
Canadian immigrants to the Gulf Coast area originating in Acadia, which 
our ancestors clearly were not. We consider the term a pejorative, but 
nevertheless, this is the term often used to document our community in 
the literature, including a 1948 Smithsonian Institute description of 
the Cajun Indians of southwest Alabama (Gilbert 1948:144).
    Unfortunately, such erroneous descriptions of our culture have been 
the rule rather than the exception in our history. The ultimate irony 
is that the very isolation and persecution contributing to our bonding 
together as an Indian community have, even today, impeded our ability 
to receive acknowledgment that we are who we say we are. We were denied 
federal recognition primarily on the basis that the BAR found 
insufficient written documentation by outsiders to substantiate the 
reality of our history and our lives.
    The second section of this document entails a critique of the BAR 
denial of federal recognition for our people. At this juncture, it is 
important to make the point that we did provide the BAR with 
substantial documentation of the type that is acceptable to them in 
these matters. We maintain that we provided clear evidence to them that 
should have been more than sufficient to prove by their standards that 
we are who we are.
    In brief, the BAR accepts that Indians remained in the area 
inhabited by the MOWA Choctaw today after the 1830 Removal Act. They 
also accept that our MOWA Choctaw community demonstrates clear ancestry 
from late 19th century core ancestors with Indian traditions. The crux 
of the denial is that our ancestors from the mid to late 19th century 
who lived as a separate community with Indian traditions cannot provide 
a level of documentation of Indian ancestry written by the non-Indian 
peoples who persecuted them that is considered acceptable to the BAR. 
Logically, it defies reason that non-Indians of that time period would 
desire to voluntarily adopt Indian traditions that would only invite 
persecution. Even if such self-destructive individuals were to exist, 
then one would have to presume that another, as of yet unidentified, 
Indian community existed in the MOWA Choctaw area from whom these non-
Indians would be able to acquire foreign traditions. This is a bizarre 
and irrational scenario. Our MOWA Choctaw ancestors had Indian 
traditions because they were Indian.
    Our people are, and have always been, a self-governing community 
following traditional ways of our ancestors and not accommodating 
ourselves to the rigid institutional organization that the majority of 
the nation adopted. Traditional ways, our people rightly feel, are more 
precise and enable the community to meet the needs of our people 
whereas the institutional process serves only people who fit into 
rigidly defined categories of assistance. Thus, the political and 
social profile of our MOWA Band of Choctaw Indians does not always fit 
into the neat and narrow categories required by the federal 
acknowledgment process. Although the Alabama legislature officially 
recognized the MOWA Choctaw as a tribe in 1979, as did a U.S. Senate 
committee in 1991, the Bureau of Indian Affairs denied our petition. 
Nevertheless, as our revered elder, Mr. Leon Taylor stated to Congress 
in 1985,
    ``Today, I am Choctaw. My mother was Choctaw. My Grandfather was 
Choctaw. Tomorrow, I will still be Choctaw.''
    This abstract and time line form the basis of the petitions and 
supporting documents submitted to the Bureau of Indian Affairs-Branch 
of Acknowledgment and Research in 1988, 1991, and 1996. A more in-depth 
treatment of the material summarized here can be found in Jacqueline 
Matte's, They Say the Wind is Red: The Alabama Choctaw--Lost in Their 
Own Land (2002, New South Books).
Critique of the BAR Technical Report
    The following is a summary critique of the BAR Technical Report 
denying our federal recognition. Our critique addresses four key 
problem areas we see in their evaluation, 1) dismissal of written 
documents, 2) arbitrariness in evaluating oral history, 3) failure to 
appreciate the historical context of the MOWA Choctaw experience, and 
4) procedural errors. It should be duly noted that space limitations 
for this testimony do not allow us to present to the Committee on 
Resources a complete description of the factual errors, erroneous 
interpretations, and inconsistencies in the BAR technical report of our 
people. However, we are fully prepared to present more extensive 
evidence and inaccuracies of the BAR report and, more extensive 
documentation demonstrating that we are a legitimate American Indian 
people.
1. The BAR Discounted Written Documents Presented as Evidence of MOWA 
        Choctaw American Indian Ancestry

a. The Bar Discounted Written Documents of MOWA Choctaw Antebellum 
        Ancestry
    We presented extensive written documentation to the BAR of the 
continuous settlement of our people in the region we inhabit today from 
1813 until the present. Included were letters of correspondence to 
representatives of the U.S. government between 1832 and 1859, which 
provide a continuous record of our presence for a time period that 
spans approximately 30 years after the 1830 Indian removal act (Exhibit 
1: Choctaw Time line). In our original petition, we described the 
segregation of our ancestors from the surrounding community in that 
they were not permitted to attend either ``white'' or ``black'' 
schools, and built their own. A record of the school exists in the 
Library of Congress that verifies that the school was built in 1835 
``by Indians and for Indians'' (Exhibit 2: Original Catalogue Record of 
Indian School). We presented to the BAR documentation of 120 records in 
the U.S. General Land Office from 1836 to 1936 of homesteads showing 
land occupation by the same names listed on the 1910 census who were 
described as mixed blood Indians (see Exhibit 1 for references for 
census data and Database of Land Records, 1836-1936). These records 
demonstrate 100 years of our continued occupation in the area from 
shortly after the Indian Removal Act until nearly the middle of the 
20th century. We also provided the evidence of an 1855 ``Census Roll of 
the Choctaw Indians,'' which describes Indians living in our present-
day area as well as evidence of a ``Choctaw Regiment'' in Mobile County 
during the Civil War (see Exhibit 1: references for the Cooper Roll 
1855, showing Choctaws in Mobile, Alabama, and the 1862 Choctaw 
Regiment of Mobile, Alabama.)
    The evidence above contradicts the conclusion of the BAR which 
states,
        ``the petitioner's attempt to demonstrate the existence of a 
        continuing American Indian tribal entity, or community, in 
        southwestern Alabama in the first half of the nineteenth 
        century was not documented'' (Technical Report: MOWA Band of 
        Choctaw 1994:72 [cited hereafter as TR-MOWA]).
    Not only did we provide such evidence, it should be duly noted that 
BIA regulations under which the final determination was made do not 
require evidence of ancestry prior to 1900. The BAR required a burden 
of proof in violation of BIA standards and failed to acknowledge 
documentary evidence that indeed met the inappropriate standard they 
imposed upon us.
    In addition, although the BAR relied most heavily on genealogical 
historical records, support for the material we presented is found in 
genetic research published in professional medical journals that 
characterize our contemporary MOWA Choctaw people as a community of 
Native American ancestry that have intermarried and been genetically 
isolated since antebellum times. Our community has been a subject of 
study by medical geneticists from the University of South Alabama due 
to the high frequency of Marinesco-Sjorgren syndrome, an extremely rare 
autosomal recessive genetic disorder. The community of these patients 
was described as,
        ``each patient was a member of an inbred population living in a 
        well-defined area of South-Western Alabama. The ancestry of 
        this population is Indian, with White and Black admixture'' 
        (Superneau et al. 1987:9); and

        ``all come from a remote, rural area of southwest Alabama that 
        has been virtually isolated since before the Civil War'' 
        (Brogdon, Snow, and Williams 1996:461-462).

b. The BAR Discounted 1910 U.S. Census Evidence of American Indian 
        Ancestry
    The 1910 United States Census for Washington County, Alabama, 
contained marginal notes which identify MOWA Choctaw families in the 
Fairford and Malcolm precincts of Washington County. The original 
identification of Indian was written over with the word ``mixed.'' The 
interlineations were written by an official taker of the United States 
Census. The note explains: ``These people entered as mixed are composed 
of Indian, of Spanish, some of them French, some with White, and some 
with Negro. The prevailing habits are Indian. Called ``Cajun'' (see 
Exhibit 1 references to 1910 Census Identifying Indian People and 
Communities in Washington County).
    Despite this direct proof, the BAR concludes, ``nor were the core 
ancestors identified as an Indian entity on the 1910 U.S. Census.'' It 
should also be noted that the core ancestors were dead by the time of 
the 1910 census, and these would have been descendants of our core 
ancestors. Moreover, the BAR concluded that ``none of the primary 
records demonstrate that the petitioner's members descend from a 
historical tribe or tribes which combined to form an autonomous 
political entity'' (Summary under the Criteria and Evidence for Final 
determination of the MOWA 1997:5 [cited hereafter as SCFD-MOWA]. We 
offered the report of Professor Richard Stoffle (1996), entitled, ``A 
Persistent People: A Rapid Ethnographic Assessment of MOWA Choctaw 
Federal Acknowledgment Petition.'' Stoffle, using an anthropological 
approach, concluded that we were operating as an Indian community at 
the time of the Treaty of Dancing Rabbit Creek in 1830.
    Rather than respond to the substantive conclusions reached by 
Stoffle, the BAR suggested that we did not demonstrate that our core 
ancestors descended from persons listed on the Dawes Rolls. However, 
when the Curtis Act of 1898 directed the commission to enroll the 
Mississippi Choctaw (Mann 2003:293), some of our ancestors did make 
application for enrollment. They were rejected because they had no 
written documents to verify their Indian identity and were labeled 
``half-bloods.'' Most of the applicants rejected lived in Alabama and 
traced their descendancy through Lofton and Byrd's lineage. This 
information was submitted to the BAR. The basis for the exclusion from 
the list was not that the applicants were not Choctaw. Indeed they 
could speak the Choctaw language. No logical reason exists for anyone 
to speak the Choctaw language in 1898 in Alabama if they were not 
Choctaw. They were not permitted on the list because they could not 
supply written documentation and were deemed ``half-bloods.'' The BAR 
ignored this information.
    In addition to the 1910 census, the 1920 census identified our 
people as ``French and Indian'' (see Exhibit 1 reference to the 1920 
Census Identifying Indians in Washington County). We have also recently 
found Birth and Death Certificates from around this time period 
identifying our people as Indian (see Exhibit 1 references to Birth and 
Death Certificates Identifying MOWA Choctaw as ``Indian''). Moreover, 
the 2000 U.S. census is unequivocal in its description of our people as 
Indian. In its ``Race List Codes,'' the MOWA Choctaw Indians are listed 
under the category ``American Indian,'' subcategory ``Choctaw,'' 
subcategory ``C12-Mowa Band of Choctaw'' (Exhibit 4: Federal Agencies 
Recognizing the MOWA Choctaw, U.S. Department of Commerce). We agree 
with the contemporary classification of our people as American Indian 
by the United States Federal government, and so should the BAR.

c. The BAR Discounted Sworn Testimony Related to the American Indian 
        Ancestry of Core MOWA Choctaw Families
    The MOWA Choctaws submitted minutes from ``The State v. John 
Goodman and Jenny Reed,'' dated 1881-1882 (Washington County, Alabama 
Circuit Court 1881-1882). We also presented a 1918 miscegenation case, 
``The State of Alabama v. Percy Reed and Helen Corkins [aka Calkins]'' 
(See Exhibit 1 reference to 1920 Miscegenation Case of Percy Reed and 
Helen Caulkins). The BAR ignored direct evidence of Indian ancestry 
which arose out of these hearings and also intentionally refused to 
draw inferential conclusions from the trials.
    First, we used the minutes from ``The State v. John Goodman and 
Jenny Reed'' to support the claim that Rose Gaines was half-Choctaw and 
half-white. The minutes indicated that Alabama prosecuted John Goodman 
and Jenny Reed under the miscegenation acts. The BAR concluded that the 
not-guilty verdict was non-supportive of Choctaw heritage. The BAR 
discredited sworn testimony of witnesses who stated that Rose was the 
daughter of Young Gaines and a Choctaw woman. Additionally, the BAR 
questioned the reference to burned records in our 1988 petition, 
``Initially, the petitioner claimed that ``these [1880's] court records 
were burned'' (FD-MOWA 1997:13). The 1988 petition was based on 
information available at the time. That the BAR would castigate us for 
dutifully supplementing its submission is inconceivable, 
unprofessional, and insulting. We did not know that the records existed 
because we were told in 1988 that some of the courthouse records had 
burned in 1907. However, some of the records had been moved and were 
later found in a storage closet in Chatom, Alabama.
    At the trial involving John Goodman and Jenny Reed, testimony was 
offered that Jenny was American Indian. The BAR ignored this testimony, 
which was provided in prior submissions to the BAR. They took issue 
with the fact that Mr. Sullivan, the foreman of the jury, had testified 
similarly in the 1920's. However, that does not discredit the 
testimony, rather it supports the conclusion of Indian descendancy. The 
fact that the jury found the defendants not guilty in the Goodman and 
Reed case is strong proof that Jenny Reed was of Native American rather 
than African descent. This is the only defense that would have worked 
in the jury trial. The BAR completely and literally ignored this 
conclusion.
    In addition, the specific reasons outlined by the BAR for not 
accepting this conclusion are specious. First, the BAR says that the 
testimony was given at a time greatly removed from the events being 
discussed. The BAR is acting as a super-jury in determining the Reed 
and Goodman case again. The original jury, hearing the evidence and 
seeing the witnesses, concluded that the defendants were not guilty of 
miscegenation. The only reasonable conclusion for that verdict can be 
that Jenny Reed was Native American. The credibility and weight 
accorded to witnesses' testimony is to be decided by the jury in that 
case and not decided by a reviewing agency some 115 years after the 
court hearing. The BAR does not, and should not, sit as a super-
reviewing agency of previous court decisions. Finally, the BAR impugns 
the testimony of George Sullivan because he was 74 years old. Again, 
this is a matter which was weighed and determined by the jury hearing 
that case. The BAR does not have legitimate basis for declining to 
believe sworn testimony evaluated by a jury.
    We also presented the 1918 case of ``Alabama v. Percy Reed and 
Helen Corkins [Calkins].'' Percy was the son of Reuben Reed and the 
grandson of Daniel and Rose Reed. Percy Reed was originally found 
guilty of miscegenation; however, the Alabama Court of Appeals reversed 
that verdict and concluded that the evidence presented at the trial was 
hearsay and that the trial Judge should have directed a verdict in 
favor of the defendants. The Court of Appeals concluded: ``Judgment 
entry that court ascertained `that defendant is of Indian or Spanish 
origin' significant that state failed to make a case of miscegenation 
(State of Alabama 1918),'' the BAR did not accord this judicial 
conclusion any weight at all. In fact, the BAR ignored this direct 
evidence of Native American descent.

2. The BAR Demonstrated Bias, Arbitrariness, and Inconsistency in 
        Evaluating MOWA Choctaw Oral History
    Recording of oral histories is a key research methodology for both 
historians and anthropologists. It is also the traditional Native 
American means of transmitting family history and cultural traditions 
from generation to generation. Glaring problems exist in the BAR 
evaluation of information from oral history we provided to them. The 
BAR is inconsistent and arbitrary in its utilization of oral history 
information as evidence of Native American ancestry. Oral history 
information substantiating written documents is dismissed. The BAR 
reviewed the petitions of the MOWA Band of Choctaw and the Jena Band of 
Choctaw within several months of each other. However, similar types of 
oral history information were deemed superior to written documents for 
the Jena Choctaw, but judged as inadequate evidence for the MOWA 
Choctaw. Second, the requirement for extensive antebellum documentation 
of genealogy is an unreasonable expectation for a non-literate people 
whose cultural norms are based on preserving cultural heritage through 
oral tradition.

a. The BAR Discounted Oral History Information Substantiating Written 
        Documents
    The BAR has completely dismissed our oral history as ``vague and 
unreliable when tested.'' The BAR refused to accept oral history 
``until verified from contemporary documentary sources.'' As 
demonstrated with Nancy Fisher, contemporary documentary sources have 
been provided that have, for reasons beyond being described as 
frivolous, been discounted. The BAR concludes that oral traditions 
cannot be accepted at face value and must be evaluated where there are 
accuracy and reliability. The BAR refers to Rubicam, ``consider and 
analyze all of the facts, regardless of the source, whether tradition 
or an official record, then decide if you should accept or reject those 
facts'' (Rubicam 1980:48).
    The BAR has ignored its own advice and refused to consider and 
analyze all of the facts. We have urged, on more than one occasion, 
that the strong common thread of references to Indian heritage, the 180 
year-old story of our Indian ancestor who swam the river with the baby 
on her back and self-identification has to be given weight. Further 
support for the veracity of our oral tradition has been found in an 
1816 Washington, D.C., newspaper which recounts the incident (Marschalk 
1816). A transcript of the newspaper account is provided in Exhibit 3.
    Jacqueline Matte has served as the primary historical researcher 
for our people. Over a twenty-year period, she collected every 
reference, published or unpublished, related to our ancestors. Each 
piece of this information has been sent to the BAR, some of it 
repeatedly, in the anticipation that gaps in chronology, incomplete 
documentation, and unanswered questions could be expected for a 
nonliterate people. Those gaps, however, were used offensively by the 
BAR to deny recognition rather than to leave open the analysis for 
further consideration.
    While we do not discredit the value of genealogical records, the 
BAR has not taken into account that our earliest ancestors were not 
literate in English. It is unreasonable to expect that they would have 
kept extensive genealogical records of themselves in a language they 
did not know. Vine Deloria, Jr., (Lakota Sioux, Professor Emeritus at 
the University of Colorado) has commented on this very problem in the 
federal recognition process, and specifically in reference to the MOWA 
Choctaw stating,
        ``Much of the confusion is due to the insistence that Indian 
        communities meet criteria which, if it had been applied in the 
        past, would have disqualified the vast majority of presently 
        recognized groups'' (Deloria 2002:10).
    He refers to the ``catch-22'' in the federal recognition process. 
If our ancestors had assimilated, they would have been more likely to 
have left the types of written documentation the BAR requires to 
demonstrate Indian ancestry. However, such assimilation, by the BAR 
rules, would disqualify a community as a legitimate Indian tribe.
    A recently discovered 1960 letter written by U.S. Representative 
Frank Boykin also demonstrates the veracity of our oral history. An 
excerpt follows below:
        I'll take care of him when he gets here, because we have a lot 
        of wild Indians. You will remember that Aaron Burr was captured 
        there on our game preserve at McIntosh in 1806; and then a 
        little later, Chief Geronimo, that great fighting chief, was 
        captured here. Well, we sent them all to Oklahoma, after having 
        them in captivity here a long time. Well, I still have a lot of 
        them and they work for us. They can see in the dark and they 
        can trail a wounded deer better than some of our trail dogs 
        (Boykin 1960).
    Boykin's description of the MOWA Choctaw is that they are 
descendants of Indians who escaped removal and remained in the area 
that we currently inhabit. Although Boykin's use of the term ``wild 
Indian'' is insulting, it is, nevertheless, an indisputable description 
of us as an Indian community.

b. The BAR Applied Radically Different Standards in Evaluating the MOWA 
        Choctaw and the Petitions of Other Tribes, Particularly in 
        Terms of Oral History
    The BAR has applied radically different standards in evaluating the 
petitions of the MOWA Band of Choctaw and other tribes. We have chosen 
to draw comparisons between the petition of the Jena Band of Choctaw 
with our own since they were evaluated within months of each other and 
both are Southeastern Indian groups with Choctaw ancestry. The BAR 
applied a higher standard for the MOWA Choctaw than the Jena, in some 
cases, requiring the MOWAs to provide information that was described as 
impossible to obtain for the Jena. They were particularly inconsistent 
in evaluating the oral history of these two groups. Similar types of 
information derived from oral history were accepted for the Jena and 
rejected for the MOWA Choctaw. In one instance where a discrepancy 
between oral history and census data existed for the Jena Choctaw, oral 
history was deemed more reliable. However, the exact opposite 
conclusion was drawn for the MOWA Choctaw for similar circumstances. We 
should be clear that we are in no way questioning the legitimate Indian 
status of the Jena band of Choctaw. Rather, we are making the point 
that we feel that in all fairness, the same standards should have been 
used in evaluating our petitions.
    One example of this type of discrepancy in the BAR's evaluation of 
the MOWA Choctaw and Jena Choctaw petitions involves the importance of 
oral history in establishing ancestral links. For the Jena, the BAR 
recognized that their earliest Choctaw ancestors would have logically 
had Choctaw rather than Anglicized names and established a linkage 
between 1830 Choctaw based on the oral history of their 1880 
descendants among the Jena. The following citation from the Jena 
petition is lengthy, but important for it makes clear that the federal 
government acknowledged the impossibility of linking Choctaw names to 
anglicized names and further, argued that it was ``fair and reasonable 
to assume'' that 1880 persons living in traditional Choctaw territory 
who claimed descent from Choctaw ancestors through oral history, were, 
indeed, Choctaw:
        After one commissioner visited Mississippi for several weeks, 
        the Dawes Commission produced a roll of the Mississippi 
        Choctaws and submitted it to the Department of the Interior in 
        March 1899. Later in the year, however, the Commission asked 
        that the roll be withdrawn and returned it. The roll contained 
        1,923 names (Dawes Commission 1899, 78; 1900, 18, 10; 
        Commissioner of Indian Affairs 1899, 122; 1901, 157-158). The 
        Commission had identified as Mississippi Choctaws all of the 
        full-blood Choctaws who had appeared before it. The Commission 
        noted that it was impossible to prove that an individual's 
        Choctaw ancestors had made a good-faith effort to comply with 
        the provisions of Article 14 of the treaty after 1830. The 
        facts were not known to those living 60 years later, the 
        Choctaws with English names could not be traced back to 
        ancestors with Indian names; the Government's records were 
        inadequate; and the investigations made after the treaty had 
        demonstrated that Agent William Ward had refused to register 
        Choctaws who sought to comply with the treaty's terms. The 
        Mississippi Choctaws, the treaty contended could not be 
        reasonably expected to show that their ancestors had complied 
        with the provisions of the treaty. It was ``fair and reasonable 
        to assume,'' however, that the Choctaws who had remained in 
        Mississippi had intended to declare their intention to do so 
        and to use the treaty to assure themselves of a homestead 
        ([Dawes Commission 1899, 78-79] from TR-Jena 1994:21). 
        (Emphasis added.)
    We provided the BAR with similar documentation in the form of an 
1851 petition signed by our Choctaw ancestors that was submitted to the 
Commissions of Indian Affairs on our behalf by John Seawell (Mayor of 
Mobile) and Felix Andry (See Exhibit 1 references to Indians of South 
Alabama of the Choctaw Nation 1851 and Choctaws in Mobile). The BAR 
rejected this evidence on the grounds that 1851 Choctaw names could not 
be linked to Anglicized names, although this was described as an 
unreasonable and even ``impossible'' expectation for the Jena Band of 
Choctaw:
        Evidence was presented by the petitioner to indicate that some 
        Choctaw Indians remained in Southern Alabama between the Treaty 
        of Dancing Rabbit Creek in 1830 and the Civil War. However, no 
        evidence was presented by the petitioner to indicate that 
        either the Reed or the Weaver/Rivers/Byrd family associated as 
        colleagues or witnesses with Felix Andry, who was married to a 
        Choctaw woman named Nancy and who submitted claims to the 
        Federal government on behalf of the Choctaw remaining in 
        Alabama (TR-MOWA 1994:5).
    It should be noted that one of the progenitors of the MOWA Choctaw 
described in our petition to the BAR has been traced to a person with 
an Anglicized name, Chief Tom Gibson (aka Eli-Tubbee, Elah, Tubbee, or 
Elatatabe). He lived in Washington County, Mississippi Territory 
(presently Washington County, Alabama) until 1813 when the influx of 
whites caused him to move to Killistamaha (English Town) clan of the 
Six Towns located in southeastern corner of the present boundary of the 
State of Mississippi, just miles from the current southwest Alabama 
location of our MOWA Choctaw community. John Gibson, James Gibson, and 
Betsy Gibson were in Mobile area in 1850 as shown in U.S. government 
correspondence and 1880 census. However, the BAR discounted this 
information because the 1860 census described her probable place of 
birth as Georgia, her father's North Carolina, and her mother's 
Virginia (TR-MOWA 1994:75-76). The BAR concluded that the link is 
``based on oral tradition only'' (TR-MOWA 1994:75) rather than 
acknowledging that the census information itself was ambiguous.
    The conclusion drawn here is particularly troubling given that when 
the Jena proposal contained ambiguous census date, oral history was 
described as more reliable than census data,
        ``The Dawes Commission testimony suggests that tribal members 
        born before 1872 were born in Mississippi, while those who were 
        younger than that were born in Louisiana during the 1880's. 
        Census data on individuals' place of birth does not support 
        this conclusion, but the census is less reliable than personal 
        testimony'' (TR-Jena 1994:16).
    In multiple instances, the BAR discounts our oral history as 
legitimate evidence. In the first example below, it is belittled by 
stating that our petition ``alleges'' a family connection. In the 
second example, even sworn court testimony is treated as allegation and 
discounted because we were expected to produce additional written 
documents to support the testimony.
        ``The MOWA petition alleges, also on the basis of oral 
        tradition, that a George W. Reed, supposedly the son of Hardy 
        Reed and a Creek woman whose maiden name was Elizabeth Tarvin, 
        was the brother of Daniel Reed, as were Amos Reed and Squire 
        Reed, but provides no documentation for the assertion, and the 
        BAR researchers located none'' (TR-MOWA 1994:31).

        ``According to the witness in the 1920 trial, Mrs. Rush 
        testified that Rose Reed, who had died in 1878, had told her 
        that her mother was a `Choctaw squaw.' This hearsay testimony 
        was not documented by any contemporary evidence'' (TR-MOWA 
        1994:6).
    The oral history of the Jena is treated with more respect and 
regarded as legitimate in terms of both historical dates and social 
relationships,
        ``In the oral history of group members, William Bill Lewis is 
        remembered as the group's leader from the time of his arrival 
        from Catahoula Parish about 1917 until his death about 
        1933...as the eldest male among the Choctaw residents of the 
        Jena area after the death of Bill Lewis, Will Jackson was 
        expected to play the role of community leader...'' (TR-Jena 
        1994:30).
    Another example of information that was accepted for the Jena 
Choctaw and rejected for the MOWA Choctaw is the presence of Indian 
Schools. The Jena Choctaw petition states,
        ``Local authorities and private individuals made efforts to 
        create a school specifically for the Indian population. During 
        the 1930's the Penick Indian School operated with some funding 
        from the Federal Office of Indian Affairs'' (SUC-Jena 1994:4).
    We provided the BAR with virtually identical information about a 
separate, federally funded Indian school for the MOWA Choctaw. In our 
original petition, we provided evidence of federal funding being sought 
in 1934, the same time period identified for the Penick Indian School 
of the Jena Choctaw (see time line). Moreover, as previously described, 
the Indian school for the MOWA Choctaw ancestors was established 100 
years earlier than that of the Jena Choctaw. In addition, since 1965, 
we have received federal funding through the Title IV and Title IX 
Indian Education Programs (Exhibit 4: Federal Agencies Recognizing the 
MOWA Choctaw, Department of Education).
    Another extraordinary example of the BAR applying wholly different 
criteria to the Jena Choctaw and the MOWA Choctaw is in their 
evaluation of virtually identical events involving a Choctaw family 
moving into the community around 1900. For the Jena Choctaw, the 
addition of the Choctaw Lewis family in the early 1900's is described 
as a positive event which allowed a dwindling Jena Choctaw community to 
remain viable. For the MOWA, the addition of the Choctaw Laurendine 
family is described as irrelevant because they did not marry into the 
community until the early 1900's. The BAR description of the Lewises 
states,
        ``Before the arrival in LaSalle Parish about 1917 of William 
        Bill Lewis and his extended family from Catahoula Parish, the 
        Trout Creek settlement may have shrunk to two families, those 
        of brothers Will Jackson and Chris Jackson...At that time, the 
        two Jackson families may have consisted of only eight 
        people...The arrival of the Lewis family gave the Trout Creek 
        settlement the potential to remain a viable community'' (TR-
        Jena 1994:28).
    But the description of the MOWA Choctaw states,
        ``The Mississippi Choctaw Laurendine family did not, apparently 
        settle in Mobile County until after the Civil War''.No 
        Laurendine descendants married into the petitioning group until 
        after 1900...'' (TR-MOWA:87).
    The inconsistency is incredible. The BAR completely dismisses the 
intermarriage of the Choctaw Laurendine family into the ancestral MOWA 
Choctaw community as anomalous because it did not occur until around 
1900. However, for the Jena Choctaw, the intermarriage of the Choctaw 
Lewis family around 1900 is viewed as critical to the very existence of 
the Jena Choctaw today.

c. The BAR Placed little value on oral history as the traditional 
        American Indian means of transmitting heritage.
    Finally, it is disappointing that the BAR, as an Indian agency, 
places so little value on oral history. For all American Indians, oral 
history is the traditional Indian way of transmitting our heritage from 
generation. Disregarding these traditions demonstrates disrespect for 
our venerated elders and more generally, disrespect for Indian cultural 
traditions. Moreover, the very existence of our oral history, passed 
down through generations to multiple descendants could not be been 
motivated by any other logical reason except as a means to preserve our 
heritage. Cedric Sunray's ``MOWA Tribal Council Presentation'' put it 
well,
        ``When elder after elder recounts the same story in a 
        relatively similar fashion...how can we discount it? How could 
        an entire group of elderly people be convinced to lie and 
        falsify such a long story? They would need to go against their 
        own collective beliefs, have meetings to get their stories `on 
        the same page' and then, with a straight face, lie to 
        anthropologists and BAR officials. No one could possibly 
        believe that the senior population of the MOWA community 
        organized to this level with the intent to mislead the BAR'' 
        (Sunray 2002:15).

3. The BAR failed to evaluate written documentation in its historical 
        context

    a.  The BAR failed to recognize the widespread American Indian 
resistance to the Dawes Roll. The BAR equates the Dawes Roll (and 
similar registers) as a Native American census, failing to recognize 
both the widespread Native American Resistance to the Dawes Act, and 
the fraud and corruption in the Miriam Report of 1928 which led to its 
repeal.

    b.  The BAR failed to recognize racism and racial designations 
applied to American Indians in Alabama. The BAR has characterized the 
documents identifying MOWA Choctaw ancestors with Indian heritage as 
ambiguous. We have presented clear documentation that our MOWA Choctaw 
ancestors were described as Indian. However, the BAR describes this 
evidence as ambiguous pointing to terms such as ``free person of 
color'' and ``mulatto'' that have sometimes been applied to them. Such 
an attitude demonstrates a lack of awareness of not only historical 
racial categories in the region, but more importantly, it indicates a 
lack of awareness of the racism and prejudice that our people have 
experienced.

    c.  The BAR applied an unreasonable standard for the level of 
documentation required for non-literate antebellum American Indians. 
The requirement of the BAR for the MOWA to present extensive antebellum 
evidence is an unreasonable standard for an American Indian people who 
were not literate in the language. Applying such a standard indicates a 
clear failure to appreciate the cultural, historical, and linguistic 
history of the Indians who escaped removal in 1830.

4. The BAR deviated from BIA protocol in evaluating the MOWA Choctaw 
        Petition.
        a.  By the BIA's own admission, the Federal Recognition process 
        is a confusing, ambiguous, expensive, and time-consuming 
        process (Bureau of Indian Affairs 2001:3-4). One consequence of 
        the confusion and delays is that we presented our petition 
        under the set of guidelines in effect at the time but our 
        petition was not evaluated until seven years later. The rules 
        for federal recognition were changed just months before the BAR 
        evaluated our proposal. We believe our petition should have 
        been evaluated in a timely manner. Further, given that the BAR 
        did not evaluate our petition within the recommended two-year 
        time frame, that our petition should have at least been 
        evaluated under the guidelines in effect when we submitted our 
        proposal.
        b.  The BAR deviated from BIA protocol in requiring pre-1900 
        documentation. Much of the criticism in the 1994 BAR Technical 
        Report is directed at their evaluation of our providing 
        insufficient antebellum documentation of our ancestry. As we 
        have already argued, we strongly disagree with this conclusion. 
        But leaving that aside, as a matter of procedure, the 
        requirement for antebellum documentation deviates from 
        protocol. By the BIA's own admission, the meaning of 
        ``historical'' has been ambiguous and inconsistently applied 
        for tribes seeking federal recognition. The BIA clarified the 
        time frame in 1997 to mean ``since 1900.'' However, in the 
        Final Determination, written after the BIA clarified the 
        appropriate time frame, the BAR continued to apply an 
        antebellum standard. We find it particularly unfair, 
        frustrating, and inconsistent that the BAR applied outdated 
        standards in the Final Determination given that our original 
        petition was required to meet standards that had been changed 
        only months before.
        c.  The BAR deviated from the BIA protocol in failing to 
        provide an objective evaluation of the MOWA Choctaw petition. 
        The BAR failed to provide an objective analysis of our 
        petition. We base this on (1) the adversarial tone of the BAR 
        report; (2) evidence of racial bias by the BAR evaluator; and 
        (3) politics. Our experience has made it clear that the federal 
        recognition process is rife with politics and bias. We were not 
        evaluated objectively. Kevin Gover, the Assistant Secretary of 
        Indian Affairs who signed off on the negative determination of 
        our petition perhaps puts it better than we can. He is quoted 
        in the Hartford Advocate as saying,
        ``The tribal recognition process should be ``fair, open, 
        objective, and neutral...our present system lacks these 
        features and we need an impartial commission...Today the tribal 
        recognition process is `dehumanizing' and `insulting'... 
        imagine have to prove to the government who you are.'' (Miksch 
        2003, quoting Gover).

Concluding Remarks
    With the exception of the Bureau of Indian Affairs, virtually 
everyone who has come into contact with our people recognizes that we 
are Indian. We have multiple letters of support from professionals that 
are all willing to provide expert testimony under oath. As previously 
described, we already have established relationships with numerous 
branches of the federal government who recognize us as Indian, even to 
the extent of our being given an Indian racial code for the purpose of 
compiling governmental statistical data. But more importantly that all 
of the letters and government documents that repeatedly substantiate 
our American Indian heritage, we simply are who we are.

References
Boykin, Rep. Frank. 1960. Letter to Dr. Sam McGee. Congress of the 
        United States, House of Representatives, Washington D. C.
Brogdon, B.G., R. D. Snow, and J. P. Williams. 1996. Skeletal Findings 
        in Marinesco Sjogren Syndrome. Skeletal Radiology 25:461-465.
Bureau of Indian Affairs. 2001. Indian Issues: Improvements Needed in 
        the Tribal Recognition Process. United States General 
        Accounting Office, Report to Congressional Requesters.
Debo, Angie. 1972 [1934] The Rise and Fall of the Choctaw Republic. 
        Norman: University of Oklahoma Press.
Deloria Jr., Vine. 2002 Foreword. The Say the Wind is Red, Jacqueline 
        A. Matte. Pp. 9-11. Montgomery: New South Books.
Foreman, Grant. 1982 [1932] Indian Removal: The Emigration of the Five 
        Civilized Tribes of Indians. Norman, OK: University of Oklahoma 
        Press.
Gilbert Jr., William Harlen Gilbert. 1948 Surviving Indians of the 
        Eastern United States. Annual Report. Smithsonian Institution: 
        Washington, D.C.
Mann, Barbara Rice. 2003. Native Americans, Archaeologists, and the 
        Mounds. New York: Peter Lang.
Marschalk, Andrew. 1816. By This Morning's Mail. Washington Republican 
        and Natchez Intelligencer. Vol. 4. No. 12 (Wednesday, July 10, 
        1816).
Matte, Jacqueline A. 2002. They Say the Wind is Red: The Alabama 
        Choctaw--Lost in Their Own Land. Montgomery: New South Books.
Miksch, Joe. 2003 A ``Broken'' Bureau of Indian Affairs. Hartford 
        Advocate: January 9, 2003, http://hartfordadvocate.com/gbase/
        News/content.html?oid=oid:1065
Rubicam, Milton (ed). 1980. Genealogical Research: Methods and Sources. 
        Washington, DC: American Society of Genealogists.
Russell, E. W. (photographer). 1935 [est. 1835] Photograph of 1835 
        Indian Schoolhouse, County Road 96, Mount Vernon, AL. Card 
        Catalogue No. #AL0387; Photograph Nos.: HABS, ALA, 49- MOUV, 4-
        1, 4-2, and 4-3. Historic American Buildings Survey (HABS). 
        Washington D.C.: Library of Congress, Prints and Photograph 
        Division.
State of Alabama. Appellate Court Records. 1918. The State of Alabama 
        v. Percy Reed and Helen Corkins [aka Calkins]. Book 270, 1st 
        Division 372-471.
Stoffle, Richard W. 1996. A Persistent People: A Rapid Ethnographic 
        Assessment of MOWA Choctaw Federal Acknowledgment Petition. 
        Prepared Report Submitted to the Bureau of Indian Affairs.
Sunray, Cedric. 2002. MOWA Tribal Council Presentation. Graduate 
        student paper submitted to the University of Kansas.
Superneau, Duane W., Wladimir Wertelecki, Hans Zellweger, and Frank 
        Bastian. 1987. Myopathy in Marinesco-Sjogren Syndrome. European 
        Neurology 26:8-16.
United States. Commission and Commissioner to the Five Civilized 
        Tribes. 1894-1907. Annual Report. Washington, D.C.: Government 
        Printing Office (cited as Dawes Commission).
United States. Department of the Interior. Bureau of Indian Affairs. 
        Branch of Acknowledgment and Research (BAR). 1994 Historical 
        Technical Report: Jena Band of Choctaw Indians. Washington, 
        D.C.: Bureau of Indian Affairs (cited as TR-Jena)
United States. Department of the Interior. Bureau of Indian Affairs. 
        Branch of Acknowledgment and Research (BAR). 1994 Summary Under 
        the Criteria and Evidence for Proposed Finding Against Federal 
        Recognition of the MOWA Band of Choctaw. Washington, D.C.: 
        Bureau of Indian Affairs (cited as SC-MOWA).
United States. Department of the Interior. Bureau of Indian Affairs. 
        Branch of Acknowledgment and Research (BAR). 1994 Technical 
        Report: MOWA Band of Choctaw. Washington, D.C.: Bureau of 
        Indian Affairs (cited as TR-MOWA).
United States. Department of the Interior. Bureau of Indian Affairs. 
        Branch of Acknowledgment and Research (BAR). 1997 Final 
        Determination: Mobile-Washington County Band of Choctaw Indians 
        of South Alabama, Technical Report. Washington D.C.: Bureau of 
        Indian Affairs (cited as FD-MOWA).
United States. Department of the Interior. Bureau of Indian Affairs. 
        Branch of Acknowledgment and Research (BAR). 1997 Summary Under 
        the Criteria and Evidence for Final Determination Against 
        Federal Acknowledgment of the Mobile-Washington County Band of 
        Choctaw Indians of South Alabama. Washington, D.C.: Bureau of 
        Indian Affairs (cited as SCFD-MOWA).
 Exhibit 1: Time line for Choctaw Indians in Alabama from 1813 to 2003
    For references see: They Say the Wind is Red: The Alabama Choctaw 
Lost in Their Own Land by Jacqueline Anderson Matte, with foreword by 
Vine Deloria, Jr., Revised Edition, 2002, NewSouth Books, Montgomery, 
AL
1813       Forty-five Choctaw families join Creeks to fight against 
        Americans in Creek War of 1813 (part of War of 1812)
    Source:    ``John Pitchlynn, Ocktibbaha to Governor Blount, 
September 14, 1813,'' Roll 6; ``George Smith, Pitchlands, to A. 
Jackson, November 23, 1813,'' Roll 7; ``John McKee, Fort Smith Mr. 
Pitchlynn, to A. Jackson, January 6, 1814'' and ``John McKee, Campte 
Toote, Massatabbe east bank of the Black Warrior 85 miles above its 
junction with the Tombigby, to A. Jackson, January 26, 1814, Roll 8, 
Andrew Jackson Papers, Manuscript Division, Library of Congress; 
``Narrative, December 5, 1813,'' John McKee Papers, Manuscript 
Division, Library of Congress; ``David Holmes to Turner Brashears, 
August 3, 1813,'' RG 2, Mississippi Territorial Governor's Papers, 
6:308, Mississippi Department of Archives and History; ``John McKee, 
Mr. Pitchlynn's to GS Gaines, January 2, 1814,'' RG 217, Records of the 
Accounting Officers of the Department of the Treasurer, Records of the 
Fifth Auditor, box 1, account 475, National Archives; Gideon Lincecum, 
``Life of Apushimataha, ``Publications of the Mississippi Historical 
Society, 9(1906): p. 479 (hereafter cited PMHS).
1819       Choctaw village in Mobile and inhabitants described March 
        31, by James Leander Cathcart, agent for U.S. Navy, in his 
        daily journal.
    Source:    Jean Strickland and Patricia N. Edwards, Residents of 
the Southeastern Mississippi Territory--Three Journals, Book Four. 
``Records of the General Land Office, Journal and Report of James 
Leander Cathcart and James Hutton, agents appointed by the Secretary of 
the Navy to survey timber resources between the Mermentau and Mobile 
Rivers, in accordance with an act of March 1, 1817, November 1818-May 
1819,'' pp. 48-49.

                   Daniel Reed worked for Young Gaines as a cattle 
            drover. A notice in the St. Stephens, Alabama Territory 
            newspaper, The Halcyon and Tombeckbe, proclaimed: ``Lost, a 
            red Morocco Pocket book containing a Due Bill on Mr. Young 
            Gaines for $60; which I forewarn all person from trading 
            for the same. Daniel Reed. St. Stephens.''
    Source:    Halcyon & Tombeckbe, March 10, 1819.
1824       Choctaw families in Mobile described and interviewed by 
        Gideon Lincecum, Botanist, who lived with Choctaw.
    Source:    Lincecum, ``Life of Apushimataha,'' Publications of the 
Mississippi Historical Society, 1906, p. 480.
1830       Treaty of Dancing Rabbit Creek to remove all Choctaw Indians 
        West of the Mississippi River.
    Source:    Charles J. Kappler, ed., Indian Affairs, Laws and 
Treaties, 2:310-15.
1832       George S. Gaines reported ``A great number of Chactaw [sic] 
        Indians for many years past have resided with the corporate 
        limits of this city during the winters and spring months, and 
        many families remaining through the summer, to the annoyance of 
        the citizens...''
    Source:    NARC, RG 75, Entry 201, Letters Received, 1831-
36,Records of the Commissary General of Subsistence, June 30, 1832.
1835       Indian Schoolhouse, County Road 96 (Old Saint Stephens 
        Road), Mount Vernon, Mobile County, AL. Built approx. 1835; 
        Owner: State of Alabama. Built for Government School for 
        Indians by Indian labor. Description: Frame, one story, wood 
        cypress siding, small porch on the front.''
    Source:    Historic American Buildings Survey (HABS), Library of 
Congress, Prints and Photograph Division, Washington, DC 20540, Card 
#AL0387. http://memory.loc.gov/ammem/hhhtml/hhhome.html
1836       James Gibson, descendant of Chief Tom Gibson (Eli- tubbee/ 
        Elah-tubbe) listed on ``Muster Rolls of Choctaw Indians,'' and 
        in Correspondence from Mobile.
    Source:    Records of the War Department, Office of the Advocate 
General, Alabama at war, 2nd Creek War, 1836, SG13379, Alabama 
Department of Archives & History. (ADAH)
1836-1936  Inclusive--120 Land Records show ownership and occupation by 
        people with whose same names are listed on 1910 U.S. Census in 
        Mobile & Washington counties as ``Mixed...the prevailing habits 
        are Indian.''
    Source:    General Land Office, Suitland Maryland.
1838       Investigation into fraudulent land claims. Testimony taken 
        to establish claims by Choctaws; 7,000 who refused to move 
        west.
    Source:    NARC, RG 75, Entry 270 Evidence, 1837-38, U.S. Court of 
claims, No. 12742, The Choctaw Nation of Indians vs. the United States.
1844       George S. Gaines reported ``The south eastern Indians known 
        as the Six Towns under the influence of Capts. Oak-lah-be and 
        Post Oak...number about 2,000.
    Source:    NARC, RG 75, M234, Letters Received, Choctaw Emigration, 
Roll 185, pp. 903-908, September 22, 1844.
1847       ``Since the time of 1830 the Choctaws who remained...has 
        been left to follow there own inclination, the greater part of 
        them leading vagrant lives...in the southern part of Alabama 
        and deriving a precarious subsistence by--hunting and fishing 
        in swamp...about 3,000, including 2 and 300 who have wandered 
        off to the seashore between Mobile and New Orleans..''
    Source:    NARC, RG, 75, M234, Roll 188, fr. No. 226, Choctaw 
Agency, Emigration, April 27, 1847.
1851       ``Several hundred Indians were determined to remain in 
        vicinity of Mobile'' 6 Nov 1851; reports that ``several hundred 
        more Indians have come to vicinity'' 27 Nov 1851; ``about 500 
        are assembled...'' 15 Dec 1851; ``petition signed by Choctaws: 
        60 men, 45 widows and 4 children.'' 29 Dec 1851.
    Source:    NARC, RG 75, M234, Roll 171, Letters Received by OIA, 
Choctaw Agency, 1839-51, fr. no. 738 753.
1852       ``Petition in behalf of all the Indians of south Alabama of 
        the Choctaw Nation...over 400 Choctaws residing in Southern 
        Alabama and near Mobile, who do not wish to emigrate but to 
        remain where we are and become citizens. Signed in behalf of 
        all the Indians of South Alabama of the Choctaw Nation.''
    Source:    NARC, RG 75, M234, Roll 172, Fr. no. 44-47, Letters 
Received, Choctaw Agency, August 17, 1852.
1856       ``Census Roll of Choctaw Families, Residing East of the 
        Mississippi River and in the States of Mississippi, Louisiana 
        and Alabama made by Douglas H. Cooper, U.S. Agent for Choctaws, 
        July 26, 1856: Original manuscript: Six Town clan located in 
        Jasper & Newton Counties, Mississippi and Mobile, Alabama; list 
        of Choctaw names; recapitulation, showing number of men, women 
        and children, number of families and places of abode. The Six 
        Town Clan was comprised of 129 men, 191 women, 194 children for 
        a total of 514 individuals or 96 families.''
    Source:    NARC, RG 75, Entry No. 260.
1859       ``Gov't has no intention to make any further removal of 
        Choctaws...''
    Source:    NARC, RG 75, M234, Roll 175, Letters Received by OIA, 
Choctaw Agency, Frame No. 409-417.
1860       Response to series of letters requesting information on name 
        and residence of Choctaw Agent, ``No such agent has been 
        appointed by the Department...``
    Source:    NARC, RG 75, M234, Roll 176, Letters Received by OIA, 
Choctaw Agency, Frame No.13-17 & 165-167.
1862       Choctaw ancestors of the MOWA remained in Alabama and were 
        recruited for the Confederacy at the foot of Stone Street in 
        Mobile, Alabama. The majority of the men were killed, leaving 
        the women and children in south Alabama.
    Source:    ``Major S. C. Spann, Commander Dabney H. Maury Camp, No. 
1312, UCV, Meridian, Miss.'', Halbert Collection, Folder No. 178, ADAH; 
Muster Roll of this Choctaw Regiment is in Department of Archives and 
History, Jackson, Mississippi (cover only, roll missing).
1870       U.S. Census: Indians identified in Mobile County--9.
1880       U.S. Census: Indians identified in Mobile County--19; in 
        Washington County--2.
1890       U.S. Census (manuscript burned) population totals only 
        available. Indians identified in Washington County--0; in 
        Mobile County -- 402 (plus 384 Apaches).
1898-1914  MOWA Choctaw enrollment applications in Mobile and 
        Washington Counties for Dawes Roll, generated in response to 
        General Allotment Act, February 8, 1887. (U.S. Statutes at 
        Large, 24:388-91).
    Source:    Applications for Enrollment of the Commission to the 
Five civilized Tribes 1898-1914, RG 75, M1301, roll 116, Mississippi 
Choctaw Roll no. 2556, MCR number 2189 and 2190.
1900       U.S. Census, Indians identified in Washington County--0; in 
        Mobile County--5.
1907-1909  U.S. Agent, John Beck, enrolled 64 Choctaw families in 
        Mobile and Washington Counties on Eastern Cherokee Roll (Guion 
        Miller Roll). Ancestors of MOWA Choctaw Application Numbers 
        14393, 17390- 17395, 41601-41750, 43551-43700 Eastern Cherokee 
        Roll (a.k.a. Guion Miller roll).
    Source:    RG 75, Records Relating to Enrollment of Eastern 
Cherokees by Guion Miller, 1908-1910, M685; RG 123, M1104, Eastern 
Cherokee applications,
1909--1930s  Indians identified in Birth and Death Records, Vital 
        Statistics,: Washington county--12 births, 1 death; and Mobile 
        County, 6 births, 0 death..
    Source:    Mobile County Probate Court, Archival Birth and Death 
Records; Birth and Death Records, Registration No. 651200, Vital 
Statistics, Records of Washington County, ADAH
1910       U.S. Census, Indians identified in Washington County--172; 
        in Mobile County--7. Marginal notes designated clusters of 
        families in Fairford, (Precinct 12) and Malcolm (Precinct 13), 
        ED 14 as: ``These people entered as mixed, are composed of 
        Indian, of Spanish, some of them with French, some with white, 
        and some with Negro. The prevailing habits are Indian,. Called 
        Cajun.'' The original identification in column, ``Ind'' was 
        written over with ``mixed.''
1919       Choctaw Indians in Mobile and Washington counties 
        ``discovered'' by Southern Baptists.
    Source:    The 39th Annual Session of the Mobile Baptist 
Association, Citronelle Baptist Church, 1919.
1920       U.S. Census, Indians identified in Washington County--10; in 
        Mobile County--12.
1921-1955  Thirty-four years of Reports by Baptist Missionaries provide 
        continuous written documentation to Mobile and Washington 
        Counties to teach ``American Indians of Choctaw heritage, under 
        the overall program of missions to American Indians.''
    Source:    Annual Reports of the Southern Baptist Convention, 1922-
1955.
1924       Governor W. W. Brandon's report on ``Cajan- Indians'' in 
        Mobile and Washington counties. Hilary Herbert Holmes, ``The 
        so-called Cajan Settlements in Southern part of Washington 
        County, Alabama: A Survey made for Governor William W. Brandon, 
        1924.''
    Source:    Governors' Papers (1920-27: Brandon), RC2:G156, 
Administrative files, folders: ``Cajan,'' ADAM.
1930       U.S. Census, Indians identified in Washington County--0; in 
        Mobile County--50.
1930s-1990s Several Master's theses and ``scientific studies'' done on 
        Choctaw Indians in Mobile and Washington Counties.
    Source:    Horace Mann Bond, ``Two Racial Islands in Alabama,'' 
American Journal of Sociology 36 (1931: 552-567; Laura Frances Murphy, 
``The Cajans of Mobile County, Alabama'' (master's thesis, Scarritt 
College for Christian Workers, 1935); Clatis Green ``Some Factors 
Influencing Cajun Education in Washington County, Alabama'' (master's 
thesis, University of Alabama, 1941); Edward Thomas Price, Jr. ``Mixed-
Blood Populations of Eastern United States as to Origins, 
Localizations, and Persistence, (Ph.D. Anomalies in School Children of 
an American Triracial Isolate: A Frequency Study'' (master's thesis, 
University of Alabama at Birmingham, 1965); George Harry Stopp, Jr., 
``The Impact of the 1964 Civil Rights Act on an Isolated `Tri-Racial' 
Group'' (master's thesis University of Alabama, 1971; Duane W. 
Superneau, Wladimir Wertelecki, Hans Zellweger, and Frank Bastian, 
``Myopathy in Marinesco-Sjogren Syndrome. European Neurology 26:8-16, 
1987; B.G. Brogdon, R.D. Snow, and J.P. Williams, ``Skeletal Findings 
in Marinesco Sjogren Syndrome,'' Skeletal Radiology 25:461-465, 1996; 
``Circle of Life: University of Alabama Researchers look at how 
children with developmental disabilities fit into the Circular scheme 
of Native American World View,'' UAB Magazine, Summer, 1995: 13-15.
1930-1965  Separate school system established for ``Cadians'' (Indians) 
        in Mobile and Washington counties.
    Source:    Minutes of Mobile County Board of Education and Minutes 
of Washington County Board of Education.
1931-1966  Annual Reports of Mission Work Among the Cajan Communities 
        1931-66 to the Woman's Missionary Society and Woman's Society 
        of Christian Service. Work among these communities identified 
        by following names: Byrd's Chapel, Work Among the Cajans, 
        Methodist Community House, Aldersgate Mission, Mobile County 
        Rural Center, Calcedeaver School.
    Source:    The United Methodist Church Commission on Archives and 
History, Alabama-West Florida Conference, Houghton Memorial Library, 
Huntingdon College, Montgomery, AL.
1934       Mrs. Elvin Byrd sought federal aid for Indian schools.
    Source:    Indian Office File No. 55742-1934; file no. 150. Report 
on findings was submitted to the Commissioner of Indian Affairs by Dr. 
W. Carson Ryan, Jr., Director of Indian Education.
1940       U.S. Census--No statistics on Indians.
1940-1941  School year. Miss Eva Crenshaw's Sixth and Seventh grade 
        students of Weaver School compiled a ``History of Byrd 
        Settlement,'' ``with the help of some of the oldest 
        people....Mrs. Laura Byrd, Mrs. Irene Rivers, and Mr. Book 
        Byrd.'' The story of the ``woman who swam the river with her 
        baby'' is included.
    Source:    ``History of Byrd Settlement,'' typescript., 1940-41. 
Copy acquired in 1991 from Miss Eva Crenshaw, former Methodist 
Missionary to South Alabama Indians, 1937-44.
1940s       Indians from Mobile and Washington counties served in World 
        War II.
    Source:    Cemetery Records, U.S. Military Identification cards, 
Discharge papers.
1948       ``The 3rd major census of Indians in 1930 was the occasion 
        for the `discovery' of two more Indian mixed groups...These 
        people are centered in the area of heavy woods and hills about 
        Citronelle in upper Mobile and lower Washington Counties, and 
        number 3,000 or more.''
    Source:    William Harlen Gilbert, Jr., ``Surviving Indian Groups 
of the Eastern United States.'' Annual Report of the Board of Regents 
of the Smithsonian Institution for 1948 (1949): 407-438. See No. 18, 
Alabama.
1950       U.S. House of Representatives report lists all Indians in 
        U.S. including the Cajans of Alabama [ancestors of the MOWA 
        Choctaw] under category of ``Siouans of the East.''
    Source:    ``Compilation of Material Relating to the Indians of the 
United States and the Territory of Alaska, Including Certain Laws and 
Treaties Affecting Such Indians by Subcommittee on Indian Affairs of 
the Committee on Public Lands House of Representatives'' H. Res. 66 
(81st Cong., 2d Sess.) June 13, 1950, Serial No. 30.
1950       American Indians across the South, including MOWA Choctaw, 
        joined ``Kinsmen of Indians for Liberty, Reform and 
        Instructions in Civic Affairs'' (KILROI). As Descendants of the 
        Creek Indians, East of the Mississippi River.''
    Source:    Docket 21, Indian Claims Commission, Bureau of Indian 
Affairs. Microfilmed copy of Register, Mobile County Public Library 
Local History Division.
1965       Secured federal assistance for Indian Education in schools. 
        Title IV, Part A, Indian Education Program implemented in 
        Reed's Chapel School, McIntosh, Washington County, Alabama and 
        Calcedeaver School, Mt. Vernon, Alabama. The Indian Education 
        program continues today in Mobile and Washington Counties.
    Source:    ``Statement of Jack Edwards, Member of Congress for 
Alabama 1965-1985'' in Testimony in support of S.362 (S.282) Proposed 
Legislation for Federal Recognition of MOWA Choctaw of Alabama.
1976       Choctaws in Mobile and Washington Counties, 4,000.
    Source:    Report of American Indian Policy Review Commission. 
Chapter 11, ``Nonrecognized Tribes,'' p. 468,
1979       The MOWA Band of Choctaw Indians recognized by State of 
        Alabama.
    Source:    Legislative Act No. 79-228, H.313--Turner, Alabama Laws 
of the Legislature of Alabama, 1979, Vol. I, p.350.
1980       U.S. Census, Washington County, Alabama: Indians--779

                   Alabama Attorney General confirms that Choctaw 
            Indians of Mobile and Washington counties retain their 
            rights as a sovereign tribe.
1981       MOWA Band of Choctaw Indians sought help of the Bureau of 
        Indian Affairs to provide assistance to be federally 
        recognized. Alabama Humanities Foundation--awarded a study 
        grant.

                   Letter from Eddie L. Tullis, Chairman, Poarch Band 
            of Creek Indians to Framon Weaver, Chairman, MOWA Band of 
            Choctaw Indians, June 20, 1981 requesting ``in the spirit 
            of Indian brotherhood, to support our efforts for Federal 
            Recognition....We as Native Americans must work together to 
            protect our rights. I assure you that if you assist us with 
            our struggle for Federal Recognition you can count on us to 
            be there when your petition is ready for consideration by 
            BAR.''
1983       MOWA Choctaw hired an Executive Director as a grants writer; 
        applied for research grant from the Administration of Native 
        Americans, which they received. Held organizational meeting for 
        federal acknowledgment research team. Letter of intent to 
        petition was sent to the Branch of Acknowledgment and Research 
        (BAR), May 19, 1983.
1984-1987  Data collection--research, interviews, writing
1987       S. 1142, Shelby; H.R. 3107, Callahan, Nichols, Erdreich
1988       Submitted FAP to BIA/BAR, April 28, 1988; up-dated tribal 
        roll submitted
1989       S. 381, Shelby, Heflin; H.R. 1562, Callahan
1990       BIA/BAR reviewed FAP and sent Obvious Deficiency letter to 
        MOWA Choctaw, February 15, 1990.
1991       S. 362 Shelby, Heflin; H.R. 2349, Callahan; BAR held 
        technical assistance teleconference in September; MOWA Choctaw 
        submitted response to Obvious Deficiency letter, November 8, 
        1991.
1992       Supplementary documentation showing Choctaws in Mobile area 
        from 1832-1860 was presented to the BAR and reported as 
        received in the BAR's Proposed Finding. However, in a 1996 
        meeting with BAR officials (Virginia DeMarce, Kay Davis and 
        Holly Reckord), they stated they did not receive them.
1993       S. 282; Shelby, Heflin, Inouye; H.R. 3605, Hilliard; 
        supplementary documentation showing MOWA Choctaw ancestors' 
        Dawes Roll Applications and supporting evidence as to why they 
        submitted applications for the Eastern Cherokee Roll (a.k.a. 
        Guion Miller Roll).
1994       S. 282, H.R. 4231, MOWA Band of Choctaw Indians Recognition 
        Act; hearing May 17, 1994; BAR sent Proposed Finding Against 
        Federal Acknowledgment of the MOWA Band of Choctaw, December 
        16,1994.
1995       Because a new chief was elected, MOWA Choctaw requested 
        extension of time. We applied for and received Administration 
        for Native Americans (ANA) Grant to complete Federal 
        Acknowledgment Petition (FAP).
1996       New chief, research committee and tribal council met with 
        BAR staff in Washington for technical assistance on March 1, 
        1996. Research committee met with anthropologist, May 7-8. On 
        June 27, 1996, Chief Wilford ``Longhair'' Taylor submitted 
        Report and up-dated tribal roll.
1997       BIA/BAR issued a negative Final Determination Technical 
        Report.
1998       MOWA Band of Choctaw Indians of South Alabama filed an 
        Appeal before the Interior Board of Indian Appeals, U.S. 
        Department of Interior. The appeal was denied.
2000       Kevin Gover, Assistant Secretary of Indian Affairs under 
        President Clinton invited Chief Taylor to meet with him to 
        discuss MOWA Choctaw Federal Recognition
2003       The School Board of Washington County returned Reed's Chapel 
        School and property to the MOWA Choctaw. The first school was 
        held in Reed's Chapel Church by missionaries. The school was 
        built by ancestors of the MOWA Choctaw on land they donated for 
        this purpose.

        [GRAPHIC] [TIFF OMITTED] T2827.006
        
        [GRAPHIC] [TIFF OMITTED] T2827.007
        

      Exhibit 3: Transcript of Washington Republican and Natchez 
       Intelligencer Newspaper Account of the Nancy Fisher Story

                         By This Morning's Mail

                          ST. STEPHENS, JUNE 7

    We learn from the most respectable authority that two of the 
murderers of Johnston and McGaskey have been given up, and that 
diligence is promised on the part of some of the chiefs in apprehending 
the balance of the party. It is stated that the Seminoles and some of 
the lower Creeks are determined on war and have embodied 1500 warriors 
to cut off the supplies and provisions ordered up the Apalachicola for 
the use of the U.S. Troops. The most stringent measures are adopted by 
the commanding general to ascertain their statement and intentions as 
to prevent the commission of outrages on the frontier. In consequence 
of the reports of the Indian unrest, the surveyors of the Creek lands 
have suspended their labors, but we understand, under security assumed 
by military force, they are about to recommencing them.
    June 23
    The following interesting part of a letter was communicated by our 
friend at Fort Stoddert dated June 15, 1816.
        ``Left Tuesday night, about the rise of the moon, five Creek 
        Indians came to the home of Mrs. Fisher, about fifteen miles 
        below this place on the eastern bank of the river. Three of 
        them fired on a Chactaw, who had been at the same time about 
        Fort Montgomery, engaged in hunting and who was then encamped 
        near Mrs. Fisher's hours. As soon as they had killed him, they 
        fired at the door upon which her daughter catched up a child 
        escaped at the opposite door, and the Indians rushed in and 
        fell upon an old woman with clubs. Her cries only excited the 
        taunts of the Indians, whose conversation, in the Creek 
        language, was heard by her distracted daughter. The old woman 
        was left for dead; but the daughter got to a canoe and escaped, 
        with the child, to the swamp on the western side of the river, 
        where she soon saw the house buried in flames. Mrs. Fisher, 
        however, was not actually dead, but was enabled to have--from 
        immediate destruction.
    Mr. Myric in whose employ her son was, had them all brought up in a 
boat yesterday evening. I have just been to see them, but found the 
poor old woman dead. She had been disabled in her hip, her fingers were 
miserably mashed, and her head considerably fractured. The whole of 
their furniture, clothing, and provisions were destroyed with their 
house. Every family on the same side of the river is equally exposed. 
Mrs. Fisher was a sister to the later Mrs. Stiggins. Her father was a 
Cherokee and her mother was one of the old Natchez tribe. She has lived 
with the white people upwards of 20 years, and her husbands (both of 
who are dead) were white men. She had not seen a Creek Indian before 
since the commencement of the war, and had no idea who they were that 
killed her, except they were Creeks.
    Marschalk, Andrew. 1816. By This Morning's Mail. Washington 
Republican and Natchez Intelligencer, Wednesday, July 10, 1816.
   Exhibit 4: Federal Agencies Recognizing the MOWA Band of Choctaw 
                                Indians
1. U.S. Department of Commerce
The U.S. Bureau of the Census
    The U.S. Bureau of the Census recognizes the MOWA Band of Choctaw 
as an American Indian group. The Bureau of the Census uses a racial 
classification code for generating statistical profiles of the American 
population. The MOWA Band of Choctaw is listed under the category, 
``American Indian,'' as a Choctaw group with the racial code number C12 
(See Department of Commerce, Bureau of the Census, American Community 
Survey Race Code List:
    http://www.census.gov/acs/www/UseData/CodeList/SSAll/2000/
Race.htm). In addition, the Bureau of the Census has also generated a 
map of American Indian groups resulting from the 2000 Census, and the 
MOWA Band of Choctaw reservation is southwest Alabama is included (See 
http://www.census.gov/geo/www/maps/aian--wall--map/aian--wall--map.htm 
[map can be enlarged on-line).

2. U.S. Department of Housing and Urban Development
Office of Native American Programs
Indian Community Development Block Grant Program (ICDBGP)
    The MOWA Band of Choctaw has received a federal grant (ICDBGP) 
through the Office of Native American Programs, U.S. Department of 
Housing and Urban Development. The criteria for receipt of the grant 
states,
        Eligible applicants for assistance include any Indian tribe, 
        band, group or nation (including Alaskan Indians, Aleutes, and 
        Eskimos) or Alaskan native village which has established a 
        relationship to the Federal government as defined in the 
        program regulations. In certain instances, tribal organizations 
        may be eligible to apply (http://www.hud.gov/offices/pih/ih/
        grants/icdbg.cfm)
    MOWA Choctaw Chief Taylor is featured on the front cover of the 
June 2003 Native American Housing News, a publication sponsored by the 
U.S. Department of Housing and Urban Development.

3. U.S. Department of Health and Human Services
    a.  Low Income Home Energy Assistance Program (LIHEAP)
    b.  Administration for Native Americans
    c.  Centers for Disease Control and Prevention
    The MOWA Band of Choctaw have, in the past, received federal 
funding through the Administration for Native Americans (ANA) to assist 
them in researching their cultural history and are currently receiving 
federal funding through the Low Income Home Energy Assistance Program 
(LIHEAP). The LIHEAP grant is administered specifically to the MOWA 
Band of Choctaw with those eligible being, ``eligible Choctaw 
households in Baldwin, Choctaw, Mobile and Washington Counties'' 
(http://www.ncat.org/liheap/Directors/Agreements/Alabama.htm). In 
addition, the Centers for Disease Control and Prevention employ the 
same racial designation for the MOWA Band of Choctaw as does the U.S. 
Bureau of the census (American Indian, code C12).

4. U.S. Department of Education
Office of Indian Education
Title IV and Title IX
    For almost 40 years, the MOWA Choctaw have received federal funding 
for Indian education through Title IV (beginning in 1965) and later 
Title IX programs through the U.S. Department of Education's Office of 
Indian Education. If one considers the Indian School built for MOWA 
Choctaw ancestors in 1835, they have a 155 year history of government 
sponsored Indian education for the MOWA Choctaw people.
                                 ______
                                 
    The Chairman. Thank you.
    Mr. Marshall, in your written testimony you state that 17 
tribes winning a legally forced review have all been denied 
Federal recognition. Chairperson Cambra testified that the same 
people at Interior who fought her tribe's lawsuits were the 
ones responsible for the final determination denying 
recognition to her tribe.
    This makes me wonder about objectivity of the people that 
are making a decision. Can you maybe enlighten the Committee a 
little bit about how you feel or how the people that you 
represent have dealt with the objectivity of those that are in 
the decisionmaking process.
    Mr. Marshall. Thank you, Mr. Chairman. First off, the 
frustration of all tribes is well known. It is well documented. 
Not only the frustration of the process but yet when you seek 
remedy outside of the process, because your people do not have 
access to health programs, education programs, 638 programs, we 
are denied the process. When you seek outside remedies through 
the court or through congressional help, they become 
adversarial, at best.
    Partly because there is just such a vacuum of bureaucracy 
up in that particular building, I do not want to go to that 
building. Where I come from we call it bad medicine. You do not 
feel human going in there. You do not feel like you are getting 
your just day in court. You do not feel like you are going to 
have your fair say. You feel like you are going there with your 
hat in your hand to beg for something. But I will you that we 
did not allow any foreign settlers to beg for anything when 
they came to us for help.
    I think it is totally disgusting that a tribe who has been 
a consistent living, breathing tribe has to prove to someone 
else that they are a tribe. If you are of European descent and 
you say you are English, they do not ask you how much English 
you are. If you say you are Indian, they want to know what part 
and how much.
    The sad part about it is that whole thought process goes 
throughout the country. But without Native Americans' 
contribution to this country, we would not have a country. We 
would not have a Constitution. We governed our people long 
before--our constitutions and our governance predate the 
Constitution of this country and we have been living in peace 
and harmony and planning for seven generations since the 
beginning of time and I find that when we do seek outside 
remedies, we have to pay the piper. But the frustration is do I 
go back and tell my elders that I cannot get the job done 
inside the BIA in a timely fashion and on my watch?
    I will tell you this. From the time that we put in our 
letter of intent to today, we have lost 147 members because 
they did not have access to programs and I find that a little 
tough.
    The Chairman. Mr. Marshall, you and I have had a chance to 
talk in the past and as I told you privately, whether the 
decision is to recognize you as a tribe or not recognize you as 
a tribe, it is unconscionable to not give you a decision. That, 
in my mind, is just beyond any bureaucratic mess-up. It is just 
something that this Committee is going to have to deal with in 
one way or another.
    Unfortunately, as we were preparing for this hearing we 
found that you were not alone and that there are a lot of folks 
that are out there that have been waiting for decades just to 
get an answer.
    Mr. Marshall. That is correct.
    The Chairman. And that is uncalled-for in my mind.
    I do have questions dealing with the objectivity of people 
in the decisionmaking process. I happen to have one of my local 
tribes that has gone through--in fact, it has made national 
news lately--quite an ordeal in terms of the leadership of that 
particular tribe and the accusations have been made that those 
that were making the decision within the BIA for one reason or 
another had a conflict in that decisionmaking process and 
listening to the testimony of this panel really makes me wonder 
if there is not a different way that we ought to approach the 
Federal recognition process and maybe have some kind of an 
independent process.
    You heard on the first panel somebody who felt very 
strongly against the recognition process in one particular 
tribe and has the ability to have political pressure brought 
into bear on that particular decision. In my mind, this should 
not be political or bureaucratic. It is either yes or no. 
Either you qualify or you do not. To me, I do not understand 
how that can take 30 years.
    Mr. Marshall. Mr. Chairman, we are not sure, either, but I 
can guarantee you that the tribal leaders sitting at this table 
either meet or exceed all seven of the criteria. The BIA knows 
it. They know we have been tribes for years.
    I find it hard to believe that a governmental agency would 
go 50/50--16 approved, 16 denied. How does that happen? If you 
did that in business you would be a miracle man. But you know 
what the sad part about it is? That we even have to come here 
to tell you this.
    And you know the really disgusting part is in Connecticut 
you have tribes there that contribute a great deal of money and 
resources and jobs to the State of Connecticut and I would say 
to you, sir, that if they lost those casinos, that the State of 
Connecticut would be in a financial ruin without those two 
tribes. Instead of embracing the tribes they fight them.
    But in Massachusetts we have a resolution that says from 
the statehouse, please recognize this tribe, urging the 
Massachusetts delegation to seek recognition for this tribe. We 
are not saying yes or no; we are asking to have our chance at 
the bat. But I am afraid, like most people are, that when you 
seek an outside remedy that the first answer is going to be a 
negative, as happened to the Muwekmas, as happened to 
Schaghticokes, and as happened to Eastern and Pawcatuk Pequots.
    The Department has taken upon itself the ability to change 
the rules when they want to, jumping people from behind us 
ahead of us, and they have done that at least five or six 
times. And you know the wonderful part about that is they send 
you this great letter that says it will not harm you as far as 
time is considered because we are going to short-circuit and 
take the time of the process. And I think they drank Reverend 
Jim's Kool-Aid.
    The Chairman. Thank you, sir.
    Mr. Rahall.
    Mr. Rahall. Thank you, Mr. Chairman.
    I would like to ask Chief Taylor a question. You stated 
that in denying your tribe Federal recognition, the BIA failed 
to take into account that your earliest ancestors were not 
literate in English. Could you explain how this worked 
adversely against you?
    Mr. Taylor. Well, our people, you know, they required us to 
match our Choctaw names with English names, which we could not 
do that. Over time, assimilation, most all Indian tribes are 
losing their native language. We are trying to bring ours back. 
So that works against us there, I believe, if I understood your 
question right.
    Mr. Rahall. Right.
    Let me ask Chairwoman Cambra if I might, how has the 
Interior solicitor's involvement with your lawsuit created 
complications? And this could very well be a follow-up to the 
Chairman's questions, as well. Are there conflicting 
personalities here that you feel have worked against you?
    Ms. Cambra. I believe so. I believe that they have made a 
process into a personal vendetta against my tribe specifically.
    I also believe that it is very clear when they admit that 
we are a historical tribe, 100 percent of our members descend 
from a historical tribe, it is very clear that Congress has 
never terminated our tribe in any way, shape or fashion, then 
they automatically should come up with an alternative. And I 
have requested since, in fact, the earliest administration that 
I started working politically was with Ada Deer's 
administration and I asked the question, can you help us? If we 
are previously recognized, never terminated, how can you help 
us? Well, go through the process, which we did.
    The BAR said we were previously recognized, never 
terminated, 100 percent of our membership comes from a 
historical tribe. They did not offer any alternative except to 
recommend legislation and that was their only recommendation 
that they offered the tribe, and I am assuming through the 
solicitor. And I can testify as a witness that American Indians 
are no friend of the solicitor.
    As a taxpayer and as a grandmother and a mother and as a 
leader, is this what the American Federal government provides 
Indians? Instead of taking the fiduciary responsibility, they 
take a very negative pro-war process with them and that has to 
stop. We cannot afford that. We cannot afford that.
    Mr. Rahall. Thank you.
    Thank you, Mr. Chairman.
    Mr. Hayworth. (presiding) I thank the Ranking Member and I 
am going to ask your indulgence. Obviously a frog decided to 
take root in my throat today.
    I would like to thank the witnesses for coming down here 
today. A couple of points. As I heard your testimony I thought 
back to the district I represented when I first came to 
Congress. Things changed because of reapportionment but in the 
district that I initially represented I was honored to 
represent the sovereign Navajo Nation, the largest of our 
tribes. The area the Navajo inhabit transcends the borders of 
four states. It itself is about as large as the Ranking 
Member's home State of West Virginia.
    What I keep coming back to when I hear your words today 
remind me of a tribal elder whom I met in a town hall meeting 
when he said, ``Congressman, as far as I am concerned, as far 
as the people I represent are concerned, BIA stands for bossing 
Indians around.''
    But listening today, I hear another unfortunate acronym to 
hear your experiences. BIA seems to now stand for bureaucratic 
indecision always.
    If you would again, and I share Mr. Marshall's lament; it 
is unfortunate in the first place that this hearing even has to 
take place but even accepting that for a second, there is 
something good that comes from this because we have the chance 
to put into the record and to amplify for the record the 
challenges you face.
    I would ask each of you who have testified, I know it is in 
your official record but again to distill and to amplify for 
this Committee and for the Congress and for our friends who 
join us here today how long have you been involved in this 
process? Let us begin with Mr. Marshall and just in the order 
of testimony, if you would tell us the number of years you have 
been involved in seeking recognition.
    Mr. Marshall. Officially, 29.
    Mr. Gumbs. Officially, since 1978, 25 years.
    Ms. Cambra. Since 1989--23, 24 years.
    Mr. Taylor. This year 24.
    Mr. Hayworth. So an average of a quarter century for all 
these tribes just through the official recognition process. 
That is on average what we are hearing here today. A quarter 
century to reach some conclusion.
    As the Chairman said and as I would amplify, simple respect 
and decency should have prompted a yes or no answer at some 
point during the span of a quarter century of seeking this 
recognition.
    The Chair would recognize the gentleman from Michigan, Mr. 
Kildee.
    Mr. Kildee. I thank the Chair and thank the witnesses.
    You certainly have appeared before the right body. Each one 
of us in this body take an oath to uphold this Constitution and 
the Constitution, as I am sure most of you know, Article 1, 
Section 8 says, ``The Congress shall have the power to regulate 
commerce with foreign nations and among the several states and 
with the Indian tribes.'' This Constitution states the three 
types of sovereignties that we deal with and you are one of 
those three.
    I have two citizenships. I am a citizen of the United 
States and I am a citizen of the State of Michigan. Native 
Americans have three citizenship recognized by this 
Constitution. They are citizens of the United States and they 
have proven that over and over again by their service in our 
armed forces. They are citizens of their respective states and 
they are citizens of their sovereign tribes, recognized--not 
granted--recognized by this Constitution, because it is a 
retained sovereignty.
    John Marshall in 1832, Chief Justice of the United States 
Supreme Court, said, ``The Indian nations had always been 
considered as distinct, independent political communities 
retaining their original natural rights as the undisputed 
possessors of the soil from time immemorial. The very term 
nation so generally applied to them means a people distinct 
from others.''
    You have a retained sovereignty and our job is to make sure 
that we recognize--not grant--we recognize that retained 
sovereignty.
    In my time here in the Congress I have helped some tribes 
in my own state get their sovereignty reaffirmed, reaffirmed 
their recognition, not granted. As a matter of fact, I had 
three tribes one time over in the Oval Office when President 
Clinton was President, three tribes and the President signed 
those bills. I will tell you a quick story about that, too. I 
really believe in this sovereignty.
    After President Clinton signed those three bills 
recognizing the retained sovereignty of three Michigan tribes I 
turned to the three chiefs or Chairmen, because Clinton was 
wandering around as he generally does in the Oval Office 
talking to everybody. I said, ``Why do you not sit down in the 
President's Chair?'' And one of the senators said, ``Dale, I do 
not think we can do that.'' And I said, ``We probably should 
not because we are not chief executives of sovereign tribes, 
sovereign nations, but these three are.'' So they all took 
their turn sitting in the President's Chair.
    But it is a real sovereignty and it is a shame when we 
recognize foreign nations much more quickly than we recognize 
those who had sovereignty and are recognized by this 
Constitution.
    You know, I have gone through the process of helping tribes 
go through the--I got so tired of the BAR process because it is 
broken, it is shattered, it just is not working. So very often, 
I have had to take tribes through the congressional process 
and, by the way, I have taken tribes through the congressional 
process long before IGRA, long before gaming ever came in. Now 
every time you think of trying to get your sovereignty 
recognized people think of gaming. Well, that is beside the 
point. The main thing is that if you are sovereign, you are 
sovereign, and it is a retained sovereignty.
    All you are asking of the BIA or asking the Congress is to 
recognize again that retained sovereignty. You come before this 
body and I think it is more than a legal responsibility; it is 
a moral responsibility this Congress has to either repair the 
BAR process or to use the congressional path to help again 
recognize your retained sovereignty.
    I have some prepared remarks, Mr. Chairman, I would like to 
submit for the record but I just wanted to speak to you. I 
admire your loyalty to this country, I admire your loyalty to 
the state in which you live, and I admire the loyalty to the 
sovereign tribes of which you are members.
    Thank you very much and I yield back the balance of my 
time.

Statement of The Honorable Dale E. Kildee, a Representative in Congress 
                       from the State of Michigan

    Mr. Chairman, I am pleased that you scheduled this hearing today so 
that we can engage in the type of dialogue that will lead to badly 
needed changes to the federal recognition process.
    I have met with several tribes over the years who have informed me 
of the complaints they have about the current administrative process.
    We all have heard these complaints:
      that the office of federal acknowledgment is underfunded;
      that the process is too slow as it can take decades 
before a petition is reviewed;
      that the process is too expensive;
      that the process is filled with conflicts of interest 
within the BIA; and
      that the BIA is more worried about the fiscal impacts of 
approviing petitions than providing justice to tribes who legitimately 
deserve to have their status as tribes restored.
    It is because of those complaints, and my commitment to provide 
justice to Indian tribes, that I have supported and sponsored over the 
years specific legislation to reaffirm the federal recogniton of a 
tribe.
    Previous attempts to revamp the federal recognition process have 
failed in the past because of fears by some that doing so would lead to 
more Indian gaming.
    Just this week, the New York Times published an article about 
gaming investors seeking to create tribes. Certainly, I am appalled by 
this idea. I know it does happen. It has happened in my own state and I 
opposed that effort, but these few examples do not remove the fact that 
there are Indian groups that deserve to have federal recognition and 
that the federal recognition process needs to be improved.
    I look forward to hearing from the witnesses today. Thank you.
                                 ______
                                 
    The Chairman. Thank you.
    Mr. Pearce?
    Mr. Pearce. Thank you, Mr. Chairman.
    I appreciate your testimony and like the others, echo the 
response that answers should be given. I would ask if any of 
you happen to know the number of employees that work in the 
Department who are in charge of recognition, the recognition 
process? Just approximately.
    Mr. Marshall. I understand there are three teams of three--
an anthropologist, a genealogist, and a historian. For a long 
time there was one team of three but they have since hired new 
people.
    Mr. Pearce. Mr. Chairman, I just have some observations 
here that I have been working out on the calculator. If you 
figure 8 hours per day per person, which may be at risk, but 5 
days a week per person, you get 40 hours a week times 48 weeks 
if they get a month's vacation. That is 1,920 hours and over 25 
years, which these people have averaged, that is 48,000 hours 
of manpower. And if you multiply it times the nine employees, 
the three teams of three, we have 432,000 hours and it seems 
like we could give these people an answer with 432,000 hours of 
labor time.
    On another note, if we spend 15 minutes a day on coffee 
breaks, that is 1,500 hours in the careers, the 25 years that 
these people have been waiting. If we just post a little note 
at the coffee table that if you will simply talk about it over 
a break, you have 1,500 hours, so surely we could come up with 
an answer for at least one of the tribes.
    Thank you, Mr. Chairman.
    The Chairman. If the gentleman would yield just for a 
second, how many hours was that?
    Mr. Pallone.
    Mr. Pallone. Thank you, Mr. Chairman.
    I was glad that Congressman Kildee brought out the 
Constitution and read that section where it says Congress has 
the power because I guess my biggest concern after listening to 
Mrs. Johnson on the first panel was that states and towns are 
looking to influence this process of recognition in a way that 
I think is inappropriate and I think we need to be reminded 
that it is a Federal issue, that Congress has the power. 
Congress is the one that deals with the sovereignty issue.
    And in the same respect, I guess I am concerned about 
opening up the BIA recognition process in the sense that we 
would amend it or we would change it because my fear is that 
there is so much pressure now and maybe Connecticut is the 
worst example but there are others, too, that if we reopen it 
and try to change it, rather than it becoming a better process 
and less bureaucratic, that it might become more limiting and 
the states would, through their representatives here, exercise 
their ability to make it even more difficult to get 
recognition.
    That is just by way of background. I am not saying I 
understand all the problems in the bureaucracy and everything 
you have but that is just my fear.
    I guess it was Lance Gumbs, who is a Trustee. You said 
something about if the states have recognized the tribe, maybe 
there should be some expedited procedure because of the state 
recognition but I would fear that if states thought that was 
true they might just rescind it. I could see maybe Connecticut 
just rescinding state recognition of the Eastern Pequots or 
some of the others, knowing that that might have some factor.
    What I really wanted to ask you is Mrs. Johnson talked 
about giving money to the localities to help with the 
recognition process or challenging recognition and I asked a 
question about well, what about the tribes? They do not get any 
money.
    What would you say about--and this goes to the cost issue. 
I just want each of you, if you could, to tell us what would 
you say if there was a bill introduced--I guess I could 
introduce it--that mirrors Mrs. Johnson's but does not give 
money to the towns or the states; it gives money to the tribes 
and says that if a tribe is seeking recognition, we will give 
them money to make their case?
    I think it was Mr. Gumbs and Chief Taylor who both talked 
about how difficult and costly it was to go through the 
process. Give me a little information about how difficult it is 
because the perception that Mrs. Johnson and some of the others 
are giving is that tribes have all this money from the casinos 
to help them with the recognition and they have no problem 
getting money to help the process.
    Two questions. One is what would you say about legislation 
that would give money to tribes so that they could use it for 
the recognition process? And how difficult is it and where are 
your resources coming from to go through this 20-year process? 
I will start with maybe Mr. Gumbs and Mr. Taylor because they 
talked about how costly the process is but anybody could 
answer.
    Mr. Gumbs. Thank you. The costs have been astronomical for 
us at the Shinnecock Nation. Our sole source of income within 
our community--and we are a community. We have health 
facilities. We have a family preservation center. We are an 
active community. The costs have been astronomical. Our sole 
source of income at this point has been our annual Labor Day 
weekend powwow and that has gone to fund our tribal offices and 
the various programs that we have within our community and, to 
say the least, it is not a lot.
    To take it a step further, if it had not been for NARF 
coming in to give us a hand with our process, we would probably 
still be doing it. You know, 25 years and NARF has spent 
approximately, just since 1988, approximately $800,000 on our 
process. The research that goes into this process is 
tremendous. You have to go to different places. In New York, 
for instance, we have had to go to Albany and some of our 
records are up in New Bedford, Connecticut, and some of our 
records are actually over in England dating back to the 
colonial times.
    So in order to achieve what has been required of the 
process we have had to expend an inordinate amount of funds to 
get this process done. And, as I said, if it had not been for 
NARF coming in and giving us a hand with that, we would still 
be in the process. We would not have been able to afford this 
based on the income that we have within our community at this 
present time.
    Mr. Pallone. What about having the Federal Government help 
you pay for it?
    Mr. Gumbs. That would have been great. I mean we could have 
used that 25 years ago.
    Mr. Taylor. Do you want me to answer?
    Mr. Pallone. It is up to the Chairman. Yes, I guess, sure.
    Mr. Taylor. It has been a great burden on us. We did secure 
one ANA grant that gave us $65,000 but when you look at hiring 
professionals to do your work, it is costly. They do not do it 
for thank you. They have to travel. They have to go to the 
archives, land records, military service records, and they have 
to search and search and search. They have to fly. They have 
paperwork and all to do and they really, like Dr. Richard 
Stoffle from the University of Arizona, he works for them and 
we had to fly him in to do some research. We had to fly him in 
to talk to our elders. We had to fly him back and we had to pay 
him for his time.
    So we are looking at, for 10 years there when we were 
working on the process, it cost us a half-a-million dollars and 
we got one $65,000 ANA grant from the government and we had to 
foot the other bill on our own, from our pow-wows, from 
fundraisers.
    The Chairman. Thank you.
    Mr. Flake, did you have questions?
    Mr. Flake. No questions.
    The Chairman. Mr. Baca?
    Mr. Baca. Thank you very much, Mr. Chairman.
    Mr. Pallone, I agree with you that it should stay in 
Congress as far as Congress having the power and I would hate 
to see the states even get the power in terms of recognizing 
Federal tribes or tribes within our areas because that would do 
away with a lot of the sovereignty and the protection for 
sovereignty that we have to continue to protect.
    Mr. Hayworth, you mentioned what BIA stood for. I believe 
it stands for bureaucratic inaction versus the definition that 
you gave.
    But it is a shame that when we look at tribes having to 
spend 29 years, 25, 23 and 24 years, that they are not able to 
be recognized, especially for many different kinds of reasons. 
One is when you look at dignity and respect they are very 
important and you cannot put a dollar price in terms of 
identifying who you are, where you are coming from and that 
tribe to also be recognized.
    Government has the habit of recognizing all of us. 
Immediately we are labeled. I remember when we were first 
labeled as Caucasians and then it was changed from Caucasians 
to Hispanics and then from Hispanics to Latinos and from 
Latinos to Mexican-American, where I think we are a combination 
of all of them with a little bit of Indian blood that is still 
in us.
    But it is a shame that individuals have spent so much time 
in trying to gain the kind of dignity and respect that we 
should have in identifying individuals. I would like to see 
hopefully some kind of a process or guidelines with time lines 
in terms of when a tribe asks for an application, that within a 
certain period of time they should be recognized within that 
period of time and they should be held accountable. BIA should 
be held accountable to say if a tribe has filed, why has it 
taken so long?
    It is appalling--I agree with you, Mr. Chairman--it is 
appalling to see them go so long and to see a tribe--can you 
imagine us sitting in this Committee--I do not think all of us 
will be here for 29 years or 25 or 23 or 24; maybe you, Mr. 
Chairman; you are a little bit younger--to finally recognize 
one of these tribes that is seeking the recognition that they 
rightly deserve. I think that we need to reassess what goes on 
there.
    So my question would be to the panelists out here how do 
you suggest the process can be sped up? And any one of you can 
answer that. Then do you feel that you have been taken 
advantage of in your efforts to become a federally recognized 
tribe? That means financially or otherwise, gouged by 
individuals, attorneys and others, because there are a lot of 
people out there that are willing to gouge individuals to say I 
am willing to work on your application and all of a sudden for 
whatever reason, conflicts or others, it is still there and we 
are still dealing with 29 and 25 and 23 and 24 years. Any one 
of you can answer that.
    Ms. Cambra. I believe, Congressman Baca, I believe that 
immediately this Committee and Congress should take action, 
immediately take that authority and power away from the BAR. 
Personally I believe that the tribes that are previously 
recognized or have merit for recognition and have spent 
millions of dollars on the process and have been treated with 
ill will and have been basically--what I think the BAR has done 
is that they have tried to kill our spirit in this whole 
process and the will to want to continue to face you men and 
women in Congress.
    I mean what the BAR has done to our integrity or to my 
tribe and its integrity and even to function, it is worse than 
9/11. It is actually worse than 9/11. Also, anthrax. Here we 
get a letter that says you no longer are to be considered a 
candidate for recognition; you have to follow another process. 
Yet we know, yet we know with the history of our people and the 
legal history and even a court document, Federal court 
document, that we were previously recognized, never terminated, 
and 100 percent of us are from the same group. I mean we know 
the truth and we carry the truth with pride but when we face 
the BAR and the Interior solicitors, it is like they dismiss 
our presence and our rights as a sovereign nation. That, in 
itself, their actions are insulting. And it is not only 
insulting to us as Indians but it is insulting to the American 
government.
    Mr. Baca. Good. Would anybody else like to answer?
    Mr. Taylor. Yes, I would like to say something, sir.
    Mr. Baca. Yes.
    Mr. Taylor. My personal opinion is to let the BAR continue 
to work but I think Congress, what they should do, they should 
have a watchdog Committee. Instead of appealing to the BAR, 
like the fox watching the henhouse, you know, so to speak, 
instead of appealing to the BAR, appeal it to a Committee of 
Congress and let the Congress decide. Let them have some expert 
witnesses, something like those expert witnesses that testified 
on my behalf. I think if they knew they had a watchdog 
Committee and if they denied a petition and Congress had a 
Committee sitting here that is going to scrutinize their 
decision, I think they would be more honest and more fair. I 
really do. That is my opinion.
    Mr. Baca. Thank you.
    Mr. Marshall. Mr. Congressman, I would respectfully say 
that the BAR staff is overburdened, first off, but they have 
not yet asked for more money, either. They have not asked for 
more money for the recognition process.
    In a deposition that we had we talked to one of their 
budget people and all of the money seems to go to the trust 
fund issue at this point. So that leaves the Federal 
recognition and the BAR or OFA in limbo. There was only one 
funding source for tribes that were seeking recognition and 
that was ANA and NARF.
    And to answer your question, my tribe has not been unduly 
harmed by anybody that has done any work for it in any way, 
shape or form. We do not allow it. We are not insensitive and 
we are not stupid. We can find the right people to do these 
things. I think that sometimes people have this predisposed 
notion that we do not know what to do or how to do it and I 
would say that the BAR staff needs to be shored up. I believe 
that they need some help. I believe they need some guidance and 
they need a fresh evaluation of what their job is. Their job is 
to go through the process and not personally hold one decision 
over another and it certainly is not to jump one tribe from 
behind another, ahead.
    Mr. Baca. Thank you.
    Mr. Gumbs. I think that the process clearly was designed to 
have Indian tribes fail. As the Chairwoman said, the process is 
long, it is an exhausting process, and they constantly change 
the rules. Our stuff was submitted in 1998 and then there was a 
TA letter that was sent to us, which said that we had not met a 
certain criteria. We then went back and spent another couple of 
years working on that criteria, only to have another tribe 
given recognition with the same problems that we had, that they 
claimed that we had.
    So we are looking at it as well, what is going on here? You 
know, here we spent all of this time doing this and then we 
turn around and you tell us that we did something or left 
something out, and then when we turn around and look, you 
recognize another tribe with the same problems. So there is no 
consistency in the process itself.
    And as Glenn said, ANA was the only agency that we were 
able to get a small fund from and at this time now they have 
even taken the position that they are not going to be funding 
recognition anymore. So how do we do this with no money?
    It is a process that is designed to have Indian nations 
fail and it is as simple as that.
    Mr. Baca. Thank you very much. It sounds familiar because 
that is part of the process that happens with many individuals, 
immigrants who want to become citizens who accidentally somehow 
leave a blank or a space left and they go to the end of the 
line and the whole process has to begin again. That is why we 
have 10 million and some that are backlogged right now that 
they have never even processed in that area, so am hearing the 
same kind of problems that we have here right now.
    Mr. Marshall. Forty percent of the tribes that enter the 
recognition process give up and there is nobody in this room 
that would understand that frustration unless you have been 
through it. Forty percent of the tribes do the job of the BIA 
by quitting because they cannot take the frustration, the 
pressure, and the financial responsibility that it takes to 
push a petition through and that is pretty sad.
    Mr. Baca. Thank you very much.
    Thank you, Mr. Chairman, for allowing me extra time.
    The Chairman. Thank you.
    Before I dismiss this panel and call up our third panel I 
wanted to first of all, thank all of you for your testimony. I 
think the entire Committee realizes how difficult it is for all 
of you to be here and to testify in front of a congressional 
panel in the way that you did and we appreciate your having the 
tenacity to stick with it but we really do appreciate your 
making the effort to be here and to share with us your 
experiences.
    Mr. Taylor, you suggested that there be some kind of a 
congressional oversight, congressional watchdog. Well, that is 
who we are and that is the job of this Committee. I will fully 
admit that in the past we may not have done some of the things 
we should have on this Committee but that is changing. We are 
here to do our job and our job is to have oversight over these 
functions and we are doing that. That is part of the effort of 
this hearing here today.
    Mr. Taylor. I know in my particular case what I was 
referring to, sir, was like when our petition was denied we 
appealed it but we appealed it back to the Bureau of Indian 
Affairs. Instead of appealing it back to the Bureau of Indian 
Affairs, if you could appeal it to the Oversight Committee it 
might help.
    See, when someone makes a decision, then you are going to 
appeal it back to the same people. That is what I am trying to 
say.
    The Chairman. Yes, which unfortunately came up, I think, in 
all of your testimony, that there is something wrong with this 
process that we are going through. I am sure that in working 
our way through this, that any legislative changes that we need 
to make, that that will definitely be part of the process that 
we have to go through in order to figure out if there is a 
better way to do this. I know in listening to your testimony 
and reviewing your testimony before that the process that all 
of you have gone through is unconscionable and we need to do 
something different. I do not think any of us knows exactly the 
way we are going to work that out but I do know that we need to 
change it.
    I appreciate all of you being here and your testimony. 
Thank you very much.
    I would like to call up our third panel, consisting of Tim 
Martin of the Poarch Band of Creek Indians, a federally 
recognized tribe, and Miss Kate Spilde, an expert on 
recognition issues for the Harvard Project on American Indian 
Economic Development. If you could join us at the witness 
table, please?
    And before you take a seat if I could just have you stand 
and please raise your right hand.
    [The witnesses were duly sworn.]
    The Chairman. Thank you very much. Let the record show they 
both answered in the affirmative.
    Welcome to the Resources Committee. I appreciate your being 
here today. I am going to start with Mr. Martin.

    STATEMENT OF TIM MARTIN, POARCH BAND OF CREEK INDIANS, 
                      NASHVILLE, TENNESSEE

    Mr. Martin. It is almost good afternoon but I will say 
still good morning, Chairman Pombo and other distinguished 
members of the House Resources Committee.
    On behalf of the Poarch Band of Creek Indians of Alabama, I 
am happy to be here to have the opportunity to testify on the 
Federal recognition process. I extend the regrets of my tribal 
Chairman, Mr. Eddie L. Tullis, who is unable to be with us 
today but has authorized me to speak on behalf of the tribe.
    My name is James T. Martin. I am an enrolled member of the 
Poarch Band of Creek Indians. I am Executive Director of United 
South and Eastern Tribes, an intertribal council representing 
24 federally recognized tribes in the South and Eastern parts 
of the United States.
    Prior to my position as Executive Director, I was employed 
by my tribe between 1979 and 1985. During that time I observed 
and took part in our tribe's endeavor to go through the Federal 
recognition process. Therefore today I will reflect on our 
tribe's experience and the current atmosphere that is 
surrounding the Federal recognition process.
    My tribe, the Poarch Band of Creek Indians, is located in 
South Alabama. We have a current enrollment of roughly 2,250. 
And I would like to read some excerpts from the Federal 
Register notice of Monday, June 11, 1984, to give you a 
perspective of where I am coming from. Our tribe was one of the 
first tribes to go through the FAB and avail ourselves of the 
BAR and the criteria that we will be talking about today.
    Evidence indicates that the contemporary Poarch Band of 
Creek Indians is the successor of the Creek Nation of Alabama 
prior to its removal to Indian Territory. The Poarch Band of 
Creeks remained in Alabama after the removal of the 1830s and 
shifted within a small geographic area until it settled 
permanently near the present-day Atmore, Alabama. The band has 
existed as a distinct political unit since before the Creek 
wars of 1813-1814. It was governed by a succession of military 
leaders and permanent men in the 19th Century from the late 
1800s through 1950. Leadership was clear but informal. A formal 
leader was elected in 1950.
    Virtually all of the band's 1,470 members can document 
descendancy from the historical Creek Nation. No evidence was 
found that the members of the Poarch Band of Creek Indians are 
members of any other tribe or that their tribe or its members 
have been subject to congressional legislation which would 
expressly terminate or forbid the relationship with the Federal 
Government.
    The BAR process can work. Federal recognition of Indian 
tribes is a formal act that acknowledges the sovereign status 
of a tribe and affirms the perpetual government-to-government 
relationship between the tribe and the United States. Federal 
recognition assures the tribe the dignity it deserves and the 
same privileges and immunities enjoyed by other federally 
recognized tribes for their status as Indian tribes. Federal 
recognition has a tremendous effect on the tribe, the 
surrounding communities, and the Nation as a whole.
    Historically, tribes have been granted Federal recognition 
through treaties, by Congress, or through administrative 
decisions with the executive branch. The criteria used was not 
always clear and often depended upon the official who received 
the inquiry from the group.
    The General Accounting Office in its report GAO-02-49 
reports that until 1960 there were limited requests by groups 
to be federally recognized and the Department was able to 
assess these requests on a case-by-case basis.
    The Poarch Band of Creek Indians recognizes that Congress 
has the ultimate power to recognize certain groups but in your 
infinite wisdom Congress has considered the Federal recognition 
process to be a complex one, a tedious one not to be entered 
into lightly. Therefore, the Congress has deferred most Federal 
recognition determinations to the U.S. Department of Interior.
    The Department of Interior has established a set of 
regulations standardizing the recognition process and creating 
an administrative procedure to determine whether particular 
Indians' groups qualify as federally recognized Indian tribes. 
The Bureau of Indian Affairs Branch of Acknowledgment and 
Research procedures were established in 1978 as a result of a 
2-year study by the congressionally established American Indian 
Policy Review Commission.
    The BAR guidelines are composed of the following seven 
criteria for recognition, and due to the time, Mr. Chairman, I 
have listed in my written testimony so I will not state all of 
those one by one, the seven criteria.
    As I said, the Poarch Creek are proud to be one of the 
first tribes to go through that process. We are in general 
agreement with the seven criteria that the groups must meet to 
be granted recognition. However, the length of time involved to 
receive recognition is increasingly becoming substantial. This 
is due, in part, to the workload of the BIA BAR staff, which is 
substantially increasing. The workload is increasing due to the 
detailed petitions ready for evaluation at the same time the 
staff at the BAR has been decreased. It has received a 35 
percent decrease from 1973, a staff of 17, down to averaging no 
more than 11 over the last 5 years.
    The GAO report continues to state that as of November 2001, 
of the 250 petitions received, 55 had been completed 
documentation to be considered for the process and the bureau 
finalizing 29, recognizing 14 and denying 15. Of the 10 
petitions currently in ready status, six of these have been 
waiting at least 5 years. At the current rate of review it 
could take over 100 years to resolve all the petitions awaiting 
consideration. The initial regulations outlined a process for 
active consideration of a complete petition that should take 
approximately 2 years.
    Federal recognition for the Poarch Band of Creek Indians 
was also slow. We began our process in 1975. A petition for 
Federal recognitions was officially filed in January 1980 and 
the tribe did not receive a notice of active consideration 
until November 1982. Final determination for Federal 
acknowledgment was published in the Federal Register in June 
1984.
    As I said, the Poarch Band of Creek Indians were proud to 
be one of the first to go through the Federal recognition BAR 
process when the process should have been timely and the cost 
been appropriate. The long time lags and increased costs are a 
deterrent to petitioners, as you have well seen today.
    Recently in a New York Times article Eric Eberhard, a 
lawyer specializing in Indian law, stated that roughly it took, 
as it was validated today, about $100,000 to $200,000 to go 
through the FAB process. Now it costs into the millions. And we 
in this room know why some of that is, and that is through the 
outside influences of third parties for economic interests.
    The Chairman. Mr. Martin, I am going to have to ask you to 
wrap it up.
    Mr. Martin. OK, yes, sir. I will cut to the end of my 
testimony to talk about the recommendations that our tribe 
thinks should be made.
    The BAR process was intended to provide a clear, uniform 
and objective approach for the Department of Interior that 
established specific criteria. The Poarch Band of Creek Indians 
believes that the process could be improved and the ultimate 
goal of timeliness could be accomplished with the following 
changes. More resources allocated to the BAR staff or resources 
allocated to the BIA to out-source parts of the review that are 
fact-finding only. A defined list of information that must be 
submitted by the petitioners prior to the petitioners 
submitting a letter of intent. Provide adequate technical 
assistance available to petitioners to assist them in providing 
substantial amounts of work required to receive the letter of 
intent and help avoid continued submission of incomplete 
petitions. Expand the authority of the Assistant Secretary to 
review petitions and declare negative determinations on 
frivolous petitions. Changes in procedures to further insulate 
BAR staff from outside third-party influence to maximize their 
productivity.
    The Poarch Band of Creek Indians submits these suggested 
changes for your consideration but reiterates that any changes 
that would have a significant impact on the Federal recognition 
process should be undertaken only after considerable review and 
deliberation was conducted, as it was conducted in the initial 
set-up of the regulations in 1978. Thank you for this 
opportunity to provide testimony.
    [The prepared statement of Mr. Martin follows:]

  Statement of James T. Martin, Enrolled Member, Poarch Band of Creek 
   Indians, Executive Director, United South and Eastern Tribes, Inc.

    Chairman Pombo and distinguished members of the House Resources 
Committee, on behalf of the Poarch Band of Creek Indians (PBCI) of 
Alabama, I thank you for the opportunity to provide testimony regarding 
the Federal Acknowledgment Process. I extend regrets from my Tribal 
Chairman Eddie L. Tullis who is unable to be here today and has 
authorized me to speak on behalf of the Tribe.
    My name is James T. Martin. I am an enrolled member of the Poarch 
Band of Creek Indians and the Executive Director of United South and 
Eastern Tribes, Inc. (USET), an intertribal organization consisting of 
twenty-four federally recognized Indian Tribes from twelve states in 
the South and Eastern region of the United States. Prior to my position 
as Executive Director of USET, I was employed by the Poarch Band of 
Creek Indians from May 1979 until June 1995. During that time, I 
observed and was a part of the Tribe's endeavor to obtain federal 
recognition; therefore today I will reflect on our Tribal experience 
and the current atmosphere surrounding the Federal recognition process.
    Federal recognition of Indian Tribes is a formal act that 
acknowledges the sovereign status of a Tribe and affirms a perpetual 
government-to-government relationship between a Tribe and the United 
States. Federal recognition ensures a Tribe the dignity it deserves and 
the same privileges and immunities enjoyed by other federally 
recognized Tribes by virtue of their status as Indian Tribes.
    Federal recognition has a tremendous effect on Tribes, their 
surrounding communities, and the nation as a whole. Historically, 
Tribes have been granted federal recognition through treaties, by 
Congress, or through administrative decisions within the executive 
branch. The criteria used was not always clear and often depended on 
which official responded to the group's inquiry. The Government 
Accounting Office (GAO) Report GAO-02-49 reports that until the 1960's 
there was a limited number of requests by groups to be federally 
recognized and the Department was able to assess these requests on a 
case by case basis.
    PBCI recognizes that Congress has the power to extend recognition 
to certain groups, but in its infinite wisdom Congress has considered 
the federal recognition process a complex and tedious one, not to be 
entered into lightly. Therefore they deferred most federal 
acknowledgment determinations to the U.S. Department of the Interior 
(DOI). The DOI has established a set of regulations standardizing the 
recognition process and creating an administrative procedure to 
determine whether particular Indian groups qualify as federally 
recognized Indian Tribes. The Bureau of Indian Affairs (BIA)/Branch of 
Acknowledgment and Research (BAR) procedures were established in 1978 
as a result of a two-year study by the Congressionally established 
American Indian Policy Review Commission.
    The BAR guidelines are composed of the following seven criteria for 
recognition under the 25 CFR Part 83 regulatory process:
    (1)  The petitioner has been identified as an American Indian on a 
substantially continuous basis since 1900;
    (2)  A predominant portion of the petitioning group comprises a 
distinct community and has existed as a community from historical times 
until the present;
    (3)  The petitioner has maintained political influence or authority 
over its members as an autonomous entity from historical times until 
the present;
    (4)  The group must provide a copy of its present governing 
documents and membership criteria;
    (5)  The petitioner's membership consists of individuals who 
descend from a historical Indian tribe or tribes, which combined and 
functioned as a single autonomous political entity;
    (6)  The membership of the petitioning group is composed 
principally of persons who are not members of any acknowledged North 
American Indian Tribe; and
    (7)  Neither the petitioner nor its members are the subject of 
congressional legislation that has expressly terminated or forbidden 
recognition.
    The Poarch Band of Creek Indians is in general agreement with the 
seven criteria that groups must meet to be granted recognition. 
However, the length of time involved to receive recognition is 
increasingly becoming substantial. This is due in part because the 
workload of the BIA/ BAR staff is substantially increasing. The 
workload is increasing due to more detailed petitions ready for 
evaluation and at the same time the number of staff assigned to 
evaluate the petitions has decreased by 35 percent, from 17 staff 
members in 1993 and in the last five years averaging no more than 11. 
GAO Report GAO-02-49 stated that as of November, 2001 of the 250 
petitions received, 55 have completed documentation to be considered by 
the process with BIA finalizing only 29, recognizing 14 and denying 15. 
Of the 10 petitions currently in ready status, six of these have been 
waiting at least 5 years. At the current rate of review, it could take 
over 100 years to resolve all of the petitions awaiting active 
consideration. The initial regulations outline a process for active 
consideration of a completed petition that should take approximately 2 
years.
    Federal recognition for the Poarch Band of Creek Indians was a slow 
process beginning in 1975. A petition for recognition was filed in 
January 1980 and the Tribe did not receive notice of active 
consideration until November 1982. Final Determination for Federal 
Acknowledgment was published in the Federal Register in June 1984. 
Poarch Band of Creek Indians was among the first to be federally 
recognized through the BAR process when the process should have been 
timely and costs should have been appropriate. Time and cost have 
increased even more in the years following. The long time lags and 
increased costs are a detriment to petitioners. Eric Eberhard, a lawyer 
specializing in Indian law, stated in a New York Times interview, 
entitled ``Would-Be Tribes Entice Investors'' on March 29, 2004, that 
the recognition process that once cost between $100,000 and $200,000 
now runs in the millions of dollars. A monumental factor in the 
increased costs is that the political climate at the time of Poarch 
Band of Creek Indians was totally different than now due to the 
onslaught of Indian gaming.
    The Summary Status of Acknowledgment Cases as of February 10, 2004, 
compiled by the BAR office reports that 294 petitioners currently await 
consideration to permit processing under 25 CFR 83. There are 9 active 
status petitions, 13 ready petitions, 57 resolved petitions, 2 
petitions in post-final decision appeal process, one decision in 
litigation, and 213 petitions not ready for evaluation. The not ready 
for evaluation petitions include 68 incomplete petitions, 130 letters 
of intent to petition with no documentation submitted, 9 petitions no 
longer in touch with the BIA, and 6 with legislative action required. 
There were 40 petitioners when 25 CFR 83 became effective in October 
1978 and 254 new petitioners since October 1978.
    Compounding the backlog of petitions awaiting review is the 
increased number of third parties active in the process, the increased 
number of administrative responsibilities that the BAR staff must 
assume, and the increased number of lawsuits from dissatisfied 
petitioners. The increasing amount of time involved in the process will 
continue to frustrate petitioners. Improvements that focus on fixing 
the time problems will improve confidence in the process. Money and 
politics must not be a concern of a petitioner for federal recognition. 
BIA resource constraints must not negate the need for thorough review 
of a petition.
    The BAR process was intended to provide a clear, uniform, and 
objective approach for the DOI that established specific criteria and a 
process for evaluating groups seeking federal recognition in a timely 
manner. Poarch Band of Creek Indians believe the process could be 
improved and that the ultimate goal of timeliness could be accomplished 
with the following changes:
      more resources allotted to the BAR for staffing or 
resources allocated to the BIA for outsourcing parts of the review 
process that are fact-finding only;
      a definitive list of information that must be submitted 
by the petitioner prior to the petitioner submitting and receiving a 
letter of intent;
      with affordable technical assistance available to 
petitioners to assist them in providing a substantial amount of work 
required to receive the letter of intent and help avoid the continued 
submission of incomplete petitions;
      expanded authority for the Assistant Secretary to review 
petitions and declare negative determinations on frivolous petitions; 
and
      changes in procedures to further insulate BAR staff from 
outside third party influence to maximize their productivity.
    Poarch Band of Creek Indians submits these suggested changes for 
consideration but the Tribe would reiterate that any changes to the 
criteria that would significantly impact the federal recognition 
process should be undertaken only after considerable review and 
deliberation as was conducted in the initial development of regulations 
that govern the recognition process to date.
    Again, on behalf of the Poarch Band of Creek Indians we appreciate 
the opportunity to provide testimony on this critically important 
issue.
    I would be happy to respond to questions at this time.
                                 ______
                                 
    The Chairman. Thank you.
    Ms. Spilde?

   STATEMENT OF KATHERINE SPILDE, PH.D., HARVARD PROJECT ON 
              AMERICAN INDIAN ECONOMIC DEVELOPMENT

    Ms. Spilde. Mr. Chairman and distinguished members of the 
Committee, good morning. My name is Katherine Spilde and I am a 
Senior Research Associate with the Kennedy School of 
Government, Harvard University. My background also includes a 
Ph.D. in cultural anthropology, which frames my work on Indian 
affairs. I appear before the Committee today not as a 
representative of Harvard University nor of the Kennedy School 
of Government. Nor do I appear on behalf of any other person, 
corporation or organization and I have no connections with 
anyone with any interest in the outcome of this hearing.
    I am honored to be here today to participate in this 
discussion of ways to improve the Federal acknowledgment 
process and I want to commend the Committee for undertaking the 
very important task of finding a solution to the substantial 
delays facing Indian groups that are seeking Federal 
recognition and for showcasing their struggles.
    Unfortunately, some of the loudest voices for reform of the 
Federal acknowledgment process have been those who are critical 
only of positive determinations and have called for a 
moratorium on all decisionmaking, a proposal that seems beside 
the point for a process that, as we have heard today, can take 
decades.
    In undertaking a discussion of the critical importance of 
streamlining the processing recognition petitions, it seems 
meaningful to point out that the current process was 
established in 1978, in part to address the very issue of long 
delays in making recognition decisions. Today we know that the 
system that was created is not functioning as intended. That 
is, the process is not meeting the needs of the Indian groups 
still seeking formal recognition.
    The BIA's regulations outline a process that was designed 
to take about 2 years. The facts show that the process is 
inefficient. In the 26 years since 1978 the Office of Federal 
Acknowledgment has made decisions in only 35 petitions, 16 of 
those positive and 19 negative, which amounts to an average of 
1.3 decisions per year.
    Since 1978, 294 Indian groups have submitted letters of 
intent. Nine are currently on the active list and 13 petitions 
are ready, waiting for active consideration. Of course, a final 
determination, positive or negative, is rarely the last word 
since lawsuits and appeals are now common.
    There are a host of reasons why the current process takes 
so long, the most obvious being that the OFA is severely 
underfunded. With so many competing priorities among existing 
federally recognized tribes, it is a difficult decision for the 
Department of Interior to allocate scarce resources to this 
process.
    One complicating factor is that there is no real 
constituency for unrecognized tribes so there seems to be 
little incentive among Federal agencies or Congress to address 
the needs of unrecognized Indian groups, since they have no 
formal relationship with the Federal Government.
    Political considerations also prolong the process by 
overburdening the OFA staff, who must review and make 
recommendations on existing and incoming petitions, which is 
their task, while also undertaking many additional and 
distracting tasks, including responding to a growing number of 
Freedom of Information Act requests. In fact, the BIA estimates 
that professional OFA staff spend between 40 and 60 percent of 
their time on these administrative activities.
    Given the range of challenges involved in streamlining the 
process, my suggestions fall into three general categories: 
first, increased appropriations, second, supplemental human 
resources, and third, changes in the current regulations to 
make it more efficient.
    First, increased appropriations. The BIA estimates that the 
OFA would need to triple the size of its current staff in order 
to meet the increased demands associated with petitions and 
follow-up requests. At current funding levels it could take 15 
years to resolve only those petitions on the active and ready-
for-active lists. With adequate funding, however, this 
timeframe could be reduced to three to 4 years.
    In addition to hiring sufficient professional staff to 
review petitions, OFA could contract with qualified academic 
researchers from independent research institutions who could be 
asked to provide technical assistance and additional context 
for petitions, potentially saving time. In addition, BIA's 
regional offices could be encouraged to provide the OFA with 
access to critical information both before and during field 
visits to petitioning Indian groups in that region.
    After meeting both funding and staffing needs, the process 
itself could be streamlined by reducing the paperwork 
associated with each petition. There are a couple of ways to do 
this. First, the regulations could be adjusted to address when 
and how often interested parties could participate in the 
process. Under current political conditions, the comment and 
response period appears to be too involved and could be 
revisited.
    A second recommendation for reducing paperwork would be to 
revisit and narrow the definition of who is eligible for 
interested party status. It seems reasonable to consider 
narrowing the definition even further at this time in the 
interest of streamlining the process by defining interested 
parties as those who have a legal or property interest in the 
final decision, specifically other tribes or states.
    Under the current regulations, the Assistant Secretary for 
Indian Affairs has the authority to expedite a proposed 
negative finding after the technical assistance review. I would 
also recommend exploring a grant of authority to the Assistant 
Secretary to expedite a proposed positive finding in the same 
way. If the Assistant Secretary, after the technical assistance 
review, finds that a tribal group has an obviously strong case 
to support recognition, then the Department of Interior could 
recommend that Congress legislatively recognize the group based 
upon the research and findings of the OFA and the Assistant 
Secretary. This process would give Congress the opportunity of 
exercising its constitutional authority with regard to Indian 
tribes while also reducing the challenges of litigation.
    Thank you for the opportunity to appear here today and once 
again I commend the Committee for exploring this important 
topic.
    [The prepared statement of Ms. Spilde follows:]

  Statement of Katherine A. Spilde, Ph.D., Senior Research Associate, 
Harvard Project on American Indian Economic Development, Kennedy School 
                   of Government, Harvard University

    Mr. Chairman and distinguished members of the Committee, good 
morning. My name is Katherine Spilde and I am a Senior Research 
Associate with the Kennedy School of Government, Harvard University. 
Prior to my appointment at Harvard, I served in a number of research 
and policy positions here in Washington, D.C., including work with the 
Congress' National Gambling Impact Study Commission (NGISC) and the 
National Indian Gaming Association (NIGA). My background includes a 
Ph.D. in cultural anthropology, which frames my work on Indian affairs. 
I appear before the Committee today not as a representative of the 
Kennedy School of Government nor of Harvard University. Nor do I appear 
on behalf of any other person, corporation, or organization. I have no 
political, financial, organizational or other connections with anyone 
with any interest in the outcome of this hearing. I appear today at the 
unsolicited request of the Committee on Resources. I am honored to be 
here today to participate in this discussion of ways to improve the 
federal acknowledgment process.
    I commend you on undertaking the very important task of finding a 
solution to the substantial delays facing Indian groups that are 
seeking federal recognition. In particular, I want to commend the 
Committee for showcasing the struggles endured by Indian groups who are 
petitioning for federal recognition. This is an important event because 
it highlights the frustrated attempts by---and impacts of these delays 
on--tribal groups to receive recognition decisions from the Office of 
Federal Acknowledgment (OFA) (formerly the Branch of Acknowledgment and 
Research (BAR)). Recently, we have heard a great deal about the system 
for federal recognition being ``broken.'' However, some of the loudest 
voices for reform of the Federal Acknowledgment Process (FAP) have been 
those who are critical only of positive determinations and have called 
for a moratorium on all decisionmaking. I commend the Committee for 
holding a hearing that forwards the concerns of Indian groups seeking 
acknowledgment as Indian tribes, who have the most to lose if the 
process continues to stagnate. I am pleased that this hearing will 
focus on solutions, particularly on ideas for streamlining the process 
so that petitioning groups receive decisions in a timely manner.
The History of and Need for a Formal Recognition Process
    In order for members of Indian tribes to be eligible for federal 
programs through the Bureau of Indian Affairs (BIA) and the Indian 
Health Service (IHS), the Indian tribal governments must have a formal 
government-to-government relationship with the United States. The names 
of all federally recognized tribes appear on a list that the Secretary 
of the Interior publishes annually, pursuant to the Federally 
Recognized Indian Tribes List Act of 1994. The latest list of tribes 
was published in the Federal Register on December 5, 2003, and includes 
562 tribes. 1
---------------------------------------------------------------------------
    \1\ See also 25 C.F.R. Sec. 83.5(a).
---------------------------------------------------------------------------
    The United States government has recognized Indian tribes in 
various ways since its own inception. The earliest executive branch 
recognition of tribes occurred in the context of treaty-making and the 
establishment of executive order reservations. 2 In the 
twentieth century, the Department of the Interior determined which 
tribes were eligible for its administrative services. For example, 
after the 1934 Indian Reorganization Act (IRA), the Federal 
government's recognition activities focused exclusively on determining 
which Indian nations were eligible to organize under the Act and which 
were not. In 1934, the BIA compiled a list of 258 recognized tribes. In 
1936, two Acts were passed that also allowed the Alaska and Oklahoma 
tribes to organize under the IRA. Between 1936 and 1978, Indian nations 
would generally get ``on the list'' through the Department of the 
Interior or Congress on a case-by-case basis. 3
---------------------------------------------------------------------------
    \2\ ``The Imprimatur of Recognition: American Indian Tribes and the 
Federal Acknowledgment Process.'' Washington Law Review. V. 66, January 
1991 at 210. See also, The Great Father, by Francis Prucha. (1984)
    \3\ ``Federal Acknowledgment of American Indian Tribes: Authority, 
Judicial Interposition, and 25 C.F.R. Sec. 83.'' William W. Quinn, Jr. 
American Indian Law Review. V.17 No.1, 1992. According to Quinn, the 
so-called ``Cohen criteria'' were used as the standard.
---------------------------------------------------------------------------
    In 1978, the Bureau of Indian Affairs (BIA) established an 
administrative process for federal acknowledgment of unrecognized 
Indian tribes. 4 This process, called the Federal 
Acknowledgment Process, originated out of concern for Indian groups 
that were denied rightful recognition. 5 In addition, there 
were some concerns about tribes being administratively recognized at 
that time without any supporting standards.
---------------------------------------------------------------------------
    \4\ 25 C.F.R. Sec. 83
    \5\ TASK FORCE TEN, AMERICAN INDIAN POLICY REVIEW COMMISSION, 94TH 
CONGRESS, 2ND SESSION, REPORT ON TERMINATED AND NONFEDERALLY RECOGNIZED 
INDIANS (1976). See also, ``The Imprimatur of Recognition: American 
Indian Tribes and the Federal Acknowledgment Process.'' Washington Law 
Review. V. 66, January, 1991 at 210. There were many ways to be left 
off ``the list.'' For example, many tribes in California remain 
unrecognized because of unratified treaties.
---------------------------------------------------------------------------
The Process was Created to Address Considerable Delays
    In undertaking a discussion of the critical importance of 
streamlining the processing of recognition petitions, it seems 
meaningful to point out that the current process was established in 
1978 precisely to address the issue of long delays in making 
recognition decisions and concern about the absence of a formal process 
of recognition. One impetus for creating a formal process derived from 
the findings and recommendations of Task Force No. 10 of the United 
States Congress' American Indian Policy Review Commission. 
Specifically, the work of the 1976 Policy Review Commission found that 
unrecognized tribes, because they were not being served by federal 
programs, were among the nation's poorest citizens. The Commission 
identified 133 unrecognized tribes, representing more than a hundred 
thousand people, and found that ``the results of `non-recognition' upon 
[those] Indian communities and individuals has been devastating.'' 
6 The Commission's report essentially chastised various 
departments of the United States for their neglect of ``non-
recognized'' Indians and made six specific recommendations, including 
the establishment of a special office to determine tribal status by 
reviewing petitions submitted by unacknowledged Indian groups. 
7
---------------------------------------------------------------------------
    \6\ See ``Lost Tribes: Native Americans and Government 
Anthropologists Feud over Indian Identity.'' Lingua Franca. May/June 
1999, p. 36.
    \7\ AMERICAN INDIAN POLICY REVIEW COMMISSION, FINAL REPORT 480-83. 
See also, ``Federal Acknowledgment of American Indian Tribes: 
Authority, Judicial Interposition, and 25 C.F.R. Sec. 83.'' William W. 
Quinn, Jr. American Indian Law Review. V.17 No.1, 1992 at 51.
---------------------------------------------------------------------------
    Three court cases made the creation of a formal acknowledgment 
process even more urgent since the determination of tribal status stood 
as the threshold issue in each. The first, United States v. Washington, 
held that Indian tribes exercising treaty fishing rights were entitled 
to half the commercial fish catch in the State of Washington, but 
limited eligibility to treaty signatories and federally recognized 
tribes. In the second, Joint Tribal Council of the Passamaquoddy Tribe 
v. Morton, two unacknowledged tribes claimed hundreds of thousands of 
acres of land in Maine which had been illegally ceded to the state. 
Following these two court cases, the Department of Interior (DOI) 
instituted an unofficial moratorium on acknowledging tribes until a 
system could be developed. Caught in the middle of this moratorium, the 
Stillaguamish Tribe's petition for federal acknowledgment awaited 
action by the Secretary until the Tribe sough equitable relief in 
federal court. In Stillaguamish Tribe v. Kleppe, the court described 
the moratorium as ``arbitrary and capricious'' and ordered the DOI to 
decide on the Stillaguamish petition within thirty days. 8
---------------------------------------------------------------------------
    \8\ See ``Federal Acknowledgment of American Indian Tribes: 
Authority, Judicial Interposition, and 25 C.F.R. Sec. 83.'' William W. 
Quinn, Jr. American Indian Law Review. V.17 No.1, 1992, p. 41.
---------------------------------------------------------------------------
    Regulations governing the administrative process for Federal 
acknowledgment first became effective October 2, 1978. The regulations 
were designed to provide a uniform process to review acknowledgment 
claimants whose character and history varied widely, placing the burden 
of proof on the tribal groups themselves. This presumption results in 
rigorous research and documentation requirements and contributes to 
bureaucratic delays since OFA staff, who are tasked with evaluating 
petitions, are aware of the possibility of legal challenges to their 
recommendations and findings. 9
---------------------------------------------------------------------------
    \9\ See ``The Imprimatur of Recognition: American Indian Tribes and 
the Federal Acknowledgment Process.'' Rachael Paschal. Washington Law 
Review. V. 66, January, 1991 at 210.
---------------------------------------------------------------------------
Average Number of Decisions Per Year is Low
    Today, we know that the system that was created in 1978 is not 
functioning as intended; that is, the process is not meeting the needs 
of the Indian groups still seeking formal recognition and therefore 
these groups continue to be denied the chance to prove they should be 
receiving critical services. BIA's regulations outline a process for 
evaluating a petition that was designed to take about two years. 
10 The facts show that the process is inefficient and takes 
significantly longer than intended. In the 26 years since 1978, the OFA 
has made decisions on only 35 petitions (16 positive and 19 negative), 
which amounts to an average of 1.3 decisions per year. Since 1978, 294 
Indian groups have submitted letters of intent; 9 are currently on the 
active list and 13 petitions are ready, waiting for active 
consideration. According to the BIA, under the current resources, it 
could take 15 years to resolve all of the currently completed 
petitions--those on the active and ready for active lists. 
11 And of course a final determination is rarely the last 
word today, since lawsuits and appeals are common.
---------------------------------------------------------------------------
    \10\ ``More Consistent and Timely Tribal Recognition Process 
Needed.'' United States General Accounting Office (GAO). February 7, 
2002, p.2.
    \11\ Ibid. p.6.
---------------------------------------------------------------------------
Reasons Why the Decisions are Slow
    There are a host of reasons why the current process takes so long. 
For starters, the OFA is woefully underfunded. Significantly more 
funding is needed to ensure that the OFA is adequately staffed and 
provided with the resources required to address both the petitions 
themselves and the related work required by the contemporary political 
situation. Former Assistant Secretary for Indian Affairs Kevin Gover 
noted that one reason the OFA is consistently underfunded is because 
there are so many pressing Indian needs, such as police departments, 
schools and a solution to the trust system. 12 With so many 
competing priorities among existing federally recognized tribes, it is 
a difficult decision for the DOI to allocate scarce resources to this 
process.
---------------------------------------------------------------------------
    \12\ See Statement of Hon. Kevin Gover, Assistant Secretary, Indian 
Affairs, Department of the Interior, at the Hearing Before the Senate 
Committee on Indian Affairs on S. 611, The Indian Federal Recognition 
Administrative Procedures Act of 1999. May 24, 2000.
---------------------------------------------------------------------------
    The bigger problem is that there is no real constituency for 
unrecognized tribes. While the National Congress of American Indians 
(NCAI) does have a task force dedicated to the issues raised by the 
FAP, there is little incentive among federal agencies or Congress to 
address the needs of unrecognized Indian groups since they have no 
formal relationship with the federal government.
    In addition to being seriously underfunded, the Bureau of Indian 
Affairs (BIA) has acknowledged the OFA staff is also overburdened. 
Currently, the OFA has only eleven full-time staff, who estimate that 
they spend between 40%-60% of their time fulfilling administrative 
responsibilities. 13 In addition, the process itself has 
become overly cumbersome, essentially drowning the staff in paperwork. 
For example, OFA staff is taxed with having to review and make 
recommendations on existing and incoming petitions, which is their 
task, while also undertaking many additional and distracting tasks, 
such as responding to information requests in connection with 
independent review and appeals of official determinations by the 
Interior Board of Indian Appeals (IBIA), with pending lawsuits and with 
responding to growing numbers of Freedom of Information Act (FOIA) 
requests. For example, both negative and positive findings now generate 
appeals and lawsuits, whether from the petitioners themselves or other 
interested parties. This growing burden also results from increased 
interest and participation in the process by local governments and 
states. Some of these parties have indicated that they view these FOIA 
requests as a means to deliberately slow down the process.
---------------------------------------------------------------------------
    \13\ ``More Consistent and Timely Tribal Recognition Process 
Needed.'' United States General Accounting Office (GAO). February 7, 
2002, p.6. See also ``Strategic Plan: Department of the Interior Bureau 
of Indian Affairs, Office of Tribal Services, Brand of Acknowledgment 
and Research: Response to the November, 2001 General Accounting Office 
Report.'' September 2002. p. 9.
---------------------------------------------------------------------------
Suggestions for Improving the Process
    Given the range of challenges involved in streamlining the process, 
my suggestions fall into three general categories: increased 
appropriations, supplemental human resources and changes in the current 
regulations to make it more efficient.
1) Increased appropriations
    A recent report by the Bureau of Indian Affairs found that the OFA 
would need to triple the size of its current staff in order to meet the 
increased demands associated with petitions and follow-up requests. 
14 As of September 2002, the BAR consists of eleven staff 
members ($1,100,000 FY2003 President's Budget). The staff members 
include: one (1) branch chief, one (1) secretary, three (3) cultural 
anthropologists, three (3) genealogical researchers and three (3) 
historians. Meanwhile, the DOI's analysis and response to a November 
2001 GAO Report recommends a total of 33 staff members ($3,184,000) to 
eliminate the current workload in three to four years. 15 As 
I mentioned, at current funding levels, it could take 15 years to 
resolve only those petitions on the active and ready for active lists. 
16
---------------------------------------------------------------------------
    \14\ ``Strategic Plan: Department of the Interior Bureau of Indian 
Affairs, Office of Tribal Services, Brand of Acknowledgment and 
Research: Response to the November 2001 General Accounting Office 
Report.'' September, 2002. p. 9.
    \15\ Ibid. p., 10.
    \16\ Ibid. p., 6.
---------------------------------------------------------------------------
2) More outside resources
    With adequate funding, OFA could hire additional staff to assist in 
responding to information requests, enabling OFA professional staff to 
focus on reviewing petitions. In short, professional staff with 
expertise on tribal history and genealogy should be focused exclusively 
on reviewing petitions, not spending their time making photocopies or 
preparing the administrative records for litigation in Federal Court. 
One additional alternative may be to contract with outside experts on 
particular petitions. Qualified historians, applied anthropologists and 
genealogists from academic institutions could be called upon as a 
resource, providing technical assistance and additional context for 
petitions, potentially saving time. OFA staff could be encouraged to 
utilize the expertise of scholars of the local region, which could be 
enormously helpful in providing critical historical context to the 
petitions themselves. In addition, BIA's Regional Offices could be 
encouraged to provide the OFA with access to critical information, both 
before and during field visits to petitioning Indian groups in that 
region.
3) Changes to current regulations
    Reduce paper work Once funding and staffing needs are met, the 
process itself could be streamlined by reducing the paperwork 
associated with each petition. In some cases, the OFA staff is a victim 
of its own success. By turning out more final determinations annually 
(both positive and negative), they generate more FOIA requests and more 
appeals, resulting in additional administrative duties and generating 
more paperwork. There are a couple of ways to reduce the paperwork 
associated with each petition. First, the regulations could be adjusted 
to address when and how often interested parties could participate in 
the process. Currently, interested parties are allowed to comment on 
nearly each step of the petition process. The regulations were 
originally written to provide the maximum opportunity for comment in 
order to collect as much information as possible during the process and 
make the decisions defensible as possible. Under current political 
conditions, the comment and response process appears to be too involved 
and could be re-visited. By limiting the comment opportunities for 
outside parties, the paperwork and response times would both be 
reduced. It seems reasonable that interested parties would be notified 
when a letter of intent is filed, then allowed to comment only after 
OFA completes its work on the petition.
    A second recommendation for reducing paperwork would be to re-visit 
and narrow the definition of who is eligible for ``interested party'' 
status. Following the 1994 regulations, some ``interested parties'' 
(i.e., scholars) were redefined as ``informed parties'' with diminished 
rights of comment and response. Of course, this change was intended to 
streamline the process and reduce paperwork. It seems reasonable to 
consider narrowing the definition even further at this time by defining 
``interested parties'' as those who have a legal or property interest 
in the final decision, such as other tribes or states.
Expedite Positive Findings
    Under the current regulations, the Assistant-Secretary, Indian 
Affairs (AS-IA) has the authority to expedite a proposed negative 
finding after the technical assistance review. What this means is that 
the AS-IA can issue a proposed negative finding before allowing the 
petition to enter the active consideration phase of the process. This 
expedited negative finding is based upon three of the required criteria 
(e-g.) I would recommend exploring a grant of authority to the AS-IA to 
expedite a proposed positive finding in the same way. If the AS-IA, 
after the technical assistance review, finds that the tribal group has 
an obviously strong case for recognition, then the DOI could recommend 
that Congress legislatively recognize the group based on the research 
and findings of the OFA and the AS-IA. This process would give Congress 
the opportunity of exercising its constitutional authority with regard 
to Indian tribes and while also reducing the challenges of litigation.
    Thank you for the opportunity to present my ideas with you today.
                                 ______
                                 
    The Chairman. Thank you.
    Miss Spilde, to begin with you, you testified that placing 
the burden of proof on tribes results in bureaucratic delays, 
since the BIA staff has to thoroughly examine those petitions. 
How is this problematic and do you think the burden of proof 
should be shifted, and how?
    Ms. Spilde. That is a great question. I believe, as we have 
heard today, many of the tribes are coming into the process and 
there is the assumption that they do not have a relationship 
with the Federal Government and, of course, each tribe has very 
unique histories and challenges in trying to document the 
relationship that they believe they do have, hence their 
application.
    So I believe that I am not sure how the burden of proof 
could be shifted but certainly I think the presumption that 
petitioning groups are not tribal groups makes that case very 
difficult to make.
    The Chairman. Mr. Martin, you recommended insulating the 
Federal acknowledgment staff from outside third-party 
influence. How would we do that? What do you recommend on that?
    Mr. Martin. I think the internal procedures of the BIA 
could be written and their manuals could be rewritten to 
isolate or give confidence to the BAR process that their 
decisions will not be tainted or influenced by third parties. 
As it stands right now, for Freedom of Information requests, 
answering OSHA requests, it puts a slant on the information 
that they are receiving. As we have heard testimony before, now 
that the onslaught of gaming has come in, the tribes who are in 
the petitioning process put together elaborate petitions and 
continually go into the BIA on a regular basis and tie up that 
staff's time. They should be isolated to be able to do their 
work, make their recommendations, and go to the next petition.
    The Chairman. Let me ask both of you, and I wanted to ask 
the previous panel this question, should there come a point in 
time where the Federal government says this is it, that all of 
the tribes that are seeking recognition, to reinstitute 
recognition, that we are going to draw a line and say this is 
all of them? Or should the process just continually remain open 
the way it is right now? Is there ever a point in time where 
you would foresee that this is everybody?
    Mr. Martin. I would say, Mr. Chairman, that tribes are not 
made overnight, that they had to have existed. I think the 
Congress can issue notification across this country that says 
if you want to be considered, you have this date certain to get 
your stuff together. You do not just develop tribes. They had 
to have existed. The criteria shows that you had to, as my 
tribe, have a definite link back to historical times.
    The Chairman. Miss Spilde, did you want to answer that?
    Ms. Spilde. Are you asking about whether or not there 
should be some sort of sunset clause with regard to adding 
additional letters of intention?
    The Chairman. Yes, just as Mr. Martin said, just a date 
certain. Just tell everybody you have to have it in within the 
next 3 years or 10 years or something.
    Ms. Spilde. I believe there are a couple of ways to look at 
that question, the first being that right now certainly there 
is no timeframe, which I understand contributes in some cases 
to the delay. But there is also imbedded in that the assumption 
that this is a one-shot deal, so there is no incentive to rush 
them because this is the one chance that each tribe has once 
they do apply.
    But I guess if there were a sunset clause inserted in the 
process I would then want to also have an additional clause 
saying that there should then be no termination of tribes that 
already exist.
    The Chairman. Well, thank you.
    Mr. Kildee. Mr. Chairman, I will submit some questions in 
writing.
    I welcome both of you here. It is always good to see Tim 
Martin and I will give you some questions in writing. Thank you 
very much.
    The Chairman. The bell has gone off. We have just been 
called for a vote on the House Floor, so we are going to 
temporarily recess the Committee. I am told we only have one 
vote, so it should just be a few minutes and we will be back.
    So the Committee is going to stand in recess.
    [Recess.]
    The Chairman. The Committee will come to order. I apologize 
to the witnesses. Sometimes we have no control over when they 
call votes but thank you for your patience.
    Mr. Pallone?
    Mr. Pallone. Thank you, Mr. Chairman.
    I just want to say to the two panelists that your testimony 
is pretty much along the lines of my concerns because I think 
both of you made it quite clear that you think that the 
existing process could work and I guess in Ms. Spilde's case 
you made some recommendations but they did not involve 
legislation. I still have this great fear that if we try to 
open this up legislatively that I think you actually mentioned 
at one point that those who want to reform the BIA process 
legislatively seem more interested in a moratorium or making it 
more difficult than they do in making it easier or to expedite 
it.
    But Tim, you mentioned that the BIA--actually, both of you 
mentioned the BIA needing more resources and I had two 
questions. One is the same question I asked the previous panel, 
which is, would you be in favor or could you foresee a 
procedure where the Federal Government actually gave money to 
tribes to defray the cost of their going through the process?
    And second, which is really another issue that you brought 
up, which is if the BIA needs more money, which I definitely 
think it does, how are we going to go about that? We could talk 
about tripling the staff but if you get the money from general 
revenue it is probably not going to be there, given the deficit 
and all the problems that we have with that. So is there some 
other way to do it? I mean I assume that tribes that are 
already recognized would probably be reluctant to pay for a 
process to recognize new tribes but is there some way to 
finance the additional resources for the BIA without just 
coming up with general revenues?
    And second, would you be in favor of actually having the 
Federal Government provide some funding for tribes so they do 
not have to rely on these outside sources?
    Mr. Martin. Thank you, Congressman. As you look at my 
testimony, one of the bullet points for recommendations was TA, 
technical assistance. As the earlier testifiers mentioned, the 
tribes did get at one time grants from ANA, Administration for 
Native Americans, for tribes that were going through the FAB 
process. Our tribe was fortunate to get one of those grants, 
also, and it was a tremendous help for us to be able to 
purchase the outside resources of the historians, the 
genealogists, to come in and to be able to do fact-finding on 
what you were telling the government. It almost acted as one 
professional checking another professional's work. I think a 
mechanism where one, we could expedite petitioners before they 
get to the active consideration, make sure the information is 
in there, and there is a host of professionals that exist that 
could help petitioners in there to make sure that they have 
correct petitions, and that would expedite it.
    You mentioned also about the BIA staffing. As Miss Spilde 
alluded to, 40 percent of the time is taken in administrative 
requests for the Freedom of Information Act. When I talk about 
insulating the staff, it should be segmented. There should be a 
component of the BIA that does nothing but concentrate on the 
review of the petitioners' application. Then there could be 
different staff that could then answer the FOIA requests and 
other requests or administrative duties to free them up to 
maximize on nothing but the review of a petition.
    Mr. Pallone. OK. Miss Spilde, if you wanted to comment?
    Ms. Spilde. I would also be in support of funding for 
tribes. Partly I think this would also address the political 
question. When we hear those who are not in favor of the 
process who do have concerns about perhaps gaming interests 
funding tribal groups who are petitioning, that this could 
alleviate some of those concerns and give tribes another 
option. So I think it would be both an economic and possibility 
even a political answer.
    Mr. Pallone. And what about the BIA? Do you foresee any of 
funding this? It is easy to say--not that it is easy but I 
appreciate your saying we need three times as much money and 
all that, but I can almost guarantee you if I went before 
Appropriations and asked for three times the funding they would 
say well, we cannot do it.
    Is there any other way to fund it maybe so the BIA has more 
money?
    Ms. Spilde. Well, as I did mention, I do think that there 
are so many competing priorities and it is a difficult decision 
to appear to be allocating money from federally recognized 
tribes to the process, but I think if there is true concern to 
get through a number of petitions quickly and possibly get 
closure to a lot of these petitions, if there is a short-term 
solution where there is an understanding that there would be a 
big allocation just for a new three to 5 years or something--I 
know that has been proposed--perhaps that would make it more 
palatable.
    Mr. Pallone. Mr. Chairman, I know the time has run out but 
I just wanted to say to you because I heard what you said today 
about maybe having some sort of sunset clause on tribes to 
achieve recognition in some way, I just wanted to say I do not 
like that, only because I think the problem historically is 
that a lot of tribes, in some cases because of government 
action, have been terminated or have lost their existence and 
you can always think about the fact that in the future there 
might be some new scientific way to achieve recognition and 
show that there was continuity.
    So the idea of completely saying here is the deadline and 
if you do not apply by such-and-such a date bothers me only 
because I think as time goes on, there may be more ways for 
tribes that maybe would not have met the test to prove that 
they existed or that they had ancestors, maybe through new 
forms of DNA analysis or whatever.
    I do not even know if you were expressing your opinion on 
that as much as asking the question but that is the only 
problem I would have with it.
    Ms. Spilde. Can I add something to that? In response to the 
sunset clause, I think also something I wanted to note was I 
think that the idea of sort of closing the door assumes that 
there are going to be increasing numbers of petitions because 
there is this perception that Indian groups are going to be 
pursuing gaming and therefore there are going to be more and 
more groups coming out.
    I just wanted to put some of those concerns to rest by 
mentioning that the average number of petitions filed has 
remained constant since 1978. In fact, the average number of 
petitions filed between 1978 and 1988 when IGRA was passed was 
10 per year and between 1988 and now there have been an average 
of 10.9 petitions filed per year.
    So I think that the concern that somehow there are going to 
be more and more petitions filed because gaming is one of the 
opportunities for federally recognized tribes, if that is 
weighing into this decision, I just wanted to put those facts 
out there.
    Mr. Martin. Mr. Chairman, I would also like to add clarity 
to the point I made to the Congressman earlier about technical 
assistance grants to the tribes. I did not want it to be 
construed that because you give a technical assistance grant to 
a tribe that State and local governments should be able to get 
technical assistance grants.
    Technical assistance to the tribes is because they do not 
have the resources. Local governments would have then their 
State resources that they could apply to to get technical 
assistance if they were concerned. It is because tribes do not 
have the revenue or the resources to be able to do the petition 
that I believe technical assistance is needed for them, not for 
the States or local governments.
    The Chairman. Just to respond to Mr. Pallone, when I talk 
about having some kind of a sunset clause, I have not made up 
my mind on that whether or not that is a good idea but I do 
think it is worthy of discussion. I think that it is something 
that we need to throw out on the table and talk to a number of 
people about as we move forward with this.
    I have had a couple of tribes that have approached me with 
that and said that in order to speed up this process and at 
some point come to finality on this, that that may be something 
that we have to do in order to clear the deck, so to speak, of 
all these people that are waiting. And I am willing to listen 
to that. I am willing to pursue that.
    But in terms of what happens if at some point in the future 
someone else comes out, I think that you would always have to 
leave the ability for Congress to make a decision on something 
like that if it does happen because it is ultimately the 
authority of Congress to make that decision and we would always 
have the ability to do it, as we have in the past when we may 
have disagreed with decisions that were made by the BIA or when 
we felt that it was taking too long to come up with the 
decision. This Committee has acted in the past; Congress has 
acted in the past in terms of recognition. I think that 
possibility would always be there.
    But I think it is something that we need to talk about. We 
need to put that out there and get as much response on that, 
along with all of the other suggestions that have been made 
today.
    I want to thank you both and again I apologize for the 
recess, for the delay. I appreciate both of you making the 
effort to be here and sharing your knowledge and your views 
with us. Thank you.
    The final witness in our next panel is the Administration 
witness, R. Lee Fleming, director of the Office of Federal 
Acknowledgment of the BIA. I wanted the Administration to 
testify last so that he may provide information and responses 
to the Committee in light of the testimony we heard from 
previous panels of witnesses.
    Thank you for joining us. If I could have you raise your 
right hand?
    [The witness was duly sworn.]
    The Chairman. Let the record show he answered in the 
affirmative. Thank you very much for being here. Again I 
apologize to you for the delay in the hearing but it is an 
extremely important topic, as I am sure you are well aware, and 
we look to your testimony and the opportunity to discuss this 
with you. So Mr. Fleming?

   STATEMENT OF R. LEE FLEMING, DIRECTOR, OFFICE OF FEDERAL 
            ACKNOWLEDGMENT, BUREAU OF INDIAN AFFAIRS

    Mr. Fleming. Good morning, Mr. Chairman and members of the 
Committee. I am pleased to be here today to speak on behalf of 
the Department of the Interior about the Federal acknowledgment 
process.
    My name is Lee Fleming, Director of the Office of Federal 
Acknowledgment, which is within the Department's Office of the 
Assistant Secretary, Indian Affairs. I am also a member of the 
Cherokee Nation, which is located in Oklahoma.
    The purpose of my testimony is to address what reforms are 
being made to improve the Department's Federal acknowledgment 
process, specifically what is being done to improve the 
consistency and the reliability of the process and decision, as 
recommended by the General Accounting Office.
    The Federal acknowledgment process regulations at 25 C.F.R. 
Part 83 govern the Department's administrative process for 
determining which groups are Indian tribes within the meaning 
of Federal law. A final determination that a group is an Indian 
tribe means, among other things, that it has continuously 
existed as a tribe, has inherent sovereignty, and is entitled 
to a government-to-government relationship with the United 
States. Tribal status is a political, not racial, 
classification. Whether to acknowledge tribal status is a 
decision taken seriously by the Department.
    In recent years legislation has been introduced almost 
annually to modify the criteria for acknowledgment of tribes or 
to remove the process from the Department. While some parties 
seek to change the administrative process by speeding it up, 
others believe that doing so will undermine the factual basis 
for the decision.
    The Office of Federal Acknowledgment has a high volume of 
work. The current workload consists of nine petitions on active 
consideration and 13 fully documented petitions that are ready, 
waiting for active consideration. The administrative records 
for some of these documented petitions range between 10,000 to 
30,000 pages. There are also 213 groups that have submitted 
only letters of intent or partial documentation. These groups 
are not ready for evaluation and will require technical 
assistance. There is only one determination under review at the 
Interior Board of Indian Appeals.
    In addition, there are currently four lawsuits directly 
involving the Federal acknowledgment process or the Freedom of 
Information Act related to Federal acknowledgment.
    The GAO investigated the effectiveness and consistency of 
the tribal recognition process and issued its report in 
November of 2001. The GAO report recommended that 
acknowledgment decisions be made more transparent and more 
timely. The GAO noted that the workload of the staff assigned 
to evaluate recognition decisions has increased while resources 
have declined.
    In response to the GAO report, the Assistant Secretary 
provided a strategic plan and a needs assessment dated 
September 30, 2002 to the GAO, OMB, and the pertinent Senate 
and House Committees. The Assistant Secretary's response to the 
GAO report is based on a commitment to the principle that 
acknowledgment decisions should continue to be based on fully 
documented records that have been carefully reviewed in 
accordance with the regulatory standards and then made 
available to the public in a transparent and timely manner.
    In response to the GAO report, all technical assistance 
review letters, proposed findings, final determinations, and 
reconsidered decisions of completed cases made under the 
regulations were electronically scanned and indexed and are now 
available on CD-ROM from the Office of Federal Acknowledgment. 
This CD will be updated as necessary. Ready access to all prior 
decisions addresses both transparency and consistency in the 
decisionmaking process.
    Two vacancies within the office were filled, resulting in a 
professional research team of three cultural anthropologists, 
three historians, and three genealogists. The office's full-
time staff consists of one director, one secretary, and these 
three professional research teams. A team composed of one 
professional from each of the disciplines is assigned to review 
and evaluate each petition.
    Congressional appropriations for Fiscal Year 2003 and 
Fiscal Year 2004 increased funding, allowing the hiring of two 
sets of contractors. The first set of contractors included two 
FOIA specialists/records managers. The second set of 
contractors includes three research assistants who work with a 
computer data base, scanning and indexing the documents to help 
expedite the professional research staff evaluation of a case. 
Both sets of contractors assist in making the process more 
accessible to petitioners and interested parties while 
increasing the productivity of the professional researchers by 
freeing them of these administrative duties.
    A significant response by the Department to the GAO report 
has been the development of the use of the Federal 
Acknowledgment Information Research or FAIR, a computer data 
base system that provides on-screen access to all the documents 
in the administrative record of a case. These are linked to 
entries of information extracted from them by the professional 
office researchers. Documents are scanned and then the data is 
extracted, linked and indexed to create a searchable 
administrative record.
    This system allows the OFA or Office of Federal 
Acknowledgment researchers to have immediate access to the 
records and allows them to make more efficient use of their 
time. This system also allows petitioning groups and interested 
parties, such as States and local governments, to have the 
record on CD and thus have on-screen access to the 
administrative record and to any data entries made by the 
professional researchers.
    We anticipate that the next generation of scanning for FAIR 
will allow electronic redaction of privacy information from 
documents, which will save the Department a tremendous amount 
of time spent photocopying cases for interested parties or FOIA 
requests of these voluminously documented petitions. Such steps 
will further improve the acknowledgment process.
    This concludes my testimony. Thank you for the opportunity 
to testify about the Federal acknowledgment process and I will 
be happy to answer any questions you may have.
    [The prepared statement of Mr. Fleming follows:]

       Statement of R. Lee Fleming, Director, Office of Federal 
Acknowledgment, Office of the Assistant Secretary--Indian Affairs, U.S. 
                       Department of the Interior

    Good morning, Mr. Chairman and Members of the Committee. I am 
pleased to be here today to speak on behalf of the Department of the 
Interior about the Federal acknowledgment process. My name is Lee 
Fleming and I am the Director of the Office of Federal Acknowledgment 
(OFA) within the Department's Office of the Assistant Secretary--Indian 
Affairs (AS-IA). OFA was formerly the Branch of Acknowledgment and 
Research (BAR), which was under the Bureau of Indian Affairs' Office of 
Tribal Services. The purpose of my testimony is to address what reforms 
are being made to improve the Department's Federal acknowledgment 
process, specifically what is being done to improve the consistency and 
reliability of the process and decisions, as recommended by the General 
Accounting Office (GAO).
Background
    The Federal Acknowledgment regulations, known as ``Procedures for 
Establishing that an American Indian Group Exists as an Indian Tribe,'' 
25 C.F.R. Part 83, govern the Department's administrative process for 
determining which groups are ``Indian tribes'' within the meaning of 
Federal law. A final determination that a group is an Indian tribe 
means, among other things, that it has continuously existed as a tribe, 
has inherent sovereignty, and is entitled to a government-to-government 
relationship with the United States. Tribal status is a political, not 
racial, classification. Whether to acknowledge tribal status is a 
decision taken seriously by the Department.
    In recent years, legislation has been introduced almost annually to 
modify the criteria for acknowledgment of tribes or to remove the 
process from the Department. While some parties seek to change the 
administrative process by speeding it up, others believe that doing so 
will undermine the factual basis for the decisions. For example, 20 
Attorneys General collectively stated their concern that quality in the 
review process should not be sacrificed in the name of expediency and 
that ``all parties benefit from a careful and comprehensive review of 
the evidence on each petition.''
Workload
    OFA has a high volume of work. The current workload consists of 
nine petitions on active consideration and 13 fully documented 
petitions that are ready, waiting for active consideration. The 
administrative records for some of these documented petitions are in 
excess of 30,000 pages. There are 213 groups that have submitted only 
letters of intent or partial documentation. These groups are not ready 
for evaluation and require technical assistance. There is one final 
determination under review at the Interior Board of Indian Appeals in 
response to a request for reconsideration. In addition, there are 
currently four lawsuits directly involving Federal acknowledgment or 
the Freedom of Information Act (FOIA) related to Federal 
acknowledgment.
GAO Report
    The GAO investigated the ``effectiveness and consistency of the 
tribal recognition process'' in response to a request from several 
members of Congress, and issued its report in November 2001. The GAO 
report recommended that acknowledgment decisions be made more 
transparent and more timely. The GAO noted that the workload of the 
staff assigned to evaluate recognition decisions has increased while 
resources have declined.
    In response to the GAO report, the AS-IA provided a strategic plan 
and needs assessment dated September 30, 2002, to GAO, OMB, and the 
pertinent Senate and House Committees under 31 U.S.C. 720. The AS-IA 
response to the GAO report is based on a commitment to the principle 
that acknowledgment decisions should continue to be based on fully 
documented records that have been carefully reviewed in accordance with 
regulatory standards and then made available to the public in a 
transparent and timely manner.
Current Improvements
    In response to the GAO report, all technical assistance review 
letters, proposed findings, final determinations, and reconsidered 
decisions of completed cases made under the regulations were 
electronically scanned and indexed and are now available on CD-ROM from 
the OFA. This CD will be updated, as necessary. Ready access to all 
prior decisions addresses both transparency and consistency in the 
decisionmaking process.
    Two vacancies within the OFA were filled, resulting in a 
professional research staff of three cultural anthropologists, three 
historians, and three genealogists. OFA's full-time staff consists of 
one director, one secretary, and three professional research teams. A 
team composed of one professional from each of the disciplines is 
assigned to review and evaluate each petition. Congressional 
appropriations for FY 2003 and FY 2004 increased funding, allowing the 
hiring of two sets of contractors. The first set of contractors 
includes two FOIA specialists/records managers. The second set of 
contractors includes three research assistants who work with a computer 
database system; scanning and indexing the documents to help expedite 
the professional research staff evaluation of a case. Both sets of 
contractors assist in making the process more accessible to petitioners 
and interested parties, while increasing the productivity of the OFA 
researchers by freeing them of administrative duties.
    A significant response by the Department to this GAO report has 
been the development and use of the Federal Acknowledgment Information 
Resource (FAIR), a computer database system that provides on-screen 
access to all the documents in the administrative record of a case. 
These are linked to entries of information extracted from them by OFA 
researchers. Documents are scanned and then the data is extracted, 
linked, and indexed to create a searchable administrative record. This 
system allows the OFA researchers to have immediate access to the 
records and allows them to make more efficient use of their time. This 
system also allows petitioning groups and interested parties, such as 
States and local governments, to have the record on CD and thus have 
``on screen'' access to the administrative record and to any data 
entries made by the OFA researchers. This ready access to the record 
addresses both the GAO report's recommendations that the decisions be 
made in a more transparent manner and that they be more timely. In 
fact, FAIR has been applauded by attorneys working for the towns in 
Connecticut related litigation.
    We anticipate that the next generation of scanning for FAIR will 
allow electronic redaction of privacy information from the documents, 
which will save the Department a tremendous amount of time spent 
photocopying cases for interested parties or FOIA requests of these 
voluminously documented petitions. Such steps will further improve the 
acknowledgment process.
Conclusion
    Thank you for the opportunity to testify about the Federal 
acknowledgment process and I will be happy to answer any questions you 
may have.
                                 ______
                                 
    [The Bureau of Indian Affairs' response to questions 
submitted for the record follows:

        Responses to questions submitted for the record by the 
                        Bureau of Indian Affairs

    The Bureau of Indian Affairs requires a petitioner be identified as 
an American Indian entity on a substantially continuous basis since 
1900.
    QUESTION 1: What types of identification are acceptable?
    ANSWER: Section 83.7(a) of the Federal acknowledgment regulations 
at 25 C.F.R. Part 83 lists the basic types of external identification 
that meet that criterion. The regulations state that 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.
    (1)  Identification as an Indian entity by Federal authorities.
    (2)  Relationships with State governments based on identification 
of the group as Indian.
    (3)  Dealings with a county, parish, or other local government in a 
relationship based on the group's Indian identity.
    (4)  Identification as an Indian entity by anthropologists, 
historians, and/or other scholars.
    (5)  Identification as an Indian entity in newspapers and books.
    (6)  Identification as an Indian entity in relationships with 
Indian tribes or with national, regional, or state Indian 
organizations.
    In addition, Section 83.6(g) provides that other forms of evidence, 
not specifically listed, may also be used. Section 83.6 (g) states: 
``The specific forms of evidence stated in the criteria in Sec. 83.7 
(a) through (c) and Sec. 83.7(e) are not mandatory requirements. The 
criteria may be met alternatively by any suitable evidence that 
demonstrates that the petitioner meets the requirements of the 
criterion statement and related definitions.''
    QUESTION 2: How was that year determined?
    ANSWER: The original 1978 regulations required external 
identification as an Indian entity throughout history until the 
present. The 1994 revised regulations shortened this time period to 
1900 to the present. The preamble to the 1994 regulations noted there 
were strong concerns raised, ``particularly regarding historical 
identification of groups in the South, that racial prejudice, poverty, 
and isolation have resulted in either a lack of adequate records or 
records, which unfairly characterized Indian groups as not being 
Indian.''
    In response, the preamble further states: ``the criterion for 
continued identification has been revised to reduce the burden of 
preparing petitions, as well as to address problems in the historical 
record in some areas of the country. The requirement for substantially 
continuous external identification has been reduced to require that it 
only be demonstrated since 1900. This avoids some of the problems with 
historical records in earlier periods, while retaining the requirement 
for substantially continuous identification as Indian.'' (59 FR 9286)
    QUESTION 3: Under current recognition guidelines, when a petitioner 
is required to be a distinct community and have authority over its 
members since historical times, are historical times defined as ``since 
1900?''
    ANSWER: The regulations require demonstration of community and 
political influence ``from historical times until the present'' (25 
C.F.R. Part 83, Sec. 83.7(b) and Sec. 83.7(c)). The regulations in 
section 83.1, Definitions, states ``Historically, historical or 
history'' as ``dating from first sustained contact with non-Indians.''
    In 1846, after two hundred years of documented tribal history, the 
Federal government split the Miami tribe into two tribes--the Indiana 
Miami (Eastern Miami) and the Oklahoma Miami (Western Miami).
    QUESTION 4. Given that the Federal government split the tribe into 
two entities, does the requirement that a petitioning group not be part 
of any recognized North American Indian tribe, apply to the Indiana 
Miami Indians?
    ANSWER: The Federal government did not split the Miami tribe into 
two entities. At the time of removal, the Federal government, based on 
Statute and treaty requirements, allowed portions of the Tribe to 
remain in Indiana, and allowed some of the families that moved to 
Oklahoma to return to Indiana. See Federal Register, Volume 55, Number 
139, pp. 92423-29425, for the proposed finding of the Miami Tribe of 
Indiana.
    The regulations allow for historical processes where tribes have 
divided in the past and do not prevent recognition on this basis. As an 
example, see the Snoqualmie and Poarch Band of Creek findings. The 
language cited by the question, from 25 C.F.R. Part 83, section 
83.3(d), refers to portions of currently recognized tribes that may 
seek to separate and be separately acknowledged. Such groups cannot be 
recognized under the acknowledgment regulations unless they meet the 
requirements of 25 C.F.R. Part 83, section 83.7(f).
    In 1897, Assistant Attorney General Willis Van Devanter 
administratively terminated Federal recognition of the Indiana Miami 
tribe.
    QUESTION 5: How many other tribes have been de-recognized through 
similar bureaucratic decisions?
    ANSWER: The Department did not ``administratively terminate'' the 
Indiana portion of the Miami tribe as a result of Vandevanter's legal 
opinion. That opinion concluded that the Indiana Miami were no longer 
maintaining tribal relations and, therefore, the Department, under the 
laws and policies of the time, no longer had a legal responsibility for 
the Miamis that remained in Indiana. The decision to decline to 
acknowledge the Indiana Miami did not rely on Vandevanter's opinion.
    We do not have a list of tribal groups that were at one time 
considered Federal responsibilities but subsequently lost that status. 
The regulations make specific provision for previously acknowledged 
groups, reducing the evidentiary burden on such petitioners (25 C.F.R. 
Part 83, section 83.8), but requiring that they demonstrate that they 
have continued to exist as a tribe up until the present time. Some 
petitioners that have claimed a connection with tribes recognized in 
the past have, on examination, been found to have no such connection, 
or to be descendants of tribes who have not formed a distinct community 
for generations.
    QUESTION 6: How many Indian tribes have been recognized 
administratively by the Bureau of Indian Affairs?
    ANSWER: Since 1978, the year the Federal Acknowledgment Regulations 
became effective, the following tribes have been administratively 
recognized under 25 C.F.R. Part 83:
     1.  Grand Traverse Band of Ottawa & Chippewa Indians of Michigan, 
Administrative recognition under 25 C.F.R. Part 83 (AR), 5/27/1980
     2.  Jamestown S'Klallam Tribe of Washington, AR, 2/10/1981
     3.  Tunica-Biloxi Indian Tribe of Louisiana, AR, 9/25/1981
     4.  Death Valley Timbi-Sha Shoshone Band of California, AR, 1/3/
1983
     5.  Narragansett Indian Tribe of Rhode Island, AR, 4/11/1983
     6.  Poarch Band of Creek Indians of Alabama, AR, 8/10/1984
     7.  Wampanoag Tribe of Gay Head (Aquinnah) of Massachusetts, AR, 
4/11/1987
     8.  San Juan Southern Paiute Tribe of Arizona, AR, 3/28/1990
     9.  Mohegan Indian Tribe of Connecticut, AR, 5/14/1994
    10.  Jena Band of Choctaw Indians, Louisiana, AR, 8/29/1995
    11.  Huron Potawatomi, Inc., Michigan, AR, 5/17/1996
    12.  Samish Indian Tribe, Washington, AR, 4/26/1996
    13.  Match-e-be-nash-she-wish Band of Potawatomi Indians of 
Michigan, AR, 8/23/1999
    14.  Snoqualmie Tribe, Washington, AR, 10/6/1999
    QUESTION 7: Were any of these recognitions a restoration of 
previously withdrawn recognitions?
    ANSWER: A number of acknowledgment decisions have recognized 
petitioners as tribes, petitioners that at some earlier point in time 
had been a Federal responsibility, but through laws, treaties and the 
operation of policy were no longer a Federal responsibility. Examples 
of groups acknowledged under 25 C.F.R. Part 83 include the San Juan 
Southern Paiute, the Cowlitz, Poarch Band of Creeks, the Grand Traverse 
Band of Ottawa and Chippewa, the Snoqualmie, the Huron Potawatomi, and 
the Jamestown S'Klallam. Congress has legislatively recognized the 
Little Traverse, Pokagon Potawatomi and Yavapai Tonto Apache Tribe of 
Arizona, among others.
    The Miami Indians were exposed to western society as early as the 
seventeenth century. Moreover, during the nineteenth century, the 
Federal government encouraged the acculturation and assimilation of 
native populations.
    QUESTION 8: What standards does the BIA use when evaluating an 
historically distinct tribal community?
    ANSWER: The standards used to evaluate a historically distinct 
tribal community are embodied in the acknowledgment regulations, 
themselves. The Indiana Miami Proposed Finding and Final Determination 
describe in detail the application of those standards. See Federal 
Register, Volume 55, Number 139, pp. 92423-29425, and Volume 57, Number 
118, pp. 27312-27313, respectively (copies enclosed).
    QUESTION 9: Is some latitude given to tribes who maintain some 
tribal customs and traditions but who, because of time and government 
policy, are largely assimilated and acculturated into the American 
populace?
    ANSWER: The regulations do not require the maintenance of any 
distinct customs or traditions, but do require the maintenance of a 
distinct social and political community. The regulations list a variety 
of forms of evidence to demonstrate community (see criterion 83.7(b)). 
Maintenance of distinct culture is one form of evidence to demonstrate 
community, but is not a required form. 25 C.F.R. Part 83, 
Sec. 83.7(b)(1)(vii) and Sec. 83.7(b)(2)(iii)
    A delineated parcel of land (i.e., reservation or tribal land) 
seems to be an important component in acquiring Federal recognition. In 
1873, the Federal government forced the privatization of the Indiana 
Miami tribal lands, and by 1887 the lands of other tribes, thus 
effectively eliminating the reservation and tribal governments as 
coherent entities.
    QUESTION 10: Are there any provisions or considerations given to 
tribes that lack tribal lands, due to government action, when those 
tribes apply for federal recognition?
    ANSWER: The acknowledgment regulations do not require that a 
petitioning group have retained land owned in common by the tribe, or 
reserved by the Federal government or a state government for the tribe. 
The retention of a common land base is both an aid to preservation of a 
tribal community, and an indicator of the group's community and 
political processes which have aided it in retaining a land base. 
Tribes recognized which did not maintain or have maintained for them a 
common land base include the Snoqualmie, Jena Choctaw, Mohegan and the 
Cowlitz, as well as others. Among the decisions where a group has 
maintained or had maintained for them a common land base upon which at 
least a portion of the tribe has continued to reside up until the 
present are the Death Valley Timbi-sha Shoshone, San Juan Southern 
Paiute, Tunica-Biloxi, and Jamestown S'Klallam.
    The regulations allow for many different, alternative, forms of 
demonstration of community and political processes and do not require a 
demonstration of tribal political functions that could only be 
exercised with the maintenance of a common land base.
    The Miami of Indiana, although no longer federally recognized, 
continue to receive payments from the Federal government under various 
treaties and agreements, including the 1795 Treaty of Greenville.
    QUESTION 11: How many similarly unrecognized tribes receive money 
from the U.S. Government through such treaties?
    ANSWER: We are not aware of any payments currently received by the 
Indiana Miami under Federal treaties and agreements. The Indiana Miami 
did not submit evidence during the petitioning process that 
demonstrated such payments.
       supplemental questions submitted by representative rahall
    QUESTION 1: Please explain the process the Office of the Federal 
Acknowledgment goes through once a FOIA request is received. Who 
handles the request and how are the research teams' anthropologists, 
genealogists, and historians involved?
    ANSWER: When a FOIA request is received by the Office of Federal 
Acknowledgment (OFA) to prepare a response, a FOIA specialist/records 
manager handles the majority of the tasks. The tasks involved in 
responding to a FOIA request include searching and compiling of 
documents, estimating the time it will take to complete the tasks, 
reviewing the documents, copying the documents once found, redacting 
the documents following the Privacy Act guidance, withholding documents 
that fit FOIA exemptions or fall under Privacy Act information, 
releasing and preparing responses concerning the FOIA requested 
documents, reviewing responses with the Office of the Solicitor, 
maintaining copies of all documents released to meet the FOIA request, 
assisting in FOIA appeals, and reporting. OFA follows the March 28, 
1991, Freedom of Information Act Handbook, which is a ``supplement to 
the requirements prescribed by Title 383 of the Departmental Manual 15 
and 43 C.F.R. Part 2, Subparts A and B. OFA anthropologists, 
genealogists, and historians (professionals) have performed most of the 
tasks cited above, however, with additional appropriations within the 
Interior Appropriations Act for the past two fiscal years, the OFA has 
been able to hire outside contractors to handle these requests. On 
occasion, the professionals may assist with minor searches and reviews; 
however, under most circumstances, the hiring of contractors has 
allowed them time to focus on their reviews and evaluations of the 
documented petitions.
    QUESTION 2: The OFA is no longer part of the BIA--it is under the 
Office of the Assistant Secretary for Indian Affairs. How has this 
change brought better services to the petitioning tribes?
    ANSWER: Effective July 27, 2003, the Department began to implement 
the reorganization for most of the Office of the Assistant Secretary--
Indian Affairs. The staff of the Branch of Acknowledgment and Research 
(BAR) was realigned to the new Office of Federal Acknowledgment (OFA). 
OFA reports directly to the Principal Deputy Assistant Secretary--
Indian Affairs. Prior to the change, staff reported first, to the 
Director, Office of Tribal Services, second, to the Director, Bureau of 
Indian Affairs, and then to the Assistant Secretary-Indian Affairs. The 
change eliminates two layers of review and provides more direct and 
efficient policy guidance. Currently, there is no assessment available 
on whether the change provides better services to the petitioners.
    QUESTION 3: In response to a question from Chairman Pombo about 
whether changes that have been made at OFA have increased the Office's 
efficiency in the processing of petitions, you responded that 
productivity has increased from July 2002, to the present. You told the 
Committee that from July 2002, to the present, your office has issued 
14 decisions. Does this number include decisions beside Proposed 
Findings and Final Determinations? Please explain what other decisions 
have been issued. A list of the 14 would be helpful.
    ANSWER: Since July 2001 to the present, the Department has issued 
14 decisions: six were proposed findings, six were final 
determinations, and two were reconsidered final determinations. These 
decisions are provided in the enclosed table.
[GRAPHIC] [TIFF OMITTED] T2827.005

                                 ______
                                 
    The Chairman. Thank you. Mr. Fleming, in reviewing your 
testimony is it your contention that the changes that you are 
making in the process are making it more efficient and timely 
in the decisionmaking process?
    Mr. Fleming. It is my contention and I will give you an 
example. Our productivity for July 4 to the present, which also 
takes into our new contracting, we have issued 14 decisions in 
that 3-year period--six proposed findings, six final 
determinations, and two reconsidered final determinations. If 
you divide three into 14, you get a tremendously higher number 
than the average that was expressed earlier in one of the 
individual's testimony, which I think was 1.3 per year, which 
is a tremendous increase in our productivity.
    The Chairman. In terms of the objectivity of those in the 
decisionmaking process, it appears from looking at it that when 
a petition is denied, a lawsuit is filed, that those that are 
defending that lawsuit or who originally made a decision end up 
being the ones that they appeal to and there is a possibility 
that they may not be as objective in making those 
determinations. How do you respond to that?
    Mr. Fleming. The regulations allow for due process 
throughout. One period immediately available to the petitioner 
and interested parties is after a proposed finding to 
acknowledge or not to acknowledge opens up a public comment 
period of 180 days and this allows a petitioner or interested 
party to provide evidence, argumentation to support or rebut 
the proposed finding.
    After the final determination is issued there is another 
opportunity for due process, which is called reconsideration 
before the Interior Board of Indian Appeals and under the 
regulation of 83.11, this is the Department's independent 
review board that would look into the decision. So if the 
petitioner or interested party is not satisfied with the final 
determination, they have that opportunity of due process, of 
putting a request in for reconsideration.
    Then if the final decision is final and effective for the 
Department, then the next avenue for a petitioner or interested 
party is to sue the Department under the Administrative 
Procedures Act in Federal court.
    The Chairman. And what about the situation where a decision 
is not made, where someone comes in and petitions for 
recognition and, just to pull a number out of the air, spends 
29 years waiting for an answer?
    Mr. Fleming. The process begins with a letter of intent and 
when the process began in 1978 after the promulgation of the 
regulation, we had 40 petitioning groups at that juncture.
    Some groups take part of the time working on documenting 
their petitions and there is no limitation as to how many years 
they can put together a petition. So if a group is working for 
20 years developing their petition and then they submit the 
petition, the regulations then require us to review all that 
information. We are sometimes blamed for that 20-year time span 
when indeed the evidence comes before us under the regulations 
we are then required to do a technical assistance review letter 
for any obvious deficiencies or significant omissions. This 
allows the petitioning group to supplement their petition in 
any areas that need to be supplemented. Then that may take a 
short period of time or it may take four or 5 years for the 
group to come back with additional documentation and then we 
move forward under the regulatory timeframes.
    The regulatory timeframes in and of themselves require a 
minimum of at least 25 months or a little over 2 years. Once 
they begin those regulated timeframes, then we are under a 
clock generally. Those timeframes, as I said, are at a minimum. 
There are opportunities for the petitioner to request 
extensions for good cause. They may have come up with a source 
of evidence that they were not aware of and they would need 
time to consider researching out those records and sometimes 
they ask for extensions and they are granted.
    But any time you have one extension for one group, it may 
mean that there is a delay with the other groups that are under 
the active consideration stage of the process.
    The Chairman. Once a petition is filed, it's complete, all 
of the information requested has been given to you, they should 
have an answer within 2 years?
    Mr. Fleming. The regulatory timeframe allows a minimum of 
at least 25 months.
    The Chairman. And a maximum?
    Mr. Fleming. That I would need to research on.
    The Chairman. Why is there a minimum and not a maximum?
    Mr. Fleming. The regulation allows for extensions to allow 
the petitioner or interested party or even the Department if it 
needs----
    The Chairman. But let me just stop you there. That is not 
your fault. If they ask for an extension, that is their 
decision to ask for an extension.
    Mr. Fleming. Correct.
    The Chairman. Why is there not a maximum on how long it 
takes you to give them an answer? If someone comes in to you 
and says we are requesting an extension, we need to do more 
research for whatever reason, then I understand that. That is 
not your fault. That is not you that is asking to delay it.
    But it seems to me and in my experience in dealing with 
most Federal agencies is that when we pass a law, we tell them 
you have 2 years to give them an answer and if that person asks 
for an extension, they waive their statutory deadline when they 
ask for an extension. In this one it seems like it is opposite 
of that and I am not sure why.
    Mr. Fleming. Well, let me clarify. Under the regulation, 
the first regulatory timeframe is what is known as active 
consideration. It is designed to allow the Department at least 
12 months to review all of the evidence. So you have a deadline 
right there. At the end of 12 months there ought to be an 
answer called a proposed finding.
    Then when the decision is made on the proposed finding, it 
is published in the Federal Register, which then starts the 
next regulatory timeframe called the public comment period. So 
there is a deadline or an end to that public comment period.
    If the evidence is voluminous the petitioner or a town or 
state may ask for an extension. So that is their ability to add 
more time if needed. At the end of that period, then begins a 
response period for the petitioner to respond to any comments 
that came in during the comment period. Let us say comments 
were made by an interested party and they put a particular spin 
on that evidence but when you review that evidence, then the 
petitioner has the opportunity to say that is not what we see, 
that is not what our professionals see. So they have an 
opportunity to address any comments. That has an end period. 
That has an end date and that is in the regulation.
    Then the Department has 60 days at a minimum to review all 
of the evidence, all of the comments, all of the responses, and 
come up with a recommendation for a final determination. So you 
do have in the regulation an end date for and answer.
    The Chairman. And if you add all those periods up, where do 
you end up? What is that timeframe?
    Mr. Fleming. At that point 25 minus three, 22 months.
    The Chairman. Twenty-two months to give them a decision?
    Mr. Fleming. At a minimum. And that is under the 
regulations.
    The Chairman. I guess what I am having difficulty with is 
it is not 22 months at a minimum. It is just kind of 22 months 
if everything fits.
    Mr. Fleming. That is how it is designed and as the practice 
has been, the Department has asked for extensions due to the 
complexity of the case or the voluminous nature of the evidence 
or the petitioners may have asked for an extension or an 
interested party may need more time, as well. So if you have 
those extension requests, then the Department has to consider 
whether to grant them and has to take a look as to how it is 
going to affect the process.
    The Chairman. Maybe you can answer this for the record for 
me. How would the Department feel if we said you have 36 months 
plus whatever time the petitioner requests in extensions to 
give them an answer and give you a drop-dead date to give them 
an answer? If they ask for a year extension, you add a year to 
it and you have 48 months to give them an answer, but give you 
a deadline to give them an answer.
    Mr. Fleming. I think it would be something considered. 
Everyone likes to have a deadline, a beginning point and an end 
point. I think what has assisted us over the past 3 years is 
that these decisions, after recommendations were made, even the 
decisions were made in a timely manner and nothing was delayed 
in that aspect. So if there are definite dates, that could be 
useful.
    The Chairman. Thank you.
    Mr. Pallone?
    Mr. Pallone. But following up on that, Mr. Chairman, the 
only way that would be effective is if at the end of the period 
if they did not act, then the recognition was granted. 
Otherwise there would not be any club, really.
    What would you think of that?
    Mr. Fleming. Well, if there is inaction and then there is a 
provision in that statute, I just know there would be 
tremendous pressure felt by all concerned.
    Mr. Pallone. All right. I am going to try to get through a 
few questions quickly because I know I do not have a lot of 
time.
    I am very concerned about the state's pressure. I will use 
Connecticut. I should not pick on them but they are the obvious 
one to pick on in this case. We have the Eastern Pequots, we 
have the other tribe that was more recently granted preliminary 
recognition from Connecticut, and now we understand that 
Connecticut is appealing that.
    When mention here was made of interested parties and the 
input of interested parties, is one of the reasons why the 
process is taking so long and becoming more expensive because 
states are now appealing? And what is the likelihood of if a 
state like Connecticut does object in these two tribes' cases, 
the Eastern Pequot and the others, what do you do? I mean do 
you have the power to specifically--I mean do you actually do 
research to specifically refute or support an interested party 
like Connecticut's objections? Has any interested party ever 
succeeded?
    I mean I am just concerned that now that a state like 
Connecticut is putting so much pressure against and appealing, 
for example, those two tribes, what is going to happen? Just 
comment on that if you could.
    Mr. Fleming. I believe that the regulation itself offers 
the opportunity for interested parties to participate and right 
now some of the decisions are ripe for requests for 
reconsideration before the Interior Board of Indian Appeals. So 
in the regulations there are opportunities for interested 
parties to participate. And even if a petitioner or interested 
party is still not satisfied with what the final outcome may 
be, be it positive or negative, they still can have a remedy 
through the Administrative Procedures Act and that would be the 
proper time for the petitioner or interested party to then 
follow up.
    Mr. Pallone. Now the other thing is we talk about the 
budget. Your office's annual budget, I guess, is $1.7 million, 
but in response to the pleas about understaffing in Fiscal Year 
2003, Congress appropriated an additional $500,000. This was 
followed by an additional $250,000 in Fiscal Year 2004. 
However, it is my understanding there has not been any new 
hiring of full-time anthropologists, genealogists or 
historians, the professional staff.
    How is it that an infusion of funds, nearly half of the 
office's budget, has not resulted in speeding up the process?
    My understanding, same question, is that the BIA's 
strategic plan in 2002 called for hiring 18 anthropologists, 
genealogists and historians to establish six teams of three 
persons but, as we heard from the previous panel, we only have 
three teams of three persons now. So what happened? Why has not 
this funding made a difference and why are we still at the 
three instead of the six that you supposedly were trying to 
accomplish?
    Mr. Fleming. In the Department's response to the GAO report 
we provided at their recommendation a needs assessment and an 
analysis of the workload and based on expectations, if the 
expectation was to eliminate the current workload in 3 years, 
then this is what it would take. If the expectation was to 
eliminate the workload in four, five, or 6 years, then this is 
what it would take.
    And our response, and I would be happy to provide the 
Committee with the response, it was a way to convey what our 
needs indeed were based on the analysis of the workload.
    Mr. Pallone. But Mr. Fleming, what happened to this extra 
money and when are you going to be able to double these teams? 
You said you would like to go from three to six. It has not 
happened. What happened to the money and when is that going to 
happen? And how much more do you need? What do you want us to 
do?
    Mr. Fleming. The appropriations were indeed very helpful. 
It allowed us to do the contracting that I described, the two 
sets of contractors. We were able to take on the two FOIA 
specialists, records managers, and the three research 
assistants.
    Because these were one fiscal year appropriations, we were 
not able to use that resource, those funds, to hire full-time 
employees because if they only were available to us just on an 
annual basis, it would not be helpful to hire somebody and then 
fire them because of the lack of funds, should we not have been 
able to get another appropriation.
    Mr. Pallone. I know the time is running out but did the 
money lapse? Was it used?
    Mr. Fleming. Yes, the money was used. The appropriation was 
used and as a result, we were able to make use of the 
contractors in reducing the administrative work that would 
normally fall on the professional staff and the professional 
staff was then able to focus on the cases at hand. And as I 
indicated, at least from the time the contractors came on 
board, we were able to issue eight decisions out of the 14 that 
I described that had been issued since the first of this 
Administration.
    Mr. Pallone. Thank you.
    Thank you, Mr. Chairman.
    Mr. Chairman, could I just ask that members have the right 
to submit written questions to the witnesses?
    The Chairman. Yes. I was going to say both to this witness, 
I have a series of questions that I will submit in writing to 
this witness and any other witnesses who appeared today, you 
have the right to submit questions in writing. And to those 
witnesses that are still here, if you could answer those in a 
timely manner so that they can be included in the hearing 
record, I would appreciate it. Thank you.
    Before I adjourn this hearing I want to thank all of our 
witnesses, including the Administration witness. This is 
obviously an extremely important issue that I do believe we 
need to make progress on and I will look forward to working 
with everybody, including the Administration, to try to move 
forward in a positive way with trying to deal with this in a 
much more timely fashion and a fair and transparent system. I 
think that is what all of us want out of this and that is what 
this Committee will word toward.
    So thank you very much. Thank you to all our witnesses for 
being here and the hearing is adjourned.
    [Whereupon, at 12:05 p.m., the Committee was adjourned.]

    The following information was submitted for the record:
      Benedict, Jeff, President, Connecticut Alliance 
Against Casino Expansion, Inc., Statement submitted for the 
record
      Blumenthal, Hon. Richard, Attorney General, State 
of Connecticut, Statement submitted for the record
      Charley, Benjamin, Tribal Chairman, Dunlap Band 
of Mono Indians, Letter submitted for the record
      Jones, Laura, Ph.D., Campus Archaeologist, 
Stanford University, Senior Scholar, The Carnegie Foundation, 
Letter submitted for the record
      Mullane, Nicholas H., First Selectman, Town of 
North Stonington, Connecticut, Statement submitted for the 
record
      Towns of Ledyard, North Stonington, and Preston, 
Connecticut, Letter submitted for the record

    [A statement submitted for the record by Jeff Benedict, 
President, Connecticut Alliance Against Casino Expansion, Inc., 
follows:]

                Statement of Jeff Benedict, President, 
          Connecticut Alliance Against Casino Expansion, Inc.

    The State of Connecticut is serving as an unwilling witness to one 
of the most remarkable breakdowns in federalism--the relationship 
between the federal and state governments--in the history of the United 
States. The likely consequence is the complete transformation of the 
economic vitality, quality-of-life, and governmental structure of the 
State. All these changes would be for the worse, and they are being 
forced upon the State by the federal government.
    The tool being used for this purpose is the so-called 
``acknowledgment process,'' by which the Bureau of Indian Affairs (BIA) 
bestows the status of ``federal Indian tribe'' on groups of individuals 
who claim descent from tribes that existed during colonial times. The 
people and towns of Connecticut are rightfully outraged over what is 
happening, and dramatic and immediate action is needed to protect the 
State's interests.
    How can tribal acknowledgment have such a significant effect? And 
isn't acknowledgment little more than the symbolic act of according 
federal status to Indian groups long ago recognized as tribes by the 
State? The answers to these questions demonstrate why the future of the 
State of Connecticut is at risk. They also show how the actions of a 
few federal bureaucrats, combined with the investment of tens of 
millions of dollars by gambling financiers, have manipulated federal 
law to strip away Connecticut's inherent right to determine its own 
future.
What Does Tribal Acknowledgment Mean?
    Once a group obtains status as an Indian tribe under federal law it 
becomes, in effect, a sovereign governmental entity. The new tribe, its 
members, and its businesses, are exempt from virtually all state and 
local laws, including taxation. Their lands are open to any kind of 
development. The tribe and its businesses do not need to comply with 
state and local environmental, land use, health and safety, labor and 
other laws. They cannot be sued. For many purposes, they act as foreign 
governments.
    In Connecticut, there are two acknowledged tribes and twelve groups 
that are seeking tribal status. The two acknowledged tribes are the 
Mashantucket Pequot, who were acknowledged by Congress in 1983, and the 
Mohegans, who achieved tribal designation from the BIA in 1994. Of the 
twelve additional groups trying to become tribes under the BIA 
acknowledgment process, four are well-advanced in the process: the 
Eastern Pequot/Paucatuck Eastern Pequot, the Schaghticoke, the Golden 
Hill Paugussetts, and the Nipmuc, who are actually located in 
Massachusetts, but they assert land rights in Connecticut.
    These groups claim that land belonging to their historical 
ancestors was unlawfully taken away 200 years ago and that they are 
entitled to get it back regardless of its current ownership. As much as 
one-third of the State is potentially subject to these land claims. The 
Schaghticokes and Golden Hill Paugussetts have already filed lawsuits 
against innocent landowners for this purpose.
    But these tribal acknowledgment efforts have less to do with land 
and more to do with gambling. Each of the four groups that are furthest 
along in seeking recognition is bankrolled by casino moguls or 
developers. These groups hope to secure recognition in order to take 
advantage of the federal Indian Gaming Act that permits federal tribes 
to open massive new casinos and earn over one billion dollars a year, 
as the Mashantucket Pequots and Mohegan do at their existing casinos. 
The biggest winners in these casino ventures are not the tribes, but 
the wealthy non-Indian moneymen who provide the financial, legal, and 
political muscle to help these groups get acknowledged.
    What does all of this have to do with Connecticut? Thanks to the 
BIA's artificially propagated and arbitrarily applied acknowledgment 
process, the State faces a serious risk of being transformed into a 
gambling hub with as many as six separate sovereign nations within its 
boundaries, each one of which will pursue large tracts of land to carve 
out from state and local control for purposes of opening new casinos.
    Make no mistake about it; life in Connecticut will never be the 
same if this corruption is not stopped and corrected. Otherwise, the 
BIA will transform Connecticut from the ``Constitution State'' to the 
``Casino State.'' The two largest gambling halls in the world are 
already here. With potentially four more, already jammed highways will 
go into gridlock with the cars of casino patrons. The local tax base 
will be devastated. Land use control and planning will become a thing 
of the past. Environmental quality will decline due to air pollution 
from cars and other impacts. Crime will increase, and societal values 
will shift, as they always do in gambling centers. The labor base will 
change. Affordable housing will dissipate in towns around the casinos. 
Corporations and large businesses will flee the State to be replaced 
with low-paying, unskilled jobs, bringing attendant demographic shifts 
in Connecticut's population. Within a decade or so, Connecticut as we 
know it today will no longer exist.
    For about twelve years, the small towns in southeastern Connecticut 
have struggled with the consequences of reservation lands, tribal 
sovereign immunity and Indian casinos. They have lived with the many 
adverse impacts of the Mashantucket Pequot Foxwoods and Mohegan Sun 
resorts, and they are now confronted with a third possible mega-casino 
on lands of the Eastern Pequot Indian group, which BIA is proposing to 
acknowledge as a tribe.
    The problems that resulted in southeastern Connecticut have not 
been fully understood in other more populous and politically powerful 
parts of the State. Then, on January 29, 2004, the BIA issued a 
decision that seeks to acknowledge the Schaghticoke Tribe. Now there is 
the prospect for land claims throughout southwestern and western 
Connecticut, and the specter of a new casino resort along the already 
overburdened I-84 and I-95 corridors has risen.
    The BIA's decision to drop yet another sovereign nation in 
Connecticut has finally turned a spotlight on the flawed acknowledgment 
process. Much of the illumination has been triggered by the BIA's own 
conduct. Right after the BIA announced its decision in the Schaghticoke 
matter, an internal BIA memorandum dated January 12, 2004, and titled 
``Schaghticoke Briefing Paper,'' surfaced. In it, the staffer from the 
Office of Federal Acknowledgment responsible for reviewing the 
Schaghticoke petition notified the Assistant Secretary that the 
petitioner's ``evidence of political influence and authority is absent 
or insufficient for two substantial historical periods.'' The memo also 
acknowledged that the petitioner's ``membership list does not include a 
substantial portion of the actual social and political community.''
    Despite these gaping holes in evidence, ones which the BIA does not 
have authority to arbitrarily fill with substitutes for the mandatory 
criterion, the agency nonetheless granted acknowledgment. The BIA's 
brazen internal memo is a glaring illustration of how badly this 
process needs legal and political reform. This agency is absolutely 
unaccountable and by its own words acting outside its authority.
BIA's Acknowledgment Process
    Much has been made recently of the role that wealthy financial 
backers play in helping petitioner groups obtain tribal acknowledgment. 
High-powered lobbyists wired to the Bush Administration have been paid 
huge amounts of money to lobby for the Eastern Pequots and the 
Schaghticokes. The sources of money paying for those lobbyists, and the 
numerous lawyers, consultants, and public relations firms supporting 
these efforts, are not fully known. Nor is the amount of money spent. 
It is known, however, that massive sums have been invested by the likes 
of Donald Trump, Fred DeLuca (the Subway sandwich shop entrepreneur), 
David Rosow (a Fairfield-based ski resort developer), Bill Koch (the 
Texas oil magnate and America's Cup racing tycoon), and Thomas Wilmot, 
a New York mall developer, who has spent in excess of $10 million 
backing the Paugussetts. The role played by big money and big-time 
lobbying in tribal acknowledgment is an outrage, and undoubtedly has a 
corrupting influence on the process. Full investigation and immediate 
reform is needed.
    As important as it is to get casino entrepreneurs out of the 
acknowledgment process, there is an equally important reform that is 
needed on an even more basic level. Simply put, the BIA should not have 
this power in the first place. The Eastern Pequot and Schaghticoke 
decisions have now revealed clearly the biased, result-oriented, and 
arbitrary manner in which BIA makes these decisions. The outrage 
Connecticut feels toward the lobbyists and multimillionaire financial 
backers should pale compared to the anger that should be directed at 
BIA and the political appointees who are approving these decisions.
    As a starting point, it must be understood that the BIA has never 
been granted the power to acknowledge Indian tribes. Obviously, 
creating a sovereign Indian tribe is a very significant decision. The 
power to take such action is vested by the Constitution exclusively in 
the Congress. Under the U.S. Constitution, federal agencies cannot take 
legislative actions of this nature unless Congress expressly grants the 
power to do so and sets standards to govern how the agency exercises 
that authority. Congress has never taken either step to allow BIA to 
make the fundamentally political decision of whether to create new 
sovereign tribal entities. For years, the BIA has glossed over this 
problem, trying to hang its acknowledgment hat on the weakest and most 
general of its Indian affairs powers.
The Schaghticoke Decision
    The recent Schaghticoke decision illustrates the problems of 
letting BIA run free to make acknowledgment decisions in the absence of 
tight standards set by Congress. BIA is making up the rules as it goes 
along, and applying its self-proclaimed tribal acknowledgment power to 
rule in favor of Connecticut petitioner groups.
    A close look at the Schaghticoke decision reveals how BIA plays 
this game. One of the abiding principles of BIA acknowledgment 
decisions has been the need for the Indian group to prove that it has 
existed as a functioning political entity following identifiable 
leaders and as an intact social community from colonial times to the 
present without any significant gap in time. A break in continuity of 
even a generation is fatal to an acknowledgment petition.
    For the Schaghticoke, the gaps in its historical record should have 
been insurmountable. In 1993, the Schaghticoke's own expert, a leading 
pro-tribal advocate, said it was ``probably impossible'' for the 
Schaghticoke to meet this test for virtually all of the 1800s and the 
first half of the twentieth century. In 1999, Ann McMullen, another 
expert hired by the Schaghticoke, agreed. In 2001, the BIA's top 
official Neil McCaleb reached the same conclusion when he ruled in the 
proposed finding against granting acknowledgment to the Schaghticoke 
group. McCaleb said the group failed to meet this test for a total of 
over 150 years.
    In response to that ruling, the Schaghticoke's own ``chief'' during 
the 1960's, Irving Harris, testified that the BIA's negative proposed 
decision was correct because there was no tribal government in effect 
for most of his lifetime. That conclusion was borne out by the research 
conducted by the State of Connecticut, numerous local governments, and 
the private landowners whose property is at risk because of 
Schaghticoke land claims. But the BIA ignored Chief Harris's testimony 
and supporting research submitted by other interested parties.
    All of this information and expert opinion was in front of BIA, yet 
it did not matter. On January 29, 2004, the BIA reversed its 2001 
negative decision and concluded that the Schaghticoke should be granted 
federal recognition. How did BIA reach this result? Quite simply, it 
made up new rules, selectively considered the evidence that would 
support the desired result of tribal creation, and ignored everything 
else.
    The gimmicks used by BIA to push the Schaghticoke group over the 
acknowledgment finish line are too numerous and complex to describe 
here. They entail practices such as shifting the burden of proof from 
the tribal petitioner to the opposing parties, selective use of 
interview evidence, selective use of documentary evidence, retreat from 
the requirements of the 2001 negative proposed finding, and the 
incredible conclusion that the longstanding rift between rival 
Schaghticoke factions that tore the group into pieces was actually 
evidence of political unity and continuity.
    While the specifics of the 200-page BIA decision defy simple 
explanation, it is possible to gain insight into the manipulative 
decisionmaking employed by BIA by focusing on a few aspects of the 
agency's final determination.
    Beginning with the Eastern Pequot decision, BIA has developed a new 
principle of tribal acknowledgment unique to Connecticut. Because 
Connecticut had historically set aside small tracts of land for 
Indians, BIA has established the assumption that gaps in tribal 
continuity can be filled by the mere existence of such a land base. In 
other words, because Connecticut set aside land for Indians in the 
past, the BIA decided that it is appropriate to infer that functioning 
political entities and social communities must have existed at the same 
time.
    The BIA invokes this ``state recognition'' assumption to fill gaps 
in the history of a tribal petitioner in Connecticut whenever it is 
necessary to do so to make up for a lack of evidence. This principle, 
one that BIA never developed through its rulemaking or public review 
processes, has thus become a kind of evidentiary silly putty to be used 
to plug any holes in a tribal petitioner's case. In Connecticut, BIA 
has transformed the requirement for evidence of continuous tribal 
governmental authority under identified leaders and social community 
into one that allows for only partial evidence, so long as the 
petitioner group traces to a tribe for which a State reservation 
existed and on which some individuals lived during the period of the 
missing evidence.
    Even with this artificial assumption, BIA had to play additional 
games to reach a positive result for the Schaghticokes. For example, 
there was no evidence of a politically functioning tribe for the period 
1801 to 1876. BIA invoked one of the rules it made up under its 
regulations to help the Schaghticokes fill this gap. Under this rule, 
if fifty percent of the marriages in a group during a period of time 
are between tribal members, then the BIA assumes the existence of 
tribal political activity.
    This rule, equating marriage rates with tribal political activity, 
is a big stretch on its own. But the BIA didn't stop there. To help the 
Schaghticokes fill the 1801 to 1876 gap, first the BIA changed its 
approach to defining who counts in defining the marriage rate. In the 
past, BIA looked only to ancestors of the petitioner group. For this 
decision, the BIA counted any individual associated with the 
Schaghticoke, thereby greatly expanding the universe of marriages to 
consider.
    Second, BIA abandoned its own fifty percent rule. Even by expanding 
the group of people considered for intermarriage, the BIA equaled that 
rate for certain periods of time. Third, even after giving all of these 
breaks to the Schaghticokes, BIA could not fill in the entire 1801 to 
1876 period. A one-generation gap still existed between 1820 and 1841. 
Under the BIA's previous interpretations, this gap in political 
authority alone should have resulted in a negative decision.
    The BIA got around this problem by pulling out its ``state 
recognition'' silly putty. Because a Schaghticoke reservation existed 
during this time, BIA ruled it would allow this assumption of political 
activity to make up for the below-fifty percent marriage rate and the 
absence of any other evidence of tribal political activity during this 
extended period. Thus, by these tricks and gimmicks, the BIA found a 
way to make a 75-year gap in tribal political authority disappear 
without a shred of evidence.
    Similar games were played in the Eastern Pequot decision. In that 
case, the BIA also used the state recognition assumption to fill major 
holes. In addition, BIA took the incredible step of forcibly joining 
two distinct Pequot groups into a single tribe, over the strong 
objections of the smaller group. Only by doing so was the BIA able to 
find enough evidence to create a new tribe. In taking that step, the 
BIA allowed its tribal creationism to reach an ultimate extreme. Not 
only did the BIA assume power never granted to it by Congress to 
develop its own rules for establishing sovereign nations, it slipped 
into the role of making new law by deciding when and how groups of 
individuals claiming Indian descent should be forced to affiliate with 
each and form a common tribe. How arrogant, and how fundamentally at 
odds with the most basic principles of the U.S. Constitution.
    Even more troubling is that these decisions are being made by an 
agency with an admitted bias in favor of Indians. The bureaucrats who 
make these decisions are trained in Indian anthropology, history and 
similar disciplines. They have a clear bias in favor of Indians, and 
they wear it on their sleeves. That is why they are in this profession, 
and that is why they work for an agency that has a duty to advance the 
interests of Indians and tribes.
    The bottom line is that the BIA staff has made up their minds on 
Indians in Connecticut. The agency will not allow the facts, or lack 
thereof, to get in the way of their determination to establish new 
federal tribes in Connecticut. The same BIA official's are involved in 
the Nipmuc decision, so we can expect more of the same in May when that 
final determination is issued. The Nipmucs, like the Eastern Pequot, 
consist of two groups who oppose each other. They both received 
negative proposed findings, but the writing is on the BIA wall. The 
agency staff who invented the theories that achieved positive results 
for the Eastern Pequots and Schaghticokes can be expected to achieve 
the same result by combining the Nipmuc groups and devising new rules 
to allow them to fill their evidentiary gaps.
    While the BIA staff that are at the bottom of these decisions are 
easy to blame, in some ways their actions are predictable. After all, 
they are not specialists in Indian history and anthropology because 
they are disinterested or objective. They are set in their ways and 
will do anything to protect their bureaucratic turf. We need to look 
elsewhere for the solution.
What Should Be Done?
    The real problem here is with a political system that gives the BIA 
this much power in the first place. While decisions on the existence of 
tribes should be based on sound factual research, the consequences of 
those decisions are inherently political. There is no law or regulation 
that leads to the result BIA has now decreed for Connecticut. It is 
based on assumptions and leaps of faith that transparently lead to a 
prescribed result. The decision to rely upon these presumptions and, in 
so doing, create new tribal governments and change the face of 
Connecticut should not be left to BIA staff, or even its political 
appointees. One need only think back to the blatantly political acts of 
the Clinton appointees to BIA to realize that there is no comfort to be 
found in the agency leadership either.
    Equipped with the facts, Congress should decide whether to 
recognize new tribes. While the legislative branch may not be suited to 
the task of fact-finding, it certainly has the prerogative and the 
ability to analyze the results of such reviews and make final 
decisions. We in Connecticut have seen how Congress can misapply this 
power when it is uninformed, as it did in recognizing the Mashantucket 
Pequot Tribe in 1983. That ``tribe'' now has a very dubious claim to 
acknowledged status. Had Congress been adequately informed of the 
facts, however, it could have made an educated decision as to whether 
to exercise the political power vested in it by the Constitution to 
recognize such a tribe.
    In doing so, it also could have taken the appropriate actions to 
address the social and economic consequences such an act would have for 
the entire state. When BIA acknowledges a tribe, it does nothing more 
than give the group legal status as a federal tribe. This, in turn, 
leads to the horrendous results now confronting Connecticut. If 
Congress were in command of this issue, however, such adverse effects 
could be addressed at the same time that deserving Indian groups which 
meet strict standards are recognized as tribes.
    Even if Congress believes it should not be in the acknowledgment 
business, it has the duty to constrain the power of the Executive 
Branch to make such decisions. Congress should set forth very clear 
standards under which the Executive Branch at the highest levels would 
make acknowledgment determinations. Those standards would need to 
instill objectivity into the process, remove decisions from career 
staff, and avoid situations where gimmicks and games can be played to 
meet the tests for tribal acknowledgment. Alternatively, Congress could 
follow Connecticut Attorney General Richard Blumenthal's recommendation 
and create a new decisionmaking body that would be truly objective and 
beyond pro-Indian bias and the influence of lobbyists.
                                 ______
                                 
    [A statement submitted for the record by The Honorable 
Richard Blumenthal, Attorney General, State of Connecticut, 
follows:]

 Statement submitted for the record The Honorable Richard Blumenthal, 
                 Attorney General, State of Connecticut

    I appreciate the opportunity to comment on the issue of federal 
recognition of Indian
    Critically and immediately, Congress should enact a moratorium on 
any BIA decisions or appeals and initiate a full and far-reaching 
investigation of the BIA's actions in these petitions.
    Congress should then enact reform creating an independent agency 
insulated from politics or lobbying to make recognition decisions. It 
must have nonpartisan members, staggered terms, and ample resources. 
There is compelling precedent for such an independent agency the 
Securities and Exchange Commission, for example, or the Federal 
Communications Commission, and the Federal Trade Commission. which deal 
professionally and promptly with topics that require extraordinary 
expertise, impartiality, and fairness.
    Even before permanent reform -- and especially until the 
investigation is complete -- the Secretary of Interior should impose a 
moratorium or stay on all tribal recognition decisions involving 
Connecticut and other similar states. The need for a moratorium is 
demonstrated dramatically by an internal confidential BIA memorandum 
discovered during review of documents for our administrative appeal in 
the Schaghticoke decision which provides a blueprint for BIA senior 
officials to disregard and distort the law. This pattern and practice 
cannot be permitted to continue.
    Far-reaching, fundamental form is critical to restoring the 
integrity and credibility of the present system. Indeed, the argument 
may be made that the Department of Interior currently has an 
unavoidable conflict of interest responsible for advocating for and 
protecting Native American interests as trustee, and at the same time 
deciding objectively among different tribes which ones merit 
recognition.
    Congress should also adopt the tribal recognition criteria in 
statute, reducing the likelihood that the BIA will stretch or sandbag 
criteria in an effort to recognize an undeserving petitioner. It should 
also enact measures to ensure meaningful participation by the entities 
and people directly impacted by a recognition decision. One of the most 
frustrating and startling consequences of the current review process is 
the potential for manipulation and disregard of the seven mandatory 
criteria for recognition--a potential that the GAO and Inspector 
General reports found has been realized in recent petitions.
    Finally, Congress should provide additional much needed, well 
deserved resources and authority for towns, cities and Indian groups 
alike in an effort to reduce the increasing role of gaming money in the 
recognition process. Federal assistance is necessary and appropriate, 
in light of the increasing burdens that towns, cities and the state, 
must bear in retaining experts in archeology, genealogy, history and 
other areas all necessary to participate meaningfully in the 
recognition process. Because recognition has such critical, irrevocable 
consequences, it is. essential that all involved petitioning groups, 
the public, local communities, states have confidence in the fairness 
and impartiality of the process. That confidence has been severely 
compromised in recent times. I urge the committee to approve these 
bills and begin the process of overhauling the system so that public 
faith can be restored.
    The central principle of this reform should be: Tribes that meet 
the seven legally established criteria deserve federal recognition and 
should receive it. Groups that do not meet the criteria should not be 
accorded this sovereign status.
    The present system for recognizing Indian tribes is fatally and 
fundamentally flawed. It is in serious need of reform to ensure that 
such decisions which have such profound ramifications are lawful, fair, 
objective and timely. After more than a dozen years of experience with 
tribal recognition issues, I strongly and firmly believe that 
fundamental, far-reaching reform is necessary.
    The current recognition process has proven to be susceptible to 
improper influences of power, money and politics, documented by both 
the General Accounting Office (GAO), the Department of Interior's 
Inspector General and our own experience in Connecticut.
    In a December, 2003 ruling involving the State of Connecticut, the 
BIA inexplicably reversed its preliminary decision to deny federal 
recognition to the Schaghticoke petitioner, . finding that the 
petitioner had met the seven criteria, despite the lack of any evidence 
to establish that the group met two of the mandatory criteria political 
autonomy and social community. This decision remained a mystery until 
several weeks ago, when an internal staff briefing paper was released 
publicly. The briefing paper created a road map as close to a smoking 
gun as we've seen for the agency to reverse its prior finding despite 
the lack of credible evidence meeting the seven standards for Indian 
recognition. I have attached that briefing paper to my testimony.
    The briefing paper sets forth options and seeks guidance from the 
Acting Assistant Secretary with respect to how to address two issues 
staff acknowledged were potentially fatal to the Schaghticoke petition: 
(1) little or no evidence of the petitioner's political influence and 
authority, one of the mandatory regulatory criteria, for two 
substantial historical periods; and (2) serious problems associated 
with the internal fighting among the two factions of the group.
    With respect to the lack of evidence, the Office of Federal 
Acknowledgement (OFA) shows, by its owns words and analysis, its 
disregard for the legal standards and precedents as demonstrated by one 
of the four options posited by the OFA. OFA posits that one of the 
options is to: ``Decline to acknowledge the Schaghticoke, based on the 
regulations , and existing precedent.'' In. explaining this option, 
which the OFA and the Assistant Secretary rejected, the OFA explained: 
``Option 2 [declining to acknowledge the group] maintains the current 
interpretation of the regulations and established precedents concerning 
how continuous tribal existence is demonstrated.'' In other words, 
declining to acknowledge the group means following the law. Yet, 
despite this clearly correct legal path, the BIA chose option 1, and 
acknowledged the petitioner by substituting state recognition in lieu 
of actual evidence for large periods of time. The BIA chose this option 
despite its own concession that it would create a ``lesser standard.''
    This OFA briefing paper confirms that recognition of Schaghticoke 
petitioner required the BIA to disregard its own regulations and long 
accepted precedents, and to ``revise,'' yet again, its recent 
pronouncements on the meaning and import of the State's relationship 
with the group, as well as ignore substantial gaps in the evidence. The 
BIA has now revised its view of the legal import of state recognition 
no less than four times in only two years. It has completely, 
unashamedly reversed the longstanding view that federal recognition 
could not be based on state recognition alone, moving to its present 
view that it alone can actually replace or substitute for evidence on 
critical and mandatory criteria.
    This deception is mirrored in our experience with other 
acknowledgment petitions. In the Eastern Pequot and Paucatuck Eastern 
petitions, the former head of the BIA unilaterally overturned staff 
findings that two Indian groups failed to provide evidence sufficient 
to meet several of the seven mandatory regulatory criteria. He also 
issued an illegal directive barring staff from conducting necessary 
independent research and prohibiting the BIA from considering 
information submitted after an arbitrary date regardless of whether the 
BIA's review had begun without notice to interested parties in pending 
recognition cases.
    In June, 2002, the BIA issued a Final Determination recognizing a 
single Eastern Pequot tribe in Connecticut comprised of the Eastern 
Pequot and the Paucatuck Eastern Pequot groups, despite the fact that 
these groups had filed separate conflicting petitions for recognition. 
The two petitions were pending for years and contradicted each other. , 
In fact, in one of their last submissions, the Paucatuck Eastems argued 
vigorously that the Eastern Pequots did not submit adequate proof that 
they were an Indian Tribe. The Final Determination reflected 
substantial gaps in evidence in both tribal petitions, but the BIA 
distorted the relationship between the State of Connecticut and the 
Eastern Pequot group to bridge these gaps, contrary to the BIA's own 
regulations.
    To make matters worse, shortly after the recognition decision was 
released and before the appeal could even be filed, top BIA officials 
held a private (ex parte) meeting with representatives of the Paucatuck 
Eastern and Eastern Pequot groups a secret session that seems improper 
under the rules. At the very least, the private meeting reinforces 
public perception that the recognition process is unfair and biased 
toward petitioning groups.
    In theory, present legal rules require any tribal group seeking 
federal recognition to meet seven distinct criteria aimed at proving 
the petitioning tribe's continuous existence as a distinct community, 
ruled by a formal government, and descent from a historical tribe, 
among others. In practice, as the OFA briefing paper clearly 
demonstrates, the BIA's political leaders have routinely distorted and 
disregarded these standards, misapplied evidence, and denied state and 
local governments a fair opportunity to be heard.
    Connecticut's experience is not unique. In 2002, the GAO issued a 
report documenting significant flaws in the present system, including 
uncertainty and inconsistency in recent BIA recognition decisions and 
lack of adherence to the seven mandatory criteria. The GAO report also 
cited lengthy delays in the recognition process including inexcusable 
delays by the BIA in providing critical petition documents to 
interested parties like the states and surrounding towns.
    The United States Department of the Interior's Office of the 
Inspector General also found numerous irregularities with the way in 
which the Bureau of Indian Affairs handled federal recognition 
decisions involving six petitioners. The report documents that the 
Assistant Secretary and Deputy Assistant Secretary either rewrote civil 
servant research staff reports or ordered the rewrite by the research 
staff so that petitioners that were recommended to be denied would be 
approved. The former Assistant Secretary himself admitted that 
``acknowledgment decisions are political'' and later expressed concern 
that the huge amount of gaming money that is financially backing some 
petitions would lead to petitions being approved that should not be 
approved. Interestingly, he also advocated for reform of the current 
system.
    To date, the BIA has done nothing to cure these dramatic defects in 
the recognition process..
    The impacts of federal recognition of an Indian tribe cannot be 
understated underscoring the urgent need for reform. A decision to 
acknowledge an Indian tribe has profound and irreversible effects on 
tribes, states, local communities and the public and in Connecticut's 
experience greatly affects the quality of life in those communities 
living in close proximity to Indian reservations. Federal recognition 
creates a government-to-government relationship between the tribe and 
the federal government and makes the tribe a quasi-sovereign nation. A 
federally recognized tribe is entitled to certain privileges and 
immunities under federal law. They are exempt from most state and local 
laws and land use and environmental regulations. They enjoy immunity 
from suit. They may seek to expand their land base by pursuing land 
claims against private landowners, or seeking to place land into trust 
under the Indian Reorganization Act. They are insulated from many 
worker protection statutes relating, for example, to the minimum wage 
or collective bargaining protections as well as health and safety 
codes.
    Since the enactment of the Indian Gaming Regulatory Act (IGRA) more 
than a decade ago, federally recognized tribes may operate commercial 
gaming operations. This law has vastly increased the financial stakes 
involved in federal recognition. Several of the petitioning groups in 
Connecticut are reported to have been funded by gaming interests such 
as Lakes Gaming of Minnesota and some of the wealthiest businessmen in 
America.
    Connecticut has been particularly impacted by the federal 
recognition process. Although geographically one of the smallest 
states, Connecticut is home to two of the world's largest and most 
profitable casinos within 15 miles of each other. We also have 12 other 
groups seeking recognition as federally recognized Indian tribes, most 
of whom have already indicated their intention to own and operate 
commercial gaming establishments.
    The enormity of the interests at stake make public confidence in 
the integrity and efficacy of recognition decisions all the more 
essential. Unfortunately, public respect and trust in the current 
process have completely evaporated.
    In addition, the BIA is admittedly overworked and understaffed, 
leading inevitably to lengthy delays in processing petitions and in 
providing essential documents to interested parties. Connecticut was 
forced to sue the BIA to obtain critical information necessary to 
respond to petitions--information, including petition documents the 
state was clearly entitled to under the FOIA. In some cases, the 
documents have not been provided until after the BIA has issued 
proposed findings in favor of recognition.
    Congress must act swiftly and strongly to reform the system and 
restore its credibility and public confidence.
    I wish to thank the committee for allowing me this opportunity to 
address this important issue and urge the committee's further 
consideration of these proposals.
                                 ______
                                 
    [A letter submitted for the record by Benjamin Charley, 
Tribal Chairman, Dunlap Band of Mono Indians, follows:]

[GRAPHIC] [TIFF OMITTED] T2827.001

[GRAPHIC] [TIFF OMITTED] T2827.002

[GRAPHIC] [TIFF OMITTED] T2827.003


    [A letter submitted for the record by Laura Jones, Ph.D., 
Campus Archaeologist, Stanford University, Senior Scholar, The 
Carnegie Foundation, follows:]

Representative Richard Pombo, Chair
U.S. House of Representatives
Committee on Resources
Washington, DC 20515
March 30, 2004

Dear Sir,

    It has been my privilege to work with California Indian Tribes over 
the past twenty years in my career as a professional anthropologist. I 
support the equitable application of rigorous criteria for recognition 
and acknowledgment. I also believe in the rule of reason - when tribes 
invest years of effort producing substantial documentation they deserve 
a timely decision based on the facts of the case. What I have observed 
in my many years supporting the petition of the Muwekma Ohlone Tribe 
cannot be characterized as equitable, reasonable or timely review.
    As a scientist specializing in this area I can assure you that 
there is no doubt of the authenticity of this California Indian 
community, indeed they have received confirmation from the Bureau that 
they have demonstrated that they are a previously recognized tribe (the 
Verona Band). Stanford University has enjoyed a relationship with this 
community since our founding in 1891, and I know that many San 
Francisco Bay Area schools and colleges have benefited from the support 
of this community in our educational, research and cultural programs. 
It saddens me to witness the poor treatment of this California Indian 
Tribe by the acknowledgment process. The Muwekma Ohlone Tribe deserve 
federal acknowledgment without further bureaucratic delay.
    The Bureau of Indian Affairs has failed to act responsibly on this 
matter. While I congratulate on your efforts to reform the 
administrative process, justice requires a more speedy solution. I urge 
you to support the California Indian Bill as proposed by the Advisory 
Council on California Indian Policy. It is time to end the 100 year 
legacy of discrimination against California Indians by the Bureau of 
Indian Affairs.

Sincerely,

Laura Jones, Ph.D.
Campus Archaeologist, Stanford University
Senior Scholar, The Carnegie Foundation
                                 ______
                                 
    [A statement submitted for the record by Nicholas H. 
Mullane, First Selectman, Town of North Stonington, 
Connecticut, follows:]

    Statement submitted for the record by Nicholas H. Mullane, II, 
         First Selectman, Town of North Stonington, Connecticut

Introduction
    Mr. Chairman and Members of the Committee, I am pleased to submit 
this testimony for your hearing today on the tribal acknowledgment 
process. I am Nicholas Mullane, First Selectman of North Stonington, 
Connecticut. I testify today also on behalf of Susan Mendenhall, Mayor 
of Ledyard, and Robert Congdon, First Selectman of Preston.
    As the First Selectman of North Stonington, a small town in 
Connecticut with a population of less than 5,000, I have experienced 
first-hand the problems presented by Federal Indian policy for local 
governments and communities. Although these problems arise under 
various issues, including trust land acquisition and Indian gaming, 
this testimony addresses only the tribal acknowledgment process.
    Reform of the federal acknowledgment process must occur if valid 
decisions are to be made. Acknowledgment decisions that are not the 
result of an objective and respected process will not have the 
credibility required for tribal and community interests to interact 
without conflict. In this regard, I want to commend Senators Dodd and 
Lieberman and Representatives Simmons, Shays, and Congresswoman 
Johnson, and our Attorney General, Richard Blumenthal, for their 
diligent efforts to achieve the necessary reforms. As the bipartisan 
nature of this political response demonstrates, the problems inherent 
in tribal acknowledgment and Indian gaming are serious and transcend 
political interests. Problems of this magnitude need to be addressed by 
Congress, and I ask for your Committee to support the efforts of our 
elected leaders to bring fairness, objectivity, and balance to the 
acknowledgment process.

Acknowledgment and Indian Gaming
    Federal tribal acknowledgment, in too many cases, has become merely 
a front for wealthy financial backers motivated by the desire to build 
massive casino resorts or undertake other development in a way that 
would not be possible under State and local law. The New York Times 
featured this problem in a front-page article published just two days 
ago. Our Town is dealing with precisely this problem. Both of the 
petitioning groups in North Stonington--the Eastern Pequots and the 
Paucatuck Eastern Pequots--have backers who are interested in resort 
gaming. One of the backers is Donald Trump. These financiers have 
invested millions, actually tens of millions, of dollars in the effort 
to get these groups acknowledged so casinos can be opened, and they 
will stop at nothing to succeed. In fact, they have even resorted to 
suing each other out of the desire to control the profits that would 
result from a new Indian casino.
    The State of Connecticut has become fair game for Indian casinos, 
and the acknowledgment process has become the vehicle to advance this 
goal. For example, three other tribal groups (Golden Hill Paugussett, 
Nipmuc, Schaghticoke) with big financial backers have their eyes on 
Connecticut. Their petitions are under active acknowledgment review and 
the Schaghticoke have joined the two Pequot groups (now merged into one 
by BIA) in achieving a favorable decision from BIA. As many as ten 
other groups are in line. While it is unfortunate that the 
acknowledgment process and the understandable desire of these groups to 
achieve acknowledgment for personal and cultural reasons has been 
distorted by the pursuit of gaming wealth by non-Indian financiers, the 
reality remains that tribal recognition now, in many cases, equates 
with casino development. This development, in turn, has devastating 
impacts on states and local communities. Thus, the stakes are raised 
for every one.
    North Stonington has first-hand experience with the problems that 
result. In 1983, the Mashantucket Pequot Tribe achieved recognition 
through an Act of Congress. This law, combined with the 1988 Indian 
Gaming Regulatory Act, ultimately produced the largest casino in the 
world. That casino has, in turn, caused serious negative impacts on our 
Towns, and the Tribe has not come forward to cooperate with us to 
address those problems. Having experienced the many adverse casino 
impacts, and understanding the debate over the legitimacy of the 
Mashantucket Pequot Tribe under the acknowledgment criteria, our Town 
wanted to assure ourselves that the recognition requests on behalf of 
the Eastern Pequot and Paucatuck Eastern Pequot groups were legitimate. 
As a result, we decided to conduct our own independent review of the 
petitions and participate in the acknowledgment process. It is worth 
noting that at no time has either petitioner come forward to present to 
Town leaders any constructive proposal on how they will deal with our 
concerns if acknowledgment is conferred. Thus, the concerns that 
motivated our participation have been validated.

The Eastern Pequot Acknowledgment Process
    The Towns of North Stonington, Ledyard, and Preston obtained 
interested party status in the BIA acknowledgment process. We 
participated in good faith to ensure that the Federal requirements are 
adhered to. Our involvement provides lessons that should inform federal 
reform initiatives.
    The issue of cost for local governments needs to be addressed. Our 
role cost our small rural towns over $600,000 in total over a seven-
year period. This is a small fraction of the tens of millions of 
dollars invested by the backers of these groups, but a large sum for 
small local governments. The amount would have been much higher if Town 
citizens, and our consultants and attorneys had not generously donated 
much of their time. It has been said that the Eastern Pequot group 
alone has spent millions on their recognition, and that they spent 
$500,000 on one lobbyist for one year to provide them knowledge on 
``how Washington, D.C. operates.'' This disparity in resources between 
interested parties and petitioners with gaming backers skews the 
process and must be addressed.
    The fairness of the process is another problem. We discovered that 
achieving interested party status was only the tip of the iceberg. One 
of our biggest problems in participating was simply getting the 
documents. Our Freedom of Information Act requests to BIA for the 
information necessary to comment on the petitions were not answered for 
2 1/2 years. Only through the filing of a successful federal lawsuit 
were we able to obtain the basic information from BIA when they agreed 
to release the information and provide adequate time for us to respond. 
The other claims in that lawsuit remain pending. Thus, it was necessary 
for us to spend even more money just to get the Federal government to 
meet its clear duties. I trust you will agree with me that taxpayers 
should not have to pay money and go to court simply to participate in a 
federal process.
    We experienced many other problems. A pervasive problem has been 
the failure of the process to ensure adequate public review of the 
evidence and BIA's findings.
    During the review of the Pequot petitions, the BIA experts 
initially recommended negative proposed findings on both groups. One of 
the reasons for the negative finding was that no determination could be 
made regarding the groups' existence as tribes for the critical period 
of 1973 through the present. Under past BIA decisions, this deficiency 
alone should have resulted in negative findings. Despite this lack of 
evidence, the negative findings were simply overruled by the then BIA 
Assistant Secretary, Kevin Gover. Because BIA did not rule on the post-
1973 period, interested parties never had an opportunity to comment. 
This was part of a pattern under the last Administration of reversing 
BIA staff to approve tribal acknowledgment petitions and shortchanging 
the public and interested parties. Moreover, with no notice to us, or 
opportunity to respond, BIA arbitrarily set a cut-off date for evidence 
that excluded 60% of the documents we submitted from ever being 
considered for the critical proposed finding. BIA never even told us 
about this deadline, although they did inform the petitioner groups.
    This problem occurred again with the final determination. In the 
final ruling, BIA concluded, in effect, that neither petitioner 
qualified under all of the seven criteria. Our independent analysis 
confirmed this conclusion.
    Nevertheless, after combining the two petitioners (over the 
petitioners' own objections), considering new information submitted by 
the Eastern Pequot petitioning group, and improperly using State 
recognition to fill the gaps in the petitioners' political and social 
continuity, BIA decided to acknowledge a single ``Historical Pequot 
Tribe.'' The Towns had no opportunity to comment on this ``combined 
petitioner;'' we had no opportunity to comment on the additional 
information provided by the Eastern Pequot petitioners; and we had no 
opportunity to comment on the critical post-1973 period. Thus, the key 
assumptions and findings that were the linchpin of the BIA finding 
never received critical review or comment. These types of calculated 
actions have left it virtually impossible for the Towns to be 
constructively involved in these petitions, and they have caused great 
concern and distrust over the fairness and objectivity of the process.
    Another problem is bias and political interference. Throughout the 
acknowledgment review, we have continually found that politically-
motivated judgment was being injected into fact-based decisions, past 
precedents were being disregarded, and rules were being instituted and 
retroactively applied, all without the Towns and State being properly 
notified and without proper opportunity for comment. A perfect example 
is the so-called ``directive'' issued by Mr. Gover on February 11, 
2000, that fundamentally changed the rules of the acknowledgment 
process, including the rights of interested parties. BIA never even 
solicited public input on this important rule; it simply issued it as 
an edict. This action is the subject of a lawsuit that will be argued 
by Attorney General Blumenthal in the near future. Yet another example 
is Mr. Gover's overruling of BIA staff to issue positive proposed 
findings. The massive political interference in the acknowledgment 
process is discussed in the recent Department of the Interior Inspector 
General's report, which I submit for the record.
    With the recent actions of the BIA, it is questionable that this 
agency can be an advocate for Native Americans and also an impartial 
judge for recognition petitions. An example is the action by Secretary 
McCaleb in his recent ``private meeting'' with representatives of the 
Eastern Pequot and Paucatuck Eastern Pequot petitioners to discuss the 
tribal merger BIA forced upon them. This ex parte meeting with the 
petitioners is highly inappropriate at a time when the 90-day 
regulatory period to file a request for reconsideration was still in 
effect. How can BIA be expected to rule objectively on an appeal that 
contests the existence of a single tribe when the decisionmaker is 
actively promoting that very result?
    Still another problem is the manner in which BIA addresses evidence 
and comment from interested parties. Simply put, BIA pays little 
attention to submissions from third parties. The Eastern Pequot 
findings are evidence of this. Rather than responding to comments from 
the State and the Towns, BIA just ruled that it disagrees, without 
explanation.
    Another example is the BIA cut-off date for evidence. BIA set this 
date for the proposed finding arbitrarily and told the petitioners. It 
never informed the Towns or the State. As a result, we continued to 
submit evidence and analyses, only to have it ignored because of this 
unannounced deadline. BIA said it would consider all of this evidence, 
but it did not. The final determination makes clear that important 
evidence submitted by the Towns never got considered for this reason.
    Thus, rather than our Town's involvement being embraced by the 
federal government, we were rebuffed. The very fact of our involvement 
in the process, we feel, may have even prejudiced the final decision 
against us. The petitioning groups attacked us and sought to intimidate 
our researchers. The petitioning groups called us anti-Indian, racists, 
and accused us of committing genocide. The petitioners publicly accused 
me of ``Nazism'' just because our Town was playing its legally defined 
role as an interested party. At various times throughout the process, 
the tribal groups withheld documents from us or encouraged BIA to do 
so. Obviously, part of this strategy was that the petitioners just 
wanted to make it more expensive to participate, to intimidate us, and 
to drive the Towns out of the process. They took this approach, even 
though our only purpose for being involved was to ensure a fair and 
objective review, and to understand how a final decision was to be 
made.
    Finally, I would like to address the substance of the BIA finding 
on the Eastern Pequot petitions. Based upon an incorrect understanding 
of Connecticut history, BIA allowed the petitioners to fill huge gaps 
in evidence of tribal community and political authority, prerequisites 
for acknowledgment, by relying on the fact that Connecticut had set 
aside land for the Pequots and provided welfare services. These acts by 
the State of Connecticut, according to BIA, were sufficient to 
compensate for the major lack of evidence on community and political 
authority. By this artifice, along with the forced combination of two 
petitioners, BIA transformed negative findings into positive ones, with 
no basis in fact or law.
    Clearly, the past actions by Connecticut toward the later residents 
of the Pequot reservation did nothing to prove the existence of 
internal tribal community or political authority. These actions simply 
demonstrated actions by the State in the form of a welfare function. If 
BIA does not reject this principle now, it will give an unfair 
advantage not only to the Pequot petitioners but possibly to other 
Connecticut petitioning groups as well.
    BIA's seriously flawed decision on the two Pequot petitions is now 
on appeal. Hopefully, the Interior Board of Indian Appeals will lend 
some semblance of objectivity and credibility to BIA's acknowledgment 
process. Along with the State, we have provided compelling grounds to 
reverse the BIA final determination.
    Even under the appeal, the petitioners continue to try and bend the 
rules. They recently wrote to the IBIA asking for expedited treatment 
of these appeals. They made the astonishing claim that its members were 
being subjected to human misery, poor education, and inadequate housing 
while waiting for a decision. In the height of hypocrisy, they made no 
mention of one of the true motivations behind the push for tribal 
acknowledgment: the desire to promptly open another massive casino and 
generate huge sums of money for the financial backers. I can tell you 
that members of these groups attend the same schools as other children 
in our town, that some members are paid salaries by financial backers, 
and that the standard of living the experience, by and large, is 
comparable to that of many other residents of our small town.

The Schaghticoke Decision
    Recently, BIA issued a positive final determination for the 
Schaghticoke petitioner. This decision is another example of how biased 
and unfair the BIA acknowledgment process is. In this case, BIA even 
determined that the petitioner failed to meet the criteria. It issued 
an internal memorandum admitting this fact, which I attach to my 
testimony. Despite this obvious failure, BIA still issued a favorable 
result. To do so, it again invoked the same state reservation principle 
it used to push the two Pequot groups over the acknowledgment finish 
line. BIA made another flawed finding and assumption to further support 
the positive finding. It also misrepresented facts to interested 
parties and even went so far as to suggest that it could change the 
appeal rights of interested parties established by rule and against 
their wishes if a different process had been agreed to in negotiation 
in a Schaghticoke land claim lawsuit.
    While BIA was not successful in this effort, its track record of 
being prepared to violate its own regulations just to achieve results 
favorable to its own goals is now clear. Simply put, the acknowledgment 
process is in need of more than reform. It is time to start all over 
again, and to put all tribal acknowledgment requests on hold in the 
interim.

Principles for Reform
    Based upon years of experience with the acknowledgment process, our 
Towns now have recommendations to make to Congress.
    As an initial matter, it is clear that Congress needs to define 
BIA's role. Congress has plenary power over Indian affairs. Congress 
alone has the power to acknowledge tribes. That power has never been 
granted to BIA. The general authority BIA relies upon for this purpose 
is insufficient under our constitutional system. In addition, Congress 
has never articulated standards under which BIA can exercise 
acknowledgment power. Thus, BIA lacks the power to acknowledge tribes 
until Congress acts to delegate such authority properly and fully. Up 
until now, no party has had the need to challenge the constitutional 
underpinnings of BIA's acknowledgment process, but we may be forced to 
do so because of the Eastern Pequot decisions.
    Second, the acknowledgment procedures are defective. They do not 
allow for an adequate role for interested parties, nor do they do 
ensure objective results. The process is inherently biased in favor of 
petitioners, especially those with financial backers.
    Third, the acknowledgment criteria are not rigorous enough. If the 
Eastern Pequot, Paucatuck Eastern Pequot, and Schaghticoke petitioner 
groups qualify for acknowledgment, then the criteria need to be 
strengthened. The bar has been set too low.
    Fourth, acknowledgment decisions cannot be entrusted to BIA. The 
agency's actions are subject to political manipulation, as demonstrated 
by the report of the Department's Inspector General detailing the 
abuses of the last Administration. Also, BAR itself will, in close 
cases, lean to favor the petitioner. The result-oriented Pequot and 
Schaghticoke final determinations are proof of this fact. For years we 
supported BAR and had faith in its integrity. Now that we have studied 
the Pequot and Schaghticoke decisions, we have come to see the bias 
inherent in having an agency charged with advancing the interests of 
Indian tribes make acknowledgment decisions. The Office of Federal 
Acknowledgment no longer has any credibility. Similar problems are 
likely to arise under an independent commission created for this 
purpose, unless checks and balances are imposed that ensure 
objectivity, fairness, full participation by interested parties, and 
the absence of political manipulation.
    Finally, because of all of these problems, it is clear that a 
moratorium on the review of acknowledgment petitions is needed. It 
makes no sense to allow such a defective procedure to continue to 
operate while major reform is underway.

Conclusion
    Our Towns respectfully request that this Committee make solving the 
problems with the acknowledgment process one of its top priorities. A 
moratorium on processing petitions should be imposed while you do so. 
In taking this action, we urge you to solicit the views of interested 
parties, such as our Towns and State, and to incorporate our concerns 
into your reform efforts. Tribal acknowledgment affects all citizens of 
this country; it is not just an issue for Indian interests.
    We are confident that such a dialogue ultimately will result in a 
constitutionally valid, procedurally fair, objective, and substantively 
sound system for acknowledging the existence of legitimate Indian 
tribes under federal law. With the stakes so high for petitioners, 
existing tribes, state and local governments, and non-Indian residents 
of surrounding communities, it is necessary for all parties with an 
interest in Indian policy to pursue this end result constructively. 
Ledyard, North Stonington, and Preston look forward to the opportunity 
to participate in such a process.
    Thank you for considering this testimony.
    [NOTE: Attachments to Mr. Mullane's statement have been retained in 
the Committee's official files.]
                                 ______
                                 
    [A letter submitted for the record by the Towns of Ledyard, 
North Stonington, and Preston, Connecticut, follows:

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