[Senate Hearing 107-523]
[From the U.S. Government Publishing Office]
S. Hrg. 107-523
WORK OF THE DEPARTMENT OF THE INTERIOR'S BRANCH OF ACKNOWLEDGMENT AND
RESEARCH WITHIN THE BUREAU OF INDIAN AFFAIRS
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
ON
TO RECEIVE TESTIMONY FROM THE BUREAU OF INDIAN AFFAIRS ON THE PROCESS
ESTABLISHED BY THE BRANCH OF ACKNOWLEDGMENT AND RESEARCH FOR THE REVIEW
OF PETITIONS OF TRIBAL GROUPS THAT ARE SEEKING FEDERAL RECOGNITION
__________
JUNE 11, 2002
WASHINGTON, DC
U. S. GOVERNMENT PRINTING OFFICE
80-405 WASHINGTON : 2002
___________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512-1800
Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001
?
COMMITTEE ON INDIAN AFFAIRS
DANIEL K. INOUYE, Hawaii, Chairman
BEN NIGHTHORSE CAMPBELL, Colorado, Vice Chairman
FRANK MURKOWSKI, Alaska KENT CONRAD, North Dakota
JOHN McCAIN, Arizona, HARRY REID, Nevada
PETE V. DOMENICI, New Mexico DANIEL K. AKAKA, Hawaii
CRAIG THOMAS, Wyoming PAUL WELLSTONE, Minnesota
ORRIN G. HATCH, Utah BYRON L. DORGAN, North Dakota
JAMES M. INHOFE, Oklahoma TIM JOHNSON, South Dakota
MARIA CANTWELL, Washington
Patricia M. Zell, Majority Staff Director/Chief Counsel
Paul Moorehead, Minority Staff Director/Chief Counsel
(ii)
C O N T E N T S
----------
Page
Statements:
Campbell, Hon. Ben Nighthorse, U.S. Senator from Colorado,
vice chairman, Committee on Indian Affairs................. 2
Fleming, Lee, chief, Branch of Acknowledgment and Research,
BIA, Department of the Interior............................ 4
Inouye, Hon. Daniel K., U.S. Senator from Hawaii, chairman,
Committee on Indian Affairs................................ 1
Keep, Scott, assistant solicitor, Branch of Tribal Government
and Alaska, Office of the Solicitor, Division of Indian
Affairs, Department of the Interior........................ 4
Roth, George, cultural anthropologist, BIA, Department of the
Interior................................................... 4
Smith, Michael, director, Office of Tribal Services, BIA,
Department of the Interior................................. 4
Appendix
Prepared statements:
Smith, Michael............................................... 19
Additional material submitted for the record:
Campbell, Hon. Ben Nighthorse, U.S. Senator from Colorado,
vice chairman, Committee on Indian Affairs, letter to
William G. Meyers, III, solicitor, Department of the
Interior................................................... 22
WORK OF THE DEPARTMENT OF THE INTERIOR'S BRANCH OF ACKNOWLEDGEMENT AND
RESEARCH WITHIN THE BUREAU OF INDIAN AFFAIRS
----------
TUESDAY, JUNE 11, 2002
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The committee met, pursuant to notice, at 1:33 p.m. in room
485, Senate Russell Building, Hon. Daniel K. Inouye (chairman
of the committee) presiding.
Present: Senators Inouye and Campbell.
STATEMENT OF HON. DANIEL K. INOUYE, U.S. SENATOR FROM HAWAII,
CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS
The Chairman. The committee meets this afternoon to receive
testimony from the Bureau of Indian Affairs [BIA] on the
process established by the Branch of Acknowledgement and
Research for the review of petitions of tribal groups that are
seeking Federal recognition.
This hearing is the first in a series of hearings that will
be held on the Federal Acknowledgement process. Today, the
committee wants to develop a record and an understanding of the
basic process that the Branch of Acknowledgement follows in
acting upon the petitions of tribal groups. In the next
hearing, the committee will receive testimony on the seven
criteria that are used by the Branch of Acknowledgment and
Research from experts in the field of genealogy, history and
anthropology, as well as testimony on the manner in which
criteria are being applied.
In a later hearing, the committee will receive testimony on
various legislative initiatives that propose to revise the
Federal Acknowledgement process. This committee understands
that attendant to any process is criticism in the way the
process works and the process of the Federal acknowledgment of
petitioning tribal groups is no different.
When the challenges associated with the process become too
much for some to bear, inevitably there will be those who will
seek ways around the process and who will find clever ways to
frustrate the process. The process entailed in the
acknowledgement of petitioning tribal groups is no different in
that respect either. And so, over the years tribal groups have
come to the Congress seeking a legislative recognition of their
status. In some instances, litigation relating to the
acknowledgement process has been initiated, and more recently
the Freedom of Information Act has been used as a means of
diverting the staff of the Branch of Acknowledgment away from
their primary charge, as they attempt to produce thousands of
pages of documents requested by interested parties.
The Congress is primarily responsible for the inadequate
resources, both financial and personnel resources, that are
provided for the Branch of Acknowledgment to carryout its work.
Thus, today in addition to developing an understanding of the
underlying process, the committee wants to know what is needed
in terms of resources to assist the Branch in fulfilling its
responsibilities.
With these considerations in mind, we leave for another day
the issues associated with the seven criteria and the manner in
which the criteria are applied, as well as the frustrations
that have consistently been expressed to this committee that
the acknowledgment process needs to be more transparent and
more timely. The committee expresses its appreciation to the
General Accounting Office for its helpful assessment of the
tribal recognition process. Equally as important, we thank the
Bureau of Indian Affairs for appearing before the committee
today.
Before we proceed with our witnesses, may I call upon the
Vice Chairman?
Senator Campbell. Thank you, Mr. Chairman.
Before I make some comments, with your permission I would
like to introduce for the record a letter I wrote to Solicitor
Myers on May 2, 2002 relating to this subject. I have not
received an answer yet, but I would like to put that in the
record.
The Chairman. Without objection.
[Referenced document appears in appendix. ]
STATEMENT OF HON. BEN NIGHTHORSE CAMPBELL, U.S. SENATOR FROM
COLORADO, VICE CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS
Senator Campbell. Mr. Chairman, in the years before
Columbus, some estimate the Native peoples of North America
numbered nearly 10 million. The Indian tribes that existed at
that time, they knew who they were by way of a shared culture
and a shared language, governing structure, family ties,
acknowledgment by other tribes, and their common history.
Needless to say, there was no ``acknowledgment process'' or 25
CFR Part 83 that governed who was and who was not considered an
Indian tribe.
I cannot help but think, Mr. Chairman, that those
considerations were given by non-Indians who just got off the
boat. I sometimes wonder what the reaction would have been on
the part of the European people between 1492 and 1850 if the
boats had gone the other way, and the newly arrived people from
this side of the Atlantic Ocean would have gotten off the
boats, set about to both civilize the people who had been there
for years, if not centuries, and then categorized them and
given them some identity cards or identity.
These processes and regulations are creations of the U.S.
Government and I think that we need to bear that in mind. They
were not started by the Native peoples, and I find it somewhat
ironic that the descendants of Native peoples who have lived in
North America for thousands of years are the only American
citizens who must be documented to prove their status.
Indian groups can be recognized by way of the legislative
route, which I have not always supported and generally tend to
oppose unless there are some extenuating circumstances, or
through the administrative process known as the Federal
Acknowledgment Process that you mentioned. Because tribal
recognition decisions were being decided inconsistently in the
courts, in 1978 the Department of the Interior issued
regulations to create the FAP process to be undertaken by the
Branch of Acknowledgment and Research. The FAP regulations were
revised in 1994 and again in 2000, but charges and counter-
charges about the current system have reached a boiling point.
They include the GAO, which says the BAR is not transparent
enough. The House of Representatives has said it lacks
integrity. Petitioners say it is biased against them and under-
funded. And State attorneys general say it is biased against
them and under-funded.
Third parties often say that the criteria is too loose.
Petitioning groups say that the criteria is too strict. And
almost everyone believes the process is too slow. And the
slowness of that process has been made worse by a wave of
lawsuits from third parties filed by local governments, State
attorneys general, and some filed by already-recognized tribes.
In addition to its normal duties in analyzing petitions,
the BAR is also being flooded with requests under the Freedom
of Information Act that are resulting in a constant churning of
documents and keeping the BAR from performing its core
functions. All of these factors have led to a near-standstill
in the processing of petitions before them.
I am anxious to hear from the witnesses, Mr. Chairman, but
like you, I feel strongly that we must act in the few months
that we have remaining in the 107th Congress. As you also
remember, Mr. Chairman, legislation you and I introduced last
year to establish an independent recognition commission that
was titled S. 504 is still pending before the committee. If our
collective efforts to improve BAR fail, I certainly will press
for consideration of that bill.
Thank you, Mr. Chairman. I appreciate the time.
The Chairman. Thank you very much, sir.
Our first witness is the director of the Office of Tribal
Services of the BIA, Department of the Interior, Mike Smith.
Mr. Smith will be accompanied by the chief of the Branch of
Acknowledgment and Research of BIA, Lee Fleming; and the
assistant solicitor of the Branch of Tribal Government and
Alaska Office of the Solicitor, Division of Indian Affairs,
Department of the Interior, Scott Keep.
Mr. Smith.
STATEMENT OF MIKE SMITH, DIRECTOR, OFFICE OF TRIBAL SERVICES,
BIA, DEPARTMENT OF THE INTERIOR, ACCOMPANIED BY LEE FLEMING,
CHIEF, BRANCH OF ACKNOWLEDGMENT AND RESEARCH, BIA; GEORGE ROTH,
CULTURAL ANTHROPOLOGIST, BIA; AND SCOTT KEEP, ASSISTANT
SOLICITOR, BRANCH OF TRIBAL GOVERNMENT AND ALASKA, OFFICE OF
THE SOLICITOR, DIVISION OF INDIAN AFFAIRS
Mr. Smith. Good afternoon, Mr. Chairman and members of the
committee.
My name is Mike Smith. I am the director of the Office of
Tribal Services within the BIA. I am an enrolled member of the
Laguna Pueblo Tribe in New Mexico. I was born on the
reservation at Fort Hall, Idaho, and spent my early years in
Arizona on the Navajo Reservation, growing up primarily in New
Mexico, Arizona, and Colorado.
With me today is Robert Lee Fleming, who is the chief of
the Branch of Acknowledgment and Research. That is within my
Office. Unfortunately, Dr. George Roth could not be with us
today. But also accompanying us this afternoon is Scott Keep,
the Departmental Solicitor's Office. Mr. Keep is one of the
attorney-advisers for the Branch of Acknowledgment and
Research.
We appreciate the opportunity to appear before you today to
speak on behalf of the Department about issues that are
currently impacting the Federal acknowledgment process. In
fact, I have the high honor and privilege of appearing before
this committee and the renowned Senators who I believe have
been the strongest champions of Indian people and their causes
over the years I have spent working in the Government.
The Federal acknowledgment of an Indian tribe is a serious
decision for the Department and the Federal Government. We feel
it is important that a thorough and deliberate evaluation take
place because of the status that the acknowledgment carries
with it. Our decisions must be fact-based, equitable and
defensible.
In 1978, regulations were issued at 25 CFR Part 83 to
provide a uniform process for determining which groups are
Indian tribes. The BAR was created to implement these
regulations. We feel the BAR's primary mission is to process
and evaluate petitions for acknowledgment. However, within the
past 10 years, the BAR has found itself performing more
extensive and time-consuming administrative duties, including
preparing administrative records in response to appeals and
litigation, and the handling of extensive Freedom of
Information requests on behalf of petitioners and interested
parties.
For the first one-half of this year 2002, over 84,000 pages
have been released under the Freedom of Information Act, and
over 4,200 pages have been withheld after careful legal
analysis that have been deemed non-disclosable. In November
2001, the General Accounting Office issued its report titled,
``Indian Issues: Improvements Needed in Tribal Recognition
Process.'' The GAO recommended that Federal acknowledgment
decisions be made in a more predictable and timely manner. We
would like to discuss that issue today.
On page 14 of that report, GAO stated:
Because of limited resources, a lack of time frames, and
ineffective procedures for providing information to interested
third parties, the length of time involved in reaching final
decisions is substantial. The workload of BIA has increased,
while resources have declined.
The current staff within the BAR, the Branch of
Acknowledgment and Research, consists of 11 full-time
employees. That includes two new hires--a genealogist who
started in May of this year and a cultural anthropologist who
began work at the Branch of Acknowledgment last week.
There are currently 15 petitions under active
consideration. That is the core of the BAR's responsibilities
as we see it. There are eight petitioners ready and waiting for
active consideration. The regulations require that we provide
informal technical assistance to petitioners and third parties.
The BAR provides this in meetings, telephone conferences, and
formal letters.
In 1999, we held 68 meetings. In the year 2000, there were
73 such meetings; and in 2001, 60 meetings. In addition, we
issued 42 technical assistance letters during the period 1995
through mid-2001. In 2001, the BAR held four recorded technical
assistance meetings, otherwise known as on-the-record meetings.
The agenda for one on-the-record technical assistance meeting
generated a transcript of 561 pages. The planning, organizing,
implementing and controlling of these formal meetings requires
substantial research and administrative time and commitment of
resources.
The BAR also responds to inquiries from Members of
Congress, provides technical comments on proposed legislation,
and responds to extensive requests under the Freedom of
Information Act for information relating to petitioners. In
fact, the most time-consuming diversion of BAR researchers has
been responding to requests for copies of documents under FOIA.
This process requires that in order to avoid violating the
Privacy Act, the BAR must make a detailed review of all
documents and redact sensitive information. Over the period
1991 through 2001, we responded to 396 requests and copied
thousands of pages, while withholding about 5 percent of those
and redacting approximately 1 percent.
The BAR assists the Office of the Solicitor in responding
to litigation. The Department ordinarily asserts that courts
lack jurisdiction in our regulatory process until a final
determination is made. However, in many cases courts have
injected themselves into the process and have required the
Department to abide by their schedules or keep the court
updated on the progress regarding timelines. We currently have
six acknowledgment cases before the courts. As a result, the
Department is working on several court-approved timelines and
court-ordered deadlines. Each negotiated schedule is unique,
and one of those, the Schaghticoke Tribal Nation's petition,
has resulted in a pilot project to speed the process.
Mr. Fleming will provide additional information on that
pilot project.
The court orders impact other petitioners and preempt the
ability of the Department to manage the Acknowledgment Program
and its resources on a uniform and equitable basis. Court
orders have forced us to divert our limited resources, and
court orders have interrupted, delayed and adversely impacted
petitioners on active consideration, and those who are high on
the ready list. Court orders have also adversely impacted
interested parties and petitioners themselves. They have
abbreviated the time periods and accelerated the completion of
proposed findings and final determinations.
Finally, court-imposed deadlines can be unrealistic. In two
situations, the Muwekma and the Connecticut cases, the
petitioners and interested parties have requested extensions
from the court because they were unable to meet the shortened
deadlines.
Thank you for the opportunity to testify on this issue. We
will be happy to answer any questions you may have concerning
the Federal Acknowledgment Process.
[Prepared statement of Mr. Smith appears in appendix.]
The Chairman. Just for the record, Mr. Smith--and I thank
you--can you walk the committee through the process you follow
in reviewing petitions of tribal groups?
Mr. Smith. Yes, Mr. Chairman; I would like to turn that
over to Mr. Fleming, who is most knowledgeable about this
process.
The Chairman. Mr. Fleming.
Mr. Fleming. Thank you for the opportunity to give
information to the committee. My name is Lee Fleming. I am a
member of the Cherokee Nation in Oklahoma. I appreciate the
opportunity to share this information with the committee.
We had two very good meetings with the senior staff of the
Committee on Indian Affairs just not too long ago. It was
enjoyable to share with them this information as well.
Our regulation, 25 CFR Part 83, has some history. It was
promulgated back in 1978. Prior to 1978, the Department was
involved with litigation and policy questions, particularly in
treaty fishing rights, land claims involving the non-
Intercourse Act and revenue-sharing questions. All these
questions seemed to come to a head at that time, which asked
for a process to be developed.
So in 1978, the Department conducted extensive
consultation. Participation and comments were received through
notice and rulemaking, and there were established uniform
standards that resulted from this process. They also went into
a revision of the proposed rule before it became a final rule.
And so, you can understand that the current regulation had gone
through extensive review.
In 1994, revisions were needed for the regulation, although
the criteria remained the same. There was a lowering of the
burden of evidence for petitioners who could demonstrate
unambiguous Federal acknowledgment. And some of the revisions
clarified what evidence was needed to meet the criteria.
Clarification of roles of interested and informed parties were
developed. And the regulation also was revised to provide an
independent review before the Interior Board of Indian Appeals.
The seven mandatory criteria will be the study in upcoming
hearings. But I needed to give you a quick overview of those
seven mandatory criteria in order for you to fully understand
the acknowledgment process, which is what I will then discuss.
The seven mandatory criteria require the petitioner to
demonstrate that it has been identified as an American Indian
entity on a substantially continuous basis since 1900. The
second criteria requires the petitioner to demonstrate that a
predominant portion of the petitioning group comprises a
distinct community and has existed as a community from
historical times to the present.
The third criterion requires that the petitioner
demonstrates that it has maintained a political influence or
authority over its members from historical times to the
present. The fourth criterion requires the group to have
structure, meaning it must have a governing document that
describes its structure and its membership criteria. The fifth
criterion requires the petitioner to have a membership where
they can demonstrate that the group descends from the
historical tribe or tribes to the present. The sixth criterion
requires the group to show that it does not compose of another
federally recognized tribe. And the last criterion, the
petitioner must demonstrate that it is not under any
congressional legislation that prohibits the group from going
through the process.
As you can see, all of those criteria require a group to
show continuous tribal existence. With that, then, if a group
believes that it could meet those criteria, then this is when
the regulation processes begin. It begins with a letter of
intent. The group submits the letter and basically it states
that we are interested in going through this regulated process.
The Department then publishes notice in the Federal Register so
that we are giving public notice that there is a group in a
particular State or region that is wishing to go through the
regulated process. We also send letters to the Governor and
Attorney General of the State of the petitioner, and we also
publish in a regional newspaper that this group has this
interested in going through the process.
Then, the ball goes into the court of the petitioner. The
petitioner then must research and acquire the documents that
meet the seven mandatory criteria. There is no time frame in
the regulation that is given for the petitioner, so the
petitioner then must rely on its resources to do the research.
During this time, we are available for technical assistance and
have the opportunity to provide the petitioners with copies of
the guidelines and the regulations.
The petitioner is able to present the evidence, yet there
is no set format for presenting the evidence. There is
flexibility for the petitioner in the presentation of the
evidence. We at the Branch of Acknowledgment and Research must
then take what is presented and then understand how the
evidence then falls under the seven mandatory criteria.
Once the petitioner submits the evidence, then the
Department is required to issue what is known as a Technical
Assistance Review letter. This letter will point out any
obvious deficiencies or significant omissions that is before
the Department. The petitioner under the regulations is
required to respond to the Technical Assistance Review letter.
They may say, we believe that we have addressed all seven
mandatory criteria and we would like to go on active
consideration. Or they may take the opportunity to address any
of the omissions or significant deficiencies.
Once the petitioner makes the statement that they are ready
to go forward, and we believe that they are ready to go
forward, then the petitioner is placed on a waiting list,
called Ready, Waiting for Active Consideration. This waiting
list is a first-in, first-out lineup. When our resources are
available, then we are able to then place the petitioner on
active consideration.
Once a petitioner goes on active consideration, this is
when quite a number of regulatory time frames kick in. Active
consideration is basically the formal review of the evidence.
The Bureau of Indian Affairs has 12 months to review the
documented petition. The documented petition is generally a
voluminous petition, as you heard earlier, and it does occur
during this time period that we receive a great number of
Freedom of Information Act requests.
I used to say that I came to Washington, DC to work for
Indian people, being a member of the Cherokee Nation. Never did
I realize that I would become a glorified Kinko's operator. But
it is part of the job and it has to be done.
At the end of the 12-month period, we then produce what is
known as a proposed finding. This proposed finding is either to
acknowledge the petitioner or not to acknowledge the
petitioner. The notice is published in the Federal Register,
which then begins the next regulated timeframe called the
public comment period. Under the public comment period, the
petitioner, interested parties, and the general public may
respond to the proposed finding, and we hope to receive
additional evidence and arguments that will help bring out the
facts concerning the group's situation.
This comment period then ends after 6 months, at which time
the petitioner then has an opportunity to address any of the
comments that came in through the public comment period. After
the 2-month period, then the Department has a time period in
which to develop what is known as a Final Determination. We
review all the comments. We review all the responses. And then,
we develop the Final Determination Recommendation and submit it
to the Assistant Secretary, Indian Affairs, who will make the
final determination.
Once the determination is made, it is published in the
Federal Register, and that begins one of the last phases,
called the Independent Review Phase Consideration. The
petitioner or interested parties may request reconsideration
before the Interior Board of Indian Appeals. This process, if
there are no extensions and the regulations do provide
extensions through some of these period, if there are no
extensions, the minimum processing time for a group is 2.5
years.
We understand that the time period for processing is a
question, and due to these extensions that occur, once you have
an extension for one petitioner, it may lead to extensions in
the other petitions. Our staff working is at full capacity, and
we are juggling more than one petition. We are addressing
collateral duties and it is very difficult to get these
recommendations prepared.
With that, I believe I have described the process fully.
Thank you.
The Chairman. Just a matter of curiosity--what do you
define as ``historic times''?
Mr. Fleming. Historic times under the regulations refer
back to first sustained contact that a group may have with the
non-Indian communities. In some of our cases, this would be in
the 1600's, in New England in particular. In California, it may
be in the late 1600's or early 1700's.
The Chairman. So it would depend upon contact with the
European?
Mr. Fleming. That is right.
The Chairman. That is to fulfill your requirement that
matters be in the form of written documents--the evidence be
written documents?
Mr. Fleming. Correct--written documentation.
The Chairman. So there is no flat rule--the rule being
European contact?
Mr. Fleming. First sustained contact with.
The Chairman. As a result, I suppose some tribes would have
to provide documentation from the turn of the last century.
Mr. Fleming. There are some groups that take advantage of
another provision in our regulation called Unambiguous Federal
Acknowledgment. If they can demonstrate that their group
descends from that group that had contact at a later time
period, then the evidence is what we would like to review.
The Chairman. What is the pilot program that Mr. Smith
referred to? I presume you are working on that, Mr. Fleming.
Mr. Fleming. Yes; I am, and quite a number of the staff,
and quite a number of other offices within the BIA and the
Department of the Interior.
This database system is called the Federal Acknowledgment
Information Resource System. The acronym is FAIR--F-A-I-R. And
the purpose of this database system is to speed up the analysis
and the evaluation of these acknowledgment petitions. We are
hoping that as we perfect this system that the factual bases of
these decisions will become more transparent and readily
available to the petitioners and third parties, which was what
the GAO had recommended.
We will be able to provide, provided that their are some
safeguards in place, we are able to provide these databases to
all the parties that are associated with the petitioning group.
We worked with the Schaghticoke Tribal Nation petitioner, and
the interested parties, the State of Connecticut, and the court
to develop this system. Basically, we are reviewing all of the
documents, cataloguing all of the evidence submitted by all the
parties, and also any evidence located by the Branch of
Acknowledgment and Research staff. Those catalogs then are
complete bibliographic references which are then available to
all parties. These documents are scanned into an electronic
system and it is amazing how we are able to understand what is
before us when we begin a formal review.
Complete genealogical information is also a basic function
of this project, and data on social and political activities
are drawn from all the documentary and interview sources. So
those are the basic functions of this database system.
The Chairman. How much time will the database system save
in the process?
Mr. Fleming. It definitely will save time that will allow
our professional researchers to devote to the analyses and
evaluations. The data that is entered into the system, which is
another feature that we are working with, we had contracted out
and have brought on research assistants who are able to enter
this data into the system. So the time that would have been
involved with our professional researchers entering in all the
data, that then is given to the research assistants, and that
allows our researchers to devote quite a bit of time to their
main task, which is the evaluation.
The Chairman. How many new personnel would you have to
hire, and how much would the resources cost to implement this
project?
Mr. Fleming. Currently, the project that we are involved
with--I will give you some information about the cost of the
contract. We had budgeted the project for $45,000. We have
spent about $42,000 already. Our research assistants that were
applied to this have been working for 21 weeks. That cost is
$64,293. That is just in regard to the bare nuts and bolts of
the system. We also had costs that we have not been able to
ascertain with regard to the documents scanning that was done
for this project. That was done by the Department of the
Interior's Document Management Unit. They were able to assist
us with that.
But it goes to an overall question about the Branch of
Acknowledgment and Research needs. The pilot project will be
applied to all the petitions in the process. We feel it is
going to be a tremendous tool for this process, and as a result
not only would we like to take the opportunity to use
appropriate outsourcing in this pilot project, but also that we
need to understand how that fits in with the overall structure
of the positions needed in the Branch of Acknowledgment and
Research.
The Chairman. Can you carryout the pilot project without
jeopardizing the other functions of BAR?
Mr. Fleming. Yes; we should be able to carryout all of
other functions.
The Chairman. I have a few other questions, but Mr. Vice
Chairman?
Senator Campbell. Thank you, Mr. Chairman.
I guess, directed to whoever, but maybe just through Mr.
Smith, it looks to me like that we are probably part of the
problem here, too, of not providing enough resources so that
you can do a good job. I was looking at the GAO report, which I
am sure you are familiar with. Do you have a copy of it there?
Look on page 15. I notice with interest between 1979 and 1990,
you had a couple of spikes, but the number of petitioners that
were being processed were up around five a year, or something
of that nature. There were major budget and personnel cuts
mandated by Congress in 1996.
How does your personnel--I notice you just recently hired
three more people in your office?
Mr. Fleming. Two.
Senator Campbell. How does your personnel now compare
before about 1990, where it begins to go up--the workload
begins to go up? Did you have more people then or less people?
Mr. Fleming. We have developed a breakdown of the staff
over the years, since the beginning in 1978 to the present. And
I would be happy to provide exact figures for you.
Senator Campbell. Okay. Well, just looking at that chart,
though, I note with interest that you really began to climb in
about 1990, just two years after we passed IGRA. I may sound
somewhat cynical, but I keep thinking that that huge increase
in the number of people are in two categories--probably some
from terminated tribes that really we ought to reinstate; but
certainly there are some others who the interest of casinos and
casino money I think are the driving force. At least that is
what it looks like to me. What would you think about that?
Mr. Fleming. There may be some correlation. You also heard
earlier that in 1994, we had revisions in the regulations,
which brought about public awareness. There were also
conferences that the White House had conducted with a great
participation of many groups. And also the publicity of what
has occurred in Indian country with regard to gaming may be a
factor, but I think there are multiple factors for the numbers.
Senator Campbell. You mentioned that of the petitioners
that are denied, they can then seek a remedy through an appeals
process. Is that correct?
Mr. Fleming. That is correct.
Senator Campbell. And if they are denied then, have you
noticed an increase of the ones who are going to court to find
some relief or coming here to try to get legislative relief?
Mr. Fleming. The groups will take advantage of any avenue
that would be available to them. So if they are denied through
the administrative process, then they have the avenue of going
to the court and suing under the Administrative Procedures Act,
which then would----
Senator Campbell. Well, I guess the question is, is that
what all of them do?
Mr. Fleming. Yes.
Senator Campbell. It is just a matter of course?
Mr. Fleming. It seems to be the direction.
Senator Campbell. I see. I read the February 11, 2000
regulations. The BAR was directed to refrain from substantial
research, and to conduct the research necessary to verify and
evaluate submissions. Have those changes improved the process
at all? Has it reduced the workload at all?
Mr. Fleming. We expect to address this issue later this
year. There are some aspects of the directive that have
assisted. There are some aspects that have been difficult to
work under. But we do hope to have a position on the February
11 directive later this year.
Senator Campbell. And also, it is my understanding that
Secretary McCaleb, as a response to the GAO report of November
2001, indicated the Bureau would develop a ``strategic plan''
within about 6 months dealing with the BAR process. What is the
status of that strategic plan?
Mr. Fleming. We have been working on the draft. We expect
to have that prepared shortly as well. As Director Mike Smith
had shared with the committee earlier, we have been under
court-projected timelines and court-ordered deadlines, but we
have shared our drafts with the decisionmakers and we hope to
have that out soon.
Senator Campbell. Okay, if you could provide the committee
with a copy of that. I am certainly also concerned about what
we do to try to improve the process. As I understand your
testimony, or perhaps it was Mr. Smith's, that about 40 percent
of the BAR staff time is spent responding to Freedom of
Information Act Requests. How can we deal with that at all? Is
there anything that we can do legislatively without getting in
trouble with the courts? Do you want to tackle that one, Mr.
Keep?
Mr. Keep. Senator, I will be glad to. I am not sure I can
answer that clearly. We are concerned that we need to provide
protection for the privacy of individuals. As I think you know,
the BAR process involves the submission of a great deal of
personal information to confirm and establish Indian ancestry,
and it is important for us to be able to protect that. We have
been able to make some progress, ironically, in the cases that
have involved litigation by getting the parties to agree to
confidentiality agreements. We are using the court's authority
and powers to ensure the preservation of personal privacy.
I am not sure that the best answer would be an amendment or
modification of the Freedom of Information Act. I think that
performs an important service. We are not sure what would be
the most appropriate way to address that. We are looking at
those. Those are some of the things that are being considered
in the context of the further response to the GAO report.
Senator Campbell. Okay. Well, in your recommendations, you
can give the committee--I would certainly appreciate it.
Mr. Keep. We certainly would be glad to do that.
Senator Campbell. And speaking of courts, too, there are
court-ordered deadlines. When you get court-ordered deadlines,
how does that impact your work on other petitions? Do they
then, because of the deadline, ``jump'' the line? Do they get
elevated ahead of the ones that have been waiting patiently to
get through the process?
Mr. Keep. In terms of the Solicitor's Office and I would
ask Lee to cover part of this, but from our perspective, it
certainly does affect the priorities. The court-ordered
deadlines or in some instances we have negotiated and tried to
work a compromise. We realize that these are important issues
that must be dealt with. The BAR is anxious to meet with them,
and we are looking for ways to deal with ones that in all
fairness--but clearly, it requires a changing in priorities. In
one particular case, the group that was last on the ready-for-
active-consideration, was elevated to the first. And then
having gotten these court-ordered deadlines, sought two
extensions. That does cause disruptions in terms of planning,
the staff. Every time the BAR staff or my staff in the
Solicitor's Office has to review a document and then put it
aside and start and look at another one because of a change in
priorities, they then have to reinvent the wheel. So there is a
problem of going back and picking up when you get your
priorities changed.
Senator Campbell. Thank you.
Mr. Chairman, I have some further questions, but I will be
happy to yield and go back and forth, if that is acceptable.
The Chairman. Complying with Court orders take up to 40
percent of your staff time?
Mr. Keep. I beg your pardon, Senator?
The Chairman. Does the work entailed in complying with
court orders take up to 40 percent of your staff time?
Mr. Keep. No; actually it is probably more at that time.
There are four attorneys in my branch, and my branch is the one
that handles and provides legal counsel to the branch of
Acknowledgment. One attorney is working almost full time on
that. Another attorney, a senior attorney, Ms. Cohen, who is
with us today, is spending nearly 90 percent of her time on
these cases. They are not all on the actual litigation. In many
instances, they are on the litigation, but the time is spent in
providing legal counsel to meet the litigation-directed
deadlines. So my staff, the two other attorneys and about 50
percent of my time is directed towards addressing the
acknowledgment petitions which are the subject of the
litigation. The actual review of the court filings and the
review of briefs and whatnot does not take all of our time. But
the counseling and assisting the BIA to articulate its
conclusions and whatnot, that sort of legal work, takes up
about 100 percent of our time now.
The Chairman. But it does affect the scheduling and the
priorities?
Mr. Keep. Yes; it does.
The Chairman. Can you provide us with a breakdown of the
number of additional personnel that you could use in addressing
litigation, and what levels of training for such personnel
might be necessary, and if you could convert that into dollars,
we would appreciate it.
Mr. Keep. I think we could provide that, Senator. I am not
quite sure how to answer it. Unfortunately, I think as is
documented in the General Accounting Office report, as more
decisions are issued, the trend in recent years has been to
litigate almost all of them, so that in the past, even before
the more recent circumstances which the vice chairman alluded
to in the Indian Gaming Regulatory Act, we had been sued for
declining to acknowledge groups. We have been sued by
recognized tribes for acknowledging groups. And we have been
sued for not issuing a decision at all.
I am afraid that that pattern is likely to increase, so
that our work in the Solicitor's Office is going to be tied
very closely to the staffing of the Branch of Acknowledgment
and Research. The more decisions they issue, the more staff
time my office will be. So we work in very close relationship
with them.
The Chairman. At this moment, how many court orders are you
dealing with?
Mr. Keep. I think we referenced six cases. We have three in
Connecticut, one here in the District of Columbia, and I think
that is it--four court-ordered schedules.
The Chairman. Out of how many petitions?
Mr. Keep. There are 15 on active consideration.
The Chairman. Fifteen?
Mr. Keep. Fifteen. That is correct.
Mr. Smith. Mr. Chairman, just as a follow-up to your
previous question, previously we expressed that we had filed a
response with the GAO report. In that response, we identified a
strategic plan, which is in draft form. In that strategic plan,
we have identified a number of positions that we feel would be
ideal for the Branch of Acknowledgment and Research. That
includes an Administrative Section. It also includes research
assistants and staff people who would assist the professional
staff. It also identifies an increase in the professional
staff. We can provide that information to you.
The Chairman. We would like to have that, not just the
numbers and the talent, but the sums.
Mr. Keep. Mr. Chairman, in that regard, if I may just
follow up, because of things such as the Freedom of Information
Act and the requirement that under the Department's regulations
all redactions or documents withheld require legal review, to
the extent that the BAR Office is producing more documents in
response to the Freedom of Information Act, that impacts our
office. To the extent that the BAR staff is increased with
research assistance, clerical staff or other trained personnel,
the material is going to be more readily reviewable by our
office and it will be more efficient. Because of our court-
ordered deadlines, we have had to have attorneys do work that
really did not require their expertise, but they were required
to do it in order to meet the court-ordered deadline. So to the
extent that the other staff of the BIA, the non-professional
staff, that is, the research assistants and perhaps paralegals
and records management staff is increased, that will also
lighten to some extent the load that the Solicitor's Office has
tried to fill in on.
The Chairman. Thank you.
Mr. Vice Chairman.
Senator Campbell. Thank you, Mr. Chairman.
Perhaps Mr. Keep could answer this. I am interested in
knowing what discretion the Assistant Secretary has with the
BAR? I have heard some question that, not this Assistant
Secretary, because I think Neal McCaleb is a very fine man, but
I have heard in the past sometimes that the Assistant Secretary
``overrruled'' the BAR, or that BAR just feels like they are
being overruled. Give me the general--how does BAR work with
the Assistant Secretary?
Mr. Keep. I would be glad to address that. I think the
answer to your question is more fully set out in the
Solicitor's response to your letter. He is reviewing what we
have proposed to him--the letter that you introduced in the
record earlier.
Senator Campbell. So he can provide advice and
recommendation, and he can overrule the BAR?
Mr. Keep. I think that it is his decision ultimately to
make, and there is no mistake of that. I think to the extent
that he has adopted regulations that define what sorts of
criteria he is going to consider and the entire regulatory
scheme that is built around the expertise in BAR, those are
some constraints on him. The court cases have generally
deferred to the political branches of government on tribal
status issues, that is yourselves, the Congress of the United
States, and the Executive Branch. There is long precedent in
the Supreme Court on that.
They are not willing to necessarily defer indefinitely, as
was decided in the Masphee case many years. The court said, I
won't wait indefinitely for it. But subsequently, cases have
indicated that the courts are willing to defer to the
Department, as it has developed a special expertise. So that to
some extent, the courts' willingness to defer to the Department
is tied to the fact that the BAR has professional researchers
who are looking at this in a very studied way, which does not
mean necessarily a tedious, scholarly way, but a very
methodological, sound way that is documented.
Senator Campbell. I see.
The unfortunate part of our Nation's history is that many
tribes were forced to break up, certainly through no action of
their own, but were literally done at gunpoint. Some of them as
late as the 1950's under the Termination Acts can be tracked
pretty well, because it was not very long ago. But some of them
were a long time ago. I remember when I was on the House side,
one group that came in was looking for legislative relief to
that, and they had--I asked them some questions about their
traditions, their songs, their dances, their story of
creation--all the things that literally anybody that is
involved with a tribe knows or knows about--they did not know
any of it, did not know any of it.
And I asked them what they had to make them legitimately a
tribe, and they said, we formed a corporation, which probably
does not fit under your criteria what a tribe is, but I can
understand their point of view, too. If they were literally
forced, through whatever process the government had at the
time, to be broken up, there was no question that they were
going to forget an awful lot of their traditional things that
are now part of the criteria, as I understand it, to be
reinstated or recognized as a tribe.
When you have a group of people that fall in that category,
it is almost impossible to track some things, but other Indian
people recognize them and know they are Indian, or through some
process of association. How do you address that? Perhaps Mr.
Fleming--I am thinking in terms also, for instance, in the
Trail of Tears. Most of the people were moved out of the
Southeast part of the country to Oklahoma, but some were not.
Some hid out in the hills and would not go. You know that. You
come from a tribe that knows that very well, that story. How do
you deal with things like that? I know that this is a little
bit maybe off the subject, but I am interested in knowing.
Mr. Fleming. The documentation that is available, or in
some cases not available, is brought out through this regulated
process. A group will need to do research on the local, State,
national, tribal levels. Through the research, then the
documentation hopefully will answer the questions. The
documentation then is applied to those seven mandatory
criteria. So as the group is researching, and again we are
available for technical assistance and advice as to where to go
to do the research, then the groups then are able to present
that documentation to us.
If you take a look at the cases that have been resolved
through the regulated process, we have about 15 groups that
have been denied acknowledgment, and 15 that have been
acknowledged. So 15 groups have been able to find the
documentation that is necessary to present to the process and
meet the seven mandatory criteria.
Mr. Smith. I would like to add also, Senator Campbell.
Senator Campbell. Yes, Mr. Smith?
Mr. Smith. Prior to coming to Washington, DC, I spent the
last 15 years in California. I know exactly what you are
talking about. There are many Indian people who have been
disenfranchised through no fault of their own. We know those
stories and we know the people are Indian people, but the
question before us becomes whether or not they are a tribe, and
that is I guess the crux of the problem. The mandatory criteria
demands that we go through this evaluation of whether or not
this is a tribe under our criteria.
Senator Campbell. Yes; well, I might refer to my California
days too, Mr. Smith, because there are a number of bands of the
Me-Wuks, as you know, in the Valley. Some are recognized and
some have not gotten recognized yet, and some of those people I
know. I have known them since childhood. I went to school with
them, and I know them as blood relatives of each other. But
because one band, they are recognized, and because in another
band, they are not. It is a difficult thing. I do not want to
expand on that, because I am sure you are aware of the problem
out there.
Let me go on to another thing here. That deals with
conflict of interest. In the past few years, there has been a
great deal of hand-wringing about supposedly undue influence by
financial and political interests into the BAR process, as you
know. Are those allegations accurate, to your knowledge, or
have been? If they are, what can be done about it to make sure
that that is not a regular matter of course?
Mr. Smith. I would say, speaking for the Branch and the
Office of Tribal Services that I have not experienced any undue
influence. I do not know that the BAR has been subjected to
this prior to my coming to the Office, and I have been in that
Office for the past 2 years. We have made recommendations to
the decisionmaker, the Assistant Secretary. We have provided
all of the information to document the recommendation. So in my
opinion, there is no undue influence.
Senator Campbell. What are the conflict of interest rules
after they leave Federal employment--the BAR employees?
Mr. Smith. I believe they vary. But in many cases, we have
people who were employed at the BAR who are now working for
petitioners.
Senator Campbell. Is there any timeframe? For instance,
here in Congress we cannot lobby for 1 year. We cannot lobby
our colleagues for 1 year. I think that is in most of the area
of the Administration, too.
Mr. Keep. Senator, if I may, I think all of the conflict of
interest statutes in title 18, 207, and 208, are certainly
applicable to BAR. I am not aware of any instance in which an
individual has worked on a particular petition or whatnot in
BAR and then gone out and worked on that same issue from
another side. I think that we look to the existing criminal
statutes that prohibit someone working on a particular matter
they were involved in before.
Senator Campbell. As I understand it, the standard in the
regulations to recognize a tribe is based on what is called the
``reasonable likelihood'' standard. Is that the same as what
you would find in a court called a ``predominance of evidence''
standard?
Mr. Keep. I do not think that is the case. Preponderance of
the evidence might be--it does not take into account the
absence of evidence. I think what the BAR is looking for in the
standard of evidence is, is there enough evidence to establish
by reasonable likelihood that these facts exists, even in the
absence of contrary or conflicting evidence. So we may have, as
you have pointed out, one of the difficulties, particularly in
some of the early histories, is there are gaps and there are
absences of evidence. And so the task that BAR is confronted
with is, even though there is no conflicting evidence or
contrary evidence, is the evidence that is here enough to
establish that there are leaders, and that there is interaction
and it has been continuous.
Senator Campbell. Thank you, Mr. Chairman.
The Chairman. Well, I thank all of you very much. You have
been extremely helpful. As I noted in my opening remarks, this
will be the first in a series of meetings of this nature.
We hope that when we conclude, we may be able to assist you
in establishing a much more robust organization that can handle
the heavy load that you apparently are called upon to handle.
So if you could provide us with the information we have
requested, we will see what the Appropriations Committee will
do to be of assistance.
Mr. Smith. We will provide that information, Mr. Chairman,
and we thank you for allowing us this opportunity.
The Chairman. With that, the hearing will stand in recess
and the record will be kept open for the next 2 weeks if you
have any additional questions, addendum, suggestions to make.
We will be happy to receive them.
[Whereupon, at 2:36 p.m., the committee was adjourned, to
reconvene at the call of the Chair.]
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A P P E N D I X
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Additional Material Submitted for the Record
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Prepared Statement of Michael R. Smith, Director, Office of Tribal
Services, Department of the Interior
Good afternoon, Mr. Chairman and members of the committee. My name
is Mike Smith and I am the Director of the Office of Tribal Services
(Office) within the Bureau of Indian Affairs (BIA). Accompanying me
today is W. Lee Fleming who is the Chief of the Branch of
Acknowledgment and Research (BAR) within my Office. We appreciate the
opportunity to appear before you today to speak on behalf of the
Department about issues that are currently impacting the Federal
acknowledgment process.
The Federal acknowledgment of an Indian tribe is a serious decision
for the Department and the Federal Government. It is important that a
thorough and deliberate evaluation occur before we acknowledge a
group's tribal status, which carries with it certain immunities and
privileges. These decisions must be fact-based, equitable, and thus
defensible.
In 1978, the Department issued regulations at 25 CFR Part 83,
Procedures for Establishing that an American Indian Group Exists as an
Indian Tribe, to provide a uniform process for determining which groups
are Indian tribes. The BAR was created to implement these regulations.
Under the regulations, acknowledgment is granted to groups that
demonstrate that they have a ``substantially continuous tribal
existence'' and ``have functioned as autonomous entities throughout
history until the present.''
BAR's primary mission is to process and evaluate petitions for
acknowledgment. The BAR experts review and evaluate petitions',
documentation, consult with petitioners and third parties, prepare
technical assistance review letters, hold formal and informal technical
assistance meetings, maintain petitions and administrative
correspondence files, and make recommendations for proposed findings
and final determinations to the Assistant Secretary for Indian Affairs
(AS-IA). However, within the past 10 years, the BAR has found itself
performing more extensive and time consuming administrative duties,
including preparing administrative records in response to appeals and
litigation, and the handling of extensive Freedom of Information Act
(FOIA) requests on behalf of petitioners and interested parties. For
example, the administrative record in Ramapough Mountain Indians v.
Norton was 30,000 pages which had to be prepared and scanned onto 7 CD-
ROMs. For the first 0ne-half of 2002, over 94,000 pages had been
released under FOIA, and over 4,200 pages had been withheld deemed,
after careful legal analysis, to be non-disclosable.
In November 2001, the General Accounting Office (GAO) issued its
report, Indian Issues: Improvement Needed in Tribal Recognition Process
(Report). The GAO recommended that Federal acknowledgment decisions be
made in a more predictable and timely manner. On Page 14 of the report,
the GAO stated ``[b]ecause of limited resources, a lack of timeframes,
and ineffective procedures for providing information to interested
third parties, the length of time involved in reaching final decisions
is substantial. The workload of BIA staff assigned to evaluate
recognition decisions has increased while resources have declined.''
The current staff within the BAR consists of 11 full-time employees,
which includes two new hires--a genealogist who started work in May
2002 and an anthropologist who started work on June 3, 2002.
There are currently 15 petitioners under active consideration,
which make up the core of BAR's responsibilities and 8 petitioners
ready, waiting for active consideration. Active consideration is the
core responsibility of the BAR and includes the process from the time
the BAR staff officially begins its review and evaluation of the
petition, through the proposed finding and comment stage to the final
determination. It may also include a reconsidered final determination.
if requested by the Secretary of the Interior (Secretary) following
review and referral by the Interior Board of Indian Appeals (IBIA).
The regulations require providing informal technical assistance to
petitioners and third parties, which the BAR provides in meetings,
telephone conferences, and formal letter. We held 68 meetings in 1999,
73 in, 2000, and 60 in 2001. In addition, we issued 42 technical
assistance letters during the 1995 to mid-2001 period.
In 2001, the BAR held four recorded technical assistance meetings
concerning the process at the request of petitioners and interested
parties. The agenda for one on-the-record technical assistance meeting
generated a transcript of 561 pages with indices. The planning,
organizing, implementing, and controlling of these formal technical
assistance meetings requires substantial research and administrative
time and commitment of resources.
The BAR also responds on a priority basis to inquiries from Members
of Congress, provides technical comments on proposed legislation
relating to the acknowledgment of tribal status generally or relating
to the acknowledgment of the tribal status of specific groups of Indian
descendants, and responds to extensive requests under the FOIA for
information relating to a petitioner.
The most time consuming diversion of BAR researchers from their
primary responsibility of evaluating petitions, is responding to
requests for copies of documents under FOIA. To satisfy the
acknowledgment regulations, petitioners submit a large and varied body
of documentation which includes a substantial amount of genealogical
and other personal information. Initial petition submissions commonly
range from 25,000 to 100,000 pages. Responses to proposed findings may
entail an equally extensive amount of documentation. To avoid violating
the Privacy Act, the BAR must make a detailed, page-by-page, line-by-
line review of all documents to redact sensitive information prior to
public disclosure. Over the 1991 through mid-2001 period, we responded
to 396 requests, copied and released 219,100 pages, withheld 12,966
pages, and redacted 1,426 pages. This year, BAR is responding to
multiple FOIA requests for the two Nipmuck acknowledgment petitions.
The Department to date has released 59,021 pages and withheld 12,703
pages.
The BAR assists the Office of the Solicitor and the Department of
Justice, in responding to litigation. When faced with litigation
regarding the process or timing in which a petition has been handled,
the Department ordinarily asserts that the Courts lack jurisdiction to
become involved in the regulatory process until a final determination
is made. However, in many of the cases below, Courts have nonetheless
injected themselves into the process, and have required the Department
to abide by specific schedules or keep the Court updated on progress on
projected timelines. Pending lawsuits include: (1) Connecticut v.
Department of the Interior, Civil No. 3:01CV-0088 (AVC), D. Conn. (2)
United States v. 43.47 Acres of Land, Civil No. H-85-1078 (PCD), D.
Conn. (3) Muwekma Tribe v. Babbitt , Civil No. 99-CV-3261 (RMU), D.D.C.
(4) Burt Lake v. Norton, Civil No. 1:01CV00703, D.D.C. (5) Golden Hill
Paugussett Tribe v. Norton, Civil No. 3:01CV1448 (JBA), D. Conn.; and
(6) the Mashpee Wompanoag Council, Inc. v. Norton, No. 1:01CV00111
(JR), D.D.C. Also, we just successfully defended two acknowledgment
decisions in the 7th Circuit and the D.C. Circuit--Miami Nation of
Indians of Indiana v. the Department of the Interior (petition for
certiorari denied) and Ramapough Mountain Indians v. Norton (petition
for certiorari pending). The 7th Circuit in the Indiana Miami case also
affirmed the Department's authority to acknowledge tribes and affirmed
the validity of the acknowledgment regulations. Additionally, we
successfully defended a challenge to the requirement of exhaustion of
the administrative process. United Tribe of Shawnee Indians v. United
States (10th Circuit).
The Department is working on several Court approved timelines and
Court ordered deadlines. Each negotiated schedule is a result of unique
circumstances, such as the Schaghticoke Tribal Nation's
(``Schaghticoke'') acknowledgment petition, a condemnation action that
had been pending since 1995. See United States v. 43.47 Acres of Land,
Civil No. H-85-1078 (PCD), D. Conn. As a pilot project to speed the
acknowledgment process, three technicians imputed data from the
petition into an automated database that will be accessible to BAR
researchers, petitioners, and interested parties. This demonstration
project, if successful, will provide a decision that is more readily
transparent and verifiable, and will provide a more efficient
decisionmaking process, as recommended by GAO.
Projected schedules for processing and evaluating the petitions of
the following groups on active consideration are established by
immediate regulatory deadlines, court approved settlement agreements,
and court orders:
\\\\\\Petitioners with projected regulatory schedules
include the: Chinook Indian Tribe/Chinook Nation (#57)
(Washington).
\\\\\\Petitioners with court approved projected schedules
include the: Eastern Pequot Indians of Connecticut (#35),
Paucatuck Eastern Pequot Indians of Connecticut (#115), and the
Golden Hill Paugussett Tribe (#81), the Schaghticoke Tribal
Nation (#79) (Connecticut).
\\\\\\Petitioners with court ordered schedules include the:
Muwekma Indian Tribe (#111) and Masphee Wampanoag (#15)
(California and Massachusetts respectively).
There are six other petitioners on active consideration awaiting
the availability of a BAR research team to complete the evaluation and
processing of their acknowledgment petition.
Court orders impact other petitioners in the process and preempt
the ability of the Department to manage the acknowledgment program and
its resources on a uniform and equitable basis. They impact: (i) the
petitioner; (ii) the interested parties; (iii) the general public; (iv)
the nature and quality of the review of the petition; (v) those
petitioners on active consideration; (vi) those petitioners with higher
priority on the ready list; and (vii) the ability of the Department to
manage the acknowledgment program and its resources.
By requiring the Department to give priority to one petition over
another, court orders have forced us to divert limited resources. Based
upon our experience, our adherence to the Court orders has interrupted,
delayed, and adversely impacted the petitioners currently on active
consideration and those who are high on the ready list and entitled to
priority in consideration over petitioners under Court orders.
Court orders also adversely impact interested parties and the
petitioners themselves. The interested parties identified with a
specific petition include the States, states attorneys general,
surrounding towns, and recognized tribes. Certain court orders require
the Department to prioritize petitions and truncate the timeframes in
the regulations for interested parties and petitioners to submit
comments on the proposed finding and to receive technical assistance.
Court orders abbreviate the time period for responding to comments and
accelerate the completion of the proposed findings and final
determinations.
In the Mashpee litigation, the Department informed the Court that
``[t]he lack of staff and truncated evaluation times will result in a
proposed finding for the Mashpee petitioner that will differ
substantially in both form and content from the proposed findings of
petitions already processed and evaluated under the 1994 regulations.''
For instance, in Mashpee the proposed finding scheduled to be issued
this year, does not have a cultural anthropologist assigned to its
research team, as the existing cultural anthropologists were already
assigned to other cases with court schedules.
Finally, court imposed deadlines can be unrealistic. In Muwekma and
in the Connecticut cases, the petitioners and interested parties have
requested extensions from the court because they were unable to meet
the shortened deadlines. Typically, the petitioner, interested parties,
and other parties submit FOIA requests to the Department for copies of
records, such as petition materials and BAR research documents that
they will use to comment meaningfully on the proposed finding. Because
the requested records are often extensive, the six (6) months provided
for the comment period is barely long enough for the Department to
review for privacy concerns and release the requested records, for the
requesters to receive and review the records, and for the requesters to
analyze these records and submit comments to the Department on the
proposed finding. Due to these logistical factors, it is likely that
the interested parties and the petitioner will need to request
extensions of the comment period to obtain time for receiving and
analyzing requested copies of records for the purpose of adequately
responding to the proposed finding.
Thank you for the opportunity to testify on this issue. We will be
happy to answer any questions you may have concerning the Federal
acknowledgment process.
Senate Committee on Indian Affairs,
Washington, DC, May 2, 2002
Mr. William G. Meyers, III
Solicitor, Department of the Interior
Washington, DC.
Dear Solicitor Meyers: I am writing with regard to the activities
of the Branch of Acknowledgment and Research [BAR] and the authority
exercised by the Assistant Secretary--Indian Affairs [AS-IA] with
regard to the development and issuance of Proposed Findings and Final
Determinations on petitions for Federal acknowledgment filed by Indian
groups pursuant to 25 CFR Part 83.
As you know, in recent years there has been substantial publicity
about the process by which petitions for acknowledgment are considered
by the Department. Since 1987, there have been numerous congressional
hearings on the Federal acknowledgment process and intermittent calls
for the reform of the BAR process. As recently as this session various
proposals have been introduced seeking to reform the Federal
acknowledgment process. See for example the ``Indian Tribal Federal
Recognition Administrative Procedures Act of 2001'' (S. 504), and the
``Tribal Recognition and Indian Bureau Enhancement Act of 2001'' (S.
1392).
In addition, recent decisions in the Federal courts are having an
impact on the ability of the BAR to review and make recommendations on
petitions for acknowledgment. The process of acknowledgment is one
involving research, analysis and recommendations by BAR staff and,
consideration by the Assistant Secretary in his decisionmaking process.
Clearly, the Assistant Secretary is entitled to place some degree
of reliance on the recommendations of his professional staff. At the
same time, it must be recognized that the acknowledgment decisions are
matters that carry serious consequences for petitioning groups and
their members. At bottom, what I am interested in knowing is what, as a
matter of law, your office believes the legal authority and discretion
of the Assistant Secretary to be in considering the recommendations of
the BAR staff. I am also interested in your view of the proper role
that your office should play in advising the AS-IA in these matters.
If you have questions, please contact Paul Moorehead, my staff on
the Committee on Indian Affairs at (202) 224-2251. I look forward to
hearing from you on these important matters.
Sincerely,
Hon. Ben Nighthorse Campbell,
Vice Chairman.