Senate Report 112-201 - EXTENDING FEDERAL RECOGNITION TO THE CHICKAHOMINY INDIAN TRIBE, THE CHICKAHOMINY INDIAN TRIBE-EASTERN DIVISION, THE UPPER MATTAPONI TRIBE, THE RAPPAHANNOCK TRIBE, INC., THE MONACAN INDIAN NATION, AND THE NANSEMOND INDIAN TRIBE

[Senate Report 112-201]
[From the U.S. Government Publishing Office]

Calendar No. 491
112th Congress Report
SENATE
2d Session 112-201

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

EXTENDING FEDERAL RECOGNITION TO THE CHICKAHOMINY INDIAN TRIBE, THE
CHICKAHOMINY INDIAN TRIBE-EASTERN DIVISION, THE UPPER MATTAPONI TRIBE,
THE RAPPAHANNOCK TRIBE, INC., THE MONACAN INDIAN NATION, AND THE
NANSEMOND INDIAN TRIBE

_______

August 2, 2012.--Ordered to be printed

_______

Mr. Akaka, from the Committee on Indian Affairs,
submitted the following

R E P O R T

together with

ADDITIONAL VIEWS

[To accompany S. 379]

[Including cost estimate of the Congressional Budget Office]

The Committee on Indian Affairs, to which was referred the
bill (S. 379) to extend Federal recognition to the Chickahominy
Indian Tribe, the Chickahominy Indian Tribe-Eastern Division,
the Upper Mattaponi Tribe, the Rappahannock Tribe, Inc., the
Monacan Indian Nation, and the Nansemond Indian Tribe, having
considered the same, reports favorably thereon and recommends
that the bill do pass.

PURPOSE

The purpose of S. 379 is to provide Federal recognition to
six tribes in the State of Virginia--the Chickahominy Indian
Tribe, the Chickahominy Indian Tribe-Eastern Division, the
Upper Mattaponi Tribe, the Rappahannock Tribe, Inc., the
Monacan Indian Nation, and the Nansemond Indian Tribe, and make
applicable to the tribal groups and their members all laws that
are generally applicable to American Indians and Federally-
recognized Indian tribes.

Need for legislation

Although there is a Federal regulatory process by which an
Indian group may obtain Federal recognition (described below),
the ability of a tribal group to meet the regulatory
requirements is highly dependent upon the availability of
documentary evidence and records. The six Virginia tribal
groups proposed for recognition in S. 379 have suggested that
the unique history of the State of Virginia and its relations
with these groups prevents them from being able to meet the
level of documentary evidence required by the Department of the
Interior.
Many of the courthouses that housed records and documents
related to these tribal groups burned during the Civil War.\1\
Thus, records up to the late 1800's are difficult to find for
these groups. Additionally, in 1924, the State of Virginia
passed the Racial Integrity Law, thereby requiring all segments
of the population to be registered at birth in one of two
categories: ``white'' or ``colored.'' The ``colored'' category
was mandated for all non-white persons regardless of race or
ethnicity. Officials from the State's Bureau of Vital
Statistics interpreted the law as allowing them to go back and
change a person's birth certificate if they believed that there
was evidence that the person was not fully white.
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\1\Rountree, Helen C., Ph.D., A Brief History of the Six Indian
Tribes Requesting Federal Acknowledgment.
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The primary target of the Racial Integrity Law was the
African American community.\2\ However, proponents of the
agenda heralded by the Eugenics Movement saw the Virginia
Indian community as a threat. This was because the Racial
Integrity Law allowed persons of white and Virginia Indian
ancestry, as long as it was not more than 1/16 of Indian blood
quantum, to be classified as ``white.''\3\ Supporters of the
law (including Dr. Walter Plecker, the Registrar for Virginia's
Bureau of Vital Statistics), saw the exception in the law for
Indians as an opportunity for persons of mixed heritage of
African American and Native American ancestry to eventually
move out of the category of ``colored'' and into the category
of ``white.'' Thus, officials from the State's Bureau of Vital
Statistics actively sought to denigrate and deny persons of
Virginia Indian descent the right to identify themselves as
``Indians'' or ``white'' and forced them to be declared
``colored.''\4\
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\2\Testimony of Danielle Moretti-Langholtz, Ph.D., American Indian
Resource Center, Coordinator, before the United States Committee on
Indian Affairs, October 9, 2002.
\3\Section 5 of 1924 Racial Integrity Act.
\4\Testimony of Danielle Moretti-Langholtz, Ph.D., American Indian
Resource Center, Coordinator, before the United States Committee on
Indian Affairs, October 9, 2002.
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The Racial Integrity Law remained in effect until it was
declared unconstitutional by the United States Supreme Court in
1967 in the Loving v. Virginia case (388 U.S. 1). In 1997,
Virginia Governor George Allen signed into law a bill allowing
Virginia Indians to correct their birth records. However, the
six tribes contend that the existence of the law for several
decades makes it unlikely that adequate documentation exists to
meet the Department's current interpretation of the Federal
regulations governing acknowledgment of Indian groups.
Granting Federal recognition to the six Virginia groups has
had strong support from the State of Virginia. During the last
Congress, the Committee received a letter in support of S.
1178, an identical bill to S. 379, signed by then Virginia
Governor, Timothy M. Kaine, and six of the previous State
Governors.\5\ In 1999, both chambers of Virginia's General
Assembly agreed to HJ 754 urging Congress to grant Federal
recognition to the Virginia tribes. In February 2007, both
chambers of Virginia's General Assembly agreed to S.J. 332, a
resolution acknowledging the involuntary servitude of Africans
and the exploitation of Native Americans and calling for
reconciliation among all Virginians. During the 109th Congress,
former Governor George Allen, who was a Senator, introduced S.
480, which would have granted Federal recognition to the six
groups in S. 379.
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\5\Governor Timothy M. Kaine also sent the Committee a letter on
August 4, 2009 indicating that the State tax policy experts concluded
that passage of S. 1178 would have a negligible, if any, impact on the
Commonweath.
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BACKGROUND AND HISTORY

History of recognizing Indian tribes

The recognition of an Indian group as a Federally-
recognized Indian tribe is an important action. It is an
affirmation by the United States of a tribe's right to self-
government and the existence of a formal government-to-
government relationship between the United States and the
tribe. Once a tribe is Federally recognized, the tribe and its
members have access to Federal benefits and programs, and the
tribal government incurs a formal responsibility to its members
as the primary governing body of the community.
Before Congress ended the practice of treaty-making with
Indian tribes in 1871, treaties were the usual manner of
recognizing a government-to-government relationship between the
United States and an Indian tribe. Since the abolishment of
treaty-making, the United States has recognized Indian tribes
by executive order, legislation, and administrative decisions
by the Executive Branch. Additionally, Federal courts may
clarify the status of an Indian group, though in many cases,
the courts defer to the Bureau of Indian Affairs at the
Department of the Interior.
In order to provide a uniform and consistent process for
recognizing an Indian group, the Department of the Interior
developed an administrative process in 1978 through which
Indian groups could petition for acknowledgment of a
government-to-government relationship with the United States.
The standards for this process are set forth in Title 25 of the
Code of Federal Regulations, Part 83: ``Procedures for
Establishing that an American Indian Group Exists as an Indian
Tribe.''
The regulations establish seven mandatory criteria, each of
which must be met before a group can achieve status as a
Federally recognized Indian tribe. The criteria are as follows:
(1) The petitioning group has been identified as an
American Indian entity on a substantially continuous basis
since 1900;
(2) A predominant portion of the group comprises a distinct
community and has existed as a community from historical times
until the present;
(3) The group 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 (constitution and bylaws) and membership criteria;
(5) The group'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 group is composed principally of
persons who are not members of any other acknowledged North
American Indian tribe; and
(7) Neither the group nor its members are the subject of
congressional legislation that has expressly terminated or
forbidden the Federal relationship.
The regulations have remained essentially unchanged since
1978, with the exception of revisions clarifying the evidence
needed to support a recognition petition (1994), updated
guidelines on the process (1997), a notice regarding BIA's
internal processing of federal acknowledgment petitions (2000),
and a notice to provide guidance and direction to make the
process more streamlined and efficient (2008).\6\
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\6\73 Fed. Reg. 30146-48 (May 23, 2008).
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There have been numerous complaints about the process since
1978, but the primary complaints have been about the high cost
of gathering documentary evidence to meet the seven criteria
and the length of time it takes the Department to review a
petition. Since the Federal Acknowledgment Process regulations
were established in 1978, the Department has issued 49
decisions under the process. Of that number, 17 petitioners
were acknowledged as Indian tribes, and 32 petitioners were
denied acknowledgment.
Due to the problems associated with the Federal
Acknowledgment Process, an increasing number of tribal groups
have asked Congress to recognize or restore their status as
Federally-recognized Indian tribes. Congress retains the
authority to recognize tribal groups, as Congress did with the
Loyal Shawnee Tribe of Oklahoma and the Graton Rancheria of
California in 2000 in the Omnibus Indian Advancement Act.\7\
Since 1982, Congress has restored or recognized 9 Indian
tribes.\8\
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\7\See Pub. L. 106-568 (2000).
\8\http://www.bia.gov/idc/groups/xofa/documents/text/idc013624.pdf.
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History of Virginia Indian groups

When English settlers established the Jamestown Colony in
1607, there were approximately 40 Indian tribes existing in
what is now the Commonwealth of Virginia. The last treaty that
governed the relations between the tribes in Virginia and the
State (then the Colony of Virginia) was the 1677 Middle
Plantation Treaty. S. 379 will recognize six tribal groups. A
brief history of each tribal group is described below.
The Monacan Indian Nation
The Monacan Indians are a part of forty Siouan groups in
the Virginia piedmont region extending into the Carolinas.\9\
Recent ethnohistorical work has shown that the Monacan Indians
reached from the James and Rappahannock River fall lines in the
east to the Shenandoah Valley in the west, and as far south as
the Roanoke River.\10\ The Monacans moved westward from 1607 to
1720 in two groups, with one staying in Ft. Christanna before
moving on to Pennsylvania and later Canada, while the other
group stayed in Amherst County, Virginia.\11\
---------------------------------------------------------------------------
\9\L. Daniel Mouer, ``Powhatan and Monacan Regional Settlement
Hierarchies: A Model of Relationship between Social and Environmental
Structures,'' Quarterly Bulletin of the Archeological Society of
Virginia 36, no. 1 (1981): 1-21.
\10\Jeffrey Hantman, ``Between Powhatan and Quirank''; Jeffrey
Hantman, ```Ancestral Monacan Society': Cultural and Temporal
Boundaries in Indian History in Virginia,'' paper presented at the
Society for American Archeology, 63rd annual meeting, March 1998; L.
Daniel Mouer, ``A Review of the Archaeology and Ethnohistory of the
Monacans,'' in Piedmont Archeology, Publication no. 10, ed. J. Mark
Witkofski and Lyle E. Browning (Richmond: Archaeological Society of
Virginia, 1983), 21-39.
\11\``Monacan Indian Nation.'' 2006. Monacan Indian Nation, Inc.
(Nov. 11, 2009), http://www.monacannation.com/aboutus.shtml.
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Up until the mid-1700s the Monacans had fairly sparse
contact with English settlers. That changed as traders traveled
further along the James River in the 1750s. The Monacan Indians
had purposely lived in the Tobacco Row Mountains in order to
avoid contact with Europeans.\12\ However, encroaching
agriculture made this nearly impossible. By the end of the
Civil War, local farmers had begun to plant orchards in the
Tobacco Row Mountains, taking away the Monacans' home area.
Without land and without jobs, many Monacans worked the
orchards and tobacco fields as tenant farmers in a ``rigid,
semi-feudal system [that] exploited Indian labor
disproportionately'' due to their lack of status.\13\
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\12\Samuel R. Cook, Monacans and Miners: Native American and Coal
Mining Communities in Appalachia (Lincoln: University of Nebraska
Press, 2000), 49-56.
\13\Samuel R. Cook, ``The Monacan Indian Nation: Asserting Tribal
Sovereignty in the Absence of Federal Recognition.'' Wicazo SA Review.
Fall, 2002. P 91-116.
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Some Monacans escaped this fate by ``passing'' as white in
order to obtain land deeds, such as the case of the Johns
Settlement at Bear Mountain. Under the Virginia Race Law of
1823, any child of an Indian, and any descendants of a Negro,
up to the great-grandchild would be counted as mulatto. This is
apparent in the 1790 national census in which Benjamin Evans
and Robert Johns (both Monacans) were recorded as ``white''
with mulatto children instead of ``Indian.'' The families had
been previously recorded through tax records beginning in 1782.
Since free people of color (which is how Virginia labeled its
Natives until the Racial Integrity Act of 1924) could not own
land or vote, they had to legally renounce their ethnicity and
register as ``white'' in order to participate in Virginian
society.
In 1831, William Johns purchased 52 acres on Bear Mountain,
and another 400 acres in 1833. By 1850, 29 families related to
this Monacan community, according to census records. When the
land was divided in 1856, the Amherst County clerk's office
recorded Monacan surnames of Beverly, Branham, Johns, Pinn and
Terry as receiving parcels of the Johns Settlement.
In 1868, one of the Johns Settlement parcels was donated to
the community to be used for a meeting place. Two years later
in 1870, a wooden structure was built which the community used
for its church services with itinerant ministers, serving about
350 Indians. In 1896 a local newspaper article featured the
Monacan community, describing ``the older [members of the
tribe] as typical Indians, of a rich copper color, high cheek-
bones, long, straight black hair, tall and erect in form.''
Locals commented that it had been called ``the Indian
community'' as long as anyone could remember.
The Episcopal Church established St. Paul's Mission at the
base of Bear Mountain in 1908. The mission became a unifying
factor of the Monacan community, providing a place of worship,
social gathering place and the only source of education for
many Monacan Indians from 1908 until its close in 1963 due to
integration.
In 1920, the United States Census listed 304 Indians in
Amherst County.
Throughout the 20th century, the Monacans became more
active as a tribe politically and culturally. Some of these
actions are exemplified by the Monacans' application for and
receipt of job training assistance in the 1970s under the
Comprehensive Employment and Training Act (CETA),\14\ giving
their tribal members a better chance at obtaining jobs. In
1979, the Monacan Co-operative Pottery was established at the
Amherst Mission, eventually producing pieces sold to the
Smithsonian Institution. The tribe helped found the Mattaponi-
Pamunkey-Monacan Consortium in 1981 in order to obtain funds
from Department of Labor programs for Native Americans.
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\14\Cook, Monacans and Miners, 116-118.
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The Monacan Indian Nation obtained State recognition in
1989. They established a non-profit corporation in 1993 to
formalize their community and create rules for its governance
in lieu of Federal recognition as a sovereign nation.\15\
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\15\``Monacan Indian Nation.'' 2006. Monacan Indian Nation, Inc.
(Nov. 11, 2009), http://www.monacannation.com/aboutus.shtml.
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The Nansemond Indian Tribe
When the English first arrived in Virginia in 1607, the
Nansemond people numbered around 1,200\16\ and made up part of
the Powhatan Confederacy. Their original land was located 30
miles from Jamestown, making a large amount of interaction with
English settlers inevitable. In 1608, a group of Englishmen
lead by John Smith raided a Nansemond town, and threatened more
destruction unless the Nansemond paid 400 bushels of corn to
his men.\17\
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\16\``The Official Nansemond Tribal Association Website.''
Nansemond and Powhatan History. 2009. Nansemond Tribal Association (Nov
13, 2009), http://www.nansemond.org/joomla/
index.php?option=com_content&task=category§ionid=5&id=14&Itemid=30.
\17\Waugaman, Sandra F. and Danielle-Moretti-Langholtz, Ph.D. We're
Still Here: Contemporary Virginia Indians Tell Their Stories, Richmond,
VA: Palari Publishing, 2006 (revised edition).
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The tribe split into two groups by 1646, with one group
remaining on their homeland and adopting the English farming
lifestyle. These became the Christianized Nansemonds. In 1669,
the Virginia census records show two distinct Nansemond groups
of Indians.\18\
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\18\S. 379, 112th Cong. Sec. 601(2) (2011).
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The non-Christianized, ``traditionalist'' group attacked
the English in 1644 and then fled westward to the Nottaway
River where Virginia had assigned the Nottaway Indians a
reservation. By 1664, the Nansemond Indians were given a poor
tract of land as their reservation, which they later sold
off.\19\ The reservation was sold in 1792 since this group of
Nansemond had abandoned it in 1744 to live with the Nottaway
tribe on their reservation. Unfortunately this group eventually
dispersed or died out, with the last Nansemond living on the
Nottoway reservation dying in 1806.\20\
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\19\S. Report No. 108-259 (2004).
\20\``The Official Nansemond Tribal Association Website.''
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Meanwhile, the Christianized Nansemonds had moved near
Dismal Swamp to avoid contact with the English and to find more
productive lands. During the 1830s when Virginia passed more
rigid racial laws, the Nansemond lobbied their delegate to pass
a law exempting them, which they achieved in 1833. They were
able to register as ``of mixed blood, not being negro or
mulatto.''\21\
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\21\Rountree, Helen C. Pocahantas's People. OK: Oklahoma University
Press, 1990.
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The Methodist Church established a mission for the
Nansemond in 1850, eventually adding a schoolhouse in the 1890s
to better educate their children.\22\ The Nansemond had
historically promoted education within their ranks, even
sending one of their boys to Bafferton Indian School at the
College of William and Mary in 1711. In 1922 the Nansemond
received funding for an Indian school from the County, which
served their community for a few years. Although short-lived,
the school was a great victory in a time when only two races
were recognized in the State of Virginia and few supported
funding a third segregated school system.\23\
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\22\S. 379, 112th Cong. Sec. 601(17).
\23\Rountree, Helen C., Testimony before the United States Senate
Committee on Indian Affairs, September 25, 2008.
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According to James Mooney's 1901 census, the Nansemond
tribe had 180 members. The Nansemond first attempted to obtain
recognition in the 1920s with the encouragement of
anthropologist Frank Speck. The tribe obtained State
recognition in 1985.
The Chickahominy Indian Tribe
When Jamestown was established, the Chickahominy lived
nearby in present-day New Kent County. This proximity allowed
for much interaction between the two groups. The Chickahominy
were an Algonquian speaking people numbering between 600 and
900 people.\24\ Although the Chickahominy were allies with the
Powhatan Confederacy, they were fairly independent and had
their own form of government.
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\24\Virginia Department of Education. ``Virginia's First People:
Past and Present.'' History. 2005. Prince William County Network,
Virginia Department of Education (Nov. 13, 2009), http:
//virginiaindians.pwnet.org/history/index.php.
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Surviving members of the Paspaheg tribe found refuge with
the Chickahominy during August 1610 after the family of Chief
Wowinchopunk was murdered by settlers.\25\ In the Treaty of
1614 with Jamestown's governor Sir Thomas Dale, the tribe
promised 300 warriors to fight against the Spanish.\26\ The
Chickahominy received the right to self-governance in return.
In 1623, and again in 1627, the Chickahominy were victims of
raids.\27\ In 1646 the Chickahominy signed a treaty granting
them a reservation in Pamunkey Neck near the present-day
Mattaponi Reservation and in present-day King William County.
In 1677, representatives of the Tribe signed the Treaty of
Middle Plantation between several tribes and the King of
England.\28\ In 1702, the tribe was forced from its reservation
and lost the lands in 1718.\29\
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\25\The Thomasina Jordan Indian Tribes of Virginia Federal
Recognition Act and the Grand River Band of Ottawa Indians of Michigan
Referral Act, 109 Cong. 576 (2006).
\26\S. 379, 112th Cong. Sec. 101(2) (2011).
\27\Virginia Department of Education. ``Virginia's First People:
Past and Present.'' History. 2005. Prince William County Network,
Virginia Department of Education (Nov. 13, 2009), http:
//virginiaindians.pwnet.org/history/index.php.
\28\Rountree, Helen C., Testimony before the United States Senate
Committee on Indian Affairs, September 25, 2008.
\29\Virginia Department of Education. ``Virginia's First People:
Past and Present.'' History. 2005. Prince William County Network,
Virginia Department of Education (Nov. 13, 2009), http:
//virginiaindians.pwnet.org/history/index.php.
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Around 1750 the Chickahominy began moving back to their
land in New Kent and Charles City Counties.\30\ Charles City
County census records show modern-day Chickahominy surnames in
the area beginning in 1831.\31\ New Kent County records began
documenting Chickahominy people in an 1840 Census.
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\30\S. 379, 112th Cong. Sec. 101(8) (2011).
\31\S. 379, 112th Cong. Sec. 101(10) (2011).
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In 1901, the tribe established the Samaria Baptist Church
and bought nearby land for tribal use.\32\ In the early 1900s
they also established the Samaria School for their childrens'
education up until 8th grade, paying teacher salaries out of
donated funds.\33\ The tribe also created a tax on Chickahominy
men from 1901 until 1935 to fund the building of the school,
buy supplies and pay the teacher's salary. The tribe's school
was integrated in 1968 as a primary school for the county.\34\
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\32\S. 379, 111th Cong. Sec. 101(11) (2011).
\33\``William & Mary Arts and Sciences.'' Virginia Indians:
Chickahominy Tribe. 2009. College of William & Mary (Nov. 12, 2009),
http://www.wm.edu/as/anthropology/research/airc/vaindians/tribes/
chickahominy/index.php.
\34\S. 379, 112th Cong. Sec. 101(12) (2011).
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In order to be married as Chickahominy Indians instead of
as ``colored'' under Virginia's Racial Integrity Act of 1924,
some tribal members were able to travel out of State. The
parents of tribal member Stephen Adkins, for example, were
fortunate in being able to do this, and were married on
February 20, 1935 in Washington, D.C., thereby avoiding the
loss of their Native identity.\35\
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\35\The Thomasina Jordan Indian Tribes of Virginia Federal
Recognition Act and the Grand River Band of Ottawa Indians of Michigan
Referral Act, 109 Cong. 576 (2006).
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In the 1920s, the governors of Virginia wrote letters of
introduction for the Chickahominy chiefs, who had official
business in Washington, D.C. In 1934, Chickahominy Chief O.O.
Adkins wrote to Commissioner of Indian Affairs John Collier,
requesting funding for construction of a school, medical
facilities, a library and agricultural tools. Collier responded
that Congress had passed the Indian Reorganization Act on June
18th of that year, but hadn't appropriated the funding. Chief
O.O. Adkins again sought Collier's help in 1942 when
Chickahominy men demanded proper racial designations before
entering the Selective Service. Although Collier's office could
not officially intervene ``as a matter largely of historical
accident,'' Collier did ask Richmond News-Leader editor Douglas
S. Freeman to help the Virginia Indians obtain proper racial
designations on their birth records.\36\
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\36\S. 379, 112th Cong. Sec. Sec. 101(15)-(20) (2011) and Rountree,
Helen C., Testimony before the United States Senate Committee on Indian
Affairs, September 25, 2008.
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The interactions between the Chickahominy Indians and the
Federal government continued through later years. In 1961,
Senator Sam Ervin, Chairman of the Subcommittee on
Constitutional Rights of the Judiciary Committee in the Senate,
requested information from Chickahominy Chief O.O. Adkins about
Indians' constitutional rights ``in [his] area'' in
Virginia.\37\
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\37\S. 379, 112th Cong. Sec. 101(25) (2011).
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The Chickahominy Indians built a tribal center in 1974
funded by tribal members through monthly pledges.\38\ Their
assertion of tribal government came to a head in 1983 when they
received State recognition by the Commonwealth of Virginia.
Currently there are about 750 Chickahominy living within 5
miles of the tribal center and hundreds more in other parts of
the country.\39\
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\38\S. 379, 112th Cong. Sec. 101(28) (2011).
\39\``William & Mary Arts and Sciences.'' Virginia Indians:
Chickahominy Tribe. 2009. College of William & Mary (Nov. 12, 2009),
http://www.wm.edu/as/anthropology/research/airc/vaindians/tribes/
chickahominy/index.php.
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The Chickahominy Indian Tribe-Eastern Division
The early history of the Chickahominy Indian Tribe-Eastern
Division is the same as that of the Chickahominy Indian Tribe,
as the two tribes acted as one until the early 1900s.
Two fires consumed all New Kent County records prior to
1870, but an enclave of Indians in New Kent County are shown in
the Virginia Census of 1870. These are the ancestors of the
Chickahominy Indian Tribe-Eastern Division.\40\
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\40\S. 379, 112th Cong. Sec. 201(11) (2011).
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In 1901, the Chickahominy Indian Tribe established the
Samaria Indian Baptist Church. However, two factions formed
within the tribe soon, splitting over whether to press the
state for a reservation and whether to establish a new church.
The Tsena Comocko Indian Baptist Church was built in 1922 in
spite of the dissenting members.\41\ Unable to resolve their
differences, the group forming the new church organized
themselves as the Chickahominy Eastern Division Indians. The
Eastern Division began forming its government in 1920,
eventually incorporating under State law in 1925.
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\41\Rountree, Helen C. Pocahantas's People. OK: Oklahoma University
Press, 1990. P. 218.
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Once the tribe was split, the Chickahominy Indian Tribe-
Eastern Division started a one-room schoolhouse in New Kent
County called the Boulevard Indian School. In 1950, the tribal
school was closed and the children started attending the
Samaria Indian School again, but that school was closed in 1967
when Virginia integrated its public school system.
Although they had split from the Chickahominy tribe, the
Chickahominy Eastern Division stayed linked to the
Chickahominy. Both groups used the same school facilities, with
Eastern Division children attending Samaria Indian School after
the 1-room Indian school in New Kent County closed in 1950.
They also had to find new schools when the Samaria Indian
School was desegregated in 1967.
In the late 1970's, the tribe was awarded a grant from the
U.S. Department of Housing and Urban Development to buy 2
mobile homes to be used as office and classroom space. Another
grant from the Administration of Native Americans was used for
the purchase and improvement of office equipment and supplies.
The tribe received State recognition in 1983. Today the tribe
numbers 130 people in New Kent County.
The Upper Mattaponi Tribe
Captain John Smith first visited the Passaunkack village in
1608, which is in the location of the modern-day Upper
Mattaponi. On one of John Smith's maps from 1612, he locates
the village in the tribe's present-day location.\42\ August
Hermann mapped the area in 1676, labeling several ``Indian
houses'' in the same location.
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\42\Virginia Department of Education. ``Virginia's First People:
Past and Present.'' History. 2005. Prince William County Network,
Virginia Department of Education (Nov. 13, 2009), http:
//virginiaindians.pwnet.org/history/index.php.
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The Upper Mattaponi Tribe shares its earlier history with
the Chickahominy Indian Tribe as they were forced together
through treaties with the English. The Upper Mattaponi sought
refuge with the Chickahominy after being attacked by Seneca
Indians in 1683, beginning many years of shared history. The
Virginia Colony assigned both tribes to a reservation in 1695,
which they later traded for ``the cliffs'' (an area currently
encompassed by the Mattaponi Indian Reservation).\43\
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\43\H.R. Rep. No. 110-124, at 6 (2007).
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In 1726 the Virginia Colony stopped funding interpreters in
their dealings with the Upper Mattaponi. However, not all the
interpreters left. James Adams stayed with the Upper Mattaponi,
giving his surname to many of today's tribal members.\44\
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\44\S. 379, 112th Cong. Sec. Sec. 301 (10)-(12) (2011).
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Thomas Jefferson mentioned the Upper Mattaponi on their
King William County reservation in 1787, and referred to the
Chickahominy as ``blended'' with the Upper Mattaponi and
Pamunkey Indians.\45\
---------------------------------------------------------------------------
\45\S. 379, 112th Cong. Sec. 301(13) (2011).
---------------------------------------------------------------------------
A Federal census in 1850 showed 10 Upper Mattaponi families
living in King William County, Virginia. King William County
records also indicate Upper Mattaponis residing in the county.
An 1863 Civil War map designated the area ``Indian land.'' King
William County court records list ``Indians'' marrying and
residing on the King William County reservation, undoubtedly
referring to the Upper Mattaponi.\46\
---------------------------------------------------------------------------
\46\S. 379, 112th Cong. Sec. Sec. 301(14)-(16) (2011).
---------------------------------------------------------------------------
Refusing to enlist in the Confederate Army during the Civil
War, the Upper Mattaponis stayed neutral. Although not directly
involved in the war, gunboats typically sailed past the
reservation, and a slave ship was sunk nearby as well according
to Mattaponi oral tradition.\47\
---------------------------------------------------------------------------
\47\Rountree, Helen C. Pocahantas's People. OK: Oklahoma University
Press, 1990. p 198.
---------------------------------------------------------------------------
Anthropologist James Mooney mentions the Upper Mattaponi in
1901 after hearing about them during a visit to the Pamunkey
Tribe, but didn't visit them himself. In 1928, University of
Pennsylvania anthropologist Frank Speck published a book on
modern Virginia Indians with a section on the Upper
Mattaponis.\48\
---------------------------------------------------------------------------
\48\S. 379, 112th Cong. Sec. Sec. 301(17)-(18) (2011).
---------------------------------------------------------------------------
The Upper Mattaponi fought alongside other Virginia tribes
for an Indian designation instead of a ``colored'' designation
in the 1930 United States Census. The Upper Mattaponis achieved
a compromise in which their ancestry was recorded. However, the
census also contained an asterisk indicating that Indians did
not exist in Virginia. These arguments over race continued into
the 1940s, when the Armed Forces attempted to induct Upper
Mattaponis into the services as ``colored.'' In 1945, the tribe
also fought for its youth to be allowed to study at Federally-
funded Indian schools since the tribe could not provide for
their high school education.\49\
---------------------------------------------------------------------------
\49\S. 379, 111th Cong. Sec. Sec. 301(19)-(21) (2011).
---------------------------------------------------------------------------
The Upper Mattaponi won state recognition in 1983,
confirming their Indian ancestry and identity in the eyes of
Virginian government.
The Rappahanock Tribe
The Rappahannock people were probably the unfortunate tribe
that met the Englishman Captain Samuel Mace as he sailed up
what is now the Rappahannock River in 1603. The captain killed
a Rappahannock chief and brought a group of men back to
England. These men gave demonstrations of dugout canoes on the
Thames River back in England in December of 1603.\50\
---------------------------------------------------------------------------
\50\``Virginia Indian Council: Virginia Indian Tribes.''
Rappahannock Tribe. 12/10/2007. VCI (Nov 5, 2009), http://
indians.vipnet.org/tribes/rappahannock.cfm.
---------------------------------------------------------------------------
The Rappahannocks were a late acquisition into Powhatan's
Confederacy, differing culturally from the Mattaponi and
Pamunkey mainstay of the confederacy. They were first recorded
in Western society in 1605.\51\ Captain John Smith encountered
several Rappahanncok villages during his 1607 capture in
Chickahominy territory.\52\ On Smith's map, he represents the
Rappahannock people with 34 wigwams just north of the river as
opposed to 1 wigwam (representing 5 villages and 2 chief towns)
in their traditional homeland on the southern shore. However,
this placement makes practical sense in terms of defense
against the Powhatan.\53\
---------------------------------------------------------------------------
\51\Speck, Frank G. The Rappahannock Indians of Virginia. 1925.
p25.
\52\Speck, Frank G. The Rappahannock Indians of Virginia. 1925.
p28.
\53\Speck, Frank G. The Rappahannock Indians of Virginia. 1925.
p36.
---------------------------------------------------------------------------
Captain William Claiborne attempted to establish treaty
relations with the Rappahannocks in 1645 because the tribe had
not participated in the 1644 uprising led by the Pamunkey. In
their peaceful manner, the tribe continued to encounter English
settlers and even doing business with them. In 1651, the
Rappahannocks sold land to English settler Colonel Morre
Fauntleroy and signed a treaty with Lancaster County in
September of 1653. The tribe signed another treaty in 1656 with
the Rappahannock county (present-day Richmond and Essex
Counties), setting out rewards for returning fugitives and
encouraging the Rappahannocks to make their children servants
in English houses.\54\
---------------------------------------------------------------------------
\54\S. 379, 112th Cong. Sec. Sec. 401(8)-(14) (2011).
---------------------------------------------------------------------------
A 1669 Virginia census records 30 Rappahannock and 50
Nantaughtacund (which both Speck and Mooney believe is
reference to the Rappahannock).\55\ The town referred to in
this census was actually a hunting village used by the
Rappahannock had lived in the 1670s. The Rappahannocks were
removed from their homeland in 1684 to a reservation
established for them in 1682 in modern day Caroline and King
and Queen Counties. After Iroquois raids in 1683, the Virginia
Colonial Council moved the Rappahannock to the Nanzatico Indian
Town about 30 miles away from King George County. From 1687 to
1699 the Rappahannock migrated away from Nanzatico to
Portobacco Indian Town on the southern side of the Rappahannock
River. In 1705 the tribe was moved a few miles off their
original reservation.\56\ They were moved once again in 1706
along with the Portobaccos and Nanzaticos by Essex County back
to King and Queen County where they resettled on one of their
ancient hunting village sites (the 1682 reservation).
---------------------------------------------------------------------------
\55\Speck, Frank G. The Rappahannock Indians of Virginia. 1925.
\56\S. Rep. No. 108-259 at 2 (2004).
---------------------------------------------------------------------------
Upper Essex Baptist Church had a solid Rappahannock
presence in their congregation from 1819 until the 1880s. This
was a tribute to their presence in the region as well as their
Christianization and the beginning of their assimilation into
American culture. In 1870 Joseph Mastin established another
church, St. Stephens Baptist, to serve the Rappahannock in
Caroline County, taking members away from Upper Essex Baptist
Church.\57\ St. Stephens was the primary tribal church until
Rappahannock Indian Baptist Church was established in 1964.\58\
---------------------------------------------------------------------------
\57\S. 379, 112th Cong. Sec. Sec. 401(30)-(36) (2011).
\58\S. 379, 112th Cong. Sec. 401(38) (2011).
---------------------------------------------------------------------------
Although unable to attend white public schools, the
Rappahannock created other educational opportunities for their
members. Rappahannock children were taught by a tribal member
in Caroline County until the tribe built their own formal
school in 1922 at Lloyds in Essex County. In December 1923,
Chief George Nelson testified before Congress asking for
$50,000 to establish an Indian school in Virginia.\59\ During
the late 1940s and early 1950s, the tribe set up a school at
Indian Neck, with the State paying a tribal member to teach 10
students in King and Queen County to Sharon Indian School.\60\
The Rappahannock created a private school in 1962 in a donated
building in Essex County. Unfortunately it was closed in 1964,
and the children were then bused to Sharon School until that
school closed 3 years later.\61\ In 1965, the Rappahannock
students were moved to Marriott High School, a white public
school, by order of the Governor of Virginia.\62\
---------------------------------------------------------------------------
\59\S. 379, 112th Cong. Sec. Sec. 401(46)-(48) (2011).
\60\S. 379, 112th Cong. Sec. 401(66) (2011).
\61\Rountree, Helen C. Pocahantas's People. OK: Oklahoma University
Press, 1990 at 241.
\62\S. 379, 112th Cong. Sec. 401(68) (2011).
---------------------------------------------------------------------------

LEGISLATIVE HISTORY

S. 379, the Indian Tribes of Virginia Federal Recognition
Act of 2011, was introduced on February 17, 2011, by Senators
Webb and Warner. A companion bill, H.R. 783, has also been
introduced in the House of Representatives. Similar legislation
was introduced in the 107th, 108th, 109th, 110th, and 111th
Congresses. The Senate Committee on Indian Affairs held a
hearing on such similar legislation during the 110th Congress.
Additionally, during the 111th Congress, the Committee
conducted a business meeting concerning the legislation and
reported it favorably. Since the Committee had previously held
a legislative hearing and mark-up on the similar bills in
previous Congresses, the Committee proceeded directly to mark-
up of S. 379.

SECTION-BY-SECTION ANALYSIS

Section 1. Short title

This Act may be cited as the ``Indian Tribes of Virginia
Federal Recognition Act of 2011.''

TITLE I--CHICKAHOMINY INDIAN TRIBE

Section 101. Findings

This section provides Congressional Findings on the history
of the Chickahominy Indian Tribe.

Section 102. Definitions

This section provides definitions for terms used throughout
the remainder of the Title. The terms defined in this section
are ``Secretary,'' ``tribal member'' and ``tribe.''

Section 103. Federal recognition

This section extends Federal acknowledgment to the
Chickahominy Indian Tribe. This section also includes
applicable laws, an explanation of services and benefits and
the establishment of a service area.

Section 104. Membership; governing documents

This section states that the Tribe must provide the most
recent membership roll and governing documents to the Secretary
before the date of enactment of this legislation.

Section 105. Governing body

This section establishes the requirements for the tribe's
governing body and any future governing bodies of the tribe.

Section 106. Reservation of the tribe

This section directs the Secretary to take into trust any
land held in fee by the Tribe that was acquired on or before
January 1, 2007. It also authorizes the Secretary to take into
trust lands owned by the Tribe in fee that are located within
the counties of New Kent, Charles City, James City, or Henrico
that the tribe seeks to transfer to the Secretary. This section
also includes a prohibition on gaming.

Section 107. Hunting, fishing, trapping, gathering, and water rights

This section states that enactment of S. 379 does not
expand, reduce or affect hunting, fishing, trapping, gathering,
and water rights of the tribe or its members.

Section 108. Jurisdiction of the Commonwealth of Virginia

This section states that the Commonwealth of Virginia shall
have jurisdiction over all criminal and civil actions arising
on lands owned by the tribe or held in trust by the Secretary.
The Secretary is authorized to accept all or any portion of the
jurisdiction of Virginia after consultation with the Attorney
General and certification by the tribe. The section expressly
states that this section shall not affect the application of
section 109 of the Indian Child Welfare Act of 1978.

TITLE II--CHICKAHOMINY INDIAN TRIBE-EASTERN DIVISION

Section 201. Findings

This section provides Congressional Findings on the history
of the Chickahominy Indian Tribe Eastern Division.

Section 202. Definitions

This section provides definitions for terms used throughout
the remainder of the Title. The terms defined in this section
are ``Secretary,'' ``tribal member'' and ``tribe.''

Section 203. Federal recognition

This section extends Federal acknowledgment to the
Chickahominy Indian Tribe Eastern Division. This section also
includes applicable laws, an explanation of services and
benefits and the establishment of a service area.

Section 204. Membership; governing documents

This section states that the Tribe must provide the most
recent membership roll and governing documents to the Secretary
before the date of enactment of this legislation.

Section 205. Governing body

This section establishes the requirements for the tribe's
governing body and any future governing bodies of the tribe.

Section 206. Reservation of the tribe

This section directs the Secretary to take into trust any
land held in fee by the Tribe that was acquired on or before
January 1, 2007. It also authorizes the Secretary to take into
trust lands owned by the Tribe in fee that are within the
counties of New Kent, Charles City, James City, or Henrico that
the tribe seeks to transfer to the Secretary. This section also
includes a prohibition on gaming.

Section 207. Hunting, fishing, trapping, gathering, and water rights

This section states that enactment of S. 379 does not
expand, reduce or affect hunting, fishing, trapping, gathering,
and water rights of the tribe or its members.

Section 208. Jurisdiction of the Commonwealth of Virginia

TITLE III--UPPER MATTAPONI TRIBE

Section 301. Findings

This section provides Congressional Findings on the history
of the Upper Mattaponi Tribe.

Section 302. Definitions

This section provides definitions for terms used throughout
the remainder of the Title. The terms defined in this section
are ``Secretary,'' ``tribal member'' and ``tribe.''

Section 303. Federal recognition

This section extends Federal acknowledgment to the Upper
Mattaponi Indian Tribe. This section also includes applicable
laws, an explanation of services and benefits and the
establishment of a service area.

Section 304. Membership; governing documents

This section states that the Tribe must provide the most
recent membership roll and governing documents to the Secretary
before the date of enactment of this legislation.

Section 305. Governing body

This section establishes the requirements for the tribe's
governing body and any future governing bodies of the tribe.

Section 306. Reservation of the tribe

This section directs the Secretary to take into trust any
land held in fee by the Tribe that was acquired on or before
January 1, 2007. It also authorizes the Secretary to take into
trust lands owned by the Tribe in fee that are located within
the counties of King William, Caroline, Hanover, King and
Queen, and New Kent. This section also includes a prohibition
on gaming.

Section 307. Hunting, fishing, trapping, gathering, and water rights

This section states that enactment of S. 379 does not
expand, reduce or affect hunting, fishing, trapping, gathering,
and water rights of the tribe or its members.

Section 308. Jurisdiction of the Commonwealth of Virginia

TITLE IV--RAPPAHANNOCK TRIBE, INC.

Section 401. Findings

This section provides Congressional Findings on the history
of the Rappahannock Tribe, Inc.

Section 402. Definitions

This section provides definitions for terms used throughout
the remainder of the Title. The terms defined in this section
are ``Secretary,'' ``tribal member'' and ``tribe.''

Section 403. Federal recognition

This section extends Federal acknowledgment to the
Rappahannock Tribe, Inc. This section also includes applicable
laws, an explanation of services and benefits and the
establishment of a service area.

Section 404. Membership; governing documents

This section provides that the Tribe must provide the most
recent membership roll and governing documents to the Secretary
before the date of enactment of this legislation.

Section 405. Governing body

This section establishes the requirements for the tribe's
governing body and any future governing bodies of the tribe.

Section 406. Reservation of the tribe

This section directs the Secretary to take into trust any
land held in fee by the Tribe that was acquired on or before
January 1, 2007. It also authorizes the Secretary to take into
trust lands owned by the Tribe in fee that are located within
the counties of King and Queen, Richmond, Lancaster, King
George, Essex, Caroline, New Kent, King William, and James
City. This section also includes a prohibition on gaming.

Section 407. Hunting, fishing, trapping, gathering, and water rights

This section states that enactment of S. 379 does not
expand, reduce or affect hunting, fishing, trapping, gathering,
and water rights of the tribe or its members.

Section 408. Jurisdiction of the Commonwealth of Virginia

TITLE V--MONACAN INDIAN NATION

Section 501. Findings

This section provides Congressional Findings on the history
of the Monacan Indian Nation.

Section 502. Definitions

This section provides definitions for terms used throughout
the remainder of the Title. The terms defined in this section
are ``Secretary,'' ``tribal member'' and ``tribe.''

Section 503. Federal recognition

This section extends Federal acknowledgment to the Monacan
Indian Nation. This section also includes applicable laws, an
explanation of services and benefits and the establishment of a
service area.

Section 504. Membership; governing documents

This section states that the Tribe must provide the most
recent membership roll and governing documents to the Secretary
before the date of enactment of this legislation.

Section 505. Governing body

This section establishes requirements for the tribe's
governing body and any future governing bodies of the tribe.

Section 506. Reservation of the tribe

This section directs the Secretary to take into trust any
land held in fee by the Tribe that was acquired on or before
January 1, 2007. It also authorizes the Secretary to take into
trust lands owned by the Tribe in fee that are located within
the counties of Albemarle, Alleghany, Amherst, Augusta,
Campbell, Nelson, and Rockbridge. This section also includes a
prohibition on gaming.

Section 507. Hunting, fishing, trapping, gathering, and water rights

This section states that enactment of S. 379 does not
expand, reduce or affect hunting, fishing, trapping, gathering,
and water rights of the tribe or its members.

Section 508. Jurisdiction of the Commonwealth of Virginia

TITLE VI--NANSEMOND INDIAN TRIBE

Section 601. Findings

This section provides Congressional Findings on the history
of the Nansemond Indian Tribe.

Section 602. Definitions

This section provides definitions for terms used throughout
the remainder of the Title. The terms defined in this section
are ``Secretary,'' ``tribal member'' and ``tribe.''

Section 603. Federal recognition

This section extends Federal acknowledgment to the
Nansemond Indian Tribe. This section also includes applicable
laws, an explanation of services and benefits and the
establishment of a service area.

Section 604. Membership; governing documents

This section states that the Tribe must provide the most
recent membership roll and governing documents to the Secretary
before the date of enactment of this legislation.

Section 605. Governing body

This section establishes the requirements for the tribe's
governing body and any future governing bodies of the tribe.

Section 606. Reservation of the tribe

This section directs the Secretary to take into trust any
land held in fee by the Tribe that was acquired on or before
January 1, 2007. It also authorizes the Secretary to take into
trust lands owned by the Tribe in fee that are located within
the boundaries of the city of Suffolk, the City of Chesapeake,
or Isle of Wight County, Virginia. This section also includes a
prohibition on gaming.

Section 607. Hunting, fishing, trapping, gathering, and water rights

This section states that enactment of S. 379 does not
expand, reduce or affect hunting, fishing, trapping, gathering,
and water rights of the tribe or its members.

Section 608. Jurisdiction of the Commonwealth of Virginia

COMMITTEE RECOMMENDATION AND TABULATION OF VOTE

The Senate Committee on Indian Affairs addressed S. 379 in
a business meeting on July 28, 2011. The bill was ordered
reported favorably without amendment to the full Senate (en
bloc with S. 546 and S. 1218) by voice vote.

COST AND BUDGETARY CONSIDERATIONS

The following cost estimate, as provided by the
Congressional Budget Office, dated October 12, 2011, was
prepared for S. 379:

S. 379--Indian Tribes of Virginia Federal Recognition Act of 2011

Summary: S. 379 would provide federal recognition to six
Indian tribes in Virginia--the Chickahominy Indian Tribe, the
Eastern Division of the Chickahominy Indian Tribe, the Upper
Mattaponi Tribe, The Rappahannock Tribe, Inc., the Monacan
Indian Nation, and the Nansemond Indian Tribe. Federal
recognition would make the tribes eligible to receive benefits
from various federal programs. CBO estimates that implementing
this legislation would cost $68 million over the 2012-2016
period, assuming appropriation of the necessary funds. Enacting
S. 379 would not affect direct spending or revenues; therefore,
pay-as-you-go procedures do not apply.
S. 379 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
and would impose no costs on state, local, or tribal
governments.
Estimated cost to the federal government: The estimated
budgetary impact of S. 379 is shown in the following table. The
costs of this legislation fall within budget functions 450
(community and regional development) and 550 (health).

----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
--------------------------------------------------
2012 2013 2014 2015 2016 2012-2016
----------------------------------------------------------------------------------------------------------------
Bureau of Indian Affairs:
Estimated Authorization Level............................ 3 3 3 3 3 16
Estimated Outlays........................................ 2 3 3 3 3 15
Indian Health Services:
Estimated Authorization Level............................ 10 10 11 11 11 53
Estimated Outlays........................................ 9 10 11 11 11 52
Total Changes:
Estimated Authorization Level............................ 13 14 14 14 15 70
Estimated Outlays........................................ 11 13 14 14 15 68
----------------------------------------------------------------------------------------------------------------
Note: Components may not sum to totals because of rounding.

Basis of estimate: For this estimate, CBO assumes that S.
379 will be enacted early in fiscal year 2012, that the
necessary amounts will be appropriated each year, and that
outlays will follow historical patterns for assistance to other
tribes.
S. 379 would provide federal recognition to six Indian
tribes in Virginia. Such recognition would allow the tribes,
with membership totaling about 4,100 people, to receive
benefits from various programs administered by the Bureau of
Indian Affairs (BIA) and the Indian Health Service (IHS). Based
on the average per capita expenditures by those agencies for
other Indian tribes, CBO estimates that implementing S. 379
would cost $68 million over the 2012-2016 period, assuming
appropriation of the necessary funds.
Bureau of Indian Affairs: BIA provides funding to federally
recognized tribes for various purposes, including child welfare
services, adult care, community development, and general
assistance. In total, CBO estimates that providing BIA services
would cost $15 million over the 2012-2016 period, assuming
appropriation of the necessary funds. This estimate is based on
per capita expenditures for other federally recognized tribes
located in the eastern United States.
Indian Health Service: S. 379 also would make members of
the tribes eligible to receive health benefits from the IHS.
Based on information from the IHS, CBO estimates that about 55
percent of tribal members--or about 2,300 people--would receive
benefits each year. CBO assumes that the cost to serve those
individuals would be similar to funding for current IHS
beneficiaries--about $3,500 per individual in 2011. Assuming of
the necessary funds and adjusting for anticipated inflation,
CBO estimates that IHS benefits for the tribes would cost $52
million over the 2012-2016 period.
Other federal agencies: In addition to BIA and IHS funding,
certain Indian tribes also receive support from other federal
programs within the Departments of Education, Housing and Urban
Development, Labor, and Agriculture. Based on their status as
tribes recognized by Virginia, the tribes specified in the bill
are already eligible to receive funding from those departments.
Thus, CBO estimates that implementing S. 379 would not
increased spending from those programs.
Pay-As-You-Go considerations: None.
Intergovernmental and private-sector impact: S. 379
contains no intergovernmental or private-sector mandates as
defined in UMBRA and would impose no costs on state, local, and
tribal governments.
Estimate prepared by: Federal Costs: Martin von Gnechten--
Bureau of Indian Affairs; Robert Stewart--Indian Health
Service; Impact on State, Local, and Tribal Governments:
Melissa Merrell; Impact on the Private Sector: Amy Petz.
Estimate approved by: Theresa Gullo, Deputy Assistant
Director for Budget Analysis.

REGULATORY AND PAPERWORK IMPACT STATEMENT

Paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate requires that each report accompanying a bill to
evaluate the regulatory and paperwork impact that would be
incurred in carrying out the bill. The Committee has concluded
that the regulatory and paperwork impacts of S. 379 should be
de minimis.

EXECUTIVE COMMUNICATIONS

The Committee has received no communications from the
Executive Branch regarding S. 379.

CHANGES IN EXISTING LAW

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

ADDITIONAL VIEWS OF VICE CHAIRMAN BARRASSO

I understand how important Federal recognition is for
tribal groups and how difficult and challenging the
administrative recognition process is for them. Nevertheless,
it is my view that legislative recognition--legislation that
deems a group or tribe to be federally recognized--is not the
right way to decide which groups should be recognized and which
groups should not be recognized. That is a function that can be
best performed by the Executive Branch of the Government
following the regulations that have been adopted for that
purpose. Federal recognition of a group as an Indian tribe may
have profound consequences for the group, its members, other
Indian tribes, the general public, and the Federal Government.
Just in terms of impact on the Federal Treasury alone, the
Congressional Budget Office estimates that implementing S. 379
will cost $68 million over a 5-year period, assuming
appropriation of the necessary funds. Since most of that cost
would be in the form of programs and services available through
the BIA and IHS for which the Tribe and its members will become
eligible, even if that additional money is never appropriated,
recognition of the tribe will in and of itself place
significant additional stress on the limited resources of both
of these agencies, since they will not turn tribal members away
from programs and services for which they are eligible. So
tribal recognition is indeed a weighty decision, with real
consequences.
Testifying about several recognition bills at a hearing
before this Committee during the 110th Congress (including an
earlier version of this bill introduced in the House, H.R.
1294), the Director of the Office of Federal Acknowledgement at
the Department of the Interior stated--

Legislation such as S. 514, S. 724, S. 1058, and H.R.
1294 would allow these groups to bypass this [the
Federal acknowledgement] process--allowing them to
avoid the scrutiny to which other groups have been
subjected. The Administration supports all groups going
through the Federal acknowledgment process under 25 CFR
Part 83.\1\
---------------------------------------------------------------------------
\1\Testimony of R. Lee Fleming, Director, Office of Federal
Acknowledgment, U.S. Department of the Interior, before the Committee
on Indian Affairs, September 25, 2008.

The Department's witness went on to point out that, in
light of the importance and implications of recognition
decisions, the Department adopted its Federal acknowledgment
regulations at 25 CFR Part 83 in 1978 in recognition of ``the
need to end ad hoc decision making and adopt uniform
regulations for Federal acknowledgment.''\2\
---------------------------------------------------------------------------
\2\Id.
---------------------------------------------------------------------------
This bill represents a step away from a process that
applies uniform, established acknowledgment criteria to the
history of the group and in the direction of ``ad hoc''
recognition decisions. I do not think that Congress is in a
good position to undertake the detailed historical, cultural,
political and ethnographic analysis that should go into a
recognition decision.
If a particular group has some unique historical or other
barriers so that it cannot fairly access the administrative
process, then perhaps it would be appropriate for Congress to
consider whether those barriers should be removed or modified
so that the group can have fair access to that process.
However, I do not feel it is appropriate for Congress to simply
deem a group to be a recognized Indian tribe.
John Barrasso.