[House Report 115-953]
[From the U.S. Government Publishing Office]
115th Congress } { REPORT
HOUSE OF REPRESENTATIVES
2d Session } { 115-953
======================================================================
TRIBAL RECOGNITION ACT OF 2018
_______
September 20, 2018.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Bishop of Utah, from the Committee on Natural Resources, submitted
the following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 3744]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred
the bill (H.R. 3744) to provide that an Indian group may
receive Federal acknowledgment as an Indian tribe only by an
Act of Congress, having considered the same, report favorably
thereon with an amendment and recommend that the bill as
amended do pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Tribal Recognition Act of 2018''.
SEC. 2. FINDINGS.
Congress finds as follows:
(1) Article I, section 8, clause 3 of the Constitution
(commonly known as the Indian Commerce Clause) gives Congress
authority over Indian affairs.
(2) Such authority is plenary and exclusive.
(3) Such authority may not be exercised by the judicial
branch or by the executive branch (except to the extent that
such authority has been expressly delegated to the executive
branch by an Act of Congress).
SEC. 3. DEFINITIONS.
As used in this Act:
(1) Assistant secretary.--The term ``Assistant Secretary''
means the Assistant Secretary of Indian Affairs, or that
officer's authorized representative.
(2) Autonomous.--The term ``autonomous'' means the exercise
of political influence or authority independent of the control
of any other Indian governing entity. Autonomous must be
understood in the context of the history, geography, culture,
and social organization of the petitioning group.
(3) Community.--The term ``Community'' means any group of
people who can demonstrate that consistent interactions and
significant social relationships exist within its membership
and that its members are differentiated from and identified as
distinct from nonmembers. Community must be understood in the
context of the history, geography, culture, and social
organization of the group.
(4) Continental united states.--The term ``continental United
States'' means the contiguous 48 States and Alaska.
(5) Continuously or continuous.--The term ``continuously or
continuous'' means extending from first sustained contact with
non-Indians throughout the group's history to the present
substantially without interruption.
(6) Documented petition.--The term ``documented petition''
means the detailed arguments made by a petitioner to
substantiate its claim to continuous existence as an Indian
tribe, together with the factual exposition and all documentary
evidence necessary to demonstrate that these arguments address
the mandatory criteria.
(7) Historically, historical, or history.--The term
``historically, historical, or history'' means dating from
first sustained contact with non-Indians.
(8) Indian group or group.--The term ``Indian group or
group'' means any Indian or Alaska Native aggregation within
the continental United States that the Secretary of the
Interior does not acknowledge to be an Indian tribe. Indian
tribe, also referred to herein as tribe, means any Indian or
Alaska Native tribe, band, pueblo, village, or community within
the continental United States that the Secretary of the
Interior has lawfully acknowledged as an Indian tribe.
(9) Indigenous.--The term ``indigenous'' means native to the
continental United States in that at least part of the
petitioner's territory at the time of sustained contact
extended into what is now the continental United States.
(10) Informed party.--The term ``informed party'' means any
person or organization, other than an interested party, who
requests an opportunity to submit comments or evidence or to be
kept informed of general actions regarding a specific
petitioner.
(11) Interested party.--The term ``interested party'' means
any person, organization, or other entity who can establish a
legal, factual, or property interest in an acknowledgment
determination and who requests an opportunity to submit
comments or evidence or to be kept informed of general actions
regarding a specific petitioner. ``Interested party'' includes
the Governor and attorney general of the State in which a
petitioner is located, and may include, but is not limited to,
local governmental units, and any recognized Indian tribes and
unrecognized Indian groups that might be affected by an
acknowledgment determination.
(12) Letter of intent.--The term ``letter of intent'' means
an undocumented letter or resolution by which an Indian group
requests Federal acknowledgment as an Indian tribe and
expresses its intent to submit a documented petition.
(13) Petitioner.--The term ``petitioner'' means any entity
that has submitted a letter of intent to the Secretary
requesting acknowledgment that it is an Indian tribe.
(14) Political influence or authority.--The term ``political
influence or authority'' means a tribal council, leadership,
internal process, or other mechanism which the group has used
as a means of influencing or controlling the behavior of its
members in significant respects, and making decisions for the
group which substantially affect its members, and representing
the group in dealing with outsiders in matters of consequence.
This process is to be understood in the context of the history,
culture, and social organization of the group.
(15) Previous federal acknowledgment.--The term ``previous
Federal acknowledgment'' means action by the Federal Government
clearly premised on identification of a tribal political entity
and indicating clearly the recognition of a relationship
between that entity and the United States.
(16) Secretary.--The term ``Secretary'' means the Secretary
of the Interior or that officer's authorized representative.
(17) Sustained contact.--The term ``sustained contact'' means
the period of earliest sustained non-Indian settlement or
governmental presence in the local area in which the historical
tribe or tribes from which the petitioner descends was located
historically.
SEC. 4. GROUPS ELIGIBLE TO SUBMIT PETITIONS.
(a) Eligible Groups.--Indian groups indigenous to the continental
United States that are not federally recognized Indian tribes on the
date of the enactment of this Act may submit a petition under this Act.
(b) Ineligible Groups.--The following may not submit a petition under
this Act:
(1) Splinter groups, political factions, communities, or
groups of any character that separate from the main body of a
federally recognized Indian tribe, unless they can establish
clearly that they have functioned throughout history until the
present as an autonomous tribal entity, even if they have been
regarded by some as part of or have been associated in some
manner with a federally recognized Indian tribe.
(2) Indian tribes, organized bands, pueblos, Alaska native
villages, or communities that have been lawfully acknowledged
to be federally recognized Indian tribes and are receiving
services from the Bureau of Indian Affairs.
(3) Groups that petitioned and were denied Federal
acknowledgment under part 83 of title 25, Code of Federal
Regulations, including reorganized or reconstituted petitioners
previously denied, or splinter groups, spin-offs, or component
groups of any type that were once part of petitioners
previously denied.
(4) Groups for which a documented petition has not been filed
pursuant to section 9 by the date that is 5 years after the
date of the enactment of this Act.
(c) Groups With Petitions in Progress.--This Act, including the
criteria in section 7, shall apply to any Indian group whose documented
petition was submitted and not denied on the date of the enactment of
this Act.
SEC. 5. FILING A LETTER OF INTENT.
Any eligible Indian group in the continental United States that
believes it should be acknowledged as an Indian tribe and that it can
satisfy the criteria in this Act may submit a letter of intent
requesting acknowledgment that an Indian group exists as an Indian
tribe. The letter of intent submitted under this section--
(1) shall be filed with the Assistant Secretary;
(2) may be filed in advance of, or at the same time as, a
group's documented petition; and
(3) shall be produced, dated, and signed by the governing
body of an Indian group.
SEC. 6. DUTIES OF THE ASSISTANT SECRETARY.
(a) Guidelines.--The Assistant Secretary shall make available
guidelines for the preparation of documented petitions. These
guidelines--
(1) shall include an explanation of the criteria, a
discussion of the types of evidence which may be used to
demonstrate particular criteria, and general suggestions and
guidelines on how and where to conduct research;
(2) shall include an example of a documented petition format
which shall provide guidance, but not preclude the use of any
other format; and
(3) may be supplemented or updated as necessary.
(b) Research and Preparation of Petition.--The Assistant Secretary--
(1) shall provide petitioners with suggestions and advice
regarding preparation of the documented petition; and
(2) shall not be responsible for the actual research on
behalf of the petitioner.
SEC. 7. CRITERIA FOR FEDERAL ACKNOWLEDGMENT.
The criteria for consideration for Federal acknowledgment are, at a
minimum, the following:
(1) The petitioner has been identified as an American Indian
entity on a substantially continuous basis since 1900. Evidence
that the group's character as an Indian entity has from time to
time been denied shall not be considered to be conclusive
evidence that this criterion has not been met. Evidence to be
relied upon in determining a group's Indian identity may
include one or a combination of the following, as well as other
evidence of identification by other than the petitioner itself
or its members:
(A) Identification as an Indian entity by Federal
authorities.
(B) Relationships with State governments based on
identification of the group as Indian.
(C) Dealings with a county, parish, or other local
government in a relationship based on the group's
Indian identity.
(D) Identification as an Indian entity by
anthropologists, historians, or other scholars.
(E) Identification as an Indian entity in newspapers
and books.
(F) Identification as an Indian entity in
relationships with Indian tribes or with national,
regional, or State Indian organizations.
(2) A predominant portion of the petitioning group comprises
a distinct community and has existed as a community from
historical times until the present.
(A) This criterion may be demonstrated by some
combination of the following evidence and other
evidence that the petitioner meets the definition of
community:
(i) Significant rates of marriage within the
group, or, as may be culturally required,
patterned out-marriages with other Indian
populations.
(ii) Significant social relationships
connecting individual members.
(iii) Significant rates of informal social
interaction which exist broadly among the
members of a group.
(iv) A significant degree of shared or
cooperative labor or other economic activity
among the membership.
(v) Evidence of strong patterns of
discrimination or other social distinctions by
nonmembers.
(vi) Shared sacred or secular ritual activity
encompassing most of the group.
(vii) Cultural patterns shared among a
significant portion of the group that are
different from those of the non-Indian
populations with whom it interacts. These
patterns must function as more than a symbolic
identification of the group as Indian. They may
include, but are not limited to, language,
kinship organization, or religious beliefs and
practices.
(viii) The persistence of a named, collective
Indian identity continuously over a period of
more than 50 years, notwithstanding changes in
name.
(ix) A demonstration of historical political
influence under the criterion in paragraph (3)
shall be evidence for demonstrating historical
community.
(B) A petitioner shall be considered to have provided
sufficient evidence of community at a given point in
time if evidence is provided to demonstrate any one of
the following:
(i) More than 50 percent of the members
reside in a geographical area exclusively or
almost exclusively composed of members of the
group, and the balance of the group maintains
consistent interaction with some members of the
community.
(ii) At least 50 percent of the marriages in
the group are between members of the group.
(iii) At least 50 percent of the group
members maintain distinct cultural patterns
such as, but not limited to, language, kinship
organization, or religious beliefs and
practices.
(iv) There are distinct community social
institutions encompassing most of the members,
such as kinship organizations, formal or
informal economic cooperation, or religious
organizations.
(v) The group has met the criterion in
paragraph (3) using evidence described in
paragraph (3)(B).
(3) The petitioner has maintained political influence or
authority over its members as an autonomous entity from
historical times until the present.
(A) This criterion may be demonstrated by some
combination of the evidence listed below and by other
evidence that the petitioner meets the definition of
political influence or authority:
(i) The group is able to mobilize significant
numbers of members and significant resources
from its members for group purposes.
(ii) Most of the membership considers issues
acted upon or actions taken by group leaders or
governing bodies to be of importance.
(iii) There is widespread knowledge,
communication, and involvement in political
processes by most of the group's members.
(iv) The group meets the criterion in
paragraph (2) at more than a minimal level.
(v) There are internal conflicts which show
controversy over valued group goals,
properties, policies, processes, and decisions.
(B) A petitioning group shall be considered to have
provided sufficient evidence to demonstrate the
exercise of political influence or authority at a given
point in time by demonstrating that group leaders and
other mechanisms exist or existed which--
(i) allocate group resources such as land,
residence rights, and the like on a consistent
basis;
(ii) settle disputes between members or
subgroups by mediation or other means on a
regular basis;
(iii) exert strong influence on the behavior
of individual members, such as the
establishment or maintenance of norms and the
enforcement of sanctions to direct or control
behavior; and
(iv) organize or influence economic
subsistence activities among the members,
including shared or cooperative labor.
(C) A group that has met the requirements in
paragraph (2)(B) at a given point in time shall be
considered to have provided sufficient evidence to meet
this criterion at that point in time.
(4) A copy of the group's present governing document
including its membership criteria. In the absence of a written
document, the petitioner must provide a statement describing in
full its membership criteria and current governing procedures.
(5) The petitioner's membership consists of individuals who
descend from a historical Indian tribe or from historical
Indian tribes which combined and functioned as a single
autonomous political entity.
(A) Some types of evidence that can be used for this
purpose include the following:
(i) Rolls prepared by the Secretary on a
descendancy basis for purposes of distributing
claims money, providing allotments, or other
purposes.
(ii) State, Federal, or other official
records or evidence identifying present members
or ancestors of present members as being
descendants of a historical tribe or tribes
that combined and functioned as a single
autonomous political entity.
(iii) Church, school, and other similar
enrollment records identifying present members
or ancestors of present members as being
descendants of a historical tribe or tribes
that combined and functioned as a single
autonomous political entity.
(iv) Affidavits of recognition by tribal
elders, leaders, or the tribal governing body
identifying present members or ancestors of
present members as being descendants of a
historical tribe or tribes that combined and
functioned as a single autonomous political
entity.
(v) Other records or evidence identifying
present members or ancestors of present members
as being descendants of a historical tribe or
tribes that combined and functioned as a single
autonomous political entity.
(B) The petitioner must provide an official
membership list, separately certified by the group's
governing body, of all known current members of the
group. This list must include each member's full name
(including maiden name), date of birth, and current
residential address. The petitioner must also provide a
copy of each available former list of members based on
the group's own defined criteria, as well as a
statement describing the circumstances surrounding the
preparation of the current list and, insofar as
possible, the circumstances surrounding the preparation
of former lists.
(6) The membership of the petitioning group is composed
principally of persons who are not members of any acknowledged
North American Indian tribe. However, under certain conditions
a petitioning group may be acknowledged even if its membership
is composed principally of persons whose names have appeared on
rolls of, or who have been otherwise associated with, an
acknowledged Indian tribe. The conditions are that the group
must establish that it has functioned throughout history until
the present as a separate and autonomous Indian tribal entity,
that its members do not maintain a bilateral political
relationship with the acknowledged tribe, and that its members
have provided written confirmation of their membership in the
petitioning group.
(7) Neither the petitioner nor its members are the subject of
an Act of Congress that has expressly terminated or forbidden
the Federal relationship.
SEC. 8. PREVIOUS FEDERAL ACKNOWLEDGMENT.
(a) In General.--Unambiguous previous Federal acknowledgment shall be
acceptable evidence of the tribal character of a petitioner to the date
of the last such previous acknowledgment. If a petitioner provides
substantial evidence of unambiguous Federal acknowledgment, the
petitioner shall only be required to demonstrate that it meets the
requirements of section 7 to the extent required by this section. A
determination of the adequacy of the evidence of previous Federal
action acknowledging tribal status shall be made during the technical
assistance review of the documented petition conducted pursuant to
section 10(b).
(b) Evidence.--Evidence to demonstrate previous Federal
acknowledgment includes evidence that the group--
(1) has had treaty relations with the United States;
(2) has been denominated a tribe by an Act of Congress or
Executive order; and
(3) has been treated by the Federal Government as having
collective rights in tribal lands or funds.
SEC. 9. NOTICE OF RECEIPT OF A PETITION.
(a) In General.--Not later than 30 days after receiving a letter of
intent, or a documented petition if a letter of intent has not
previously been received and noticed, the Assistant Secretary shall
acknowledge to the sender such receipt in writing. Notice under this
subsection shall--
(1) include the name, location, and mailing address of the
petitioner and such other information to identify the entity
submitting the letter of intent or documented petition and the
date it was received;
(2) serve to announce the opportunity for interested parties
and informed parties to submit factual or legal arguments in
support of or in opposition to the petitioner's request for
acknowledgment or to request to be kept informed of all general
actions affecting the petition; and
(3) indicate where a copy of the letter of intent and the
documented petition may be examined.
(b) Notice to State Governments.--The Assistant Secretary shall
notify, in writing--
(1) the Governor and attorney general of the State or States
in which a petitioner is located; and
(2) any recognized tribe and any other petitioner that--
(A) appears to have a historical or present
relationship with the petitioner; or
(B) may otherwise be considered to have a potential
interest in the acknowledgment determination.
(c) Publication.--Not later than 60 days after receiving a letter of
intent, or a documented petition if a letter of intent has not
previously been received and noticed, the Assistant Secretary shall
have the notice required under this section published--
(1) in the Federal Register; and
(2) in a major newspaper or newspapers of general circulation
in the town or city nearest to the petitioner.
SEC. 10. PROCESSING OF THE DOCUMENTED PETITION.
(a) Review.--Upon receipt of a documented petition, the Assistant
Secretary--
(1) shall cause a review to be conducted to determine the
extent to which the petitioner has met the criteria set forth
in section 7;
(2) shall include consideration of the documented petition
and the factual statements contained therein;
(3) may initiate other research for any purpose relative to
analyzing the documented petition and obtaining additional
information about the petitioner's status; and
(4) may consider any evidence which may be submitted by
interested parties or informed parties.
(b) Technical Assistance.--
(1) Prior to review of the documented petition under
subsection (a), the Assistant Secretary shall conduct a
preliminary review of the petition in order to provide
technical assistance to the petitioner.
(2) The review under paragraph (1) shall be a preliminary
review for the purpose of providing the petitioner an
opportunity to supplement or revise the documented petition
prior to the review under subsection (a). Insofar as possible,
technical assistance reviews under this paragraph will be
conducted in the order of receipt of documented petitions.
However, technical assistance reviews will not have priority
over active consideration of documented petitions.
(3) After the technical assistance review, the Assistant
Secretary shall notify the petitioner by letter of any obvious
deficiencies or significant omissions apparent in the
documented petition and provide the petitioner with an
opportunity to withdraw the documented petition for further
work or to submit additional information.
(4) If a petitioner's documented petition claims previous
Federal acknowledgment or includes evidence of previous Federal
acknowledgment, the technical assistance review shall also
include a review to determine whether that evidence is
sufficient to meet the requirements of previous Federal
acknowledgment.
(c) Response to Technical Assistance Review.--
(1) Petitioners may respond in part or in full to the
technical assistance review letter or request, in writing, that
the Assistant Secretary proceed with the active consideration
of the documented petition using the materials already
submitted.
(2) If the petitioner requests that the materials submitted
in response to the technical assistance review letter be again
reviewed for adequacy, the Assistant Secretary shall provide
the additional review.
(3) If the assertion of previous Federal acknowledgment under
section 8 cannot be substantiated during the technical
assistance review, the petitioner may respond by providing
additional evidence. A petitioner that claims previous Federal
acknowledgment and fails to respond to a technical assistance
review letter under this subsection, or whose response fails to
establish the claim, shall have its documented petition
considered on the same basis as documented petitions submitted
by groups not claiming previous Federal acknowledgment.
Petitioners that fail to demonstrate previous Federal
acknowledgment after a review of materials submitted in
response to the technical assistance review shall be so
notified. Such petitioners may submit additional materials
concerning previous acknowledgment during the course of active
consideration.
(d) Consideration of Documented Petitions.--The Assistant Secretary
shall--
(1) review documented petitions in the order that they are
determined ready for review;
(2) establish and maintain a numbered register of documented
petitions which have been determined ready for active
consideration;
(3) maintain a numbered register of letters of intent or
incomplete petitions based on the original date the item was
received by the Department of the Interior; and
(4) use the register of letters of intent or incomplete
petitions to determine the order of review by the Assistant
Secretary if two or more documented petitions are determined
ready for review on the same date.
(e) Report.--Not later than 1 year after notifying the petitioner
that review of the documented petition has begun, the Assistant
Secretary shall--
(1) submit a report including a summary of the evidence,
findings, petition, and supporting documentation, to the
Committee on Natural Resources of the House of Representatives
and the Committee on Indian Affairs of the Senate;
(2) notify the petitioner and interested parties that the
review is complete and the report required under paragraph (1)
has been submitted;
(3) provide copies of the report to the petitioner and
interested parties; and
(4) provide copies of the report to informed parties and
others upon written request.
SEC. 11. CLARIFICATION OF FEDERAL RECOGNITION AUTHORITY.
(a) Act of Congress Required.--An Indian group may receive Federal
acknowledgment (or reacknowledgment) as an Indian tribe only by an Act
of Congress. The Secretary may not grant Federal acknowledgment (or
reacknowledgment) to any Indian group.
(b) Previous Acknowledgment.--This Act shall not affect the status of
any Indian tribe that was federally acknowledged before the date of the
enactment of this Act.
SEC. 12. FORCE AND EFFECT OF REGULATIONS.
Part 83 of title 25, Code of Federal Regulations, shall have no force
or effect, and section 1.2 of title 25, Code of Federal Regulations,
with respect to any regulation promulgated by the Secretary pursuant to
this Act, shall have no force or effect.
SEC. 13. TRUST LAND REAFFIRMATION.
All land taken into trust by the United States under or pursuant to
the Act of June 18, 1934 (25 U.S.C. 5101 et seq.), before February 24,
2009, for the benefit of an Indian tribe that was federally recognized
on the date that the land was taken into trust is hereby reaffirmed as
trust land.
PURPOSE OF THE BILL
The purpose of H.R. 3744 is to provide that an Indian group
may receive Federal acknowledgment as an Indian tribe only by
an Act of Congress.
BACKGROUND AND NEED FOR LEGISLATION
H.R. 3744 reclaims the Article I authority of Congress over
recognizing tribes from the Executive Branch, which has
appropriated this power. The bill establishes a statutory
process for the Department of the Interior to examine evidence
submitted by groups seeking recognition as tribes within the
meaning of federal law, and for Congress to make a final
determination on extending recognition. The status of a tribe
federally recognized prior to the date of enactment of the bill
shall be unaffected.
Article I, Section 8, Clause 3 of the Constitution grants
to Congress power to ``regulate commerce . . . with the Indian
tribes.'' Supplemented by the treaty-making power\1\ in the
Constitution, the so-called ``Indian Commerce Clause''
delegates to Congress what the Supreme Court has said is
``plenary'' power over Indian affairs.\2\ Inherent in this
delegation of authority to Congress is the power to recognize a
tribe, as well as the prerogative not to extend recognition.
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\1\Treaty making with the Indian tribes was abolished by Congress
in 1871 (``. . . Provided, That hereafter no Indian nation or tribe
within the territory of the United States shall be acknowledged or
recognized as an independent nation, tribe, or power with whom the
United States may contract by treaty . . .'' [U.S. Statutes at Large,
16:566])
\2\According to the Supreme Court, Congress's power regarding
Indian tribes ``has always been deemed a political one, not subject to
be controlled by the judicial department of the government.'' Lone Wolf
v. Hitchcock, 187 U.S. 553 (1903) at 565.
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The U.S. Supreme Court has held that the Indian Commerce
Clause does not grant Congress unfettered authority to
designate groups of individuals as ``Indian tribes'' or
individuals as ``Indians'' in that Congress may not exercise
such authority arbitrarily.\3\ The Court, however, has not
determined the minimum qualifications an individual must meet
to be an ``Indian'' within the meaning of federal law.
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\3\See United States v. Sandoval, 231 U.S. 28, at 46 (1913).
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Recognition of a tribe is a solemn act of the United States
government, with long-term consequences not only to a tribe's
members, but to other tribes, States and non-Indian citizens. A
tribe is eligible for a variety of federal services and
benefits, including operation of a casino on its lands, and
absolute sovereign immunity against anyone except the federal
government. It usually obtains federal protection in
controversies where States, local governments, or private
citizens are adverse parties. A tribe may exercise special
political authority over its territory and its Indian members.
Land acquired in trust for a tribe preempts State and local
government jurisdiction over such property. Considerable funds
are required from Congress to administer lands held in trust
for Indians, and to provide other services and benefits,
including free health care from the Indian Health Service.
Establishing federal relations with tribes is a political
question and is therefore reserved to the political branch:
Congress. In the 1970s Congress considered but failed to enact
legislation to establish a statutory framework for the
recognition of tribes. In 1978 the Bureau of Indian Affairs
(BIA) unilaterally crafted regulations (today contained in 25
CFR Part 83) to recognize any group that can meet seven
mandatory criteria to establish a continuous existence as an
autonomous Indian tribe throughout history to the present.
Far from creating uniform standards for the recognition of
tribes, the BIA has modified and occasionally wholly waived its
Part 83 procedures, with the most recent revisions finalized
under the Obama Administration. Ostensibly designed to increase
transparency and efficiency in the BIA recognition process,\4\
at an April 22, 2015, Subcommittee on Indian, Insular and
Alaska Native Affairs hearing,\5\ the then-proposed rule was
the focus of criticism from bipartisan Members of the House and
Senate, and from several federally-recognized tribes. Criticism
focused on the proposed rule's relaxation of the criteria, and
a lowering of the burden of proof a petitioner must meet to be
acknowledged as a tribe.
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\4\http://www.bia.gov/cs/groups/xofa/documents/text/idc1-
031255.pdf.
\5\http://naturalresources.house.gov/calendar/
eventsingle.aspx?EventID=398320.
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The final rule published in the Federal Register on July 1,
2015,\6\ addressed some of the concerns raised by tribes, non-
tribal stakeholders, and certain Members of Congress, but the
rule remains flawed in two major respects: (1) the standards
and criteria, finalized by administrative fiat, are not
authorized by Congress; and (2) the criteria and the burden of
proof a petitioner must meet were lowered.
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\6\80 Federal Register 37861 (July 1, 2015).
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In addition to these problems is the BIA's failure to
implement its regulations in a consistent, impartial, and
transparent manner. In several cases the BIA has sidestepped or
formally waived the Part 83 procedures to create tribes. In one
such case, the Inspector General of the Department of the
Interior reported that it ``could not find any discernible
process used'' by the BIA in extending recognition to a certain
group.\7\ In 2002 the Inspector General investigated
allegations of misconduct in the recognition process in which
``six tribal recognition decisions by Clinton Administration
BIA appointees . . . were contrary to the recommendations made
by the career staff . . .''\8\ Gaming was at the heart of the
alleged misconduct.
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\7\https://www.doioig.gov/sites/doioig.gov/files/
Tejon_ROI_FINAL_PUBLIC.pdf.
\8\https://www.gpo.gov/fdsys/pkg/GPO-DOI-IGREPORTS-01-i-00329/pdf/
GPO-DOI-IGREPORTS-01-i-00329.pdf.
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Congress is not without its own shortcomings in tribal
recognition. The committees of jurisdiction do not typically
have the capacity to analyze copious quantities of detailed and
often complicated historical documents necessary to evaluate a
petition from a group claiming continuous status as an Indian
tribe dating to the 18th or 19th century. A group of
individuals could be recognized legislatively as an Indian
tribe even if Congress has not comprehensively evaluated, if it
even possesses, evidence that documents the group as a distinct
Indian community. Establishing a process by which experts in
the fields of Indian law and policy, history, and genealogy
could examine petitions of groups seeking federal recognition
would benefit Congress in its determinations whether to extend
recognition.
H.R. 3744 creates a consistent and publicly transparent
process of evaluating recognition petitions under statutorily
establish criteria, and ensures Congress exercises its plenary
power over tribal recognition with the best historical
information and analysis possible from the Department of the
Interior.
H.R. 3744 is identical to Title I of H.R. 3764 of the 114th
Congress, favorably reported by the Committee on Natural
Resources on December 7, 2016.\9\
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\9\H. Rept. 114-847.
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During the markup of H.R. 3744, the Committee adopted an
amendment filed by the Ranking Minority Member to ratify the
trust status of lands acquired for tribes by the Secretary of
the Interior prior to the date of the Supreme Court's judgment
in Carcieri v. Salazar (555 U.S. 379 (2009)), or February 25,
2009. In Carcieri, the Court resolved a dispute over the
Secretary's use of Section 5 of the Indian Reorganization Act
of 1934 (IRA)\10\ as general authority (typically exercised
through the BIA) to acquire land in trust for any tribe. The
Court held Section 5 of the IRA applies to tribes recognized
and under federal jurisdiction on the date of enactment of that
act, or 1934, not to tribes under federal jurisdiction after
that date. To date, the Department of the Interior has refused
to disclose to the Committee a list of tribes and trust lands
affected by Carcieri.
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\10\25 U.S.C. 5108 (formerly classified as 25 U.S.C. 465)
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The Ranking Member's amendment would remove any doubt as to
the trust status of lands acquired for tribes prior to the
Court's issuance of Carcieri. However, the amendment fails to
resolve serious concerns stemming from the absence of any
identifiable standards or guidelines (besides the one limit
identified in Carcieri) governing the Secretary's power under
the IRA to acquire land in trust, including lands for off-
reservation casinos. Concerns with Section 5 of the IRA are
broad and bipartisan. For example, 21 States filed a brief in
support of Governor Carcieri of Rhode Island in the IRA
controversy before the Supreme Court.\11\ Seventeen State
Attorneys General (of both parties and ranging from so-called
deep Blue to deep Red States) have written the Committee to
complain that the ``current process [for taking land into
trust] does not provide for meaningful analysis or weighing of
input of states and local units of government and is void of
binding limits on the discretion of the secretary [sic].''\12\
The current Democratic Leader of the Senate has previously
written the Obama Administration to warn the Secretary of the
Interior not to ``undercut'' the Supreme Court's Carcieri
decision or the authority of Congress with respect to the trust
land process.\13\
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\11\The State of Rhode Island's position in Carcieri was further
supported by an amicus brief signed by the Council of State
Governments, National League of Cities, U.S. Conference of Mayors,
National Association of Counties, and the International City/County
Management Association.
\12\``A Communication from the Chief Legal Officers'' of Alaska,
Colorado, Connecticut, Florida, Hawaii, Iowa, Kansas, Massachusetts,
Michigan, Mississippi, Ohio, Rhode Island, South Carolina, South
Dakota, Tennessee, Texas, and Utah, sent to the Chairmen and Ranking
Members of the Committees on Natural Resources of the House of
Representatives and on Indian Affairs of the Senate, dated April 24,
2009.
\13\Letter from Senator Charles E. Schumer to Secretary Ken
Salazar, dated March 8, 2010.
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With these concerns in mind, the Chairman of the Committee,
in the interest of compromising to advance the larger policy
reforms contained in H.R. 3744, offered to accept the Carcieri
amendment in exchange for the Ranking Minority Member's support
of the bill as amended. The Ranking Minority Member rejected
the offer, thereby leaving tribes whose lands may be in legal
jeopardy hanging. The Chairman decided to accept the Ranking
Member's Carcieri amendment, keeping open his offer to Members
willing to set aside partisanship to forge a compromise on
federal Indian policies relating to recognition and trust
lands.
SECTION-BY-SECTION ANALYSIS OF H.R. 3744 AS ORDERED REPORTED
Section 1. Short title
Provides that this Act may be cited as the ``Tribal
Recognition Act of 2018''.
Section 2. Findings
Clarifies and reassert Congress's authority under Article
I, Section 8, Clause 3 of the Constitution over the recognition
of Indian tribes.
Section 3. Definitions
Sets forth definitions used in the bill. Definitions are
similar to those used in the Part 83 regulations except that in
H.R. 3744, the term ``Historical, historically, or history''
means dating from first sustained contact with non-Indians. The
newly revised Part 83 regulations define ``Historical'' to mean
before 1900.
Section 4. Groups eligible to submit petitions
Allows any non-recognized group to have its petition
examined by the Secretary of the Interior. Groups not allowed
to petition include: splinter groups or political factions of
Indians tribes; tribes, bands or similar communities already
lawfully recognized; and groups previously denied recognition
under Part 83 (including any reorganized or reconstituted
group).
Section 5. Filing a letter of intent
Specifies how a group may submit a petition to the
Assistant Secretary-Indian Affairs.
Section 6. Duties of the Assistant Secretary
Requires the Assistant Secretary to make guidelines for the
preparation of documented petitions available, and to research
the documented petitions. Prohibits the Assistant Secretary
from performing research on behalf of petitioners.
Section 7. Criteria for federal acknowledgment
Provides detailed minimum criteria the Assistant Secretary
shall apply in examining groups' petitions for recognition.
Section 8. Previous federal acknowledgment
Provides that unambiguous federal acknowledgment (or
recognition) of a group as an Indian tribe shall be acceptable
evidence of the tribal character of a petition to the date of
the last such recognition. Specifies what kind of evidence may
constitute unambiguous federal acknowledgment.
Section 9. Notice of receipt of a petition
Directs the Assistant Secretary to notify State
governments, recognized tribes, and other interested parties
when the Assistant Secretary has received a petition, and
requires that within 60 days, such notice be published in the
Federal Register and in major newspapers of general circulation
in the town or city nearest to the petitioner.
Section 10. Processing of the documented petition
Sets forth how the Assistant Secretary shall process a
petition, including making technical review assistance
available to the petitioner. Requires the Assistant Secretary
to review documented petitions in the order in which they are
ready for review, and that within one year after a petitioner
is notified its petition is ready for review, the Assistant
Secretary shall submit a report (including a summary of
evidence, findings, petition, and supporting documentation) to
the House Committee on Natural Resources and the Senate
Committee on Indian Affairs. The petitioner and other
interested parties shall also be notified of the submission of
the report/findings to the Congressional committees and be
provided copies upon request.
Section 11. Clarification of federal recognition authority
Provides that recognition of a tribe may be granted only by
Act of Congress and prohibits the Secretary of the Interior
from recognizing any tribe. This Act shall not affect the
status of any Indian tribe that was federally recognized before
the date of enactment of this Act.
Section 12. Force and effect of regulations
Part 83 of title 25, Code of Federal Regulations, and
section 1.2 of title 25, Code of Federal Regulations (with
respect to any regulation promulgated by the Secretary of the
Interior pursuant to this Act) shall have no force or effect.
Section 13. Trust land affirmation
Provides that all land taken into trust by the United
States under or pursuant to the Act of June 18, 1934 (25 U.S.C.
5101 et seq.) before February 24, 2009, for the benefit of an
Indian tribe that was federally recognized on the date that the
land was taken into trust is hereby reaffirmed as trust land.
COMMITTEE ACTION
H.R. 3744 was introduced on September 12, 2017, by
Congressman Rob Bishop (R-UT). The bill was referred to the
Committee on Natural Resources and within the Committee to the
Subcommittee on Indian, Insular and Alaska Native Affairs. The
Subcommittee held a hearing on the bill on September 26, 2017.
On June 13, 2018, the Committee on Natural Resources met to
consider the bill. Congressman Rob Bishop offered an amendment
designated #1; it was adopted by voice vote. Congressman Raul
M. Grijalva (D-AZ) offered an amendment designated 001; it was
adopted by voice vote. No further amendments were offered, and
the bill, as amended, was ordered favorably reported to the
House of Representatives by a bipartisan roll call vote of 20
ayes to 14 noes, as follows:
COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Natural Resources' oversight findings and
recommendations are reflected in the body of this report.
COMPLIANCE WITH HOUSE RULE XIII AND CONGRESSIONAL BUDGET ACT
1. Cost of Legislation and the Congressional Budget Act.
With respect to the requirements of clause 3(c)(2) and (3) of
rule XIII of the Rules of the House of Representatives and
sections 308(a) and 402 of the Congressional Budget Act of
1974, the Committee has received the following estimate for the
bill from the Director of the Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, August 6, 2018.
Hon. Rob Bishop,
Chairman, Committee on Natural Resources,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 3744, the Tribal
Recognition Act of 2018.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Robert Reese.
Sincerely,
Keith Hall,
Director.
Enclosure.
H.R. 3744--Tribal Recognition Act of 2018
H.R. 3744 would repeal the current process used by the
Department of the Interior (DOI), to determine if Indian groups
can be recognized as Indian tribes. The current process has
been in place since 2015. Under the bill an Indian group could
become a federally recognized Indian tribe only through the
enactment of legislation to that effect.
The bill also would outline new administrative procedures
for Indian groups to petition DOI for federal recognition.
Those procedures would be similar to the procedures that
existed before 2015. Using information from DOI, CBO estimates
that implementing the procedures required in H.R. 3744 would
not significantly change DOI's administrative costs over the
2019-2023 period because personnel currently working to
recognize Indian groups as Indian tribes would be shifted to
process the tribal recognition petitions prior to submitting
them to the Congress. In 2018, DOI allocated about $2 million
for administrative expenses related to Indian tribal
recognition.
Enacting H.R. 3744 would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply.
CBO estimates that enacting H.R. 3744 would not increase
net direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2029.
H.R. 3744 would impose no intergovernmental or private-
sector mandates as defined in the Unfunded Mandates Reform Act.
The CBO staff contact for this estimate is Robert Reese.
The estimate was reviewed by H. Samuel Papenfuss, Deputy
Assistant Director for Budget Analysis.
2. General Performance Goals and Objectives. As required by
clause 3(c)(4) of rule XIII, the general performance goal or
objective of this bill is to provide that an Indian group may
receive Federal acknowledgment as an Indian tribe only by an
Act of Congress.
EARMARK STATEMENT
This bill does not contain any Congressional earmarks,
limited tax benefits, or limited tariff benefits as defined
under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of
the House of Representatives.
COMPLIANCE WITH PUBLIC LAW 104-4
This bill contains no unfunded mandates.
COMPLIANCE WITH H. RES. 5
Directed Rule Making. This bill does not contain any
directed rule makings.
Duplication of Existing Programs. This bill does not
establish or reauthorize a program of the federal government
known to be duplicative of another program. Such program was
not included in any report from the Government Accountability
Office to Congress pursuant to section 21 of Public Law 111-139
or identified in the most recent Catalog of Federal Domestic
Assistance published pursuant to the Federal Program
Information Act (Public Law 95-220, as amended by Public Law
98-169) as relating to other programs.
PREEMPTION OF STATE, LOCAL OR TRIBAL LAW
This bill is not intended to preempt any State, local or
tribal law.
CHANGES IN EXISTING LAW
If enacted, this bill would make no changes to existing
law.
DISSENTING VIEWS
H.R. 3744 would make Congress the sole authority for
recognizing or restoring Native American tribes. Aside from
further delaying an already interminable process, the bill
would consolidate the power of tribal recognition in the hands
of a very few Members of Congress, including the Chairman of
this Committee. The importance of federal recognition cannot be
overstated, and that is why simply leaving an act of Congress
as the only path forward for tribal recognition is dangerous
and misguided.
There is no argument that congress has the authority to
federally recognize Native American tribes, but the authority
of the Department of the Interior is also well established.
The Secretary of the Interior's authority to acknowledge
the existence of Indian tribes is deeply rooted in the laws
passed by Congress and the structure of the Constitution.
Congress rightly granted the Assistant Secretary of Indian
Affairs the authority to ``have management of all Indian
affairs and of all matters arising out of Indian
relations.''\1\ This includes the authority to administratively
acknowledge Indian tribes. This authority is well established
and has been upheld by the courts.\2\
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\1\25 U.S.C. Sec. 2 and Sec. 9, and 43 U.S.C. Sec. 1457.
\2\See, e.g, Miami Nation of Indians of Indiana, Inc. v. United
States Dep't of the Interior, 255 F.3d 342, 346 (7th Cir. 2001); James
v. United States Dep't of Health & Human Servs., 824 F.2d 1132, 1137
(D.C. Cir. 1987).
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The Congressional findings that supported the Federally
Recognized Indian Tribe List Act of 1994 reiterated that Indian
tribes could be recognized ``by the administrative procedures
set forth in part 83 of the Code of Federal Regulations
denominated `Procedures for Establishing that an American
Indian Group Exists as an Indian Tribe,''' and described the
relationship the United States has with federally recognized
tribes.\3\ In addition to the power delegated by Congress, the
Executive Branch has independent constitutional authority to
recognize Tribal Nations through the Constitution's Treaty
Clause.\4\
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\3\See Public Law 103-454 Sec. 103(2), (3), (8) (Nov. 2, 1994).
\4\U.S. Const, art. II, Sec. 2, cl. 2.
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H.R. 3744 seeks to upset this recognized authority by
stipulating that only Congress has the authority to recognize
Indian tribes. The bill obscures its true intent by setting
forth its own process by which a tribe can petition the
Department of the Interior for recognition. However, the only
requirement at the end of that process would be for the
Department to ``submit a report including a summary of the
evidence findings, petition, and supporting documentation, to
the Committee on Natural Resources of the House of
Representatives and the Committee on Indian Affairs of the
Senate.'' Therefore, the role of the Department of the Interior
would be limited and would not include the ability to recognize
tribes administratively.
Ranking Member Raul Grijalva offered an amendment to ensure
that all land taken into trust prior to the Carcieri decision
in 2009 is reaffirmed as tribal trust land. The amendment was
accepted by voice vote. While enactment of this provision would
be a positive development to tribes that face frivolous
lawsuits related to the Carcieri decision, its inclusion does
not change our opposition to the Underlying legislation.
Many tribes have still not established or reaffirmed their
relationship with the federal government. The Department of the
Interior's process provides the only non-partisan, research-
based approach to determining the validity of tribal claims--a
rigorous, time-consuming process that is based on hard science
and meticulous investigation. Taking that avenue away and
leaving an act of Congress as the only option for recognition,
will only result in further delays and difficulties for tribes.
Most dangerous of all, it will leave tribal recognition
decisions vulnerable to political whims and the influence of
special interests.
For these reasons, we oppose H.R. 3744.
Raul M. Grijalva,
Ranking Member, Committee on
Natural Resources.
Alan Lowenthal.
Ruben Gallego.
Colleen Hanabusa.
Nydia M. Velazquez.
Grace F. Napolitano.
Jimmy Gomez.
Donald S. Beyer, Jr.
Darren Soto.
[all]