<DOC>
[109 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:21352.wais]
S. Hrg. 109-91
FEDERAL RECOGNITION
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
ON
OVERSIGHT HEARING ON FEDERAL RECOGNITION OF INDIAN TRIBES
__________
MAY 11, 2005
WASHINGTON, DC
U.S. GOVERNMENT PRINTING OFFICE
21-352 WASHINGTON : 2005
_____________________________________________________________________________
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COMMITTEE ON INDIAN AFFAIRS
JOHN McCAIN, Arizona, Chairman
BYRON L. DORGAN, North Dakota, Vice Chairman
PETE V. DOMENICI, New Mexico DANIEL K. INOUYE, Hawaii
CRAIG THOMAS, Wyoming KENT CONRAD, North Dakota
GORDON SMITH, Oregon DANIEL K. AKAKA, Hawaii
LISA MURKOWSKI, Alaska TIM JOHNSON, South Dakota
MICHAEL D. CRAPO, Idaho MARIA CANTWELL, Washington
RICHARD BURR, North Carolina
TOM COBURN, M.D., Oklahoma
Jeanne Bumpus, Majority Staff Director
Sara G. Garland, Minority Staff Director
(ii)
C O N T E N T S
----------
Page
Statements:
Adkins, Stephen R., chief, Chickahominy Indian Tribe......... 26
Barnett, John, chairman, Cowlitz Indian Tribe................ 28
Bragdon, Kathleen J., professor, Department of Anthropology,
College of William and Mary................................ 30
Cooper, Kenneth F., president, Town Action to Save Kent...... 32
Crapo, Michael D., U.S. Senator from Idaho................... 2
Dodd, Christopher, U.S. Senator from Connecticut............. 3
Dorgan, Hon Byron L., U.S. Senator from North Dakota, vice
chairman, Committee on Indian Affairs...................... 2
Fleming, Lee, director, Federal acknowledgment, Office of
Indian Affairs, Department of the Interior................. 18
Inouye, Hon. Daniel K., U.S. Senator from Hawaii............. 2
Johnson, Hon. Nancy, U.S. Representative from Connecticut.... 8
Kendall, Mary L., deputy inspector general, Department of the
Interior................................................... 15
Lieberman, Joseph, U.S. Senator from Connecticut............. 7
McCain, Hon. John, U.S. Senator from Arizona, chairman,
Committee on Indian Affairs................................ 1
Rell, M. Jodi, Governor, Connecticut......................... 13
Shays, Hon. Christopher, U.S. Representative from Connecticut 10
Velky, Richard L., chief, Schaghticoke Tribal Nation......... 24
Appendix
Prepared statements:
Adkins, Stephen R. (with attachment)......................... 41
Allen, Hon. George, U.S. Senator from Virginia............... 37
Barnett, John (with attachment).............................. 73
Blumenthal, Richard, attorney general, Connecticut........... 89
Boughton, Mark D., mayor, Danbury, CT........................ 38
Bragdon, Kathleen J. (with attachment)....................... 97
Coburn, M.D., Hon. Tom A., U.S. Senator from Oklahoma........ 40
Congdon, Robert, Towns of Ledyard, North Stonington, and
Preston, Connecticut....................................... 102
Cooper, Kenneth F. (with attachment)......................... 111
Gumbs, Lance, former chairman, Shinnecock Indian Nation...... 121
Johnson, Hon. Nancy, U.S. Representative from Connecticut.... 133
Kendall, Mary L.............................................. 127
Lieberman, Joseph, U.S. Senator from Connecticut............. 138
Mendenhall, Susan, Towns of Ledyard, North Stonington, and
Preston, Connecticut....................................... 102
Mullane, II, Nicholas H., Towns of Ledyard, North Stonington,
and Preston, Connecticut................................... 102
Rell, M. Jodi (with attachment).............................. 143
Rose, Calvin R., Strawberry Valley Rancheria, California..... 176
Simmons, Hon. Robert, U.S. Representative from Connecticut... 180
Sinclair, John, president, Little Shell Tribe of Chippewa
Indians, Montana........................................... 184
Smith, Chad, principal chief, Cherokee Nation................ 188
Velky, Richard L. (with attachment).......................... 193
Additional material submitted for the record:
Anderson, Michael, Monteau and Peebles (letter).............. 283
Malick, Elida, director, No Casino In Plymouth (letter)...... 286
Peters, Paula, Mashpee Wampanoag (letter).................... 289
FEDERAL RECOGNITION
----------
WEDNESDAY, MAY 11, 2005
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The committee met, pursuant to notice, at 9:35 a.m. in room
485, Senate Russell Building, Hon. John McCain (chairman of the
committee) presiding.
Present: Senators McCain, Burr, Crapo, Dorgan, and Inouye.
STATEMENT OF HON. JOHN McCAIN, U.S. SENATOR FROM ARIZONA,
CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS
The Chairman. Good morning.
In 1978, after years of ad-hoc decisions, the Department of
the Interior promulgated regulations intended to ensure a fair,
timely and rigorous process for the administrative recognition
of Indian tribes.
Since that time, this committee has held numerous oversight
hearings on that process. What those hearings have shown us is
that from the beginning this process, though well intentioned,
has been criticized as too slow, too costly and too opaque.
Congressional recognition, on the other hand, has been
criticized for being too summary and too unfair.
Events in recent years have raised the specter of improper
conduct by Federal officials, including well-reported accounts
of paperwork being signed through car windows by departing
officials, and officials resigning Federal employ to
immediately work with tribes they recently recognized.
The role that gaming and its non-tribal backers have played
in the recognition process has increased perceptions that it is
unfair, if not corrupt. The solemnity of Federal recognition,
which establishes a government-to-government relationship
between the United States and an Indian tribe, demands not only
a fair and transparent process, but a process that is above
reproach.
While the relationship established is Federal, the impacts
are felt locally as well, as has been reported to this
committee by states attorneys general and local communities.
Congress retains the ultimate authority and responsibility to
recognize and deal with Indian tribes, including oversight of
the Federal agencies also charged with those responsibilities.
Therefore, it is Congress' responsibility to ensure that
administrative agency action is conducted in a transparent
fashion, in keeping with good governance. The committee will
hear from a variety of witnesses today, including colleagues
from the Senate and House. I anticipate that informed by this
and past hearings, this committee will begin looking at ways to
fix the process.
Vice Chairman Dorgan.
STATEMENT OF HON. BYRON L. DORGAN, U.S. SENATOR FROM NORTH
DAKOTA, VICE CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS
Senator Dorgan. Senator McCain, thank you very much, and
thanks to those of you have who come to present testimony at
this hearing.
As Senator McCain indicated, this is a complicated issue.
The recognition process is most often lengthy and costly. It
requires a huge amount of research and documentation. We have
many witnesses today. Let me just say that I share your
interest in this issue.
Number one, the recognition process is very important. We
have a process at this point that was begun in 1978 through
regulation in the Department of the Interior. There are critics
of that process from virtually every direction. The stakes are
fairly large in many areas of the country with respect to
tribal recognition. I think that this hearing is a very
important discussion on a timely basis of something that needs
to be considered by this committee.
So thank you for the leadership on this hearing, Mr.
Chairman.
The Chairman. Senator Crapo.
STATEMENT OF HON. MICHAEL D. CRAPO, U.S. SENATOR FROM IDAHO
Senator Crapo. Thank you very much, Mr. Chairman.
I, too, appreciate your attention to this issue. As has
already been indicated, the stakes are very high as we evaluate
the Federal recognition process. I look forward to the
testimony of the witnesses today.
Thank you very much.
The Chairman. Senator Inouye.
STATEMENT OF HON. DANIEL K. INOUYE, U.S. SENATOR FROM HAWAII
Senator Inouye. Thank you, Mr. Chairman.
Clearly, we have before us today a very distinguished panel
of our colleagues and others who are interested in the subject
of this hearing. I will make my remarks brief because there
will be sufficient time for all the witnesses.
Mr. Chairman, I have reviewed the statements that have been
submitted to the committee before we closed up business last
evening. It is clear that while this hearing is on the Federal
recognition process, a number of witnesses are actually more
concerned about tribal gaming. Accordingly, I think it is
important that we note in the record a few facts.
The Director of the Office of Acknowledgment will present
testimony this morning and I would guess that he can more
thoroughly document the facts that we discussed at our last
hearing on this matter. One of those facts that I recall is
that the larger number of petitions for acknowledgment that are
now pending in that office were filed long before the advent of
the Indian Gaming Regulatory Act or the Supreme Court's
decision on Cabazon.
I think it is important because there are some who have
suggested that tribal groups have petitioned for Federal
recognition for the sole purpose of conducting gaming. However,
if this were so, we would have to attribute to many of the
petitioning tribal groups a clairvoyance that they knew that
one day in the distant future there was going to be a Supreme
Court decision and thereafter the Congress was going to enact a
law authorizing and regulating the conduct of gaming, so they
decided that they would file a letter of intent to begin the
process of seeking Federal recognition.
Those that believe that the process is too slow, too
expensive and too cumbersome, in that latter group I would
suggest are many if not most of the tribal petitioning groups.
Should the fact that a State has recognized a tribe for over
200 years be a factor for consideration in the acknowledgment
process? I would say definitely yes. How could it be otherwise?
Don't most, if not all, of our States want the Federal
Government to recognize the official actions of a State
Government, when most of our States want the Federal Government
to defer to the sovereign decisions and actions of those States
over the course of their history? I think the answer to that
question would be decidedly in the affirmative.
So let's be clear about one thing. The Federal
acknowledgment process is all about the recognition of the
sovereignty of native nations that were here long before
immigrants came to America's shores. It is not about gaming.
The fact that pursuant to a law enacted hundreds of years
later, in 1988 to be precise, affords the tribal governments
the option of conducting gaming as one tool in developing their
economies, and does not mean that every native government will
in fact exercise that option.
In fact, most native governments have elected not to pursue
gaming. Let us not lose sight of the realities in a rush to
judgment on the viability of a process that is clearly distinct
from the issues of gaming.
I thank you very much, Mr. Chairman.
The Chairman. Thank you, Senator Inouye.
The State of Connecticut is well represented here this
morning. I would like to thank all of my friends from the
House, as well as my colleagues from the Senate, for being
here. I would like to mention that the attorney general of the
State of Connecticut had requested to appear here today as
well. We did not receive his request until late. We received
written testimony from him. We will have a series of hearings
on this issue, and we will invite him in the future.
We usually begin not only by seniority, but by age. And so
Senator Dodd, I think you qualify in both categories. We
welcome you to the committee.
Senator Lieberman. Thank you, Mr. Chairman, a very astute
observation. [Laughter.]
STATEMENT OF HON. CHRISTOPHER DODD, U.S. SENATOR FROM
CONNECTICUT
Senator Dodd. You know, they say there are lies, then there
are statistics. [Laughter.]
Anyway, thank you, Mr. Chairman, and let me express my
gratitude to you and to the members of the committee for giving
us an opportunity this morning to testify before you.
Obviously, the work that you and Senator Dorgan are doing in
holding this hearing is extremely important. No committee in my
view has done more than in the Senate, in fact the whole
Congress, to advance the cause of improving America's
understanding of native peoples and native cultures than
Chairman McCain and Vice Chairman Dorgan, along with their
predecessors Senator Ben Nighthorse Campbell, who is retired
from the Senate, and of course the distinguished Senator from
Hawaii, Senator Inouye, have worked tirelessly to enable
America to better understand her native peoples and to protect
their sovereign States.
I would like to acknowledge, Mr. Chairman, if I could, the
presence of our Governor from Connecticut, Governor Rell; my
colleagues from Connecticut, Senator Lieberman you have
mentioned already, and Congresswoman Johnson, Congressman Shays
and Congressman Simmons all are here to be heard this morning.
We would also like to acknowledge the presence of two other
witnesses, Chief Richard Velky of the Schaghticoke Tribe and
Ken Cooper of the town of Kent Connecticut.
At this time, I would also ask unanimous consent if I
could, Mr. Chairman, that the testimony of the attorney general
that you mentioned has been submitted to the committee would be
included in the record, if we could here, as well as the
testimony of the First Selectman of Kent, Connecticut, which is
one of the Connecticut communities most directly affected by
one of the decisions; and also the statement of Dolores
Schiesel be inserted in the record as well, if we could.
The Chairman. Without objection.
Senator Dodd. Thank you, Mr. Chairman.
Mr. Chairman, as all of my colleagues know, Congress has
the authority and the duty to respect, honor and to protect the
rights of the sovereign Indian nations that reside within the
borders of the United States. The Federal Government has a
unique legal relationship with each tribal government that
represents peoples whose ancestors were here even before people
from the rest of the world joined them in calling America their
home.
For several years now, the recognition process administered
by the BIA has come under scrutiny. The General Accounting
Office in its study released in November 2001 concluded, and I
quote, ``because of weaknesses in the recognition process, the
basis for BIA's tribal recognition decisions is not always
clear and the length and time involved can be substantial,''
end of quote.
These findings are reminiscent of the testimony offered by
Kevin Gover who until January 2000 was the assistant secretary
for Indian Affairs. In May 2000, Assistant Secretary Gover told
this committee in fact, and I quote him here, ``I am troubled''
he said, ``by the money backing certain petitions and I do
think it is time that Congress should consider an alternative
to the existing process. Otherwise, we are more likely to
recognize someone that might not deserve it'' end of quote.
Mr. Gover went on, Mr. Chairman, to say that ``the more
contentious and nasty things become, the less we feel we are
able to do it. I know it is unusual for an agency to give up
responsibility like this, but this one has outgrown us'' he
went on to say. ``It needs more expertise and resources than we
have available.''
Furthermore, Mr. Chairman, the chairwoman of the Duwamish
Tribe of Washington State testified that she and her people,
and I quote, ``have known and felt the effects of 20 years of
administrative inaccuracies, delays and a blase approach'' I am
quoting her now, ``in handling and processing the Duwamish
petitions'' end of quote.
Taken together, Mr. Chairman, these statements speak to a
startling admission. I would suggest that anytime an assistant
secretary says in effect that his or her agency is incapable of
grappling with one of its fundamental responsibilities, that
person is issuing a cry for help and we should not ignore it.
I am not here to criticize the civil servants at the BIA.
They are doing their very best under extremely difficult
circumstances and with very little financial assistance. In
fact, I recognize that the BIA has begun to address some of the
concerns outlined by the GAO report. Most notably, Mr.
Chairman, the Bureau has taken steps to improve its records
management, a system on recognition, a decisions technical
assistance materials, and the Interior Board of Indian Appeals
decisions.
These steps will hopefully bring greater accountability and
transparency to the work undertaken by the BIA.
Nevertheless, Mr. Chairman, much more work needs, in my
view, to be done if we are going to achieve our goal of making
the tribal recognition process as open, fair and transparent as
possible. Administrative irregularities, accusations of
influence-peddling, and a process that is generally perceived
as exceedingly arcane and opaque have given rise to profound
doubts about the viability of the decisions being rendered by
the Bureau. This is no way for a Federal Government to
determine the legal status of tribal groups and to set the
conditions for how those groups will interact with State
Governments, municipalities and other Federal agencies.
As Senator Inouye said 2\1/2\ years ago on the floor of the
U.S. Senate during an amendment that Senator Lieberman and I
offered at that time dealing with the recognition process, the
process for conferring Federal recognition on our Indian
tribes, and I quote our friend from Hawaii, ``is a scandal that
should be changed,'' end of quote.
Those tribes deserve better, and so do others who look to
their Government to act fairly and expeditiously. I believe we
have an obligation to restore public confidence in the
recognition process.
Toward this end, Senator Lieberman and I have reintroduced
two bills designed to ensure that the recognition process will
yield decisions that are beyond reproach. The Tribal
Recognition Indian Bureau Enforcement, or TRIBE Act, would
improve the recognition process in several ways. First, it
would require that a petitioner meets each of the seven
mandatory criteria for Federal recognition spelled out in the
current Code of Federal Regulations.
It is by now well known that several decisions by the BIA
apply all seven criteria to some tribes, but not to others.
This is patently unfair to these tribes subjected to a higher
level of scrutiny by the BIA than other tribes. It runs
contrary to our Nation's sense of fair play, in my view.
Second, the TRIBE Act would provide for improved notice of
a petition to keep parties who may have an interest in a
petition, including the Governor and the attorney general of
the State where the tribe seeks recognition, other tribes and
elected leaders of the municipalities that are adjacent to the
land of a tribe seeking recognition.
Third, it would require that a decision on a petition be
published in the Federal Register, and include a detailed
explanation of the findings of fact and of law with respect to
each of the seven mandatory criteria for recognition.
And last, the TRIBE Act would authorize an additional $10
million per year to better enable the Bureau of Indian Affairs
to consider petitions in a thorough, fair and timely manner.
Mr. Chairman, I would suggest obviously these things could
be modified, but they are ideas we would like to put in place
to try and get some predictability, some consistency to the
process. I want to emphasize, Mr. Chairman, what this
legislation would not do. It would not in any way alter the
sovereign status of tribes whose petitions for Federal
recognition have already been granted. It also would not
restrict in any way the existing prerogatives and privileges of
such tribes. Tribes would retain the right of self-
determination, consistent with their sovereign status.
Finally, and perhaps most importantly, the TRIBE Act would
not dictate outcomes, nor would it tie the hands of the BIA. It
would simply create a uniform recognition process that is equal
and fair to all.
The second bill, very briefly, Mr. Chairman, would provide
grants to allow poorer tribes and municipalities an opportunity
to participate fully in important decisionmaking processes
pertaining to recognition. Consequently, these grants would
enable these communities to provide the BIA more relevant
information and the resources from which to make a fair, fully
informed decision on tribal recognition. When the Federal
Government through the BIA makes decisions that will have an
enormous impact on a variety of communities, both tribal and
non-tribal, it is only right that the Government should provide
a meaningful opportunity to those communities to be heard.
I believe, Mr. Chairman, very strongly that every tribe
that is entitled to Federal recognition ought to be recognized
and ought to be recognized in an appropriately speedy process.
At the same time, Mr. Chairman, we must make sure that the
BIA's decisions are accurate and fair.
Every recognition decision carries with it legal
significance that should endure forever. Each recognition
decision made by the BIA is a foundation upon which the
relationships between tribes and States, tribes and
municipalities, Indians and non-Indians will be built for
generations to come. We need to make sure that that foundation
upon which these lasting decisions are built is sound and will
withstand the test of time. We cannot afford to build
relationships between sovereigns on the shifting sands of a
broken bureaucratic procedure.
I thank you for listening.
The Chairman. Thank you very much, Senator Dodd.
Senator Lieberman.
STATEMENT OF HON. JOSEPH LIEBERMAN, U.S. SENATOR FROM
CONNECTICUT
Senator Lieberman. Thanks, Mr. Chairman, thanks to you and
Senator Dorgan and members of the committee for holding this
hearing. I welcome our Governor, members of the congressional
delegation, the Chief from the Schaghticoke Nation, and Mr.
Cooper from Kent.
Mr. Chairman, I believe this is the first time our Governor
has testified for a congressional committee, and therefore I am
encouraged that you will greet her with your normal charm and
grace. She is ready.
Mr. Chairman, I am going to put my statement in the record
based on Senator Dodd's statement which is quite comprehensive
and with which I totally agree, and what I know my colleagues
will say following. I just want to say a few words.
We are not here on an anti-Indian mission. The fact is, and
I believe I speak for everybody, in saying that the tribal
recognition process is the law's way of trying to in some small
way create a path for justice and recognition for Native
American tribes, and to acknowledge thereby the dark parts of
our history in which the tribes were treated, Native Americans
were treated so miserably.
The tribal recognition process was obviously altered, as
Senator Inouye has indicated, by the advent of Indian gaming
and the stakes involved are clearly much higher and questions
about propriety are thick in the air, particularly in regard to
the revolving door behavior that you cited, Mr. Chairman, in
your opening statement.
So it becomes critically important to achieve the historic
purpose for which the tribal recognition process was created, a
purpose of justice, recognizing that now the more contemporary
reason that tribal recognition often tends to become the way to
gaming as well.
In our State, we have two major gaming operations operated
by the Mashantucket Pequots and the Mohegans. I would say that
these tribes have contributed enormously to the State's
economy. They employ thousands of our people. They contribute
hundreds of millions of dollars to our State Government every
year.
They also bring with them the natural social dislocation of
enormous enterprises, some things as basic as traffic
congestion or suburban sprawl or a challenge to social values.
It is that kind of effect of gaming that makes people in our
State and in other States around the country worry about
whether there are limits to the amount of gaming that can
affect any one State.
But that is secondary. The point here, just a way of saying
what is on the line here, the main point here is that the
process of tribal recognition in my opinion has become
dysfunctional; that we are asking an existing agency office to
do, with the demands on it, what it does not have the resources
to do, based on the increased demands and the increased
significance of every decision they make.
This is a circumstance that cries out for the kind of
leadership that this committee is uniquely capable under the
leadership of the two of you to perform. What do I mean? Nobody
would ever say that this is a committee that was anti-Native
American. It is very important to proceed from that basis.
But this is a situation that cries out for reform in
everybody's interest, so decisions will be credible. They will
be legitimate and they will be reached in a timely fashion.
Senator Inouye said it. There are some applicants for
tribal recognition who have been waiting an enormous number of
years. That is another kind of injustice that the current
process does.
So Mr. Chairman, I thank you for holding the hearing, for
being willing to give it the time that this large number of
witnesses requires of yourself and Senator Dorgan and the
committee, and for giving me, in this case, the opportunity to
appeal to you to take the leadership in bringing about the
reform that everybody desperately needs.
Thank you very much.
[Prepared statement of Senator Lieberman appears in
appendix.]
The Chairman. Thank you very much, Senator Lieberman.
I am aware that you and Senator Dodd have other obligations
this morning, and I thank you for coming this morning.
Congresswoman Johnson, welcome. It is very nice to see you
again.
STATEMENT OF HON. NANCY JOHNSON, U.S. REPRESENTATIVE FROM
CONNECTICUT
Ms. Johnson. Thank you very much, Mr. Chairman, and thank
you to the committee members for inviting us to testify this
morning, my colleagues and I, our Governor and others, on the
need to reform the Bureau of Indian Affairs' Federal tribal
recognition process, and the need to pass legislation reversing
the recognition of the Schaghticoke Indians.
I urge you not only to look at reforming the recognition
process, but re-thinking how it works in the densely populated
eastern seaboard where the history of citizen-tribal relations
have been so extremely different, and where the western
expansion history does not exist. So it really needs to be re-
thought in regard to the Northeast, as well as reformed.
Mr. Chairman, the BIA's tribal recognition process has
failed the people of Connecticut because it resulted in a
decision that is simply unlawful, a decision to acknowledge the
Schaghticoke Tribal Nation of Kent, unlawful because it ignored
evidence and overturned longstanding precedent. My bill lines
this out in detail using material from the Bureau itself.
As the committee knows, the BIA is permitted to recognize a
tribe only if it satisfies each of the seven mandatory criteria
laid out in Federal regulations, including the key criteria
that a tribe demonstrate it has exercised political authority
over a community throughout its history.
The reason for these strict mandatory criteria are clear.
The establishment of a federally recognized tribe has
significant and irreversible affects on States and communities
in which they are located. Federally recognized tribes are
exempt from local taxation, local zoning and other areas of
local and State law. They furthermore are allowed to pursue
land claims over very broad areas and these land claims
paralyze communities because they prevent the transfer of
property, undermine the value of local property, and in general
provide leverage for a tribe to negotiate to get a plot of land
appropriate for a casino and the right to establish a casino.
Casinos, then, impose on small towns, and particularly the
surrounding towns, extraordinary burdens. These are towns with
volunteer fire departments. These are towns that depend for
public safety on State troopers. These are towns run primarily
by volunteers on small budgets. They simply cannot survive the
impact on infrastructure, the impact on tax base, the impact on
the local laws of casino operations on surrounding and nearby
Indian territories.
In densely populated New England, the impact of recognition
falls heavily on all citizens and has a truly lasting and
profound impact.
Mr. Chairman, the evidence convincingly shows that the
Schaghticoke petition did not satisfy each of the seven
mandatory criteria, yet in January 2004, the BIA reversed its
own preliminary findings, ignored evidence, manipulated Federal
regulations, and overturned existing agency precedent in order
to grant Federal status.
We know this because the BIA has told us so. Its now
infamous briefing paper prepared by BIA staff 2 weeks before it
granted recognition, in that paper was outlined the strategy
for BIA officials to overturn existing agency precedent and
ignore Federal regulations in order to find in the
Schaghticokes' favor. In the briefing paper, BIA staff informed
their superiors that key evidence of political authority,
evidence necessary to grant recognition, was, quote, ``absent
or insufficient for two substantial historical periods,'' close
quote.
Furthermore, the briefing paper freely admits that
declining to acknowledge the Schaghticoke, quote, ``maintains
the current interpretations of the regulations and established
precedents on how continuous tribal existence is
demonstrated.''
Faced with the evidence and the law that demanded a
negative result, the BIA ignored the evidence, cast aside
precedent and reinterpreted the law. This is not how the people
of America expect their government to operate.
Last December, the Interior Department's Office of the
Solicitor advised the Interior Department that the BIA used an
unprecedented methodology and made material mathematical errors
in calculating tribal marriage rates. Without these mistakes
and unprecedented methodologies, the Schaghticoke petition
would not have satisfied key criteria and should not be
recognized.
Even the Office of the Solicitor advises the Interior Board
of Indian Appeals, where the case is now being appealed, that
the BIA's decision, quote, ``should not be affirmed on these
grounds absent explanation or new evidence,'' unquote.
Given the grave consequences of the BIA's unlawful
decisions, I recently introduced the Schaghticoke
Acknowledgment Repeal Act of 2005 in the House of
Representatives. This bill overturns the BIA's erroneous
decision to grant Federal recognition. This legislation
recognizes the fact that Congress cannot allow the result of an
unlawful Federal recognition process to stand. I respectfully
urge this Committee to review it and consider it as you move
forward with your work.
The committee is rightly examining the recognition process
writ large. I wholeheartedly support this effort and I support
legislation introduced by my colleagues to make the process
fair, objective and accountable to the public. But I would
remind the committee that prospective reforms to the
recognition process will not fix the BIA's erroneous and
unlawful decision in regard to the Schaghticoke Tribe. It may
not prevent the financial interests backing this petition from
moving forward to their goal, a Las Vegas-style casino in an
area of Connecticut that does not want one and cannot support
one.
Mr. Chairman, members of the committee, the BIA has failed
the people of Connecticut and I believe the United States. I
respectfully urge this committee not only to look toward
reforming the BIA recognition process, but also correcting its
past failures as in its decision regarding the Schaghticoke
case. The reasons for moving forward with strong reform are
plentiful. The reasons for accepting the status quo are
nonexistent. I believe that the public's trust in good and
responsible government requires action by this committee and
this Congress.
I thank you for making this opportunity available for us
this morning.
The Chairman. Thank you very much, Congresswoman Johnson.
Thank you for taking the time to be with us today.
Congressman Shays.
STATEMENT OF HON. CHRISTOPHER SHAYS, U.S. REPRESENTATIVE FROM
CONNECTICUT
Mr. Shays. Thank you, Senator McCain, Senator Dorgan,
Senator Crapo, and Mr. Inouye for his statement. This is a
privilege to be before you and a privilege to welcome our
Governor as well.
The bottomline for me is the recognition process is corrupt
and has been for years. Regretfully, Indian recognition is too
often not about recognizing true Indian tribes, but it is about
Indian gaming and the license to print money. In the State of
Connecticut, we are talking literally about billions of
dollars. Senator Inouye is right. Applications had been in the
process for a long period of time, but they were dormant and
not actively pursued by the tribes. But when Indian gaming came
along, all of a sudden you saw huge financial backers.
I defy anyone to suggest that huge financial backers are
going to back Indian tribes if it is not about Indian gaming.
The problem is, we have a process that has been totally
ignored. First, it was ignored by the Congress just passing
legislation every month recognizing tribes, bypassing the BIA.
I became very active in this process in the late 1980's when
the Golden Hill Paugussett Tribe came to me after making land
claims on a good chunk of the Fourth Congressional District and
said, they go away; they go away simply, Congressman, by you
doing what you need to do, and that is to put a bill in and
give us recognition through Congress, like had been done for
the Ledger Tribe.
I said I would not do it. They then said, well, it is
happening every month. I watched this process. It was happening
through suspension, two-thirds vote, no amendments allowed, two
members on the floor, no one asking for a roll-call vote. So I
made it my mission, along with Frank Wolf, in the early 1990's
to go and kill every bill that came before the Congress,
thinking then that we had solved the problem. It would go
before the BIA and the BIA, of course, would do it right. They
would follow the process of the seven criteria; show economic,
social and political continuity, pre-colonial times.
And we found it started to be ignored. I had staff of the
BIA say, we write our reports and the political appointees are
ignoring them. In fact, what they did in one case that was
described to me, they took the worst part out of each of the
three people who had written the report, and then compiled
their own report, coming to a totally different conclusion than
all three had said. All three had said this is not an Indian
tribe, but in the end the political appointees said it was.
I particularly have focused on the Golden Hill Paugussetts
because the Secretary who was appointed to the BIA, and this
deals with the revolving door issue, said, ``I will not rule on
the Golden Hill Paugussetts. I will not rule on it.'' And then
what he did, though, was he ignored the criteria on another
tribe and said State recognition is important. If you are a
State tribe, you must be a Federal tribe. But the State does
not recognize continuity. What the State of Connecticut does is
recognize reservations. There may be no one on the reservation.
They may not have met for years. But I can tell you now, they
are meeting now with the credible incentive to be able to print
money and make billions of dollars.
You have a revolving door process because what did this
gentleman do who recognized another tribe? He helped his own
former client. His own former client is a State tribe. He said
he would not get involved, but he set a precedent that a State
tribe would be a Federal tribe, even though it was not of the
criteria.
Let me just conclude by saying to you, the BIA is
understaffed and it is underfunded. That is clear. You have a
very real problem that you are continually getting more
applications. I would suggest the following. One is codify the
law to make sure that the seven criteria is the law and that
you do not have people in the revolving door process who change
it. Deal with the revolving door issue. And the third thing I
would suggest is that you require all applicants to apply by a
certain time. Let's understand how many tribes are out there.
Let's not wonder if 10 years from now you are going to have
another application. Say, if you are a Federal tribe now, by a
certain date apply. And then we can know the universe and you
can know how to fund.
I will end by saying I think you need to have the
codification by law of the seven criteria. I think you need to
deal with the revolving door issue. I think you need to require
all potential tribes to file at a certain time so you know the
universe. And I think you need to undo what was illegal action
by the BIA under Ms. Johnson's request for law.
Thank you very much.
The Chairman. Thank you very much.
Congressman Simmons.
STATEMENT OF HON. ROBERT SIMMONS, U.S. REPRESENTATIVE FROM
CONNECTICUT
Mr. Simmons. Thank you, Mr. Chairman, Vice Chairman Dorgan,
for having this very important hearing.
You have heard many of the things that I would have said. I
would ask that my full statement be inserted into the record.
The Chairman. Without objection.
Mr. Simmons. I appreciate that.
Let me focus on a comment by Senator Inouye. He made the
comment that some tribes have petitioned for recognition prior
to the passage of the National Indian Gaming Act. That is
correct. But the fact of the National Indian Gaming Act has
changed the conditions and circumstances of petitioning groups
in Connecticut because very wealthy interests have now come
into the process and as a consequence have changed the process
through the incredible influence of money. That is why we are
calling for transparency in the process and for reform of the
process.
Mr. Donald Trump has been backing one of the petitioning
tribes. He was previously. My guess is he is not backing them
because he is interested in achieving sovereignty for that
group. My guess is he is backing them because he wants to get
on the gaming train. That is his career. That is his life.
My guess is that is the motivation of the other
millionaires and billionaires who are involved in supporting
petitioning groups from Connecticut, because they have seen
that the Foxwoods Casino and the Mohegan Sun Casino can
generate literally billions of dollars because of their
location in a small densely populated State in New England
between Boston and New York. It is a perfect market. And that
is what is happening here. That is a fact and that is the
reality. My colleagues, Mrs. Johnson, Mr. Shays, have provided
the documentary evidence some of which is coming out of the BIA
itself that proves these points.
We thank you, Mr. Chairman, for your consideration of these
reforms. Point 1, the regulatory requirements should be in
statute. It is just that simple. Senator Inouye suggests that
State recognition should be a good reason for Federal
recognition. That is not in the regulatory requirements. Those
seven requirements should be made statutory, and that is what
our legislation does.
Point 2, political appointees and other employees of the
Bureau of Indian Affairs should not be subject to the revolving
door exemption. We have clear-cut examples of where these
individuals have made decisions on 1 day, have left office and
have gone to work for gambling interests or tribes with
gambling interests the next day. That is simply wrong, and yet
it has happened. And given the large amounts of money involved
in this process, it is reasonable that it will happen again.
Senator Dorgan. Congressman Simmons, would you submit
examples of that? You indicated there is evidence of that.
Would you submit them to the committee?
Mr. Simmons. Absolutely.
Again in closing, Mr. Chairman, Mr. Vice Chairman, we thank
you for holding this hearing and we appreciate your listening
to our concerns.
[Prepared statement of Representative Simmons appears in
appendix.]
The Chairman. Thank you very much. I thank you all for
coming today, and thank you for your valuable input. I can
assure you we will certainly include them in our deliberations
as we seek to address this very serious issue.
Ms. Johnson. Mr. Chairman, I assume my whole statement will
be included in the record. I forgot to mention that.
The Chairman. No; thank you very much. [Laughter.]
Thank you all.
Now, we would like to welcome the distinguished Governor of
the State of Connecticut, Jodi Rell. Governor, thank you for
your patience this morning and thank you for coming down to
visit us and give us the benefit of your experience on this
issue and your recommendations. Thank you very much.
STATEMENT OF M. JODI RELL, GOVERNOR, STATE OF CONNECTICUT
Mr. Rell. Thank you, Senator. I actually should say thank
you for your patience this morning. I know that sitting and
listening to testimony sometimes you think you have heard it
all before. In a way, I am sitting here thinking I have already
heard my colleagues earlier.
I have a few new things to offer, but truly we appreciate
your patience and thank you for actually having this public
hearing, and Vice Chairman Dorgan for being here as well. It is
a pleasure to be here.
As you have heard, my name is Jodi Rell, and I serve as
Governor of the great State of Connecticut. I truly appreciate
the fact that you have scheduled this hearing, and for inviting
me to be here today.
I want to say right now, I thank the Connecticut delegation
for their unrelenting efforts to address the weaknesses and the
failings of the tribal recognition process. As you heard from
one of our illustrious Senators earlier, I appear before you
today giving my first congressional testimony as Governor. I do
that because this is a critical issue to our State. Simply put,
I believe that a number of profound problems exist within the
recognition process and that reform is long overdue.
My concerns go to the issue of integrity and transparency,
not to any particular tribe or to their right to seek and
receive recognition. My State's history is inextricably
intertwined with Native American history. We embrace our
heritage and have solid relationships with the Mohegan and
Mashantucket Pequot Nations, both of which are located in our
State.
The process of recognition is lengthy and arduous, and for
good reason. A successful petition will dramatically change the
landscape of an entire community, an entire region, or a State.
You have heard it this morning. Connecticut is a small State.
It is as old as our Nation itself and densely populated. We
have few expanses of open or undeveloped land. Historical
reservation lands no longer exist. They are now cities and
towns filled with family homes, churches and schools.
Our experience is that tribes file land claims within the
State as they are seeking and pursuing Federal recognition.
These claims place a cloud on the property titles of residents,
resulting in many hardships and a lot of uncertainty. They de-
stabilize the housing market and they compromise the ability of
people to sell their property free and clear in terms of title.
This issue was very real to hundreds of thousands of
Connecticut residents who lived under the threat of land claims
by the Golden Hill Paugussetts. We fought this recognition
based on its inadequacies in the law, and we prevailed. But the
BIA has shown an increasing willingness to be flexible, to be
permissive, and to set aside the dictates of law in favor of
granting recognition at all costs.
If a tribe cannot meet the criteria of law, it should not
be granted recognition, and yet it has on two occasions in
Connecticut. I cannot help but conclude that the process by
which recognition is made is broken. It is fatally flawed. It
is inconsistent and often illogical. It is replete with
conflicts of interest and disdain for the letter and the spirit
of the law. It has resulted in immeasurable loss of public
confidence and an immeasurable lack of administrative
integrity.
The two recent decisions impacting Connecticut show the
BIA's recognition system is in need of a wholesale
restructuring. In the case of the Eastern Pequot and Pawcatuck
Eastern Pequot petitions, the BIA miraculously achieved what
neither petitioner could or wanted to do. The BIA found that
both tribes were a single historical entity, even though the
tribes themselves could not agree on this, and in fact did not
seek joint designation. Recognition could not have been
achieved individually, so the BIA said let's merge them
together, and they merged the petitions and the tribes in order
to grant recognition.
More recently, the decision to recognize the Schaghticoke
demonstrates what many have long suspected. The BIA is awarding
Federal recognition to tribes regardless of the evidence to the
contrary. In 2002, the BIA issued a proposed finding that the
tribe did not meet all of the seven criteria for recognition.
And yet a little more than 1 year later, the BIA reversed
itself and recognition was granted. An investigation of this
astonishing reversal revealed a memo written by BIA staff just
2 weeks before the final determination, in which the staff
admitted that the BIA had full knowledge that the tribe had not
met that seven mandatory criteria for recognition.
These situations raise troubling questions and the very
integrity of the administration.
The Chairman. Will you submit that memorandum for the
record please?
Mr. Rell. I did.
[Referenced document appears in appendix.]
Mr. Rell. They demonstrate that there must be more control
over the recognition process.
I recommend the following, and some you have already heard
from our Congressmen and -woman this morning. Codify in statute
the seven mandatory criteria. It is imperative that we do so.
Impose an immediate moratorium on all BIA acknowledgment
decisions pending a comprehensive review of the process. You
have heard about eliminating the Federal revolving door
exemption. Examine how the process is usurping the powers of
State and local governments. Prohibit the ability of tribes to
place liens on property. And finally, invalidate the
Schaghticoke decision.
In conclusion, the BIA is a bureaucracy run amok.
Legitimate tribes should have legitimate opportunities to seek
Federal recognition, but the criteria and the laws in granting
recognition must be clearly and stringently adhered to. Rules
should not be changed in order to achieve a desired result.
Mr. Chairman, thank you for your time this morning. Thank
you on behalf of the people of Connecticut. I ask you to please
consider the current unrestrained process and what effect it
has on our State and on others.
Thank you, Mr. Chairman.
[Prepared statement of Governor Rell appears in appendix.]
The Chairman. Thank you very much, Governor. Are both those
tribes that you referred to, are there plans to engage in
gaming?
Mr. Rell. It is our belief that that is exactly what they
plan to do.
The Chairman. Senator Dorgan.
Senator Dorgan. Governor, let me thank you. As you
indicated, there has been a rather consistent message from the
Connecticut congressional delegation and from you, and I think
you are raising important issues, and your contribution to the
discussion we will have on the committee is very significant.
Thank you for being here.
Mr. Rell. Thank you very much.
The Chairman. Thank you very much, Governor Rell.
Our next panel is Mary Kendall, the deputy inspector
general, Department of the Interior; and Lee Fleming, director,
Federal Acknowledgment, Office of Indian Affairs.
Good morning and welcome. We will begin with you, Ms.
Kendall.
STATEMENT OF MARY L. KENDALL, DEPUTY INSPECTOR GENERAL,
DEPARTMENT OF THE INTERIOR
Ms. Kendall. Good morning, Mr. Chairman, Mr. Vice Chairman.
I am pleased to be here representing the Office of Inspector
General for the Department of the Interior and to testify about
my office's oversight activities concerning the Federal
acknowledgment process administered by the Department of the
Interior.
As you know, the Office of Inspector General has oversight
responsibility for all programs and operations at the
Department. However, because the Inspector General Act
specifically precludes my office from exercising any
programmatic responsibility, we cannot and do not substitute
our judgment for substantive decisions or actions taken by the
Department of its Bureaus.
Given our vast oversight responsibilities, the OIG does not
have subject-matter experts in all of the program areas in
which we conduct our audits, investigations and evaluations.
This is especially true in the area of Federal acknowledgment,
which typically involves the review and evaluation of evidence
by professional historians, genealogists and cultural
anthropologists.
When my office undertakes to address concerns about the
operation or management of a DOI program, we first look at the
established process by which decisions or actions in that
particular program take place and the controls over that
process. Once we determine what the established process is to
address the issue at hand, we then look to see whether there
has been any deviation from that process. If we determine that
deviation has occurred, we will go on to attempt to determine
the impact of that deviation on the resulting decision or
action, and whether any inappropriate behavior was involved by
either Department employees and/or external participants.
This is how we have conducted investigations of matters
related to Federal acknowledgment process since Inspector
General Devaney assumed his position in 1999. As you know and
have heard here today, the Federal acknowledgment process at
the Department is governed by regulations. These regulations
set forth the process by which petitions from groups seeking
Federal acknowledgment as Indian tribes are considered.
While this process has been harshly criticized for its lack
of transparency, based on my office's experience it is
relatively speaking one of the more transparent processes at
DOI. The process follows the requirements of the Administrative
Procedures Act, which include notice and opportunity to
comment, and an appeal or review mechanism. When we conduct any
kind of inquiry, my office is always advantaged if a program
has the backdrop of a well-established process with documented
requirements and guidelines.
When conducting an investigation of a program such as
Federal acknowledgment, we also attempt to identify all key
participants and endeavor to strategically interview as many of
these individuals as possible. This includes not only DOI
personnel, but other interested parties outside of the
Department.
In Federal acknowledgment matters, this may include other
parties identified by the Office of Federal Acknowledgment or
parties who have expressly signaled an interest in the
acknowledgment process. Accordingly, when we conduct interviews
in a given Federal acknowledgment process, we typically begin
with those Office of Federal Acknowledgment research team
members who are charged with the petition review process. By
beginning at this level, we have some historical success at
discovering irregularities at the very heart of the process.
For example, in our 2001 investigation of six petitions for
Federal acknowledgment, some of which have been mentioned here
today, we discovered that pressure had been exerted by
political decision-makers on the Office of Federal
Acknowledgment team members who were responsible for making the
Federal acknowledgment recommendations. The OFA research team
members who reported this pressure to us were at the time
courageous in their coming forward, since my office had not yet
established its now well-known whistleblower protection
program.
At that time, we had to assure each individual who came
forward that we would do everything necessary to protect them
from reprisal. Today, however, we have a recognized program in
place which publicly assures DOI employees that we will assure
their protection.
In other cases, we have had considerable success in
obtaining candid information from DOI employees intent on
telling my office about their concerns. Therefore, given OFA
employees' track record in our 2001 investigation, and the
protections of our now almost 2-year-old whistleblower
protection program, we feel confident that if any inappropriate
pressure is being applied, we will hear from the members of the
OFA team.
In 2001, we did find that there were some rather disturbing
deviations from the established process during the previous
Administration. At that time, several Federal acknowledgment
decisions had been made by the Acting Assistant Secretary for
Indian Affairs, which were contrary to the recommendations of
the OFA research team.
In several instances, the OFA team felt so strongly that
they issued memoranda of non-concurrence at some risk to their
own careers. Although any Assistant Secretary for Indian
Affairs has the authority to issue his or her decision even if
it is contrary to OFA's recommendation, we found in those
particular instances that significant pressure had been placed
on the research team to issue predetermined recommendations;
that the decisions were hastened to occur prior to the change
in Administration; and that all decision documents had not been
properly signed. As you noted, Mr. Chairman, we even found that
one of those decision documents had been signed by the former
Acting Assistant Secretary after leaving office.
When we reported our findings in February 2002, the new
Assistant Secretary for Indian Affairs undertook an independent
review of the petitions. This action alleviated many of our
concerns about the procedural irregularities we identified in
our report.
More recently, in March 2004, we were asked by Senator Dodd
to investigate the Schaghticoke Tribal Nation acknowledgment
decision. Subsequent to Senator Dodd's request, the Secretary
of the Interior specifically requested that my office give this
matter high priority. In conducting this investigation, we
interviewed OFA staff, research team members and senior
Department officials to determine if undue pressure may have
been exerted. We also spoke to the Connecticut Attorney General
and members of his staff, as well as affected citizens to
ascertain their concerns. In this case, as we have in all other
such investigations, we were also looking for any inappropriate
lobbying pressure that may have attempted to influence a
decision one way or the other.
In the end, we found that although the Schaghticoke Tribal
Nation acknowledgment decision was highly controversial, OFA
and the Principal Deputy Assistant Secretary for Indian Affairs
conducted themselves in keeping with the requirements of the
administrative process. Their decisionmaking process was made
transparent by the administrative record, and those parties
aggrieved by the decision sought relief in the appropriate
administrative forum. Each, as it should be.
If I may, I would like to comment briefly on outside
influences that impact Federal acknowledgment process in Indian
gaming. As this committee recently demonstrated, greater care
must be exercised by gaming tribes when they are approached by
unsavory Indian gaming lobbyists promising imperceptible
services for astonishing fees. We know of no statutory or
regulatory safeguard protections against such lobbying efforts,
or the often questionable financial backing of the Federal
acknowledgment process.
That being said, however, given the spate of media
attention of alleged improper influences relating to Indian
programs, our office now includes in its scope of investigation
an inquiry into any lobbying or other financial influences that
might bear on the issue or program at hand, with a view toward
targeting improper lobbying access and/or influence in the
Department of the Interior.
The transparency that attaches itself to the Federal
acknowledgment process is often obscured when it comes to those
who would use this process as an instant opportunity for
opening a casino. Last year in a prosecution stemming from one
of our investigations, the U.S. Attorney's office for the
Northern District of New York secured a guilty plea by an
individual who had submitted fraudulent documents in an effort
to obtain Federal acknowledgment for a group known as the
Western Mohegan Tribe and Nation of New York. Throughout trial,
the prosecution contended that the fraudulent application was
made in the hope of initiating gaming and casino operations in
Upstate New York.
We are hopeful that this conviction has sent a clear
message to others who would attempt to corrupt the Federal
acknowledgment process, particularly when motivated by gaming
interests. This process is clearly fraught with the potential
for abuse, including inappropriate lobbying activities and
unsavory characters attempting to gain an illicit foothold in
Indian gaming operations.
We will continue to aggressively investigate allegations of
fraud or impropriety in the Federal acknowledgment process. We
are presently conducting an exhaustive investigation into the
genesis of questionable documents that were submitted into the
record for a group known as the Webster/Dudley Nipmuc Band
pending before the Interior Board of Indian Appeals.
In addition, as the Inspector General testified before this
committee as recently as last month, our office has been
reviewing our audit and investigative authorities in Indian
country to determine whether we can establish an even more
vigorous presence in the gaming arena.
Mr. Chairman, Mr. Vice Chairman, this concludes my formal
remarks today and I would be happy to answer any questions you
might have.
[Prepared statement of Ms. Kendall appears in appendix.]
The Chairman. Thank you very much.
Mr. Fleming.
STATEMENT OF LEE FLEMING, DIRECTOR OF FEDERAL ACKNOWLEDGMENT,
OFFICE OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR
Mr. Fleming. Good morning, Mr. Chairman, and members of the
committee. My name is Lee Fleming, director of the Office of
Federal Acknowledgment within the Office of the Assistant
Secretary at the Department of the Interior.
I am also a member and a former tribal registrar of the
Cherokee Nation, the second-largest Indian tribe in the United
States, next to the Navajo. As tribal registrar, I directed a
staff that processed applications of individuals seeking formal
recognition as members or citizens of the Cherokee Nation under
Cherokee law. I am here today to provide the Administration's
testimony regarding the process that groups follow when seeking
Federal acknowledgment as an Indian tribe under Part 83 of
Title 25 of the Code of Federal Regulations.
The Federal acknowledgment regulations govern the
Department's administrative process for determining which
groups are Indian tribes within the meaning of Federal law. The
Department's regulations are intended to apply to groups that
can establish a substantially continuous tribal existence and
that have functioned as autonomous entities throughout history
until the present. When the Department acknowledges an Indian
tribe, it is acknowledging that an inherent sovereign continues
to exist.
Under the Department's regulations, petitioning groups must
demonstrate that they meet each of seven mandatory criteria.
The petition must, first, demonstrate that it has been
identified as an American Indian entity on a substantially
continuous basis since 1900; second, show that a predominant
portion of the petitioning group comprises a distinct community
and has existed as a community from historical times until the
present; third, demonstrate that it has maintained political
influence or authority over its members as an autonomous entity
from historical times to the present; fourth, provide a copy of
the group's present governing document, including its
membership criteria; fifth, demonstrate that its membership
consists of individuals who descend from the historical tribe
and provide a current membership list; sixth, show that the
membership of the petitioning group is composed principally of
persons who are not members of any federally recognized Indian
tribe; and last, seventh, demonstrate that neither the
petitioner nor its members are the subject of congressional
legislation that has expressly terminated or forbidden the
Federal relationship.
A criterion is considered met if the available evidence
establishes a reasonable likelihood of the validity of the
facts relating to that criterion. The Federal acknowledgment
process is implemented by the Office of Federal Acknowledgment.
This Office is authorized to be staffed with a director, a
secretary, three anthropologists, three genealogists and three
historians, who are all hardworking civil servants. The current
workload consists of seven petitions on active consideration
and 12 fully documented petitions that are ready waiting for
active consideration.
The administrative records for some completed petitions
have been in excess of 30,000 pages. We have 220 groups who
have only submitted letters of intent or partial documentation.
These groups are not ready for evaluation. We have five final
determinations representing four petitioners who are under
review at the Interior Board of Indian Appeals.
In addition, there are pending lawsuits related to the
Federal acknowledgment process. In November 2001, the General
Accounting Office, now the General Accountability Office,
issued a report entitled Indian Issues: Improvements needed in
the Federal Recognition Process. The GAO made two primary
findings in this report. First, the Federal acknowledgment
decisionmaking process is not sufficiently transparent; and
second, it is unequipped to respond in a timely manner.
In response to the GAO report, the Assistant Secretary for
Indian Affairs implemented a strategic plan to provide
strategies to communicate a clearer understanding of the basis
of Federal acknowledgment decisions and to improve the
timeliness of the acknowledgment process. I shall describe now
many of the strategic plan elements that have been implemented
and completed.
One, all proposed findings, final determinations and
reconsidered determinations were electronically scanned and
indexed and are now available on a CD-ROM. I might say this is
the hottest item that groups are now asking for, as well as
interested parties. Immediate and user-friendly access to all
prior decisions enhances both transparency and consistency in
the decisionmaking-process.
Two, OFA filled two professional staff vacancies, resulting
in the formation of three functioning teams composed of one
professional from each of the three disciplines. With three
teams, the OFA has increased its ability to review petitions
and their accompanying documentation in a timely manner. I am
pleased to announce that the Department is taking steps to add
a fourth team with associated administrative support.
OFA also has hired two sets of independent contractors to
assist with the administrative functions of processing FOIA,
Freedom of Information Act requests, and two, the work with a
computer database system known as FAIR. FAIR stands for the
Federal Acknowledgment Information Resource system. It is a
computer database that provides on-screen access to all the
documents in the administrative record of a case and has made a
significant positive impact on the efficiency of the office.
We anticipate that the next generation of scanning for FAIR
will allow electronic redaction of privacy information from the
documents which will save the Department a tremendous amount of
time otherwise spent photocopying cases for interested parties
and responding to FOIA requests.
Another significant improvement made to the Federal
acknowledgment process was the realignment of the office, now
within the Office of the Assistant Secretary. This realignment
eliminated two layers of review and now provides more direct
and efficient policy guidance.
Due to the improvements just mentioned, the office was able
to assist the Department in completing 17 major Federal
acknowledgment decisions since January 2001. These 17 decisions
include 9 proposed findings, 6 final determinations, and 2
reconsidered final determinations. On April 1, 2004, Secretary
Norton requested that the Indian Affairs review the strategic
plan and ensure that all the appropriate steps were being taken
to implement the strategies developed in the plan. As
discussed, the Department has completed many of the action
items identified in the strategic plan. We have nearly
completed all the remaining tasks that are within the control
of the Department. Some tasks will take longer to implement
because they may require congressional action, regulatory
amendments or access to the Internet.
In addition, on March 31, 2005, we formalized an already-
internal policy of the Assistant Secretary's office that
prohibits Federal acknowledgment decision-makers from having
contact and communications with a petitioner or interested
party within 60 days of an acknowledgment decision. The
Department published notice in the Federal Register of this
policy which will help ensure that all parties are made aware
of the 60-day period and that the integrity of the process is
protected.
Thank you for the opportunity to testify about the Federal
acknowledgment process. I will be happy to answer any questions
you may have.
The Chairman. Thank you very much, Mr. Fleming.
Ms. Kendall, you find nothing wrong with casino interests
providing financial backing for tribes seeking recognition. Is
that what you testified to?
Ms. Kendall. Not exactly, Mr. Chairman. We are concerned
about the financial backing issues and the lobbying access to
the Department. What we did not find anything wrong with was
the actual process by which the acknowledgment was rendered.
The Chairman. Well, let's look at a situation in the State
of North Dakota. There is an entity seeking recognition and
they are in a sparsely populated area, probably not a good
place for a casino to be located. It would probably be pretty
difficult for Mr. Trump to come in in his zeal and advocacy for
Native Americans to probably go in there. Yet, you have an
entity in the Northeast that is seeking recognition, as was
testified by Congressman Shays, that gaming interests come in
and provide the financial backing for them.
Isn't there something wrong with that picture?
Ms. Kendall. I do not disagree with you, Mr. Chairman. I
think there is something wrong with that picture. Our concern
is that there is no statutory or regulatory mechanism presently
in place that would regulate or control that access.
The Chairman. You know, at one time the Inspector General
called the recognition process permissive and inherently
flexible. Do you think that some of the changes that have been
made since then probably would make for a different
description?
Ms. Kendall. I am not familiar with that description, Mr.
Chairman.
The Chairman. Do you believe that that is the case today?
Ms. Kendall. I am not sure that I could say that I believe
it is the case. I believe, as both a lawyer and a career civil
servant, that the administrative process that governs the
tribal acknowledgment process should ferret out that kind of
problem if it is not founded in law or regulation.
The Chairman. I think you obviously agree that we should
have the same revolving door provisions for employees of the
BIA as we have for other branches of government.
Ms. Kendall. I believe Mr. Devaney testified last month
when he appeared before this committee that he, and I agree
with him, believes that the revolving door provision that
allows people to leave the Department and immediately represent
tribes is a provision that has outlived its purpose, yes.
The Chairman. You testified that an investigation in 2001
revealed that there were improprieties.
Ms. Kendall. Yes, sir.
The Chairman. Who were the individuals who acted
improperly?
Ms. Kendall. Our finding in that investigation specifically
was the acting assistant secretary at the time, who
The Chairman. Whose name is?
Ms. Kendall. I believe it was Michael Anderson, Mr.
Chairman.
The Chairman. Do you know what Mr. Anderson does today?
Ms. Kendall. I believe he is with a law firm.
The Chairman. That represents Native Americans?
Ms. Kendall. That is my understanding, yes, sir.
The Chairman. But there were never any charges brought
against Mr. Anderson.
Ms. Kendall. At the time, our investigation concluded, and
actually at the time he signed the documents, he was no longer
an employee of the Department.
The Chairman. So he is no longer an employee, so therefore
he did not fall under any Federal regulations or law.
Ms. Kendall. He did not fall under our jurisdiction, Mr.
Chairman. And as a former employee, the Department had no
authority to take any administrative action against him.
The Chairman. I understand.
Mr. Fleming, how many new letters of intent, approximately,
have you received since 1988, the passage of the Indian Gaming
Regulatory Act?
Mr. Fleming. I would have to quantify that for you, but I
can give you an idea of the number of petitioners that were
received before and after 1988. As an example, in 1980, we
received 10 petitioning group letters of intent; in 1981,
seven; in 1982, five; in 1983, seven; in 1984, seven; in 1985,
five; in 1986, zero; in 1987, two.
In 1988, we received five; in 1989; six; in 1990, seven; in
1991, five; in 1992, eight; in 1993, seven; in 1994, nine; and
then in 1995, we received 17; in 1996, 12; in 1997, nine; in
1998, 21; in 1999, 17; in 2000, 15; in 2001, 13; in 2002, 19;
in 2003, 12; and in 2004, nine.
The Chairman. Thank you very much.
How many final decisions do you anticipate making over the
next several years, roughly?
Mr. Fleming. Roughly, we have seven groups that are on
active consideration that are awaiting final actions. They are
in various stages, either during a public comment period,
response period, or the development of final determinations.
The Chairman. In your written testimony, you said on the
issue of other improvements to the Federal acknowledgment
process, you say some tasks will take longer to implement
because they may require congressional action, regulatory
amendments or access to the Internet. What are these
congressional actions that you think may need to be taken?
Mr. Fleming. We have discussed the congressional assistance
with dealing with our Freedom of Information Act requests. We
have discussed and provided testimony in the past that the
Department does support sunset rules so that we would know a
finite number of petitioning groups yet to address, and those
are some of the aspects that would need congressional action.
The Chairman. Thank you very much.
Senator Dorgan.
Senator Dorgan. Mr. Fleming, let me just try to run through
what I think is your workload. You say 7 petitions on active
status; 12 petitions on ready status, as I understand it. Is
that correct?
Mr. Fleming. That is correct.
Senator Dorgan. Let me just for my own interest, of the
seven petitions on active status, what would be the length of
time that those petitions have been moving around this process?
How old would some of the older petitions be in those seven?
Mr. Fleming. Some of the petitioning groups in this
category have been on active consideration for some time, but
there are circumstances that are involved. They ask for a
request for reconsideration or extensions to public comment
periods, et cetera.
I can provide the office with some statistics that the GAO
did in its review, where it analyzed what time was expended by
the petitioner in developing the petition; and then the times
that were expended in the various phases of the regulatory time
frames. I can provide that to the committee.
Senator Dorgan. That would be helpful. The numbers that you
read of petitions, or rather letters of intent, for example, by
year seem to suggest an increasing number of letters yearly, or
at least the trend line would look like it is up in recent
years. You have, as I see it on my sheet, 220 either incomplete
petitions or letters of intent to petition, something in that
neighborhood. Is that correct?
Mr. Fleming. Right. A good number of those petitions not
ready for evaluation have only submitted letters of intent.
Senator Dorgan. Yes; there have been 15 petitions that are
through the acknowledgment process and have been acknowledged,
and 19 denied. Since the advent of regulations, there have been
roughly 34 disposed of, either positively or negatively, 15
approved, 19 disapproved. Is that correct?
Mr. Fleming. That is correct.
Senator Dorgan. If you will send us, I would be interested
in the process, how long it takes and so on. I think all of
that would be helpful to us. I appreciate the testimony.
One just quick question, because you are dealing with a
regulation here, or administrative determination in rule or
regulation, rather than a law, is there any advantage to
incorporating these requirements in law as opposed to having
them in a regulatory framework?
Mr. Fleming. I believe in past oversight hearings, the
Department had testified that it would support statutory
establishment of the process.
Senator Dorgan. I was asking whether there is any inherent
advantage to that, that you can think of, you or Ms. Kendall.
Ms. Kendall. Mr. Vice Chairman, my feeling is a personal
feeling. I think if the process is working as it ought, and we
believe it is, that there would be no inherent benefit to
putting this into statute as opposed to regulation. I think
both have the power and effect of law.
Senator Dorgan. Right. If there had been successful
challenges of the regulation in certain areas, then obviously
legislation would be preferable.
Thank you both for your testimony. I appreciate your being
here.
Ms. Kendall. Thank you.
The Chairman. Thank you very much.
Our next panel is Richard Velky, chief, Schaghticoke Tribal
Nation; Stephen Adkins, chief, Chickahominy Indian Tribe; John
Barnett, chairman, Cowlitz Indian Tribe; Kathleen Bragdon,
professor, Department of Anthropology, College of William and
Mary; and Ken Cooper, president, Town Action to Save Kent,
South Kent, CT.
I would like to welcome the witnesses and we will begin
with the Honorable Richard Velky. Welcome.
STATEMENT OF RICHARD L. VELKY, CHIEF, SCHAGHTICOKE TRIBAL
NATION
Mr. Velky. Thank you. Good morning, Mr. Chairman.
The Chairman. Good morning. Could I just mention that the
written testimony of all witnesses will be made a part of the
record, and if we could, we would like to see 5-minute opening
statements. Thank you.
Mr. Velky. Thank you, Mr. Chairman.
My name is Richard Velky. I am the chief of the
Schaghticoke Tribal Nation. If I could, I would like to
recognize the vice chairman, Michael Pane, who made the trip
also with me and a few tribal members here in the audience, if
they would please stand.
The Chairman. Welcome.
Mr. Velky. And also Chairman Brown from the Mohegans I see
has also joined us in the audience here. I would like to
recognize him, too.
Mr. Chairman, I appreciate this opportunity and the 5
minutes to explain who the Schaghticoke Tribal Nation is and
what we went about. It is very brief, and I appreciate being
able to submit the written testimony.
I will tell you what the Schaghticoke Tribal Nation has
gone through in order to achieve the status of recognition. In
1981, the tribe made a decision to go for Federal recognition.
What we did by that is submit a letter of intent to the Branch
of Acknowledgment and Research. Upon receipt of that letter, we
were told that we needed to achieve seven criteria in order to
be recognized for the Federal recognition status. So we started
out fulfilling those seven criteria.
It was not until 1994 until we submitted our petition to
the branch of Acknowledgment and Research. When we did this, we
took the time and the courtesy to knock on the doors of the
Senators who testified in front of us today and some of the
congressional leaders to let them know the intentions of the
Schaghticoke Tribal Nation; that we looked to achieve our
Federal recognition status and to stand among our brothers and
sisters in the eastern part of the State.
They made it very clear to us, stay within the rules; do
not try a legislative move to achieve your Federal recognition;
we will do everything we can to stop you. We understood where
they were coming from, although it was not too appreciated. We
knew we had a long road ahead of us. From 1994 until the
present time, we have submitted three volumes of documentation,
probably some 2,500 pages of information on the Schaghticoke
Nation. Believe it or not, in 1994 we probably had our best
chance then to achieve the recognition status because things
were not the way they are today in Connecticut.
However, we needed full accountability of our tribe and we
proceeded to fill out our documentation and today we have some
30,000 pages of information. We are a small tribe in the
northwest corner of the State of Connecticut. At that time, in
the 1700's we had some 2,000 acres. Today, we are left with
only about 400 acres of a rocky hillside. That was our reason
and our determination to save our sovereignty, our heritage and
our culture for our generations to come.
We were successful. The preliminary findings that you spoke
of that were negative and the reversed them into a positive
decision is a process that we all go through. At first when we
submit our information, we are given an obvious deficiency. We
take this information; we conduct it into what is needed; and
we submit it to see how we stand in the standing of the seven
criteria. When the tribe feels they are completely eligible to
reach the seven criteria, they let the BAR know. Today, it is
OFA.
We felt that position after our preliminary finding. We
submitted more documentation 9 months later and informed them
that we were eligible to go on for our Federal recognition.
That is what we did and we were successful.
To say today that the system does not work; it is corrupt;
corruptive influences there; are just statements coming out of
our legislation. We, the Schaghticokes, are not just going
through the system. We are also in a Federal court order. If
any of these allegations that were made today or any other time
have any evidence of proof to it, I encourage them to take it
in front of the Federal court, Judge Peter Dorsey, and submit
it to their testimony and I am sure we will be called in to
answer to that.
Our fight for Federal recognition has not been an easy
road. It took us a quarter of a century to get here. We ask
this committee here to take a look at the recognition process.
If there are changes that need to be made and reforms that need
to be made, it needs to be made in favor of the Native
Americans seeking the Federal recognition and not the States
fighting us.
Financial investors come into this area to play a part. We
understand that. But it is unfortunate that there are no funds
there for these tribes, and us included, to get the money
needed to achieve the fact of a recognition status; 30,000
pages of information is not light to come by. To fight off the
State of Connecticut, we need a team of attorneys ourselves.
Never in my lifetime did I think I would spend so much time
with attorneys, but today I see I might be becoming one of
them.
It is a hard role that the tribes need to focus on. It is
not easy to sustain. We only ask that when we finally get to
this end of the road, that the committee take a serious attempt
at the BIA and any other process that the States or our
opposition would attempt to stop the tribes from achieving
their recognition, to stand down and move aside because we
already made it through the process.
I thank you for your time this morning.
[Prepared statement of Mr. Velky appears in appendix.]
The Chairman. Thank you for being here today.
Chief Adkins, welcome.
STATEMENT OF STEPHEN R. ADKINS, CHIEF, CHICKAHOMINY INDIAN
TRIBE
Mr. Adkins. Thank you, Chairman McCain and Vice Chairman
Dorgan for inviting me here today to speak on S. 480. Senator
George Allen introduced this bill.
A hearing on our prior Federal recognition bill, S. 2694,
was held by this committee on October 9, 2002. On behalf of the
six tribes named in S. 480, the Eastern Chickahominy, the
Monacan, the Nansemond, the Upper Mattponi, the Rappahannock
and my tribe, the Chickahominy, I am requesting that the
evidence from that hearing be submitted into today's record.
That evidence included a strong letter of support from our
current Governor Mark Warner.
Beside me today is Professor Danielle Moretti-Langholtz
from the College of William and Mary who worked on the
petitions we filed with the BIA. She is prepared to assist with
any questions you may have about our history. I also have here
with me today Ken Adams, chief of the Upper Mattaponi, and
members of the other Virginia tribes, I would ask them to
please stand.
I would like to share with you that well-known story of
Chief Powhatan and his daughter Pocahontas, her picture being
in this very Capitol Building with her English husband John
Rolfe. I often say this country is here today because of the
kindness and hospitality of my forebears in helping the
colonists at Jamestown gain a foothold in a new and strange
environment. But what do you know, what does mainstream America
know about what happened in those years between the 17th
century and today?
The fact that we were so prominent in early history and
then so callously denied our Indian heritage is a story that
most do not want to remember or recognize. I and those chiefs
here with me here today stand on the shoulders of Paspahegh,
who were led by Chief Wowinchopunk, whose wife was captured and
taken to Jamestown Fort and run through with a sword; whose
children were tossed overboard and then their brains were shot
out. With this horrific action in August 1610, a whole nation
was annihilated, a nation that befriended strangers and
ultimately died at the hands of those same strangers.
We are seeking recognition through an act of Congress
rather than the BIA because of actions taken by the
Commonwealth of Virginia during the 20th century that sought to
erase the existence of my people through statutes and
legislation that have the administrative process nearly
impossible. The destruction of documents regarding our
existence during the Civil War and other periods of early
history pales in comparison to the State sanctioned indignities
heaped upon my people under the hand of Walter Ashby Plecker, a
rabid separatist who ruled over the Bureau of Vital Statistics
for 34 years from 1912 to 1946.
Although socially unacceptable to kill Indians outright,
Virginia Indians became fair game to Plecker as he led efforts
to eradicate all references to Indians on vital records. A
practice that was supported by the State's establishment when
the eugenics movement was endorsed by leading State
universities and when the State's legislature enacted the
Racial Integrity Act of 1924. That was a law that stayed in
effect until 1967 and caused my parents to have to travel to
Washington, DC on February 20, 1935 in order to be married as
Indians. This vile law forced all segments of the population to
be registered at birth in one of two categories, white or
colored, thus legitimizing cultural genocide for Virginia's
indigenous people.
Sadly, this tells only part of the story. The effect of
this period on the racial policies of the State meant that
Indian people were targeted. It was feared that they would care
to try to claim their heritage and seek extra protection
outside the State or with the Federal Government. The policies
established by Plecker made it illegal to designate Indian on a
birth certificate or to give an Indian child a traditional
Indian name. Violations put doctors and midwives at risk of up
to one year in jail.
Our anthropologist says there is no other State that
attacked Indian identity as directly as that attack by those
laws passed during that period of time in Virginia. No other
ethnic community's heritage was denied in this way. Our State,
by law, declared that there were no Indians in the State in
1924, and if you dared to say differently, you went to jail or
worse. That law stayed in effect half of my life.
We are seeking recognition through Congress because this
history prevented us from believing that we could fit into a
petitioning process that would either understand or reconcile
this State action with our heritage. We feared the process
would not be able to see beyond the corrupted documentation
that was legally mandated to deny our Indian heritage.
My father and his peers lived the Plecker years and they
carried those scars to their graves.
Chairman McCain, the story I just recounted you is very
painful and I do not like to tell that story. Many of my people
will not discuss what I have shared with you, but I felt you
needed to understand recent history opposite the romanticized,
inaccurate accounts of 17th century history.
The six tribes that I am talking about gained State
recognition in the Commonwealth of Virginia between 1983 and
1989. Subsequent to State recognition, then the Governor George
Allen, who is now Senator George Allen, heard and learned our
story. In 1997, he passed the statute that acknowledged the
aforementioned discriminatory laws and allowed those with
Indian heritage to correct their records with costs to be borne
by the Commonwealth. At that juncture, we began to look ahead
to Federal recognition. In 1999, we were advised by the BAR
that many of us would not live long enough to see our petitions
go through the administrative process. Sir, that is a prophecy
that has come true. We have buried four Virginia Indian chiefs
since then.
The six tribes referenced in S. 480 feel that our situation
clearly distinguishes us as candidates for congressional
Federal recognition. As Chief of the Chickahominy Tribe, I have
persevered in this process for one reason. I do not want my
family or my tribe to let the legacy of Walter Plecker stand. I
want the assistance of Congress to give the Indian communities
in Virginia their freedom from a history that denied their
Indian identity. Without acknowledgment of our identity, the
harm of racism is the dominant history. I want my children and
the next generation to have their Indian heritage honored and
to move past what I experienced and what my parents
experienced. We the leaders of these six Virginia tribes are
asking Congress to help us make history for the Indian people
in Virginia, a history that honors our ancestors that were here
at the beginning of this great country.
Sir, I want to end with a quote credit to Chief Powhatan.
This quote from Chief Powhatan to John Smith maybe has been
forgotten, but ironically the message still has relevance
today, and I quote, ``I wish that your love to us might not be
less than outs to you. Why should you take by force that which
you can have from us by love? Why should you destroy us who
have provided you with food? What can you get by war? In such
circumstances, my men must watch, and if a twig should break,
all would cry, `Here comes Captain Smith.' And so in this
miserable manner to end my miserable life. And, Captain Smith,
this might soon be your fate, too. I therefore exhort you to
peaceable councils and above all I insist that the guns and
swords, the cause of all our jealousy and uneasiness, be
removed and sent away.''
Chairman McCain, our bill would give us this peace that
Chief Powhatan sought. It would honor the treaty our ancestors
made with the early colonists and the Crown, and it would show
respect for our heritage and our identity.
Chairman McCain, I thank you for allowing me the time to
speak before this committee.
[Prepared statement of Mr. Adkins appears in appendix.]
The Chairman. Thank you very much.
Mr. Barnett, Chairman Barnett.
STATEMENT OF JOHN BARNETT, CHAIRMAN, COWLITZ INDIAN TRIBE
Mr. Barnett. Chairman McCain, Vice Chairman Dorgan and
distinguished members of the Senate Committee on Indian
Affairs. I thank you for the opportunity to testify this
morning. To our friend, Senator Maria Cantwell, I bring you
warm greetings from your Cowlitz constituents home in
Washington State.
My name is John Barnett and I am the chairman of the 3,200-
member Cowlitz Indian Tribe of Washington. I have served as
chairman of our tribe for 24 years. I have made it my personal
objective to right the historical wrongs that have committed
against my people. By so doing, I hope to provide a brighter
future for our next generations.
The Cowlitz Tribe is a recognition success story. We were
able to make it through BIA's Federal acknowledgment process
using only donations from hardworking tribal members to pay for
the anthropological, genealogical and historical work necessary
to show that we met the Bureau's seven criteria for
recognition. It was the commitment, cohesiveness and self-
sacrifice of my people that got us through the recognition
process without the benefit of funds from outside developers.
It has been out of my own pocket that I have traveled to
Washington, DC more than 50 times to advocate on my tribe's
behalf during the recognition process. Indeed, Mr. Chairman, I
sat before you in this committee at another recognition hearing
in 1991, fully 11 years before we finally received Federal
recognition in 2002.
I believe it is entirely appropriate that unrecognized
tribes should meet tough, objective standards before achieving
Federal acknowledgment. To take a contrary position would
undermine the credibility of other federally recognized tribes
and would fuel efforts of unscrupulous developers looking to
create tribes for no other reason than to create a new Indian
gaming deal.
But let me also underscore that the recognition process is
expensive and time-consuming, and that it has been made more so
by the efforts of gaming interests, Indian and non-Indian,
which will spare no expense to block a legitimate tribe's
efforts to achieve recognition in order to block a potential
gaming competitor.
Gaming plays too great a role in the Federal recognition
process. That role is being played out on both sides, both for
and against applicant tribes. The only way to remove the
unwanted influence of gaming on Federal recognition is to give
BIA enough resources to provide the assistance tribes need so
that they are not forced to find outside sources of funding.
The acknowledgment process itself must be streamlined. We
had to wait more than three years between when we filed our
notice of intent and when it was published in the Federal
Register. We had to wait another 4\1/2\ years from publication
of the NOI until BIA sent us our first technical assistance
letter. We waited another 5 years after that until we got our
second technical assistance letter. And then we waited another
9 years after that before BAR issued proposed findings of fact
in 1997.
We did not receive a final determination until 2000, and
then another tribe challenged the final determination, thereby
delaying implementation of BIA's decision until they
reconsidered. Final determination was issued in 2002. From
start to finish, a quarter of a century.
Good Senators, I believe that you should be concerned that
the glacial pace at which recognition petitions are reviewed is
contributing to other unrecognized tribes' desperate need to
find alternative funding sources. Because those of us who have
survived the Federal acknowledgment process emerge as landless
tribes, the controversial politics of Indian gaming continues
to haunt us. Without access to Federal funding or economic
development opportunities, and having spent whatever money we
had on the recognition process, we are financially destitute.
Acquiring land costs money.
The substantial work needed to construct a fee-to-trust
application also costs money. And now BIA is requiring tribes
to pay for the development an EIS as part of the trust
application process. The Cowlitz EIS is will cost more than $1
million. Where is a newly recognized, landless tribe supposed
to find that kind of money?
Mr. Chairman, there is a world of difference between the
greedy marauding reservation shopping portrayed by the press
and the sincere, sometimes desperate efforts of newly
recognized tribes to find a piece of land on which to start
rebuilding our futures. We are trying to get back on our feet
after 150 years of no-so-benign neglect. We are trying to build
homes, government buildings, schools and health clinics. We are
looking for access to the same economic development
opportunities already afforded to other tribes lucky enough to
have a land base on October 17, 1988.
The Cowlitz Tribe has strong historical and modern
connections to the land we would like to make our initial
reservation. We have found a partner to help us get on our feet
and we are blessed that we found that help within Indian
country. We are proud to be working with and learning from the
Mohegan Tribe of Connecticut. In 1994, the Mohegan Tribe also
successfully emerged from the Federal acknowledgment process as
a newly recognized landless tribe.
Chairman McCain, I believe you recently encouraged Mohegan
Chairman Mark Brown, who is with us this day over in the
corner, to reinvest in Indian country. The Mohegan Tribe has
done that. They are helping their Cowlitz cousins from across
the continent and for that we will forever be grateful.
I would also like to thank the State of Washington for its
support of the Federal acknowledgment process. The State
traditionally has declined to weigh in on the Federal question
of whether a tribe should be recognized, choosing instead to
defer to those with specialized expertise to make such
decisions. Once a tribe is recognized, however, the State is
very quick to extend its hand to establish a government-to-
government relationship with the newly recognized tribe. We
appreciate the integrity of the State's actions and the respect
the State has shown us.
In closing, I am here to ask you as a good and genuine
friend of Indian people for so many decades, to ensure that the
public debate about Federal recognition not be driven by the
convenient and controversial politics of Indian gaming. I am
asking that you help frame Federal policy in a way that
recognizes the real hardships suffered by unrecognized and
landless tribes, that honorably addresses the historical wrongs
suffered by our people and that does not deny deserving tribes
Federal recognition or a reservation simply as a means of
avoiding the hard politics of Indian gaming.
I thank you again for giving me an opportunity to speak to
this committee on these issues so vital to some of the first
Americans. One additional thought I would like to give to you
people. Senator McCain, there are those of us that have been in
the process, went through the process either acknowledged or
denied. We have a world of talent and ability to give you
suggestions as to some of the ways perhaps that can be used to
streamline the process and get to the tribes. For instance,
over 100 tribes at 2\1/2\ per year will never see anything,
waiting 50 more years.
Something has to be done. I think you people fully realize
that. And some of us, including myself and the Cowlitz people,
are certainly willing to help.
[Prepared statement of Mr. Barnett appears in appendix.]
The Chairman. Thank you very much.
Dr. Bragdon.
STATEMENT OF KATHLEEN J. BRAGDON, PROFESSOR, DEPARTMENT OF
ANTHROPOLOGY, COLLEGE OF WILLIAM AND MARY
Ms. Bragdon. Good morning, Chairman McCain and Vice
Chairman Dorgan, and members of the committee. Thank you very
much for the opportunity to be here today.
My name is Kathleen Bragdon. I hold a doctorate in
anthropology and I am currently a full professor at the College
of William and Mary. I have been writing about native people of
Southern New England and elsewhere and their languages for more
than 25 years. During this time, I have been consistently
impressed with the persistence and creative adaptability of the
Indian communities of our region. I would like to thank the
many native people with whom I have worked over the years for
the honor of learning from them.
As you know, scholars, including historians,
archaeologists, linguists and anthropologists have been
involved in the Federal recognition process since its
inception. In New England, the most influential practitioners
have been those I affectionately call Dr. Jack Campisi and his
band of merry men, and women, all very competent and prolific
anthropologists and ethnohistorians.
When they began their important work, because their
expertise was widely and rightly acknowledged, their
evaluations were thoroughly documented, but much less extensive
than would be required today. An adequate report 25 years ago
was perhaps 100 pages long. Today, it would be several
thousand.
It has also become necessary because of the increasing
research burdens of the recognition process, for scholars to
document a wider range of factors than was previously thought
necessary. I quote Sheldon Davis: ``As anthropologists, our
primary contribution to the rights of indigenous peoples lies
in independently and publicly documenting the social realities
that these people face.''
In New England, these social realities have included
legislative dispossession, detribalization, racial
discrimination, poverty and many kinds of social disruption.
These conditions have made the task of documenting their
histories and continuity as Indian entities very challenging.
In many cases, the haphazard way in which Indian communities
have been treated during the past 300 years has resulted in
major gaps in the evidence, so that petitioners are faced with
the impossible task of locating records that were never created
or which no longer exist.
The gaps in the official records can be filled by using
other types of historical documentation, but this material is
scattered and requires a good deal of training to analyze, and
the necessity for its use because of increasingly demanding
standards of documentation required by the Bureau of Indian
Affairs, has created a large cost burden for most petitioners.
Another concern is privacy. The existing official records
that document the relations of State and local governments and
Indian peoples often include very sensitive information about
family history, information that Indian people are naturally
very reluctant to have made public. As the demands of
documentation required by the Office of Federal Acknowledgment
have become greater, however, Indian people feel they have
little choice but to make these sensitive records available.
Added to this are their concerns about sacred sites and
knowledge, which make many people reluctant to share
information that might help their case.
Finally, Indian people see their histories differently than
those of the authorities who controlled the written records,
and their views have rarely been taken into account. My own
experience has been that it is in these alternative historical
views, often expressed through oral histories, folks tale and
kitchen table talk that can be found the most powerful pieces
of evidence for community continuity and strength.
I wish to emphasize that I think the Federal recognition
process is vital to native interests in New England and
elsewhere, and has led to great benefits for many Indian
communities. By benefits, I mean increased opportunities for
education, better health care, and the support for cultural
enrichment and language study programs that are central to
Indian identity and an important part of maintaining and
celebrating their heritage.
Some communities have now been publicly affirmed and have
taken their rightful place as stakeholders in regional and
national debates. The difficulties I discussed briefly above,
however, have left other native communities out of the process,
and this has been an additional source of division and
discouragement to many native people. This is due in part to
the difficulty of fitting all Indian communities presently and
in the past into an agreed upon definition of ``tribe.''
Another difficulty is the persistent belief that there are
no longer any real Indians left in the eastern parts of North
America. A cursory survey of recent newspaper articles in
prominent and local newspapers in New England demonstrates the
strength of his misconception, even among educated people. Non-
Indians also misunderstand the historic relationship between
the Federal Government and Indian peoples, and see Federal
recognition as a kind of undeserved entitlement.
Native people struggle against these attitudes and the
added burden of defending themselves against so-called
``interested parties'' who refuse to accept them as who they
say they are, and further complicates and extends the
recognition process.
The Chairman. Dr. Bragdon, I have been informed that we
have a vote starting in about 7 minutes, so if you would
summarize as much as possible so we can hear from Mr. Cooper. I
thank you and I apologize for our Senate procedures.
Ms. Bragdon. Certainly.
In summary, the only defense against misinformation is a
careful research process. I think there is room for a measure
of cooperation with scholarly institutions such as what we have
here at the College of William and Mary, and I fully support
the present procedure.
Thank you for letting me have this opportunity to speak.
[Prepared statement of Ms. Bragdon appears in appendix.]
The Chairman. Thank you, Dr. Bragdon. Thank you for
appearing today.
Mr. Cooper.
STATEMENT OF KEN COOPER, PRESIDENT, TOWN ACTION TO SAVE KENT
Mr. Cooper. Thank you, Mr. Chairman and Mr. Vice Chairman.
It is an honor to appear before you to express my concern with
the Federal process that could have tragic consequences for my
small town.
I am from Kent, Connecticut. Kent traces its roots to the
early 1700's. Our population is approximately 3,000. We are
located in the scenic northwest corner of the State, and our
industry is serving visitors, tourists, sightseers and
weekenders. In many ways, we are typical of small towns across
the United States. Our local boards and commissions, ambulance
and fire departments, library and historical societies are all
run by volunteers.
Municipals budgets and ordinances are voted on as they have
been for over 300 years by open town meeting. We are rural
America, but we are threatened. We have seen similar small
towns in Eastern Connecticut massively disrupted and
irrevocably changed from what they once were. The emergence of
Las Vegas-style casinos has overwhelmed their infrastructure
and destroyed their communal character that took 4 centuries to
build. Their tax bases have shrunk, crime has soared. Their
schools are jammed and sadly, the long-term residents have lost
the ability to manage their futures.
TASK was formed because of what we saw happening to our
sister towns. We realized it could happen to us because of
mismanagement within the BIA. Mr. Chairman, let me make one
thing clear. TASK does not oppose the recognition of authentic
Indian tribes. Our concern is the Federal acknowledgment
process that allows the recognition of persons whose claims are
without merit; whose pursuit of sovereignty is
opportunistically supported and driven by gambling interests;
and whose rules can be changed without due process or notice to
interested parties.
One such petition involves the Schaghticoke Tribal Nation,
which was organized by a group that claims Indian heritage and
rights to a State reservation in Kent. It is richly financed by
non-Indian businessmen. They are required by contract with
their investors to build a world-class casino, and from its
revenues to compensate the investors up to $1 billion.
Is it any wonder with that kind of money on the table, the
influences are heavy, embarrassing behavior encouraged, and the
system made weak?
While there is nothing wrong with raising resources
required to petition the government, given the risk such sums
interject into the system, financial disclosures have become a
pillar of good government practice. No such requirement exists
for BIA petitioners or participants.
We are facing a crisis brought on, first, by gambling
interests that have taken over the process; by groups who do
not meet the criteria for recognition because of their economic
location are able to present their history with great finesse;
and by the Federal agency processes by which they are
recognized.
The Inspector General, Mr. Devaney, in his letter noted
that the regulations as written are permissive and inherently
flexible.
Mr. Chairman, Federal acknowledgment grants the petitioner
extraordinary rights and in the densely populated east coast
caused disruption to thousands of innocent citizens and has the
effect of destroying our equally important culture. It is
precisely because of the impact of these decisions that the
process not be permissive. It must be dispassionate and
disciplined. It must have absolute integrity and protect every
party.
The BIA is a broken bureau. Interior acknowledges it. The
General Accounting Office has identified it. You are holding
hearings on it and the press has reported upon it. Both
petitioners and related parties have been victims of it.
Legislation has been introduced about it in both Houses.
TASK's sole mission is to ask that the BIA process
establish its integrity for the benefit of all of its
stakeholders and to retain the confidence of the American
public. This is not an anti-Indian request. It is about good
government, plain and simple.
Mr. Chairman, Kent, Connecticut is a good citizen. We are
willing to live with any BIA decision that is rendered
equitably, openly and honestly. We intend to live in complete
harmony with those who support any petition regardless of their
ultimate success or failure.
TASK thanks you, Mr. Chairman, and members of the
committee, as well as our Governor, our House and Senate
delegation, and our attorney general for working in a true
bipartisan manner on this issue, and for permitting me the
privilege of addressing you.
[Prepared statement of Mr. Cooper appears in appendix.]
The Chairman. Thank you very much, Mr. Cooper.
Chief Velky, do you intend to build a casino in Kent?
Mr. Velky. No, Mr. Chairman; we do not.
The Chairman. Do you intend to start a gaming enterprise on
your tribal lands?
Mr. Velky. As it stands today on our tribal lands, not in
Kent, no, sir.
The Chairman. Anywhere on your tribal lands?
Mr. Velky. It is our intention in the future to have a
gaming facility, yes, sir.
The Chairman. And you refuse to, during this process, to
disclose who your financial backers were?
Mr. Velky. No; we did not, sir. That has been in the
newspapers back home continuously.
The Chairman. Who are your financial backers?
Mr. Velky. It is Subway, Mr. Fred DeLuca is the main
backer. We are in dispute right now, however.
The Chairman. About what?
Mr. Velky. Just about being able to get along. This process
is not an easy process, as I had outlined, Senator. It is
unfortunate, but when we have groups such as TASK that are
willing to pay lobbyists some $2 million in order to fight the
Schaghticoke Nation, when the Schaghticoke Nation has to come
and defend itself against a whole delegation of the State of
Connecticut, it is extremely costly for us to get through and
it is unfortunate that the tribes need to go out and borrow
this money. But if the tribe is not able to go out there and
borrow the money, we will do some type of a damage from
borrowing the money, but if we do not meet our recognition,
sir, we will not be able to overcome that cost.
The Chairman. Thank you.
Chief Adkins, I take it from your testimony that you
believe that so many tribal documents and other historical
records were destroyed that would be hard for you to achieve
recognition through the BIA process. Is that correct?
Mr. Adkins. That is correct, but I would like to qualify
it. We are up against a situation where, and I would say I do
not have a problem with the seven criteria. I have some problem
with the process because when I look at what happened in
Virginia, the Racial Integrity Act of 1924, the Indian
Reorganization Act of 1934, and then in 1966 the Virginia
Supreme Court upheld the 1924 laws, which were overturned at
the Federal level.
So coming out of Virginia, we have found success in the
Federal recourse. In 1982, Virginia did form a subcommittee
that reported on our State recognition efforts. The Virginia
Commission on Indians was formed and State recognition was
afforded. In 1997, then-Governor Allen supported a statute or
signed into statute.
The Chairman. I understand that. It was part of your
testimony.
Mr. Adkins. Okay. Right. So the point that I am making is
the process hurts us because of where we were in the State. It
is the 20th century that caused us more concern than the
historical portion.
The Chairman. Thank you.
Chief Barnett, if you would submit to us in writing the
recommendations you have that could prevent, you went through a
23-year process. Is that correct?
Mr. Barnett. A 25-year process.
The Chairman. A 25-year process. If you could submit in
writing to us recommendations on how this process could be
expedited and be made more fair. And by the way, how much of
that delay was due to your efforts to collect documents and
other evidence?
Mr. Barnett. I would say that a considerable amount of
time. We would have to go back because of the obvious
deficiency letters, to gather the additional information.
The Chairman. So not all of it was just because of BIA
inefficiency.
Mr. Barnett. Yes; personally, I think the Cowlitz people,
they realized that the BIA and the Federal acknowledgment
process is a fair standard process that has to meet high bars.
We were certainly willing to go to that level to do it. We do
not at all feel compromised by the fact that it took as long as
it did. However, I think that those tribes coming behind us
deserve a little bit more fair situation than what we went
through.
The Chairman. Mr. Cooper, have you had discussions with the
tribe and tribal leaders about the issue of gaming in your
city?
Mr. Cooper. No; we have not.
The Chairman. Have you attempted to?
Mr. Cooper. No; we have not, Mr. Chairman.
The Chairman. Why not?
Mr. Cooper. Because they are currently not a federally
recognized tribe, and if we have discussions with them to make
agreements. They are not bound by those discussions after the
Federal recognition process. And the second point, Mr.
Chairman, is we are a grassroots organization. The elected
officials of the town of Kent and the attorney general are
really the appropriate authorities to be conducting those
discussions.
The Chairman. I thank you, Mr. Cooper, and I apologize to
the witnesses. I had many more questions, but I think we have a
vote on.
Senator Dorgan.
Senator Dorgan. Mr. Chairman, there is a vote that has
started about 5 minutes ago, so I will additionally submit
questions.
Chairman Velky, when was your petition submitted
originally?
Mr. Velky. In 1994, sir.
Senator Dorgan. And prior to that time, how long was it
being considered for submission? When did you make a decision
that you wanted to petition?
Mr. Velky. In 1981.
Senator Dorgan. In 1981?
Mr. Velky. Yes, sir.
Senator Dorgan. Chairman Adkins, let me just say to you
that I think you do a service again by reminding all of us of
what has gone before. The story that you have described is
replicated in many ways in many other parts of the country of a
series of governmental actions to try to either deny or destroy
the cultural roots of native people. So I appreciate very much
your giving us again the context and the history of all of
this.
This panel, Mr. Chairman, has submitted some excellent
testimony. I have a series of questions that I would like to
submit for the record because of the vote that is now
occurring. I want to thank all of them for coming and
participating today.
The Chairman. I thank the witnesses, and I think this has
been very helpful to us. I appreciate it.
This hearing is adjourned.
[Whereupon, at 11:35 a.m., the committee was adjourned, to
reconvene at the call of the Chair.]
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A P P E N D I X
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Additional Material Submitted for the Record
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Prepared Statement of Hon. George Allen, U.S. Senator from Virginia
Thank you Chairman McCain. I commend you for holding this hearing
and considering the unique and extraordinary story of these six
Virginia Indian tribes. As you are no doubt aware, my legislation to
provide the six Virginia tribes Federal recognition was reported out of
this committee during the 108th Congress.
I have again introduced the Thomasina E. Jordan Indian Tribes of
Virginia Federal Recognition Act to begin the process of Federal
recognition for the Chickahominy, The Eastern Chickahominy, the Upper
Mattaponi, the Rappahannock the Monacan and the Nansemond Tribes.
This legislation would provide a long overdue recognized status on
a group of Americans that have been a part of this country's history
from its inception. The six tribes seeking Federal recognition have
suffered humiliation and indignities that have gone largely unnoticed
by most Americans. Because many of these injustices were not a result
of any action they undertook, but rather due to government policies
that sought to eliminate their culture and heritage, I believe the
circumstances of their situation warrants Congressional recognition.
I can understand the concern my colleagues express over granting
Federal recognition without the investigative process used by the
Department of the Interior. However, if one closely examines the
history of these Virginians, they will see why this legislation has
been introduced, and why my colleagues Senator Warner has cosponsored
here in the Senate and why Congressman Jim Moran continues to push for
recognition on the House side.
The history of these six tribes begins well before the first
Europeans landed on this continent. History has shown their continuous
inhabitance in Virginia. Through the last 400 years they have undergone
great hardship. However, they have maintained their traditions and
heritage through those difficult centuries. To put the long history of
Virginia Indians in context, while many federally recognized tribes
have signed agreements with the U.S. Government, the Virginia Indian
tribes hold treaties with Kings of England, including the Treaty of
1677 between the tribes and Charles the II.
Like the plight of many Indian tribes of America over the last four
centuries, the Virginia tribes were continually moved off of their land
and forced to assimilate to U.S. society. Even then, the Indians of
Virginia were not extended the same rights offered a U.S. citizen. The
years of racial discrimination and coercive policies took a tremendous
toll on the population of Virginia Indians. Even while living under
such difficult circumstances and constant upheaval, the Virginia
Indians were able to maintain a consistent culture. During the turn of
the 20th Century, members of these six tribes suffered more injustice.
New state mandates forced Virginia Indians to renounce their Indian
names and heritage. The passing of the Racial Integrity Act of 1924
began a dark time in the history of the Commonwealth of Virginia. This
measure, enforced by a State official named Walter Plecker sought to
destroy all records of the Virginia Indians and recognize them as
``colored.'' People were threatened with imprisonment for noting
``Indian'' on a birth certificate; mothers were not allowed to take
their newborn children home if they were given an Indian name. This
policy, along with overzealous enforcement by Plecker, has left many
Virginia Indians searching for their true identity.
The Racial Integrity Act left the records of thousands of Virginia
Indians inaccurate or deliberately misleading until 1997. As Governor,
that year, I signed legislation that directed State agencies and
officials to correct all State records related to Virginia Indians,
reclassifying them at Native American and not ``colored.'' My
administration championed this initiative after learning of the pain
the racist policy inflicted on many Virginia citizens. I also was
briefed on the problems many Virginia Indians experienced when
attempting to trace their ancestry or have records of children or
deceased corrected. To combat these injustices, we ensured that any
American Indian whose certified copy of a birth record contains an
incorrect racial designation were able to obtain a corrected birth
certificate without paying a fee. I could not imagine a greater insult
than asking a citizen of Virginia to pay to have their racial
designation corrected after it was the State's policy that caused the
wrong designation.
Because of the arrogant, manipulating policies of the Virginia
Racial Integrity Act, the Virginia Indian tribes have had a difficult
time collecting and substantiating official documents necessary for
Federal recognition. Through no fault of their own, the records they
need to meet the stringent and difficult requirements for Federal
recognition are not available. I fear that unless my colleagues and I
take action legislatively, these six tribes will be faulted and denied
Federal recognition for circumstances they truly had no control over.
The Virginia tribes have filed a petition with the Department of
the Interior's Branch of Acknowledgement and Research. However I
believe congressional action is the appropriate path for Federal
recognition. The six Indian tribes represented today have faced
discrimination and attacks on their culture that are unheard of in most
regions and States of the United States. I do not feel it is right for
the Federal Government to force them to prove who they are, when
previous State government policies forced them to give up their
heritage, history and race.
Federal recognition brings numerous benefits, including access to
education grants housing assistance and healthcare services, which are
available to most Americans. Discrimination and a lack of educational
opportunities have left many Virginia Indians without healthcare and
little prospects for continued employment. Education grants would
provide an avenue for these folks to improve their prospects for
employment and hopefully secure a job with substantial health benefits.
The benefits Federal recognition offers would not be restitution for
the years of institutional racism and hostility, but it would provide
new opportunities for the six tribes some basic necessities for long-
term success.
I can understand some of the concerns Members of Congress have with
gambling and property claims they relate to federally recognizing
Indian tribes.
Many Members of Congress place the issue of gambling and casinos
front and center when discussing Federal recognition for Indian tribes.
While I do not doubt that some States have experienced difficulties as
a result of Indian tribes erecting casinos, I feel confident that
gambling is not the goal for these six tribes. The tribes have stated
that they have no intention of seeking casino gambling licenses and do
not engage in bingo operations, even though they have permission to do
so under Virginia law. To ally any other fears regarding gambling, I
worked with Congressman Moran to craft language in our respective bills
that provides proper safeguards under Virginia law and the Indian
Gaming Regulatory Act. The concern that Federal recognition will result
in gambling and casino problems in Virginia has been sufficiently
addressed.
I have spoken with the many of the members of these six tribes, and
believe they are not seeking Federal recognition for superficial gain;
instead they seek recognition to reaffirm their place as American
Indians, after that right had been stripped for many decades.
Mr. Chairman, I have worked with these six tribes for the last 5
years. There circumstance is special and that is why I have introduced
this legislation. I am hopeful that the committee will objectively
review their situation, and make the right decision to move this to the
floor for full Senate consideration.
Thank you Mr. Chairman.
______
Prepared Statement of Mark D. Boughton, Mayor, Danbury, CT
Mr. Chairman, members of the committee, I would like to thank you
for the opportunity to address a critical issue that is facing our
Nation, the great state of Connecticut, and the city of Danbury.
In the past I have testified to the House Committee on Resources
regarding the issue of tribal recognition and the process that is laid
out by the Bureau of Indian Affairs [BIA]. I will tell you today, as I
have said in the past, that the process is broken. Let me be even
clearer, the process does not work.
This process is not about recognizing a wrong that was perpetrated
on a group of people who have suffered at the hands of a Nation bent on
repression and in some cases genocide. The tribal recognition process
regarding the Schaghticoke Tribal Nation, Golden Hill Paugussetts, and
the Eastern Pequot's is and always has been, about Casino gambling and
the high powered investors who drive the recognition process. The key
to recognition is that we must divorce the recognition process from
gambling and the special interests that seek to corrupt the process.
Why do I say this? Let's take a look at the Schaghticoke Tribal
Nation recognition. In this case, the preliminary finding of the BIA
stated that the Schaghticokes were not a tribe and did not meet the
criteria for recognition. Specifically, the BIA cited the lack of
political authority for the tribe during several key times throughout
our history and the failure to exist as an intact social community from
colonial times to the present without any significant gap in time. This
is a critical component of the process and in the past has been fatal
to an acknowledgment petition. I believe that the BIA was correct in
making its finding. The BIA set its rules and then applied those rules
to the Schaghticoke application to see if it met the criteria. The
system appeared to work. As a mayor of a city that had been identified
as a potential location for a casino we were thrilled by the BIA's
ruling.
Then the shoe dropped. The recognition process allows a tribe to
address the deficiencies that have been identified in an application
before the final decision is made. As a former teacher, this would be
analogous to giving a test to a student, giving back the test with a
failing grade, give the student the answers, and then rescore the test.
If the student still did not pass, I would then go to my colleagues and
say ``read this essay, tell me how I can give a passing grade to this
student'' sounds absurd right? This is exactly what happened in the
case of the Schaghticoke Tribal Nation. How do we know this? Because of
the internal memo that was drafted at the request of The Office of
Federal Acknowledgement [OFA]. In that memo, OFA admits that it ``can't
get there from here''. In other words, the Schaghticoke application
does not meet several critical parts of the steps necessary for
recognition.
What prompted the sudden change of heart by the BIA? Why would an
organization ignore the very rules that it has promulgated to arrive at
a conclusion in its final determination that is different than the one
that was articulated in its preliminary determination? What is the
point of having rules if the BIA itself does not follow them? One can
only speculate at the forces that were at work at the BIA to change the
proposed finding to one of recognition for the Schaghticoke Tribal
Nation.
As a result of these serious problems with the final determination,
our city, along with the State, other municipalities, and private
parties whose property is being threatened by the Scaghticoke land
claim lawsuit, filed an appeal with the Interior Board of Indian
Appeals. At this stage, things got even worse. Our brief raised many
strong arguments, and a few months ago BIA admitted that we were right
on one of the key issues. This extraordinary admission of error on one
of the major findings that allowed BIA to issue a ruling in favor of
Schaghticoke should have led BIA to issue a clear statement that the
decision was wrong and should be reversed. Instead, BIA said nothing
about its admitted error, and is proceeding as if nothing is wrong.
Once again, we are left to guess at the reasons for BIA's actions.
The result of the process is that the rules are a constant moving
target. As a municipality involved with the recognition process, we
have no idea what to address in an application because the BIA keeps
changing the rules. A recent example is a ``directive'' regarding
acknowledgment procedures issued by BIA in March. This directive
changes the rules that are contained in a previous BIA directive issued
in 2000. In neither case did BIA give advance notice, or ask for public
comment, even though our rights in the acknowledgement process were
affected. This leads to a process that is suspect at best and deeply
flawed at its worst. Without strict guidelines, the decisionmaker in
the recognition process is free to interpret the rules as he or she
sees fit, or at worst, ignores the regulations all together.
The impact of recognition of a tribe on Connecticut is profound.
Recognition in Connecticut is different than that of recognition of the
tribes in the southwest and the far west. The tribes of the west are
descendents of a noble people who experienced suffering and
exploitation at the hands of the Americans who were settling on lands
that had been lived on for thousands of years. In Connecticut, groups
seeking recognition are backed by people like Fred Deluca owner of
Subway Sandwich Shops, Donald Trump of recent ``The Apprentice'' fame,
and Thomas Wilmot a New York mall developer. These gentleman are not
bankrolling these groups because they are concerned about the plight of
Native Americans in Connecticut, they are interested in only one thing.
Opening a Casino in Connecticut. These gentlemen have an unlimited
amount of resources they bankroll the applications and wait for their
payday. As a mayor of a municipality that is still recovering from the
fallout of 9/11 and an economy that is still mending, opposing a
prospective recognition is one more costly problem. When the BIA
continues to reinvent the rules of recognition, it is even more
difficult. In my small State we currently have two tribes that are
recognized, two have received positive final determinations now on
appeal, and more applications are on the way. Because of our location
between the metropolitan centers of Boston and New York, we are an
attractive place for casino development and the investors know it.
The political influence of these entities is far and wide in our
State. Soon, because of the high stakes that are involved, it is my
fear that Connecticut will be carved up into four or five sovereign
nations with gambling as the exclusive industry. This scenario is a
real possibility unless Congress takes action. Because of the immense
wealth available to the tribes with casinos, these tribes will dominate
every aspect of our lives. Our politics, our culture, our social fabric
will be changed forever.
My city, located just seventy miles from New York City and home to
a diverse economic base ranging from pharmaceuticals to light
manufacturing and corporate development. A city that has one of the
lowest unemployment rates in the country, recently recognized as one of
the safest cities in the United States of America, will become a host
to a casino that would service tens of thousands of visitors 24 hours a
day, 365 days a year.
Already, I have been notified by several of my CEO's of our major
corporations that they will move if a casino is located in Danbury.
This would be catastrophic to our economic base and our identity as a
community. The Schaghticoke Tribal Nation has already placed land
claims on thousands of acres in Connecticut. This entity will reign
over every aspect of life in western Connecticut.
The recognition process is the only vehicle we have as a
municipality to participate in the casino issue in Connecticut. I ask
that you consider the transparency of this process. I ask that you
level the field so that we can understand what the rules are and how
best to address them. I ask that you consider legislation to gain
control of the process and put in law the seven criteria necessary for
recognition. Thank you for your consideration of important changes
needed in the tribal acknowledgement process.
______
Prepared Statement of Hon. Tom A. Coburn, M.D., U.S. Senator from
Oklahoma
Chairman McCain, Vice Chairman Dorgan, I thank you for holding this
important hearing this morning.
Given our most recent oversight hearing on Indian gaming, today's
hearing comes at particularly welcome time. In my opinion, the undue
influence that gambling interests have in Indian country is a direct
threat to the long term success of American Indians, and frequently, to
the communities where gambling facilities are built. With this hearing,
and our efforts on land-into-trust oversight in the months ahead, it is
my hope that we will begin to get a clearer glimpse of the powerful,
and all too often negative, impact that gambling is having on tribes
and our communities.
Nowhere is this more apparent than in the State of Connecticut. I
look forward this morning to examining the testimony of my colleagues,
Senator Lieberman and Senator Dodd, and the rest of the Connecticut
delegation. Their experience and expertise on this issue is one that we
all have to gain from, and hopefully, will allow this committee to
build a consensus on the need for an immediate overhaul of the Federal
recognition process.
In addition to my concerns about the undue influence of gambling
interests, I have serious misgivings about the ability of the Office of
Federal Acknowledgement [OFA] to carry out the important mission of
Federal recognition. While resource concerns can and will be examined
by this committee, more fundamentally, I firmly believe that the OFA
and the Department of the Interior have proven themselves incapable of
handling these duties in a timely or fair manner. This is partly the
fault of the agency itself, but in my opinion, is reflective of a much
larger failure on the part of Congress to enact guidelines that clearly
outline the mission of the OFA, or to conduct serious oversight of this
important process.
Based on the caliber of the witnesses before us this morning, and
the commitment of Chairman McCain, I am confident that today we will
begin to get a much better look at the problems facing OFA, tribal
governments, and State and local officials. The stakes are high--
official Federal recognition brings with it important responsibilities
on the part of the Federal Government and prospective tribal
governments.
I applaud the Chairman and Vice Chairman for conducting this
hearing. I am committed to working with you to enact serious, long term
reforms for the OFA and the Department of the Interior. The process of
tribal recognition, and the far reaching consequences of these
important decisions, is far too important to allow further delay.
______
Prepared Statement of Stephen R. Adkins, Chief, Chickahominy Indian
Tribe
Thank you Chairman McCain, Vice Chairman Dorgan and members of this
committee for inviting me here today to speak on S. 480. Senator George
Allen introduced the bill. A hearing on our prior Federal Recognition
bill was held by this committee on October 9, 2002 [S. 2694]. On behalf
of the six tribes named in S. 480, Eastern, Chickahominy, the Monacan,
the Nansemond, the Upper Mattapord, the Rappahannock, and my tribe the
Chickahominy, I am requesting that the evidence, from that hearing be
submitted into today's record. That evidence included a strong letter
of support from our current Governor, Mark Warner. Beside me today is
Professor Danielle Moretti-Langholtz from the College of William & Mary
who worked on the petitions we filed with the BIA. She is prepared to
assist with any questions you may have about our history.
Chairman McCain, I could tell you the much publicized story of the
17th Century Virginia Indians, but you, like most Americans, know our
first contact history. Well known is the story of Chief Powhatan and
his daughter Pocahontas, her picture being in this very capitol
building with her English husband John Rolfe. I often say this country
is here today because of the kindness and hospitality of my forebears
who helped the English Colonists at Jamestown gain a foothold in a new
and strange environment. But what do you know or what does mainstream
America know about what happened in those years between the 17th
century and May 11, 2005. The fact that we were so prominent in early
history and then so callously denied our Indian heritage, is the story
that most don't want to remember or recognize. I, and those chiefs here
with me, stand on the shoulders of the Paspahegh led by Chief,
Wowinchopunk whose wife was captured and taken to Jamestown Fort and
``run through'' with a sword, whose children were tossed overboard and
then their brains were ``shot out'' as they floundered in the water,
and whose few remaining tribal members sought refuge with a nearby
tribe, possibly the Chickahominy. With this horrific action in August
1610, a whole nation was annihilated. A nation that befriended
strangers, and, ultimately died at the hands of those same strangers.
We are seeking recognition through an act of Congress rather than
the BIA because actions taken by the Commonwealth of Virginia during
the 20th Century that sought to erase the existence of my people
through statutes and legislation have made the administrative process
nearly impossible. The destruction of documents, regarding our
existence, during the Civil War and other periods of early history
pales in comparison to the State sanctioned indignities heaped upon my
people under the hand of Walter Ashby Plecker, a rabid separatist, who
ruled over the Bureau of Vital Statistics for 34 years, from 1912 to
1946. Although socially unacceptable to kill Indians outright, Virginia
Indians became fair game to Plecker as he led efforts to eradicate all
references to Indian on Vital Records. A practice that was supported by
the State's establishment when the eugenics movement was endorsed by
leading State universities and when the State's legislature enacted the
Racial Integrity Act in 1924. A law that stayed in effect until 1967
and caused my parents to have to travel to Washington DC on February
20, 1935 in order to be married as Indians. This vile law forced all
segments of the population to be registered at birth in one of two
categories, white or colored. Thus legitimizing cultural genocide for
Virginia's Indigenous Peoples, Sadly this tells only a part of the
story. The affect of this period and the racial policies of the State,
meant that Indian people were targeted--it was feared that they would
dare to try to claim their heritage and seek extra protection outside
the State or with the Federal Government. The policies established by
Plecker made it illegal to designate Indian on a birth certificate or
to give an Indian child a traditional Indian name. Violations put
doctors and midwives at risk of up to 1 year in jail. Our
anthropologist says there is no other State that attacked Indian
identity as directly as the laws passed during that period of time in
Virginia. No other ethnic communitys heritage was denied in this way.
Our State, by law, declared there were no Indians in the State in 1924,
and if you dared to say differently, you went to jail or worse. That
law stayed in affect half of my life.
I have been asked why I do not have a traditional Indian name.
Quite simply my parents, as did many other native parents, weighed the
risks and decided it was not worth the risk of going to jail.
We are seeking recognition through Congress because this history,
prevented us from believing that we could fit into a petitioning
process that would understand or reconcile this State action with our
heritage, we feared the process would not be able to see beyond the
corrupted documentation that was legally mandated to deny our Indian
heritage. Many of the elders in our community also feared, and for good
reason, the racial backlash if they tried.
My father and his peers lived the Plecker years and carried those
scars to their graves.
Chairman McCain, the story I just recounted to you is very painful
and I do not like to tell that story. Many of my people will not
discuss what I have shared with you but I felt you needed to understand
recent history opposite the romanticized, inaccurate accounts of 17th
century history.
Let me tell you how we got here today. The six tribes on this bill
gained State Recognition in the Commonwealth of Virginia between 1983-
89. Subsequent to State recognition Senator George Allen, as Governor
heard and learned our story. In 1997 he passed the statute that
acknowledged the aforementioned discriminatory laws and allowed those
with Indian heritage to correct their records with costs to be borne by
the Commonwealth. At that juncture we began to look ahead to Federal
recognition. In 1999, we were advised by the BAR or OFA today, that
many of us would not live long enough to see our petition go through
the administrative process. A prophecy that has come true. We have
buried four Virginia Indian chiefs since then.
Given the realities of the OFA and the historical slights suffered
by the Virginia Indian tribes for the last 400 years, the six tribes
referenced in S. 480 feel that our situation clearly distinguishes us
as candidates for Congressional Federal recognition.
As chief of my tribe, I have persevered in this process for one
reason. I do not want my family or my community to let the legacy of
Walter Plecker stand. I want the assistance of Congress to give the
Indian tribes in Virginia their freedom from a history, that denied
their Indian identity. Without acknowledgment of our identity, the harm
of racism is the dominant history. I want my children and the next
generation, to have their Indian Heritage honored and to move past what
I experienced and my parents experienced. We the leaders of the these
six Virginia tribes, are asking Congress to help us make history for
the Indian people of Virginia, a history that honors our ancestors that
were here at the beginning of this great country.
I want to end with a quote credited to Chief Powhatan. This quote,
from Chief Powhatan to John Smith, maybe has been forgotten but
ironically the message still has relevance today:
``I wish that your love to us might not be less than ours to you.
Why should you take by force that which you can have from us by love?
Why should you destroy us who have provided you with food? What can you
get by war?
In such circumstances, my men must watch, and if a twig should but
break, all would cry out, ``Here comes Captain Smith.'' And so, in this
miserable manner to end my miserable life. And, Captain Smith, this
might soon be your fate too. I, therefore, exhort you to peaceable
councils, and above all I insist that the guns and swords, the cause of
all our jealousy and uneasiness, be removed and sent away.
Chairman McCain, our bill would give us this peace that Chief
Powhatan sought, it would honor the treaty our ancestors made with the
early Colonists and the Crown, and it would show respect for our
heritage and Identity, that through jealously perhaps has never before
been acknowledged.
Chairman McCain, I thank you for allowing me to testify before this
committee.
Prepared Statement of Kenneth Adams, Chief, Upper Mattaponi Indian
Tribe
Good morning, Mr. Chairman. I am Kenneth Adams, Chief of the Upper
Mattaponi Indian Tribe. With me today are Chief Adkins, Chief Bradby,
Chief Branham, Chief Bass, and Chief Richardson. We are the proud
descendants of the Keepers of this Great Land when the English
Colonists arrived in 1607. The Peace Treaty of 1677 established the
Governing authority of the Pamunkey Queen and the Monacan Chief over
our ancestors. We are the direct descendants of those colonial tribes.
Today these nations have come together to ask the Congress of these
United States to acknowledge our one on one relationship with the
government of this nation.
Chief Justice John Marshall in 1832 stated, the Constitution, by
declaring those treaties already made, as well as those to be made, the
Supreme Law of the land, has adopted and sanctioned the previous
treaties made with the Indian Nations.
Each of these great Chiefs carry in their hearts many burdens of
our people. I cannot express for them the sorrows they have endured.
But I can express to you a sample of what we have all endured. When I
was a child growing up in King William County, Virginia, high school
education for Indians in the state was almost nil. Even before I
entered grade school, my older brothers and sisters were being sent off
to Oklahoma and Michigan to complete high school. I was the first
Indian to graduate from King William High School in 1965. Myself in
1967 and my brother in 1968 served in Vietnam. Shortly afterwards, I
went to visit my brother. It was almost like walking in the house of a
stranger. Not because of our experiences in Viet Nam. It was because of
the policies of the State of Virginia. It was the policy that forced
him from home in order to seek a high school education. And what was
his response to that policy? His response was to put his life on the
line for the United States of America. I can surely tell you today, in
these individual tribes, there are many more stories like this one. I
can say with 100 percent certainty, when it comes to defending this
homeland, Virginia Indians have spilt their blood. You might ask us,
why do you come now? We have an answer. For almost 400 years, Virginia
attempted to diminish our presence. After 1700 we were pushed onto
increasingly smaller pieces of land and by the mid 1900's Virginia was
attempting to document us out of existence. The fight to maintain our
identity was a struggle our Mothers and Fathers fought well, but they
lacked education and resources. They had been told on several occasions
no help from the Federal Government was available. In 1946 one of
Chiefs attempted to obtain high school educational resources through
the Office of Indian Affairs. The only help offered was in the form of
education at a Federal boarding school. No help was available in
Virginia.
If the State government was attempting to deny our existence and
the Federal Government provided little assistance, where could these
people possibly go? That is why it has taken us so long to get here.
Virginia has recognized its errors. Along with bill H.R. 2345
sponsored by Congresspersons Moran and Davis, Senator Allen, with the
support of Senator Warner, has introduced S. 2964 granting Federal
Acknowledgment to these six tribes. In 1999, the Virginia General
Assembly passed a Resolution with over whelming support asking for
Congressional Recognition of these tribes. King William County,
Virginia, home of the Upper Mattaponi, also passed a resolution in
favor of Federal Acknowledgment. We have the support of the majority of
the Virginia Congressmen and Women. As you can see, we have
overwhelming support from the Commonwealth of Virginia.
Now, the U.S. Congress has the opportunity to make a historical
change. A positive change that would bring honor to you as well as
honor to us.
We ask you to make the right decision and support this bill for
Federal Acknowledgment of Virginia Indians.
______
Prepared Statement of Hon. James P. Moran, U.S. Representative from
Virginia
Good morning and thank you, Mr. Chairman.
I appreciate your willingness to hold this hearing and providing us
with an opportunity to help tell the story of six of Virginia's Native
American tribes. The story of these tribes is compelling, but I ask for
more than your sympathetic ear. I also ask for action on legislation
[S. 2694] that Senators George Allen and John Warner introduced, which
is a companion to the bill Representative Jo Ann Davis and I sponsored
in the House, to grant these tribes Federal recognition.
I ask that the Federal Government, starting with this distinguished
Committee on Indian Affairs, recognize the Chickahominy, the Eastern
Chickahominy, the Monacan, the Nansemond, the Rappahannock and the
Upper Mattaponi Tribes. These tribes exist, they have existed on a
substantially continuous basis since before the first western European
settlers stepped foot in America; and, they are here with us today.
I know there is great resistance from Congress to grant any Native
American tribe Federal recognition. And, I can appreciate how the issue
of gambling and its economic and moral dimensions have influenced many
Members' perspectives on tribal recognition issues.
I think the circumstances and situation these tribes have endured
and the legacy they still confront today, however, outweigh these
concerns. Congress has the power to recognize these tribes. It has
exercised this power in the past, and it should exercise this power
again with respect to these six tribes.
Like much of our early history as a nation, the Virginia tribes
were subdued, pushed off their land, and, up through much of the 20th
Century, denied full rights as U.S. citizens. Despite their devastating
loss of land and population, the Virginia Indians successfully overcame
years of racial discrimination that denied them equal opportunities to
pursue their education and preserve their cultural identity. That story
of survival doesn't encompass decades, it spans centuries of racial
hostility and coercive State and State-sanctioned actions. Unlike most
tribes that resisted encroachment and obtained Federal recognition when
they signed peace treaties with the Federal Government, Virginia's six
tribes signed their peace treaties with the Kings of England. Most
notable among these was the Treaty of 1677 between these tribes and
Charles II.
In more recent times, this racial hostility culminated with the
enactment and brutal enforcement of Virginia's Racial Integrity Act of
1924. This act empowered zealots, like Walter Plecker, a State
official, to destroy records and reclassify in Orwellian fashion all
non-whites as ``colored.'' To call yourself a ``Native American'' in
Virginia was to risk a jail sentence of up to 1 year.
Imagine a married couple unable to obtain the release of their
newborn child from the hospital until they change their child's
ethnicity on the medical record to read ``colored,'' not ``Native
American.'' Or, imagine being told that you have no right to reclaim
and bury your ancestors once you learn they were being stored in a
museum vault.
Or, imagine your frustration upon finding your legal efforts to
appeal a local water issue in Federal court because you're told your
suit has no standing since your tribe doesn't exist.
Or, imagine being told that the only reason you're seeking Federal
recognition is to establish a gambling casino.
Or, imagine the Indian mission school that your grandparents and
your parents attended receiving Federal recognition as a historic
landmark, but yet you and your daughters and sons not recognized by the
Federal Government as Native Americans.
Mr. Chairman, these are just a few of the examples of the
indignities visited upon the members of the six tribes present here
today.
I mention these indignities because they are part of a shameful
legacy experienced in our lifetime. Some are indignities that are still
visited upon members of the tribes today.
More to the point, this legacy has also complicated these tribes'
quest for Federal recognition, making it difficult to furnish
corroborating state and official documents. It wasn't until 1997 when
then Governor George Allen signed legislation directing state agencies
to correct state records that had deliberately been altered to list
Virginia Indians on official state documents as ``colored.'' In recent
years, the Virginia tribes have filed their petitions with the Bureau
of Indian Affairs. They have no deep pockets and lack the financial
means to rigorously pursue the lengthy and resource intensive petition
process. Even more discouraging, they have been told by bureau
officials not to expect to see any action on their petitions within
their lifetime. The GAO study this committee reviewed earlier this year
confirms this backlog.
Asking them to wait another 10 years or more is not what these
tribes deserve. Many of the members are elderly and in need of medical
care and assistance. They lack health insurance and pensions because
past discrimination denied them opportunities for an advanced education
and a steady job. Federal recognition would entitle them to receive
health and housing assistance.
It would be one of the greatest of ironies and a further injustice
to these tribes if in our efforts to recognize the 400th anniversary of
the first permanent European settlement in North America, we had failed
to recognize the direct descendants of the Native Americans who met
these settlers.
Before closing, let me touch upon one issue, the issue of gambling,
that may be at the forefront of some Members' concerns. In response to
such concerns, I have worked with Rep. Jo Ann Davis and others in the
Virginia congressional delegation to close any potential legal
loopholes in this legislation to ensure that the Commonwealth of
Virginia could prevent casino-type gaming by the tribes. Having
maintained a close relationship with many of the members of these
tribes, I believe they are sincere in their claims that gambling is
inconsistent with their values. Many of the tribes live in rural areas
with conservative family and religious beliefs. All six tribes have
established non-profit organizations and are permitted under Virginia
law to operate bingo games. Despite compelling financial needs that
bingo revenues could help address, none of the tribes are engaged in
bingo gambling.
Mr. Chairman, the real issue for the tribes is one of
acknowledgment and the long overdue need for the Federal Government to
affirm their identity as Native Americans. I urge you to proceed with
action on this proposal.
Thank you again for arranging this hearing.
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