<DOC>
[107th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:84231.wais]
RECOGNIZING A PROBLEM--A HEARING ON FEDERAL TRIBAL RECOGNITION
=======================================================================
HEARING
before the
SUBCOMMITTEE ON ENERGY POLICY, NATURAL
RESOURCES AND REGULATORY AFFAIRS
of the
COMMITTEE ON
GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
__________
FEBRUARY 7, 2002
__________
Serial No. 107-145
__________
Printed for the use of the Committee on Government Reform
Available via the World Wide Web: http://www.gpo.gov/congress/house
http://www.house.gov/reform
U.S. GOVERNMENT PRINTING OFFICE
84-231 WASHINGTON : 2003
___________________________________________________________________________
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COMMITTEE ON GOVERNMENT REFORM
DAN BURTON, Indiana, Chairman
BENJAMIN A. GILMAN, New York HENRY A. WAXMAN, California
CONSTANCE A. MORELLA, Maryland TOM LANTOS, California
CHRISTOPHER SHAYS, Connecticut MAJOR R. OWENS, New York
ILEANA ROS-LEHTINEN, Florida EDOLPHUS TOWNS, New York
JOHN M. McHUGH, New York PAUL E. KANJORSKI, Pennsylvania
STEPHEN HORN, California PATSY T. MINK, Hawaii
JOHN L. MICA, Florida CAROLYN B. MALONEY, New York
THOMAS M. DAVIS, Virginia ELEANOR HOLMES NORTON, Washington,
MARK E. SOUDER, Indiana DC
STEVEN C. LaTOURETTE, Ohio ELIJAH E. CUMMINGS, Maryland
BOB BARR, Georgia DENNIS J. KUCINICH, Ohio
DAN MILLER, Florida ROD R. BLAGOJEVICH, Illinois
DOUG OSE, California DANNY K. DAVIS, Illinois
RON LEWIS, Kentucky JOHN F. TIERNEY, Massachusetts
JO ANN DAVIS, Virginia JIM TURNER, Texas
TODD RUSSELL PLATTS, Pennsylvania THOMAS H. ALLEN, Maine
DAVE WELDON, Florida JANICE D. SCHAKOWSKY, Illinois
CHRIS CANNON, Utah WM. LACY CLAY, Missouri
ADAM H. PUTNAM, Florida DIANE E. WATSON, California
C.L. ``BUTCH'' OTTER, Idaho STEPHEN F. LYNCH, Massachusetts
EDWARD L. SCHROCK, Virginia ------
JOHN J. DUNCAN, Jr., Tennessee BERNARD SANDERS, Vermont
------ ------ (Independent)
Kevin Binger, Staff Director
Daniel R. Moll, Deputy Staff Director
James C. Wilson, Chief Counsel
Robert A. Briggs, Chief Clerk
Phil Schiliro, Minority Staff Director
Subcommittee on Energy Policy, Natural Resources and Regulatory Affairs
DOUG OSE, California, Chairman
C.L. ``BUTCH'' OTTER, Idaho JOHN F. TIERNEY, Massachusetts
CHRISTOPHER SHAYS, Connecticut TOM LANTOS, California
JOHN M. McHUGH, New York EDOLPHUS TOWNS, New York
STEVEN C. LaTOURETTE, Ohio PATSY T. MINK, Hawaii
CHRIS CANNON, Utah DENNIS J. KUCINICH, Ohio
JOHN J. DUNCAN, Jr., Tennessee ROD R. BLAGOJEVICH, Illinois
------ ------
Ex Officio
DAN BURTON, Indiana HENRY A. WAXMAN, California
Dan Skopec, Staff Director
Jonathan Tolman, Professional Staff Member
Allison Freeman, Clerk
Michelle Ash, Minority Counsel
C O N T E N T S
----------
Page
Hearing held on February 7, 2002................................. 1
Statement of:
Hill, Barry T., Director, Natural Resources and Environment
Division, General Accounting Office; Neal McCaleb,
Assistant Secretary for Indian Affairs, Department of the
Interior; and Tracy Toulou, Director, Office of Tribal
Justice, Department of Justice............................. 20
Simmons, Hon. Rob, a Representative in Congress from the
State of Connecticut....................................... 10
Letters, statements, etc., submitted for the record by:
Cannon, Hon. Chris, a Representative in Congress from the
State of Utah, Boston Globe article dated October 30, 2001. 55
Duncan, Hon. John J., a Representative in Congress from the
State of Tennessee, prepared statement of.................. 77
Hill, Barry T., Director, Natural Resources and Environment
Division, General Accounting Office, prepared statement of. 22
McCaleb, Neal, Assistant Secretary for Indian Affairs,
Department of the Interior, prepared statement of.......... 35
Ose, Hon. Doug, a Representative in Congress from the State
of California, prepared statement of....................... 3
Otter, Hon. C.L. ``Butch'', a Representative in Congress from
the State of Idaho, prepared statement of.................. 6
Simmons, Hon. Rob, a Representative in Congress from the
State of Connecticut, prepared statement of................ 13
Toulou, Tracy, Director, Office of Tribal Justice, Department
of Justice, prepared statement of.......................... 43
RECOGNIZING A PROBLEM--A HEARING ON FEDERAL TRIBAL RECOGNITION
----------
THURSDAY, FEBRUARY 7, 2002
House of Representatives,
Subcommittee on Energy Policy, Natural Resources
and Regulatory Affairs,
Committee on Government Reform,
Washington, DC.
The subcommittee met, pursuant to notice, at 10 a.m., in
room 2154, Rayburn House Office Building, Hon. Doug Ose
(chairman of the subcommittee) presiding.
Present: Representatives Ose, Otter, Shays, Cannon, Duncan,
and Tierney.
Staff present: Dan Skopec, staff director; Barbara Kahlow,
deputy staff director; Jonathan Tolman, professional staff
member; Allison Freeman, clerk; Michelle Ash, minority counsel;
and Jean Gosa, minority assistant clerk.
Mr. Ose. The hearing will come to order.
We are going to go ahead and do the opening statements.
Hopefully, we will not have any votes for 10 or 12 minutes.
At last count, there are more than 550 federally recognized
tribes in the United States. These tribes come in a variety of
shapes and sizes, from large tribes, such as the Navajo and
Cherokee nations with hundreds of thousands of members, to tiny
tribes with a handful of members. One tribe in California, the
Augustine Band of Cahuilla Mission Indians, consists of one
adult and seven children. And each tribe has its own political
and cultural history.
Faced with such a diverse array of existing tribes, the
task of acknowledging a new group as a tribe is probably one of
the most difficult and complicated tasks facing the Department
of the Interior.
Today's hearing will look at the issues with Federal tribal
recognition.
The Federal recognition of an Indian tribe can have a
tremendous effect not only on the tribe, but also on the
surrounding communities and the Federal Government. Recognition
establishes a formal government-to-government relationship
between the United States and a tribe. This special
relationship also confers a unique type of sovereignty upon
Indian tribes. This sovereign status exempts tribal land from
many State and local laws, such as sales taxes and gambling
regulations.
In 1978, the Department of Interior's Bureau of Indian
Affairs [BIA] established a regulatory process intended to
provide a uniform and objective approach to recognizing tribes.
The regulations established seven criteria that groups must
meet in order to be recognized. In 1994, BIA revised its
regulations to clarify what evidence was needed to support the
requirements for recognition. BIA further updated its
guidelines an clarified its procedures in 1997, and again in
2000.
Despite these changes, criticism of the process has
continued. Groups seeking recognition claim that the process
takes too long. Third party groups claim that the process is
opaque, with little opportunity for public input. Both sides
argue that the current process produces inconsistent decisions.
I am particularly concerned about how the public perceives
the recognition of tribes. Although this hearing is focused on
the issue of tribal recognition, this hearing would be
garnering far less attention were it not for gambling. Failure
to mention this fact would be to ignore the proverbial
``elephant,'' or should I say more accurately ``elephants,'' in
the room.
Fifteen years ago, Indian gaming was virtually unknown. In
1999, Indian gaming generated $9.8 billion in revenues, more
than the casinos in Las Vegas. There is little doubt that such
large amounts of money are changing both the nature and the
content of the debate.
Regardless of one's opinions about gambling, it is
fundamentally changing public perception of what it means to be
a tribe. And public opinion invariably changes congressional
attitudes.
While any reform of the process will involve discussion
about criteria, documents, and levels of evidence, I am also
concerned that, as reforms are discussed, we do not miss the
forest for the trees. Any effort to reform the process, whether
it be administrative or legislative, must focus on the
underlying legal and policy principles. Fundamentally, the
process of recognizing tribes is based on an acknowledgement of
the existing political sovereignty of that community. Because
tribal recognition is inextricably intertwined with this
concept of tribal sovereignty, changes to the recognition
process may have long-term consequences for the principles of
tribal sovereignty.
Any changes to this process should ensure that they do not
result in the erosion of tribal sovereignty, particularly for
existing tribes. I think that it would be very unfortunate for
future historians to look back on this period of Federal-tribal
relations and conclude that tribal sovereignty was traded for
casinos.
As Chief Bourland, Chairman of the Cheyenne River Sioux
once said, ``We must think about issues today, but we must also
think about the issues as they will be seven generations from
now. What you do today, the decisions you make, will affect
them.''
[The prepared statement of Hon. Doug Ose follows:]
[GRAPHIC] [TIFF OMITTED] 84231.001
[GRAPHIC] [TIFF OMITTED] 84231.002
Mr. Ose. I would like to recognize the gentleman from
Idaho, Mr. Otter, for the purposes of an opening statement.
Mr. Otter. Thank you very much, Mr. Chairman. I would like
to offer my apologies to you and to my colleague Mr. Shays, as
well as to my colleague Mr. Simmons. I have another meeting
that I have to run to. But I will submit an opening statement
for the record. And I will also submit some questions for the
record and for the Bureau of Indian Affairs that I would like
to get the answers back to as soon as possible. And so with
those apologies, Mr. Chairman, I take my leave. I yield back
the balance of my time.
Thank you, Mr. Chairman.
[The prepared statement of Hon. C.L. ``Butch'' Otter
follows:]
[GRAPHIC] [TIFF OMITTED] 84231.003
[GRAPHIC] [TIFF OMITTED] 84231.004
[GRAPHIC] [TIFF OMITTED] 84231.005
Mr. Ose. Without objection, we will accept the testimony
and we will see that the questions get posed.
I recognize the gentleman from Connecticut for the purposes
of an opening statement.
Mr. Shays. Thank you, Mr. Chairman. Mr. Ose, thank you as
well for calling this hearing. I also want to thank all of this
morning's panelists for being here, particularly one of my
heroes, Rob Simmons. Rob, it took me about 4 years before I had
the courage as a Member of Congress to address a committee. So
I admire that as well.
Granting Federal recognition means creating sovereign
nations within our Nation and must be done with utmost care.
Because federally recognized tribes are eligible to
automatically receive Federal benefits and, in many instances,
are permitted to establish gaming operations, acknowledgement
is a decision that should follow a well-defined, non-political
process that is fair, objective, and transparent.
Our Nation has a responsibility to Native Americans. I
think that is an understatement. Groups meeting the established
and objective criteria should receive Federal recognition and
absolutely all of its attendant benefits.
The bottom line is this process is suffering. The Bureau of
Indian Affairs is desperately in need of help. It lacks the
staff and resources to conduct thorough reviews of applications
for recognition. It has reached the point where courts play an
increased role in the process because of the delay. Moreover,
it has created tension between towns and tribes throughout the
Nation.
While the focus of today's hearing is not gambling,
gambling must be recognized as a key component in creating deep
skepticism about groups' motives for seeking recognition. And
it has invited corruption into the very serious process of
establishing these nations. The stakes are quite high. Outside
forces cast their influence in hopes of amassing some of the
extraordinary wealth gambling will ultimately provide,
particularly in the Northeast.
I thank Assistant Secretary Neal McCaleb for being here
today and for the work he has done to try and make this a
better process. But his task is very difficult. Today's hearing
is an important part of our efforts to improve the recognition
process.
In September 2000, Congressman Frank Wolf and I, as well as
a number of other Members, asked the Government Accounting
Office [GAO] to review the Federal recognition process. I am
encouraged by the report's finding of specific areas that
present weakness, the Bureau of Indian Affairs proposals to
address these problems, and today's hearing to discuss where we
can be of assistance in making this a fairer process.
Again, Mr. Chairman, thank you for holding these hearings.
And I again welcome all of the witnesses and, obviously, my
colleague from Connecticut.
Mr. Ose. Thank you, Mr. Shays.
It is a pleasure now to recognize the gentleman from
Connecticut for the purpose of giving testimony to this
committee.
STATEMENT OF HON. ROB SIMMONS, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF CONNECTICUT
Mr. Simmons. Thank you, Mr. Chairman, very much. And thanks
to my distinguished colleague from the western part of the
great State of Connecticut, Chris Shays.
My home State of Connecticut has been and continues to be
affected by our Federal Indian recognition process. We are home
to two federally recognized tribes at this point in time, both
of whom were recognized within the last 20 years. And we have
an additional 10 groups at least, there may be more than that
now, that are seeking recognition. I have got a couple of maps
from a local newspaper that might illustrate the point, if we
could bring it to the dais.
My district is also host to two of the world's largest
casinos, not largest Indian casinos, but largest casinos--the
Foxwoods Resort Casino run by the Mashantucket Pequot Tribe and
The Mohegan Sun run by the Mohegan Tribe. This past year,
according to press reports, the two casinos generated $1.5
billion in slot revenues, that is slot revenues alone. So you
can see that there is one good reason here, at least this is
one of the reasons, why Indians living in or bordering
Connecticut want to be federally recognized.
Federal recognition and Indian gaming have benefits and
adverse effects for our community and, in fairness, we have to
discuss both. They create jobs, and in Connecticut the jobs
were created at a time when manufacturing was declining and
when our defense sector was failing dramatically. These casinos
pay upwards of $300 million a year into the State budget,
directly into the State budget. And tribal members have been
generous with their own personal wealth. They have supported
community projects and charities over the years.
But there are also negative impacts, and that is what
concerns me greatly. Recognition means the right to operate a
casino and that places pressure on local municipalities who
have no right to tax, zone, or plan for these facilities. And I
will point out that this colored map of Connecticut, Mr.
Chairman, shows you the 169 towns and municipalities. We do not
have effective county government; we have towns and then we
have the State, unlike many other States around the country.
And so each of these little municipalities has to generate its
own tax base, its own revenues, it has its own highway
departments, emergency services, schools, etc. So a large
casino, or let us say one of the largest casinos in the world
placed in one of these municipalities creates dramatic burdens
for these local governments.
One example of this is North Stonington. And I have invited
the Mayor of North Stonington, Nick Mullane, to be here today.
I believe he is seated in the row over there. He has lived with
recognition and he has lived with the issues of taking land
into trust for the past decade.
Nick, and the adjoining municipalities of Ledyard and
Preston have had to seek the lonely and expensive process of
obtaining interested party status to recognition petitions. And
they have been placed in very difficult political, economic,
and social positions within their communities because of this.
Road construction, infrastructure needs, police, fire, and
emergency services all have increased due to Federal
recognition and gaming.
Also with Federal recognition, you have the right to take
land into trust. And for these tribes that have very profitable
casino operations, they can acquire lands in the local
community and petition to take those into trust. And this has
kept these towns in the courts for many, many years. We have
litigated these issues, we have tried to negotiate these
issues, and now we would attempt to legislate these issues.
Mr. Chairman, I would request unanimous consent to
introduce into the record the testimony of Nick Mullane and
also of our Attorney General Blumenthal who has been very
active on these measures. I would also like to request that the
statement of Chief James Cunha of the Paucatuck Eastern Pequot
Tribe be introduced into the record, a statement by
Congresswoman Nancy Johnson, who has been extremely active, and
also a statement by MaryBeth Gorke-Felice, who comes from the
Woodstock area.
Mr. Ose. Without objection.
Mr. Simmons. Thank you, Mr. Chairman. Mr. Chairman, to sum
up, Federal recognition policies are turning Connecticut, the
Constitution State, into the casino State, and we do not like
it. We want more control over the process. We want to close the
loopholes. We want a level playing field. And the legislation
that I have introduced I believe meets all those criteria.
There are seven points to this legislation that I have
summarized in my statement. I can see my time has run out. If
you extend me 1 minute, I can summarize those.
Mr. Ose. The gentleman has gone an extra minute.
Mr. Simmons. Thank you, Mr. Chairman. First of all, it
requires the BIA to notify States when a tribe petitions.
Second, it requires the BIA to consider any testimony from
municipalities that might be affected.
It requires that all recognition criteria be met. And if
you look at the GAO report, they mention the seven criteria.
But, as we know, these criteria can be waived in a decision. We
feel that each of the criteria should be met. And we feel that
findings relative to the criteria should be published so we all
know what the BIA has done to meet those criteria.
To help the BIA with its difficult tasks, we recommend
increasing the budget from $900,000 a year to $1.8 million,
doubling their budget, and, in particular, to apply those to
the Branch of Acknowledgement and Research which I believe is
an over-burdened agency. Good people and talented people, but
just too big a burden.
We recommend creating a grant program, $8 million per year,
for local governments to assist them in participating in
decisions related to recognition.
We recommend creating a $10 million grant program to be
made available to federally impacted towns for infrastructure,
public safety, social services, and other needs that are
created as a direct consequence of recognition and taking land
into trust.
And finally, we believe that we should close the revolving
door, have a cooling off period of 1 year in which high level
BIA officials who leave Government are restricted from
appearing before the agency or on behalf of tribes. This is a
standard procedure for other Government agencies and we think
it should be applied here.
I thank the chairman again, and my colleague Chris Shays
and my colleague Nancy Johnson, who cannot be here today, for
all of their work on these issues. And I am happy to answer any
questions.
[The prepared statement of Hon. Rob Simmons follows:]
[GRAPHIC] [TIFF OMITTED] 84231.006
[GRAPHIC] [TIFF OMITTED] 84231.007
[GRAPHIC] [TIFF OMITTED] 84231.008
Mr. Ose. I thank the gentleman for his testimony.
I am going to go ahead and recognize the gentleman from
Connecticut for 5 minutes for questions. Mr. Shays.
Mr. Shays. I will follow you. Thanks.
Mr. Ose. All right. I would like to welcome Mr. Cannon from
Utah. Appreciate it.
Mr. Simmons, I do have a couple of questions here. In terms
of the experience that you are familiar with, how have your
local communities worked in obtaining information from the BIA
over tribal recognition? Has that been a smooth process or are
there things that we can do to improve that?
Mr. Simmons. No. No, it has not. In fact, one of the first
things that I did on this issue as a State Representative back
in 1993 was request information relative to the issue of taking
land into trust as a consequence of recognition. I was
unsuccessful in my correspondence. So I had to submit a Freedom
of Information Act request. In response to that request, I went
to Washington, DC, spent 2 days in Washington attempting to get
access to the files. It was an arduous and very unpleasant
experience. It was somewhat productive in that we were able to
get some of the information we needed. But, by and large, it
was a very unpleasant and arduous experience, and it was an
experience that I had as a sitting State Representative.
Since that time, on some of the other recognition
petitions, and in particular on the ones that relate to North
Stonington, I think Mr. Mullane has it in his testimony, these
municipalities have had to submit Freedom of Information Act
requests to get at information. They have had to spend upwards
of $500,000 in legal fees to pay highly professional attorneys
here in Washington, DC, to pursue these issues on a regular
basis.
In the case of North Stonington, we are talking about a
small, rural, agricultural town with virtually no industrial
base, I think one hotel maybe--three, excuse me; they have
built a couple more. Just 5,000 people. A very small
municipality that is essentially having to deal with a very
complicated legal issue that potentially has dramatic effects
for the community. And yet, they have to do it by and large on
their own because they are a separate municipality, a creature
of the State. They do not have a county government or county
resources or a group of resources to help them.
Mr. Ose. In terms of the seven criteria that are used in
the recognition process, are the local communities able to have
input on the decisions on those seven to adequate level?
Mr. Simmons. They will say that they do not think they do.
And I will have to go on their testimony. Of course, Mr.
Mullane is here if the chairman wishes him to respond to that
question.
Mr. Ose. Hold on a minute. Mr. Mayor, would you like to
come over and join us.
Mr. Simmons. The experience that we have had is that the
Bureau of Indian Affairs may selectively weigh several, but not
all, of these criteria, that it is discretionary at this point
in time. And this makes it a moving target, if you will. It
makes it very difficult for these municipalities to track the
process and, in many cases, it is hard for them to respond to a
decision within the agency if they are not fully informed about
that. And then that goes to the issue of keeping them informed.
Under the provisions of my legislation, we are setting up a
system where States have to be notified, and States in turn
have to notify their municipalities so that these little towns
and interested parties will be kept in the loop.
Mr. Ose. Mr. Mullane, I think I have probably violated
every protocol here in bringing you up here with a Member of
Congress, and they are all laughing at me down there. But do
you have any input? I have not read your testimony. We did
enter it into the record, and I will read it. Do you have any
observations or comments?
Mr. Mullane. My testimony kind of speaks for itself. But if
you would like, I would ad lib for a few minutes.
Mr. Ose. You could summarize, if you would.
Mr. Mullane. In regard to your Freedom of Information
request, we went through the normal channels. The first issue
was to ask to be an interested party, we were finally granted
that, and then we submitted Freedom of Information requests, we
had probably fifteen different requests or more that went in,
and it took us 2\1/2\ years to get the documents. It was a very
disappointing process.
We did try to comment on the seven criteria during the
process. We found it very burdensome. When they made the
preliminary decision they admitted they had used only 40
percent of the documents or information that we had supplied.
They said that they were going to recognize on a preliminary
basis both the groups in the town, but they did not know if
there was going to be one tribe, two tribes, or no tribe, and
they had not considered any of the information from 1972 to
present. So it made it virtually impossible for us to
understand whether our comments were valid, how to approach the
issue, or to even get involved in the process.
Mr. Ose. I see my time has expired. I recognize the
gentleman from Connecticut.
Mr. Shays. Thank you. Again I would like to now recognize
both our witnesses. I want to just ask you, Mr. Simmons, is it
your belief that if an Indian tribe is recognized as a
federally recognized tribe, that they have all the rights that
accompany recognition?
Mr. Simmons. A very interesting question and a complicated
question. The two tribes that are federally recognized in
Connecticut, both in my district, one is the Mohegan Tribe, who
were recognized after going through what I call the BIA
process, a fairly long, arduous process of documenting their
history and meeting all of the criteria in regulation, and they
were recognized in that fashion. The other tribe is the
Mashantucket Pequot Tribe and they were recognized by
legislative act.
As I recall that process, the Bureau of Indian Affairs
testified against their recognition at the time that
congressional hearings were held. Initially, the legislative
document was vetoed by the President. But in a following year,
that language proceeded again through the Congress and passed.
One of the great debates in Connecticut is whether that
legislative act extended to the tribe all of the benefits and
privileges, to include buying and petitioning to take into
trust land outside the 2,000 acre settlement area or whether
the legislative act limited that tribe.
Mr. Shays. Let me just be clear on this. Is that a right
that exists to Indian tribes in general if they are recognized,
to be able to access more land?
Mr. Simmons. It is my understanding, yes.
Mr. Shays. OK.
Mr. Simmons. That is my understanding. But I guess the
point I was trying to make is if you have a legislative
recognition, depending on how that legislation is crafted, the
question could be raised are all benefits extended or are the
benefits extended as described within that statute and does
that take precedence over Federal statutes generally for a
recognized tribe? It is a complicated issue. It has been in the
courts for 7 years.
Mr. Shays. Excluding that comment, let's just take your
point about a legislatively recognized tribe, but if it goes
through the Bureau of Indian Affairs process, is it your belief
that a tribe should be entitled to all the rights and
privileges of a federally recognized tribe?
Mr. Simmons. I think they are under the law. And so that
creates the situation where, in the State of Connecticut where
you have at least 10 petitioning tribes that, if they are all
recognized, theoretically, I would assume they would all
benefit from the casino privilege.
Mr. Shays. Right. So there are going to be some more tribes
in the second congressional district that may be recognized and
it is not your contention that they would not deserve those
rights and privileges of a federally recognized tribe?
Mr. Simmons. No, I think they do deserve those rights. That
is why the recognition process is so important.
Mr. Shays. Right. Which is really the point that I would
love our guest and the First Selectman to address. What is your
concern about the recognition process in the BIA?
Mr. Simmons. Speaking for myself, I feel that the process
is not sufficiently open, accessible to interested parties,
such as municipalities or other groups. I feel that it is
subject to political influence. And I think that if we have
criteria for recognition, they should be uniformly engaged,
they should perhaps even be statutory, and that the BIA be
required to meet those criteria.
Speaking on behalf of some of the petitioning tribes, I
think the process takes far too long. We have petitioning
tribes that have begun as far back I think as 1988. It is not
fair to them. I think the GAO report pointed out that the
process, for whatever reason--and they give some reasons--is
broken and in need of fixing. And I think if you look at the
appendix of the GAO report and read Mr. McCaleb's comments, he
concurs in some of the recommendations of the GAO report, which
I find a very positive thing. The fundamental question is do we
fix it within Interior or do we create a new agency, which has
been recommended by some people? I tend to prefer to fix it
within the system.
Mr. Shays. Would your colleague like to respond? And the
question is, do you basically concur with Mr. Simmons in terms
of the areas where there are challenges in the BIA, or is there
any other suggestion that you would add in addition to what he
has suggested?
Mr. Mullane. I think there are a couple of areas, and I did
put them in the last part of the testimony. One part is the
submission of evidence. Basically the way the system works now,
the tribes or the groups get the opportunity to submit the
information at the end of the process. No one else is allowed
to comment. That is really inappropriate, because the
information on the petition should be made in a full and final
basis, the majority of the material should be available so
everybody can comment on it on an ongoing process and not have
at the end of the procedure volumes of documents submitted so
nobody else can comment or give the other side of that. That is
one of the areas. OK?
Mr. Shays. I see my time is running out. Let me just again
thank you, Mr. Chairman, for having this hearing. I know that
one of the things that our staffs do well and the work of our
committee is to recommend to the authorizing committees
changes, and to the administration ways that they can change in
terms of rules and regulations, and to the appropriators how
they can allocate resources. I would hope that this committee
would weigh in on suggesting to our appropriators they provide
more resources for the BIA, because I think it is a system that
is almost imploding, and the courts are then showing great
impatience, and then there is tremendous pressure on the BIA to
recognize without doing due diligence. I hope we can work
together on that as well.
Mr. Ose. Thank you, Mr. Shays.
Mr. Simmons, thank you for joining us today. Mr. Mayor,
appreciate it.
We are going to take a short break here. We have a vote on
the floor agreeing to a rule and we have 9 minutes and 27
seconds. We will be back shortly.
Mr. Simmons. I thank you, Mr. Chairman, very much.
Mr. Ose. We are going to go ahead and release this panel.
The second panel, if you would get yourself organized, when we
get back we will go forward.
[Recess.]
Mr. Ose. We are going to reconvene here.
I have to apologize. I made a mistake earlier in terms of
swearing in our non-member witnesses. I apologize to my
colleagues for that. It will not happen again.
First, I want to welcome Mr. Hill, Mr. McCaleb, Mr. Toulou
for joining us today. But in this committee we swear in our
witnesses if they are not Members of Congress. So if you would
all rise and raise your right hand.
[Witnesses sworn.]
Mr. Ose. Let the record show that the witnesses answered in
the affirmative.
Our first witness in the second panel is Barry Hill. He is
the director of the Natural Resources and Environment Division
of the General Accounting Office. Mr. Hill, if you could
provide us with 5 minutes maximum, we would appreciate a
summary.
STATEMENTS OF BARRY T. HILL, DIRECTOR, NATURAL RESOURCES AND
ENVIRONMENT DIVISION, GENERAL ACCOUNTING OFFICE; NEAL MCCALEB,
ASSISTANT SECRETARY FOR INDIAN AFFAIRS, DEPARTMENT OF THE
INTERIOR; AND TRACY TOULOU, DIRECTOR, OFFICE OF TRIBAL JUSTICE,
DEPARTMENT OF JUSTICE
Mr. Hill. Thank you, Mr. Chairman, and members of the
subcommittee. It is a pleasure for me to appear before this
subcommittee today and to have the opportunity to discuss our
work on the Bureau of Indian Affairs' process for recognizing
tribes.
In 1978, the BIA established a regulatory process intended
to provide a uniform and objective approach to recognizing
tribes. The process requires groups that are petitioning for
the recognition to submit evidence that they meet certain
criteria; basically that the group has continued to exist as a
political and social community descended from a historic tribe.
This past November we issued a report that evaluated BIA's
recognition process and, in summary, we found the following:
First, the basis for BIA's recognition decisions is not
always clear. While we found general agreement on the criteria
that groups must meet to be granted recognition, there is no
clear guidance that explains how to interpret key aspects of
the criteria. For example, recent controversy has centered on
the allowable gap in time for which there is little or no
evidence that a petitioner existed.
In writing its regulations, the BIA intentionally left this
point open to interpretation in order to accommodate the unique
characteristics and historical circumstances of each
petitioner. However, this strategy increases the risk that the
criteria may be applied inconsistently. To mitigate this risk,
BIA relies on precedents established in past decisions to
provide guidance in making new ones. While this appears to be a
reasonable approach, there are no guidelines on how and when
precedents should be used, and there is no provisions to make
this information available to the public.
Because recognition decisions will always rely on the
judgment of decisionmakers, clear and transparent explanations
of decisions are necessary to maintain confidence in the
objectivity of the recognition process.
Second, we also found that the length of time needed to
rule on petitions is substantial. Based on the historic rate at
which BIA has resolved petitions, it could take 15 years to
resolve all the petitions currently before BIA. This does not
include the petitions that are in the pipeline but not yet
ready to be evaluated. In contrast, the regulations outline a
process for evaluating a petition that should take about 2
years.
This situations is a result of an increased workload
coupled with limited resources and inefficient procedures. The
BIA recently received a large influx of completed petitions. In
a 5-year period during the mid-1990's, it received more than 40
percent of all the completed petitions it had received during
the 23 years the program has been operational.
Despite this increased workload, however, the staff
assigned to evaluate these petitions has dropped from its peak
of 17 in 1993 to an average of less than 11 staff over the last
5 years. That is a decrease of more than 35 percent. Moreover,
during this time, the BIA's staff responsible for evaluating
petitions was compelled to devote more and more of their time
to responding to Freedom of Information Act requests, appeals,
and lawsuits.
In conclusion, the BIA's recognition process was never
intended to be the only way groups could receive Federal
recognition. Nevertheless, it was intended to provide a clear,
uniform, and objective approach, and it is the only avenue to
Federal recognition that has established criteria and a public
process for determining whether groups meet those criteria.
However, weakness in the process have created uncertainty about
the basis for recognition decisions.
Without improvements, confidence in the recognition process
as an objective and an efficient approach could erode and
parties may look to the Congress and the courts to resolve
recognition issues. The end result could be that the resolution
of tribal recognition cases will have less to do with the
attributes and qualities of a group and more to do with the
resources that petitioners and third parties can marshal to
develop a successful political and legal strategy.
Mr. Chairman, this concludes my statement. I would be happy
to respond to any questions that you or other members of the
subcommittee may have.
[The prepared statement of Mr. Hill follows:]
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Mr. Ose. Thank you, Mr. Hill.
Our next witness is the Honorable Neal McCaleb, who is the
Assistant Secretary for Indian Affairs at the Department of the
Interior. Mr. Secretary, for 5 minutes, if you could summarize,
that would be great.
Mr. McCaleb. Good morning, Mr. Chairman, Congressman Shays.
Thank you very much for the opportunity and privilege of being
with you today and discussing this important process of Federal
recognition of Indian tribes.
As was stated earlier, the recognition process conducted by
the Bureau of Indian Affairs Branch of Acknowledgement and
Research is a very serious activity in that, once a petitioning
group is granted recognition, the tribe enjoys the unique
sovereign-to-sovereign status with the U.S. Government that
actually supersedes its relationship with State and local
governments, giving it a unique privilege and exemption from
certain State and local laws. It carries with it these
immunities and privileges. So, the Bureau of Indian Affairs and
the BAR have been deliberate in the process. We have developed
these seven criteria which, although subject to interpretation,
really do appear to me to be fairly objective.
In my confirmation hearings, this issue was raised in the
Senate about whether I thought it was appropriate to leave the
recognition process with the BAR. My response at the time,
having little knowledge of the process, but I still hold to
that, is that, as imperfect as it may have been, it occurs to
me that the personnel, the staff and the organization, plus the
backup of the legal counsel and the Solicitor's Office with
extensive experience and expertise in this area, probably ranks
it as the most qualified group on the horizon to conduct the
anthropological, genealogical, and historical research. The BAR
makes recommendations to the Assistant Secretary for Indian
Affairs, and that person renders a decision on the
appropriateness in his judgment of the recognition process.
The GAO audit, as just indicated, raised the issues of the
predictability and the timeliness of the recognition process.
The predictability is one that we have discussed at great
length. Any judgmental process is subject to criticism in this
highly controversial area. This has been made clear. The gaming
aspects that have influenced this have made it a very, very
controversial issue.
We have responded to the GAO's recommendations and we have
indicated that we are going to do three things: To provide a
clear understanding of the basis used in the recognition
process. In other words, make it more transparent for all. This
has been suggested in the GAO report; to develop a strategy
that identifies how to improve our responsiveness to the
petitioners and the people that are interested in the petition;
and third, to establish a new program of how to improve
performance under the Government Performance and Results Act.
We expect to have these recommendations ready by the middle
of April of this year, and to provide a strategic plan.
As indicated, there are a lot of petitions on the desk.
There are 171 groups who have filed letters of intent. We
actually have 14 petitions that are active, and 9 others that
are ready for active consideration. There is a considerable
backlog of work. We do need additional personnel. It is not
just a matter of funding. We have vacancies within the BAR that
we have not filled that we have not been able to attract
personnel to, for the salaried levels which we offer. It is not
just somebody off the street that we want to train, but the
credentials for these professionals are extremely important and
they are high credentials.
I think I will conclude my summary, Mr. Chairman, and
answer any questions that you might have of me.
[The prepared statement of Mr. McCaleb follows:]
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Mr. Ose. Thank you, Mr. Secretary. We appreciate your being
here and spending time with us.
Our third witness today is the director of Office of tribal
Justice, Mr. Tracy Toulou. We appreciate your coming out and
visiting with us. If you could summarize in about 5 minutes,
that would be great.
Mr. Toulou. Good morning, Mr. Chairman, members of the
committee. My name is Tracy Toulou and I am the Director of the
Office of Tribal Justice in the U.S. Department of Justice.
Thank you for the opportunity to appear before you today to
testify on the basic principles of Indian tribal sovereignty
and Indian law as they relate to the issue of the
acknowledgement of Indian tribes by the Federal Government.
The overarching principle of Indian tribal sovereignty is
that Indian tribes pre-existed the Federal Union and draw their
powers from their original status as sovereigns before the
European arrival. Indian tribal sovereignty is a retained
sovereignty, and it includes all the powers of a sovereign that
have not been divested by Congress or by the tribes'
incorporation into the Federal Union. As a result, tribal
sovereignty is conferred upon the tribes through Federal
recognition. Rather, Federal recognition is a process by which
the Federal Government acknowledges that particular Indian
entities retain their sovereign status.
Indian tribal sovereignty, like sovereignty in general, has
two main components--an external one and an internal one. The
external component of Indian tribal sovereignty relates to the
ability of a sovereign entity to engage in relationships as a
government with other entities. Indeed, the U.S. Constitution
contemplates that Indian tribes will engage in government-to-
government relations with the United States as evidenced
through the Treatymaking and Indian Commerce Clauses of the
Constitution. Thus, one feature of Indian tribal sovereignty is
that all tribes will relate to the United States as sovereign
governments. For the Federal Government's part, recognition of
an Indian tribe represents a determination that this type of
bilateral relationship should exist between the Federal
Government and a tribe.
The internal component of tribal sovereignty relates to the
tribes' power and relation to their members and territory. As a
matter of Federal law, Indian tribes have been deemed ``unique
aggregations possessing attributes of sovereignty over both
their members and their territory.''
I want to talk for a moment about the Federal
acknowledgement process. Inherent in the Treatymaking and
Commerce Clause powers is the authority of the Federal
Government to determine which entities government-to-government
relations will exist. Courts have recognized that both
political branches of the Federal Government have authority to
make these determinations.
For its part, Congress has the authority to determine
appropriate subjects of the Indian Commerce Clause and
Treatymaking powers. Courts give Congress broad deference in
making these determinations, subject only to the requirement
that they apply to distinctly Indian communities. It is worth
noting that while the Supreme Court has expressly stated its
ability to determine whether Congress has over-stepped this
bound, no court has ever overturned a congressional
determination that an entity has tribal status.
As with congressional power to recognize tribes, the
Supreme Court has stated that the Executive power to determine
tribal status is entitled to deference. The Secretary of the
Department of the Interior has, by regulation, set forth
criteria that are aimed at identifying groups that are
sovereign tribes. The regulatory criteria include factors which
determine which entity is in fact sovereign. While the
Executive power to determine tribal status is presumably
subject to at last the same constitutional limits that are
imposed on Congress, we are not aware of any court decision
overturning a determination by the Secretary that a group
should be recognized as a tribe.
Now I would like to turn to the effects of Federal
recognition. When Interior makes a final determination to
acknowledge an entity as a federally recognized Indian tribe,
certain consequences follow. First, the tribe may exercise
sovereign powers as a matter of Federal law. Second, the tribe
has the same status as other federally recognized tribes unless
limited by Federal law and becomes eligible to enter into
bilateral government-to-government relations with the United
States.
Briefly, turning to those sovereign powers, a federally
acknowledged tribe has sovereign immunity, may exercise
jurisdiction over its territories and establish tribal courts,
may assert jurisdiction over Indians who commit criminal
offenses in Indian Country, and may otherwise exercise their
sovereign authority except as limited by Federal law.
Next, the relationship with the Federal Government. Federal
acknowledgement entails the existence of a trust relation
between the United States and the tribes. Congress has itself
declared that the trust responsibility includes protection of
the sovereignty of each tribal government. The United States
provides assistance to the tribes and their members in a
variety of forms. In many cases, the United States provides
direct service to the Indian tribes and their members. In
others, the United States provides assistance through grants
and other funding mechanisms. Like nearly every Federal agency,
Department of Justice participates in this relationship.
With respect to direct services, the Department of Justice
investigates and prosecutes serious crimes in most areas of
Indian Country. The Department also provides grants and other
assistance to tribal law enforcement agencies and tribal
justice systems. Additionally, the Department protects tribal
sovereignty in the courts and does so in litigation by
representing the Federal Government in suits and as amicus
curiae in cases involving tribal regulatory, adjudicatory, and
tax jurisdiction, and that includes a tribe's sovereignty to
exercise jurisdiction in domestic relations cases involving
tribal members.
In closing, the Department supports the tribal sovereignty
and is committed to working with federally acknowledged tribes
on a government-to-government basis. Again, I thank you for the
opportunity to testify today. I would welcome any questions.
[The prepared statement of Mr. Toulou follows:]
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Mr. Ose. Thank you for joining us this morning.
We are going to go to questions. I know that some of the
members have competing commitments. Mr. Shays, for 5 minutes.
Mr. Shays. Thank you. Mr. McCaleb, in February 2000, your
predecessor, Kevin Gover, unilaterally issued a directive that
made significant changes in the acknowledgement process. It is
my understanding this directive affected the rights of
petitioners and interested parties but no notice was given and
no public comment was requested. By terminating the right of
interested parties to comment prior to a proposed
acknowledgement finding once the petitioner goes under active
review, BIA is ultimately limited to independent research
ultimately favoring petitioners with financial backing. Are you
anticipating this directive to be withdrawn or for a public
review process to take place?
Mr. McCaleb. There has been no discussion about withdrawing
that directive. I am certainly open to the review of the
content of that directive.
Mr. Shays. Is it the practice of your department to issue
directives without allowing for public comment?
Mr. McCaleb. No, it is not.
Mr. Shays. OK. It may be a good directive, it may not be,
but it would seem to me that you would want to have public
comment on it and review. So I would request that you at least
look at that issue, if you would.
Mr. McCaleb. So noted.
Mr. Shays. During the Clinton administration, an Executive
Order was issued to recognize the Duamish Indian tribe in the
State of Washington--I hope I am pronouncing that right, D-U-W-
A-M-I-S-H.
Mr. McCaleb. Duwamish.
Mr. Shays. Duwamish tribe had made an application for
recognition and followed all standard procedures. Shortly after
the Bush administration came to power, a second Executive Order
was issued rescinding recognition. Can you explain to me the
factors that led to the decision to rescind the recognition
order? On what grounds was the application for recognition
denied, and what new evidence has come to light since the
Clinton administration decision?
Mr. McCaleb. The decision was a preliminary decision, I
believe. On the review of the Bureau of Acknowledgement and
Research, the case they made, I think there were three specific
criteria which the tribe did not meet. And on that basis, I
rendered the decision to----
Mr. Shays. Were there a number of Executive Orders issued
like this one? Was this the only one, or were there others as
well for recognition?
Mr. McCaleb. I think there may have been two others issued
that have been subsequently dealt with by this administration.
Mr. Shays. In the budget that the President has submitted
to Congress, have you asked for more personnel?
Mr. McCaleb. In this budget we have not asked for more
personnel.
Mr. Shays. Did you make a request for more personnel?
Mr. McCaleb. I did not.
Mr. Shays. Tell me why.
Mr. McCaleb. It is a matter of priorities, Congressman. We
have a very limited budget that has to extend and provide
things, including education, law enforcement, welfare to
individuals who are in need of that, and a variety of other
services that we are currently inadequately supplying. It has
been estimated by the tribal leadership, the tribal budget
advisory board that our total budget right now is something
less than a third of what the needs are. And it is just a
matter of prioritization for us at this point. Plus, we have
not been able to fill the vacancies that we have.
Mr. Shays. Why is that?
Mr. McCaleb. Because we have not had qualified respondents.
Mr. Shays. Are you paying the amount of money that you need
to be paying?
Mr. McCaleb. Well, apparently not, Congressman. But we are
paying what is allowable for us, the maximum allowable for us
to pay under the provisions of the Office of Personnel
Management.
Mr. Shays. I guess, though, that you let them off the hook,
because if you do not tell them that you cannot fill these
positions and they do not know why you cannot fill these
positions, they are not going to be able to make the kind of
decisions they need to make.
Mr. McCaleb. Well, we are still trying to fill the
positions, and we have some interested applicants now for two
of the vacancies.
Mr. Shays. What concerns me is that you are basically
making decisions to make--well, I can only relate it to my
State because that is what I know. These are billion dollar
operations profit. Recognition makes some not a millionaire,
but makes them billionaires over time. And so they have
tremendous incentive to use all the resources necessary to win
approval and to hire the best and the brightest. And it would
seem to me like a no-brainer for the administration to want to
have some of the best and brightest be able to respond. And you
do have some of the best and the brightest but you do not have
enough of them.
Mr. McCaleb. That is correct.
Mr. Shays. And what you just said, ``that is correct,'' to
me is almost astounding that you would not say that we need
more people to do the job. Now, if you were a supervisor, who
would you present your budget to?
Mr. McCaleb. The Office of Management and Budget.
Mr. Shays. No. Does your budget go to the Secretary or does
it----
Mr. McCaleb. It goes to the Assistant Secretary for Policy
Management and Budget within the Department of the Interior.
Mr. Shays. But what you are saying to me is that you have
not asked the Assistant Secretary within the Department of the
Interior for the people necessary to do the job. So how does
that person know you need those people?
Mr. McCaleb. She would not unless I made the request.
Mr. Shays. And so you told us you need it, and you told us
you did not make the request because there were other things
that had priorities. But I think you would at least put them on
notice. This is going to blow up in your face.
Mr. McCaleb. One of the responsibilities that I have is to
allocate the probable anticipated resources that we are going
to receive and prioritize how that money is going to be
utilized.
Mr. Shays. See, I think that is a different issue. I think
the issue is that you need to make the request necessary and
then if you fail to get what you need, then you allocate what
you are given.
Mr. McCaleb. Congressman, I do not intend to be
argumentative, but I can make that same case.
Mr. Shays. I do not mind arguing. I think it is a losing
argument.
Mr. McCaleb. I could make that same case, that same
rationale for any one of a dozen areas that affect the safety,
health, and welfare of Indian people.
Mr. Shays. Are you meaning to tell me that in the safety,
health, and welfare that you need more people?
Mr. McCaleb. Yes.
Mr. Shays. Well then you need to make that request. This is
like basic. This is like really basic. If the person in the
know does not make the request, then what is the point of our
going to the appropriators to say you need the money? How do
they know if you have not even made the request?
Mr. McCaleb. We have made requests that are substantially
higher than the amount of money that was approved by the Office
of Management and Budget.
Mr. Shays. OK. Let me back up a second, and I will not
dwell too much longer on this. I had a lot of other questions I
wanted to ask, but this is kind of to me like basic 101
Management. You have a moral obligation to do your job. We have
a moral obligation to do our job. It strikes me that one of
your moral obligations is to make an argument to the people
that work in your Department that you do not have the people
necessary to do the job. Do you have the people necessary to do
the job in a timely fashion on recognition?
Mr. McCaleb. In consideration of the backlog, no, we do
not.
Mr. Shays. Absolutely not. So it strikes me that you need
to make that case. Then if someone else along the way says, you
know what, you have given us a lot of priorities, I know you
are asking for a lot, I understand why you are asking for all
of this, but we simply cannot afford it. That is their
decision. And then you make the best of what you have got of a
pretty bad decision. But you have taken everyone else off the
hook, including Congress, including us, because we can
basically say the people running the Department did not ask for
the money.
My time has passed. I will just come back.
Mr. Ose. We will have a second round if the Members choose.
Mr. Cannon.
Mr. Cannon. Thank you, Mr. Chairman. I have only a minor
disagreement with my colleague. I do not think Congress so much
is on the hook as the American people on these kinds of issues.
That is why the budgeting process is so significant.
I know, Mr. McCaleb, that you are aware of the tribe or a
situation in southern California which involves a health clinic
which was taken into trust for seven tribes but which was
titled only to one tribe, that was the Cuyuah tribe. And now
that tribe intends to build a casino on the property, and that
despite the objections of the other tribes that were involved
that do not have title to that property and also all the local
congressional delegation, in fact. Duncan Hunter, who is our
colleague here, introduced a bill to prevent that transition in
use from happening last year and the bill passed the House
unanimously. Now I understand that your agency may be getting
ready to approve the change in the land use despite all this
opposition. That is not exactly the issue we are dealing with
today, but I think it is related and speaks to many of the same
points.
As you know, I think, Mr. McCaleb, I am not a fan of Indian
gaming, which is about a $12 billion a year industry, and that
is why some of these questions are so intense, but I do support
the idea, as you know, of tribal sovereignty. As a member of
the Resources Committee, I deal with these issues more than I
think most Members in Congress. But when abuses like this one
that I have just described happen, it makes it harder for those
of us who set aside our distaste for gambling in the name of
tribal sovereignty to continue. In this case, it seems to me
that a tribe is taking advantage of what amounts to an
administrative convenience to build a casino. It is on land
that is 40 miles from the reservation and on land that was
never intended for anything other than a health clinic.
Congressional support of tribal sovereignty is a tenuous
thing. I would like to continue personally my support for it,
but I am sure you can see how abuses like this make it harder
for us to accept and defend the idea. I hope in this specific
instance, and in any similar instance in the future, your
agency will exercise restraint and discretion. To do otherwise
may, I think, undermine congressional support for the whole
entire idea of sovereignty.
What is the current thinking on that little piece of
property?
Mr. McCaleb. Congressman, as I understand it, there is
considerable dissention within the seven tribes about the
conversion of the use of the land from a clinic facility to a
gaming facility. However, the issue before us is not the change
in land use of that particular property; they have the
authority to do it, as I understand it. What they have done,
the tribe that is promoting the gaming facility wants to build
a substitute clinic on an alternative site which they have
bought in fee-simple and want us to take into trust. That is
the issue that is really before us.
Mr. Cannon. I recognize the importance of that issue and
hope you will be thoughtful in the process.
If I could move to another question that I think
Congressman Otter was going to address, and I do not know that
one as well, but apparently you have an issue regarding
contacts by Park Place with the White House. Apparently, in
June 2000, the CEO and general counsel of Park Place held a 1-
hour private meeting with Vice President Gore at the Pierre
Hotel. Are you familiar with this issue?
Mr. McCaleb. I am not familiar with those circumstances,
no, sir.
Mr. Cannon. This is the issue of the Mohawk tribal----
Mr. McCaleb. I am familiar with the St. Regis Mohawk
controversy involving Park Place, yes.
Mr. Cannon. Are you familiar with the article in the Boston
Globe on October 30, 2001, that lays out a history of what they
call improper contacts?
Mr. McCaleb. No, sir. I have not read that.
Mr. Cannon. I will make that part of the record and get
that to you.
Mr. Ose. Without objection.
Mr. Cannon. Thank you, Mr. Chairman.
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Mr. Cannon. Would you please enumerate, and I suspect you
cannot do that here, but you would look for and communicate
back to the committee all the communications between the BIA
and the White House, the Democratic National Committee, the
Democratic Senatorial Committee, or the DCCC, the Congressional
Committee, relating to the dismissal of the Ransom v. Babbitt
appeal or issuance of the Anderson letter?
Mr. McCaleb. Yes, sir, as directed.
Mr. Cannon. And would you also consider whether the content
of the Anderson letter was subjected to the review practices
and procedures of the BIA? What is the legal status of the
Anderson letter at this time, do you happen to know?
Mr. McCaleb. No, sir, I do not.
Mr. Cannon. OK. And then finally, if you could----
Mr. McCaleb. I am advised that there is extensive
litigation on this issue.
Mr. Cannon. Yes, there has been a great deal. Although I am
not so much interested in litigation as in the BIA's practices,
and not your practices under your direction, but its historic
practices.
Mr. McCaleb. I understand.
Mr. Cannon. And finally, does the BIA recognize the Mohawk
tribal court created under the Judiciary Act of 1994 by the
former three chief government? That may not be a question that
you can answer here either. But if you would take a look at
that, I would appreciate it.
Mr. McCaleb. I would rather respond to that question in
writing.
Mr. Cannon. OK. Thank you. I will get with Mr. Calvert and
make sure he has copies of these questions. And we will make a
copy of this article available for the record and get a copy of
that article to Mr. Calvert also.
Mr. McCaleb. Very well.
Mr. Cannon. Thank you, Mr. McCaleb. I appreciate your
attention. You have got a very difficult job where lots of
money is pushing lots of different ways and you have got the
interests of real human beings who suffer or not depending upon
decisions that you make. I do not begrudge you that job. I wish
you the best and hope you feel our support here in difficult
circumstances.
Mr. McCaleb. Thank you, sir.
Mr. Cannon. Thank you, Mr. Chairman. I yield back.
Mr. Ose. Thank you, Mr. Cannon.
I want to ask a few more questions that are more basic to
this issue. Mr. Toulou, I have looked at the statute conferring
the tribal recognition process on the Assistant Secretary, or
at least on the BIA, and I am still confused. What is the
statutory basis on which Congress has conferred this authority
to some other party?
Mr. Toulou. I think the statutory basis would be 25 USC 2
and 9. And in shorthand, 25 USC conveys upon the Assistant
Secretary the management of Indian affairs, and 25 USC 9, if I
am not incorrect, would allow him to promulgate regulations in
furtherance of that responsibility. There are a large number of
statutes and regulations that require there be recognized
tribes to carry out the duties, provide resources and services
to the tribes. And so I think as a necessary reaction to those
statutory provisions, 2 and 9 allows the Secretary to
promulgate the regulations.
Mr. Ose. The reason I asked the question is in your
testimony you cited a 1994 law passed by Congress to have the
Secretary of the Interior publish a list of federally
recognized tribes. But the BIA's regulations were promulgated
in 1978. I am trying to figure out how the 1994 List Act gives
the authority to the Secretary.
Mr. Toulou. I do not think the 1994 List Act does give the
authority. It provides weight to that authority. But that
authority obviously pre-exists and I think it pre-exists the
regulations that were promulgated in 1978. It is just at that
point in time the Department took it upon themselves to
regularize and codify those procedures.
Mr. Ose. So it is not the List Act that you are relying on?
Mr. Toulou. No. And if you would like, we certainly can
provide more in-depth analysis in writing.
Mr. Ose. So you are saying that it is not a separate
constitutional power vested in the administration to recognize
these tribes; it is a statutory power given to them by
Congress.
Mr. Toulou. Certainly, the power is delegated by Congress.
Mr. Chairman, I would appreciate the opportunity to respond to
this more fully.
Mr. Ose. All right. You can understand I am trying to get
to the heart of----
Mr. Toulou. I do understand. I think there is definitely
the delegation to do that. But let me respond more fully in
writing.
Mr. Ose. All right. Mr. McCaleb, there is a statement in
your testimony, ``The existing criteria should not be diluted
in an attempt to quicken the pace of the process,'' meaning the
recognition process.
Mr. McCaleb. Correct.
Mr. Ose. What do you mean when you say ``diluted''?
Mr. McCaleb. I do not think we should eliminate any of the
seven mandatory criteria that are currently in place because
they have been applied for some time and that is the basis on
which tribes have been recognized. I think that they are
objective criteria that can be fairly interpreted.
Mr. Ose. Do all of the criteria have to be met in the
judgment of the administration, or a preponderance of them?
Mr. McCaleb. All of them.
Mr. Ose. All of them.
Mr. McCaleb. All seven.
Mr. Ose. Now has that been the history of this since 1978
that all of them have to be met?
Mr. McCaleb. I do not know about since 1978, but in the
last decade.
Mr. Ose. The reason I asked that question is I read the
same articles in part cited by Mr. Cannon, and it appeared to
me that in some instances the Assistant Secretary in the
previous administration had waived certain requirements. Is
that accurate?
Mr. McCaleb. That is accurate. The Assistant Secretary has
waived in the past some of these requirements. That has not
been the case in this administration.
Mr. Ose. It would seem to me that, in effect, would be a
new rule then in terms of tradition and practice, if not case
law or standing, that instead of having to meet all of the
criteria, you only had to meet a set number of them. Has the
BIA looked at that in terms of complying with the due process
requirements when you change a rule?
Mr. McCaleb. Not to my knowledge.
Mr. Ose. I see my time has expired. We are joined by Mr.
Duncan of Tennessee. Would you care to take a moment? No? Mr.
Shays.
Mr. Shays. Thank you. Mr. McCaleb, I would like to just
kind of conclude my concern and have you tell me if it is off-
base and then what the solution is. And I state up front, I
think you are running a Department that is woefully underfunded
in so many different ways and I think you could almost fund any
part of it more and deservedly so. So we are not going to have
a debate about that. But I am going to just take one part, and
that is the recognition part.
My understanding is there are about 550 recognized tribes
in the United States right now, some really big ones and
obviously some very small ones. And it is my understanding that
there are over 200 groups in various stages of application
within the BIA.
Mr. McCaleb. There are 171 petitions, I think.
Mr. Shays. OK, 171. How many of those are at a point where
you can review their application?
Mr. McCaleb. There are 23.
Mr. Shays. Twenty-three that are kind of active.
Mr. McCaleb. Yes.
Mr. Shays. OK. And of those 23, how long does it take and
how many people have to get involved in reviewing this
application? This is obviously not a 4-month process. It takes
a year of totally dedicated time on the part of staff, or what?
Mr. McCaleb. Well it takes about 2 years under optimum
circumstances to process an application, and that means to
gather the necessary evidence if that information is fairly
available.
Mr. Shays. And how many people have to devote their time
during that 2 years?
Mr. McCaleb. We have two teams of three members and then we
have some administrative staff.
Mr. Shays. So you have two teams. And how many reviews can
a team do in the course of a year?
Mr. McCaleb. It depends upon the application. The history
has been somewhere between three and four are completed,
because they are working on some of them concurrently.
Mr. Shays. Right. So, basically, each team can make a
decision on about three a year.
Mr. McCaleb. No. I probably misstated that.
Mr. Shays. I do not mind if you want to consult someone,
because I realize there may be someone who would have more.
Take your time.
Mr. McCaleb. Mr. Fleming corrected me. He said one team
will get about one decision a year, or the two teams we have
will get two decisions per year.
Mr. Shays. How many new cases will be ready for disposition
in the course of a year? You have lots of applications. How
many more will be ready to go in the next year?
Mr. McCaleb. Is the question over and above the 23, how
many we anticipate?
Mr. Shays. Exactly. We are going to dispose of two, but how
many more will be put in the in box?
Mr. McCaleb. Mr. Fleming advises me that for the last year
we have not had any petitioning group complete their
applications.
Mr. Shays. How many are waiting for completion?
Mr. McCaleb. There are 23.
Mr. Shays. No. There are 23 that are waiting for
disposition.
Mr. McCaleb. Yes.
Mr. Shays. How many are in the process looking to----
Mr. McCaleb. We have 171, but maybe all they have done is
sent a letter in that says, ``We think we are a tribe.''
Mr. Shays. No. I do not want that answer because that is
not accurate. Not all 171 have sent in a letter. You have some
that have been there for years with work in process, with
folders that would fill cabinets.
Mr. McCaleb. There are 65 partially documented.
Mr. Shays. So it is very likely that you are going to get
at least two more in the next year. So we are going to lose
ground, not gain ground, correct? That is pretty clear. People
are nodding their head behind you. We are going to lose ground,
not gain ground.
Mr. McCaleb. I think that is a reasonable assumption, yes.
Mr. Shays. Now the problem I have is you have well-paid
attorneys backing up these applications who are going to court
and they are making the argument before the court that your
agency is not properly disposing of these cases and denying
them their rights. And you have got a lot of inpatient judges.
For instance, in Connecticut we have the Golden Hill Paugusetts
that have laid claim on practically half my district, the
district I represent, and we have a judge who is beginning to
believe that he may have to take unilateral action because the
Bureau is not doing its job. What is the solution in a case
like that?
Mr. McCaleb. We will have to have additional personnel in
order to dispose of these cases that are pending more rapidly.
Mr. Shays. I would like to make this request if I could
through you, Mr. Chairman. I would like to know specifically
how many cases are active; how many cases are potential--you
have answered them but I would like it in writing; how many
more we think will be added in the next few years and what we
think the gain or loss in terms of cases will be; and how long
it will take to do the potential number that exist out there.
We have had others who have expressed those opinions. I would
like to know what you all feel. And then I want to know what
the Department intends to do about it. And it cannot be that we
are not going to do anything.
Mr. McCaleb. We will respond to that question in writing,
Congressman.
Mr. Shays. All right. In my next round I would love to ask
the other two witnesses to comment on these questions. Thank
you.
Mr. Ose. Thank you, Mr. Shays. Mr. Duncan.
Mr. Duncan. Thank you, Mr. Chairman. Mr. Shays has asked a
lot of the questions that I was going to ask. But what I am
wondering about is are you going to try to speed up this
process any or is there any plan? I am not saying speed up
approval. Sometimes some of these groups maybe should be turned
down. But we have seen over the past several years a judge with
one law clerk can look at this material and make decisions
within weeks or months. And you have got all these bureaucrats
down there working on this, supposedly, and they cannot make a
decision in years. Something is wrong. Something is wrong with
that.
So it looks to me like this whole process needs to be
speeded up, and it could be. I bet if you were being paid like
real estate agents and you would not be paid unless you made a
sale, if you were being paid on the basis of getting this work
done, these approvals and disapprovals would be coming out
very, very quickly and they would not be sitting around for
years.
Mr. Ose. Would the gentleman yield on that?
Mr. Duncan. Yes.
Mr. Ose. I do not think we want to pay on a commission
basis here. [Laughter.]
Mr. Duncan. Well, I am just saying that if they were being
paid on the amount of work that was being produced, these files
would not be sitting around all this time. I think you should
be very embarrassed to be up here and tell us. I am not saying
all of these should be approved. People can rationalize or
justify anything and if you do not have enough work, maybe that
is the problem, maybe there is not enough work and so you are
trying to drag out the work that you have. I have a hard time
understanding when I am told that you have got some of these
applications that have been sitting around for years and then
you tell Congressman Shays, the impression I get, that you do
not have any intention or plan to speed up this process at all.
I think it is ridiculous.
Mr. McCaleb. No, I did not mean to convey that. In fact, I
said we would have a strategic plan by the middle of April that
defines what the need is for total human resources and
financial resources in order to expedite the plan.
Mr. Duncan. I see that there are 559 tribes. It seems to me
like there are almost more tribes now than there were when we
just had Native Americans here in this country. I guess some of
these people would not even be applying if there were not a
financial incentive to do so. But I am wondering, I see where a
couple of the tribes are huge but then there is one tribe that
is as small as like one family. Do you ever have any of these
tribes that are de-listed or de-certified or that go out of
existence?
Mr. McCaleb. Yes. That has happened in the past. In fact,
about 1978 I think is when the first list of federally
recognized tribes was published and there were some tribes that
were not listed at that point and have since made application
to be acknowledged as a tribe. There were 220-odd tribes
recognized at one time when the Alaskan villages were all
federally recognized as tribes in the earlier part of the last
decade.
Mr. Duncan. All right. Well we have got a couple of votes
going on. Thank you, Mr. Chairman.
Mr. Ose. Thank you, Mr. Duncan.
We do have two votes that are scheduled. We have got 7
minutes left on this vote. One is for passage and I do not know
what the other one is. We are going to recess and come back. I
do not know what the status on the second vote is. Typically,
it is a 5-minute vote. So this might be 10, 15 minutes. I have
some questions also. So we are going to go ahead and recess.
Appreciate your patience.
[Recess.]
Mr. Ose. We are going to reconvene here.
I have a number of questions here. I want to start with Mr.
Hill. Mr. Hill, the same question I put to Mr. Toulou having to
do with the manner in which these recognitions transpire in
terms of the seven criteria. If the practice is that the
applicant tribe has to meet the seven criteria and then the
process changes so that you no longer have to meet the seven
criteria but some can be waived, is that in effect a rule that
has to go through due process?
Mr. Hill. Well, the process calls for meeting all seven
criteria. Under the current process, the Assistant Secretary
has the discretion of granting recognition even if the criteria
are not met. That is just the way this process has been set up
and has been carried out.
Mr. Ose. In effect, we have set up a system then that
allows significant variability in how this or that band or
tribe or group might seek recognition; is that what you are
saying?
Mr. Hill. There appears to be variability not only outside
the process, but even within the process there has been what
appear to be a number of inconsistencies in terms of whether
criteria have been met or not. Some of these criteria are very
difficult to document and provide evidence over the many years
that they have to basically show proof or evidence that they
have met these criteria.
Mr. Ose. Well, as you might imagine, my concern is that the
process not be arbitrary or capricious. Yet what you are
describing for me is a system that offers ample opportunity,
absent someone of extremely high moral standards, for an
arbitrary or capricious decision. Am I missing something here?
Mr. Hill. I do not think you could ever devise a process
that is going to be black or white, yes or no. There is a lot
of judgment that has to be rendered on these petitions
individually. And here again, most of the controversy, most of
the concern focuses on is there sufficient evidence to
demonstrate that the criteria has been met? In most of the
cases the key factor here is proving or demonstrating continued
existence over this entire period of time.
There has been a recent case where there was a gap in terms
of the petitioner being able to prove existence over a 70 year
period. When things like this occur, the BAR staff say they
rely on precedence, they look back at precedence to determine
whether or not prior decisions have rendered the recognition or
not rendered it. In this particular case, the BAR felt that
with this 70 year period, they proposed that the tribe not be
recognized. The Assistant Secretary looked at the same evidence
and basically concluded that there was sufficient evidence in
his mind that the criteria had been met and he basically
proposed that the recognition be given to the tribe. So there
are a lot of judgments that are being exercised here.
Mr. Ose. So we had a factual, presumably factual,
conclusion on staff's part that one of the seven criteria had
not been met, and then we had an over-rule as to whether or not
that was an acceptable piece to this application?
Mr. Hill. That is correct. And the difference of opinion,
if I could expand----
Mr. Ose. But before you leave that point----
Mr. Hill. Sure.
Mr. Ose. I am looking at a list of the criteria for tribal
recognition, the seven items. And what you are suggesting is
that some are more important than the others. But I do not see
any delineation of priority within statute or regulation.
Mr. Hill. No. I did not say some are more important than
others. All of them under the process need to be met. But there
are a few of the criteria that it is just very difficult to
demonstrate that the criteria has been met. And it all deals
with the sufficiency of evidence.
Mr. Ose. Right. My time has expired. I am going to go to
Mr. Shays for 5 minutes.
Mr. Shays. Thank you, Mr. Chairman. Mr. Hill, let me
continue with you or Mr. Toulou, either one of you. I would
like you to respond to the questions that I was asking Mr.
McCaleb. I would like to know your sense of what you are
hearing and what it means.
Mr. Hill. I am sorry, could you repeat the question.
Mr. Shays. Sure. I asked Mr. McCaleb a number of questions.
You were sitting right next to him. I want to know, you were
hearing these answers, you are head of the GAO, I want to know
what that told you. What did you learn from the discussion that
we had?
Mr. Hill. Well, if I may go first, I think Mr. McCaleb
realizes he has got a problem here in terms of being able to
effectively and efficiently implement this process. We are
encouraged that he agreed with the findings we had in our
report, which basically indicated that these problems focused
on the need for guidance or guidelines to interpret various
aspects of the criteria, as well as providing sufficient
resources so that they can process these petitions more
efficiently and effectively.
Mr. Shays. Speak to the last one. How will he have more
resources if he does not ask for them?
Mr. Hill. Well, I would defer to Mr. McCaleb on that. I am
encouraged from the standpoint----
Mr. Shays. No. No. I am sorry, that is just not going to
hold. You have made a report about the Bureau of Indian Affairs
and they commented on it, and your answer to me was really what
he said to you in your report. Is it not meaningless to say
they agree with the report if they are not going to ask for the
people necessary to do the job? Does it not make it almost
absurd? Can he do the job without the people?
Mr. Hill. He cannot do the job any better than they are
doing it now unless there are more people added. That is right.
Mr. Shays. Right. Are things getting better or are they
getting worse?
Mr. Hill. Things are getting worse.
Mr. Shays. OK. So it is really bad now and things are
getting worse.
Mr. Hill. Correct.
Mr. Shays. And you have told me he agrees with your report.
And you have just heard him say basically under oath that he
did not request--it is not necessary it was under oath, that is
disingenuous, I apologize--but you basically heard him respond
to our questioning that basically said that he has other
priorities and that he did not request any more personnel. How
will he get the job done if he does not have more personnel?
Mr. Hill. He will have a difficult time getting the job
done better. There are things that could be done to improve the
efficiency, but he will need more resources. But with that
said, I must defer from the standpoint we did not do an audit
of the prioritization of resources for the entire BIA. Mr.
McCaleb is dealing with a lot of significant Indian issues
right now. I am encouraged by the fact----
Mr. Shays. How is that relevant to what we are talking
about? Asking for something does not mean you get it. But how
does his superior know you need it if you do not ask for it?
Mr. Hill. I would agree with you there. Hopefully, in the
plan that they are coming out with in April, our understanding
is that will be covered in this plan and they will identify
what the resource needs are.
Mr. Shays. Let me ask you something. Based on your report,
which they agreed with, did they have to wait till April to
know they need more people?
Mr. Hill. No. They should have known that.
Mr. Shays. OK. And they in fact do know it. So there is
nothing that prevented them from asking for more people. Now I
might have to go up the chain of command to find out where it
stopped, and, in the end, I might have to come up to the chain
of command where it stopped in Congress because the
administration did their job and asked for the resources
necessary and Congress did not do its job in giving the
resources it needs. But right now, if the person in charge is
going not to ask for it, we are going to have a big problem.
So, the bottom line to your testimony is that you believe they
need more people. Correct?
Mr. Hill. That is correct.
Mr. Shays. OK. And without more people, things will get
worse rather than better as it relates to the recognition
process and the ability to bring down the numbers?
Mr. Hill. Yes. That is correct.
Mr. Shays. Mr. Toulou, I am getting you a little out of
your territory here and you are another department, so I am not
going to ask you quite the same question. You do not have
oversight of this office, is that correct?
Mr. Toulou. That is correct.
Mr. Shays. Tell me what your role is in terms of oversight.
Basically, it is only those Indian tribes that are federally
recognized?
Mr. Toulou. That is correct.
Mr. Shays. Right. So all the applicants you basically have
no contact with, right?
Mr. Toulou. They might at one time. I have not had any
contact with them.
Mr. Shays. No. I understand. OK.
Mr. Toulou. Generally, no. Generally, our relationship is
with federally recognized tribes pursuant to the government to
government relationship.
Mr. Shays. Mr. McCaleb, what are we going to expect when
you do this report that is coming out in April? Is this going
to be a strategic plan for your entire office?
Mr. McCaleb. No. It is the strategic plan as it relates to
the Branch of Acknowledgement and Research.
Mr. Shays. So it is just the recognition side?
Mr. McCaleb. Yes. It deals directly with the content of the
GAO report.
Mr. Shays. OK. I want to compliment you for the fact that
you have come into a traumatized agency and I understand that
you have had to look at a lot of decisions that were made by
the previous administration. What are you doing to ensure that
the political process of who gave what contribution to whom
will have no impact on the recognition process?
Mr. McCaleb. First of all, I have tried to insulate myself
from that information so that there can be no question about
whether or not my office is influenced. If you do not know,
then you obviously cannot be influenced.
Mr. Shays. Good enough.
Mr. McCaleb. But much greater than that, I think we are
developing a pretty high standard of objective evaluation of
these criteria and are trying to adhere to that. I am
personally not becoming involved with the petitioners so that I
do not unduly have myself influenced or prejudiced before I get
the report from the Branch of Acknowledgment and Research.
Mr. Shays. Mr. Chairman, my time has expired. I just have
one 5 minute more segment. Should I----
Mr. Ose. That will be fine. We will come around again.
Mr. Shays. OK. Good.
Mr. Ose. Thank you, Mr. Shays.
I am going to ask a couple of questions regarding unfunded
mandates. Mr. Hill, Mr. Simmons testified about significant
frustration at the State and local level in terms of being able
to participate in the process. In the GAO's review of the
process, did you find any concerns about how the Bureau dealt
with State or local government?
Mr. Hill. Well, the way the process currently works now,
the public really does not have a lot of access to the process
until after the BAR has a proposed finding and it is published
in the Federal Register. Then the public has so many days in
which to analyze the information that is put out and give their
input to the process. Well, in a lot of cases, that timing is
too late in the process. So the public wants to access the
process earlier and the way they do that is through Freedom of
Information Act requests.
Mr. Ose. What do you mean, ``it is too late in the
process''?
Mr. Hill. Well, with the amount of information that has to
be considered, and with the difficulty of getting some of that
information, it is not that readily available, you have to get
it through the BIA, the people we spoke to, the State and local
communities that we spoke to basically felt that they did not
have sufficient time that late in the process to really do the
job they needed to do, do the analysis they needed to do and
get their comments in.
So, to intervene earlier in the process, they basically go
through the Freedom of Information Act process to request
information from BIA. And this complicates the problem, because
now you have got the BAR staff, that is already understaffed,
over-worked, being pulled off and responding to these Freedom
of Information Act requests on a case-by-case basis and having
to deal with that process and get that information out to the
public.
So it is a very inefficient process. And I could see where
the State and local communities are being frustrated in terms
of like they feel they are being shut out of the front end of
this process.
Mr. Ose. Within the process itself, is there some
prohibition on involving State or local government at an
earlier stage?
Mr. Hill. I believe that was imposed by BIA as part of
the----
Mr. McCaleb. If that is the case, it happened prior to this
administration.
Mr. Keep. The regulations actually provide for giving
notice to the State and the Attorney General when the petition
is received. Connecticut has a particular problem in that they
have counties and they may not get the information from the
State.
Mr. McCaleb. This is Mr. Scott Keep from the Solicitor's
Office at the Department of the Interior.
Mr. Ose. I appreciate it. I am going to note for the record
that you were sworn in also at the same time. Is that accurate?
Mr. Keep. Yes, Mr. Chairman.
Mr. Ose. Many of these applications are received years
before a decision is finally announced or published. I am
trying to figure out what is the constraint here on State and
local government participating? I mean, a FOIA is a pretty
aggressive action. It is kind of like I have reached the end of
my rope or I am pulling the last of my hair out, so to speak.
Mr. Hill. I think it is a question of what information from
the petitioner is available when in the process. And I believe
the bulk of the information from the petitioner is not
available until the proposed finding has been published in the
Federal Register.
Mr. Ose. Is that accurate, Mr. McCaleb or Mr. Keep? Mr.
Keep, if you would like to join us up here at the table.
Mr. McCaleb. That is not my impression. Scott.
Mr. Keep. Mr. Chairman, no, I think the information is
available, except the information with regard to genealogy, of
course, is very private and is not available. Much of the other
information is available; if they were to get a Freedom of
Information Act request, as Mr. Hill has indicated, it would
divert the staff from processing the petition.
Mr. Ose. Do the FOIA requests----
Mr. Shays. Excuse me, Mr. Chairman. I do not think he is
getting picked up on the recorder. Maybe he will identify
himself.
Mr. Ose. He has, it is Mr. Scott Keep.
Mr. Shays. The recorder is not picking it up. I am sorry to
interrupt, but we are having a problem.
Mr. Ose. All right. Let's go through this again. Identify
yourself, tell us you have been sworn, and then answer the
question.
Mr. Keep. Mr. Chairman, my name is Scott Keep. I am an
attorney with the Department of the Interior and I have been
sworn to tell the truth and the whole truth.
Mr. Ose. All right. Now the question is, what is the
prohibition on having State and local participate? The feedback
has been, your testimony has been that the genealogical
information, in particular, is very private, that some of the
information is received incrementally.
Mr. Keep. Correct. There is no statutory or regulatory
prohibition other than the constraints of the Freedom of
Information Act on releasing information that would be an
intrusion on an individual's privacy and the Privacy Act. But
there are practical implications because the information being
received by the Branch of Acknowledgement and Research comes in
over a period of time and at different times, and the
petitioners are not required to notify other people, and we are
not required to notify potentially interested parties as each
additional installment is received.
Mr. Ose. The only requirement for notification is the
publication in the Federal Register.
Mr. Keep. Correct. Prior to the issuance of the proposed
finding.
Mr. Ose. Right. My time has expired. Mr. Shays.
Mr. Shays. Thank you. Hopefully, this can be my last round.
I just want to say that I consider myself a real ally with the
Bureau of Indian Affairs on this one regard. I believe that
tribes should go through the recognition process of the Bureau
and that the Bureau needs to do its job.
There are only two things that I fear. One is that we will
by-pass the process through legislation on the floor of the
House. So I have literally come to Washington on those days
when that legislation comes up to oppose recognition on the
floor and asking for a roll call vote. I want to make sure that
whatever tribe is recognized goes through a fair process.
Absolutely essential that be the case. And then if they are
recognized, they deserve all the rights and privileges,
whatever they may be.
The other thing I fear is that which happened under the
previous administration. Campaign contributions started to be
donated and then we were hearing from the professionals that
recommendations they had made were getting changed, distorted,
as the result of who the applicant was and how much they
contribute. And I think that story is fully documented.
So, Mr. McCaleb, you impressed me that your interest was to
make sure that the process be fair and that politics would stay
out. What I want to ask you for the record is, have you been
told by anyone of any contribution being donated by an
applicant for recognition?
Mr. McCaleb. No.
Mr. Shays. OK. And if that were to be said to you in a way
that was suggesting that was important in terms of your
recognition process, you had told me that you would go and tell
the Secretary that you had been told this and thought it was
inappropriate. I want to know if that is still your position.
Mr. McCaleb. That is correct.
Mr. Shays. OK. And I have total confidence that is the
case. Now the only other thing then that would concern me, I
should have said three things, and that is that the court may
decide that your agency has not been able to do its job and
they may arbitrarily recognize a tribe. My understanding is
that basically the criteria can be ignored, you can ignore it.
I am concerned that the court could order you to recognize a
tribe based on a whole host of other factors. And that is why I
am trying to put in context my concern about why I think this
is so essential that you get the resources necessary so no
court can say you just are not able to do the job and we are
going to step in. I am trying to give you a little
understanding of that concern.
It is my understanding that you, later than I want, will be
reevaluating your needs. And is my understanding correct that
whatever your needs are you will convey them to your superiors
and document that in writing?
Mr. McCaleb. That is correct. I did not intend to convey
that we were not going to ask for additional personnel in the
future. I think our April strategic report will have a work
force element in it that will show a need for a substantial
increase in personnel.
Mr. Shays. But you understand my concern. You have missed
the budget year, so we are talking about not this October but
you would be talking about the October a year from now.
Mr. McCaleb. That is correct.
Mr. Shays. And that could be deadly. And that is why you
see a concern on my part.
Mr. McCaleb. Well, we will have this report and the number
that is requested is an additional 22, more than doubling, more
than tripling, it is almost tripling our staff.
Mr. Shays. And you may have to, it appears, if you are not
getting the applicants, it may be that you are going to have to
find ways to pay them more.
Mr. McCaleb. Well, that is problematical because those jobs
carry certain GS ratings, of course.
Mr. Shays. I know. And I am suggesting to you that you
reevaluate the job rating. These are people that are basically
determining who is going to be a billionaire, because it is
going to be based on their research and work. You need people
who are paid a wage that I think will be able to confront the
lawyers who may in fact force them to come in and respond to
their recommendations in court. They need to be very capable
people.
Mr. McCaleb. Another alternative that we have been
evaluating is outsourcing some of this activity. But there are
certain inherent risks in that and the duration that it takes
does not lend itself very well to outsourcing. However, we are
looking at outsourcing some segments of the work in order to
magnify our capability.
Mr. Shays. I would just like to make one suggestion,
ultimately. I think what Congress should basically be doing is
that we should make a requirement that all potential applicants
who are in the pipeline now or perceive that they may want to
be an applicant in the years to come, that we set a deadline
for all applicants and once that deadline is passed no more
applicants can come. Then we look at whatever number we have,
figure out what resources we need to plow through that, and
then just do it. I know that is not your responsibility. But I
am just telling you kind of where I am coming from as someone
who has watched this process for many, many years and is very
concerned about it.
I thank the chairman for his graciousness in letting me
have more time.
Mr. Ose. Thank you, Mr. Shays. Mr. Toulou, if I may, I
understand Congress can recognize a group as a tribe, and I
believe through the process BIA can recognize a group as a
tribe. Can the courts do it also?
Mr. Toulou. That is an interesting question. I was thinking
through it as Mr. Shays asked it. I have serious reservations
whether a court could unilaterally recognize a tribe. That
being said, I think that overseeing an individual agency action
or congressional action, the court might be able to drive
certain portions, moving it along on a timetable or something
of that sort. I think it would be very factually specific on a
given case to say how much involvement the court could have in
the recognition process.
Mr. Ose. All right. So we do not know the answer to that
question. We do not know whether a court could or could not. I
mean, in effect, you are saying a court could by driving the
process.
Mr. Toulou. Well I think the court could be involved in the
process. I do not think a court could just pick a group
unilaterally and say, OK, you group of allegedly indigenous
people are now a tribe. That is reserved to the Congress and
the Indian Commerce Clause. I do not think that is
constitutionally a power of the courts, no. But they could be
involved in the process, yes, I think so.
Mr. Ose. I do not know who to ask this question of. How
many tribes were here prior to the white man?
Mr. McCaleb. Well, in that there was no written historical
record, that is a little difficult to estimate.
Mr. Ose. Well you can see where my question goes.
Mr. McCaleb. Yes. I understand. What we have to do in this
process though is determine if these tribes were an indigenous
people that have existed for a long time and whether they had a
continuous government influencing the membership of that tribe,
not just a community of people who have decided that they
probably had indigenous roots and claim sovereign status.
Because the relationship, as I understand it, and I am not a
lawyer, but the relationship is with the United States, by
virtue of the Constitution Act and the Non-Intercourse Act
which regulates transactions with Indians, the special
relationship is with those sovereign tribes that existed at
those early times of our Government. And to my knowledge,
nobody has ever quantified precisely what that is. We do know
the tribes that we had treaties with and arrangements with.
Mr. Ose. All right. And how many? Do we know what the
number was there?
Mr. McCaleb. I do not off the top of my head, no. I'm
sorry.
Mr. Ose. Let me go on with my questions. Recognition of a
tribe in a given geographic area confers status, any number of
things. For the last year, Interior Secretary Norton has been
advocating a philosophy at DOI focused on what she calls the
``four Cs,'' which are consultation, cooperation, and
communication, all in the service of conservation; those being
the four Cs. Does this philosophy of consultation, cooperation,
and communication extend beyond conservation to Indian affairs
as well?
Mr. McCaleb. Absolutely. Mr. Chairman. There is an
Executive Order that mandates consultation with tribes on any
Federal action that may impact the tribe or tribes.
Mr. Ose. What about local government?
Mr. McCaleb. There is no mandate because there is not a
government-to-government relationship and the Bureau of Indian
Affairs' relationship is exclusively with federally recognized
tribes.
Mr. Ose. What I hear loud and clear, both from Mr. Simmons
and Mr. Shays, is that somehow or another we have got to get
these lines of communication open so that we can have more
local or State involvement in the process in addressing
whatever might be coming up or coming down the pike on tribal
recognition application. So that is why I asked about the
consultation issue, in particular. I asked earlier is there a
prohibition, is there a requirement for consultation?
Mr. McCaleb. With local governments?
Mr. Ose. Yes. Local or State.
Mr. McCaleb. No.
Mr. Ose. There is neither a prohibition nor a requirement?
Mr. McCaleb. No.
Mr. Ose. So that might be one area----
Mr. McCaleb. Just a moment. He is making the point that we
have to give notice. That is not consultation.
Mr. Ose. But the notice is published in the Federal
Register and what have you.
Mr. McCaleb. Right. In a local newspaper also.
Mr. Ose. Well, in 1995 Congress passed the Unfunded
Mandates Reform Act, and one of the principal goals of that Act
was to ensure that the State and local governments are
consulted before agencies issue mandates. Is recognition of a
tribe a mandate? From a legal standpoint, Mr. Toulou, is
recognition of a tribe a Government mandate?
Mr. Toulou. I do not know for purposes of that particular
bill whether it is a mandate. It certainly is a governmental
action. I am just not familiar with the Unfunded Mandate Act.
It is not an area of my expertise.
Mr. Ose. Well, the Act specifies that ``before establishing
any regulatory requirements that might significantly or
uniquely affect small governments, the agencies shall develop a
plan to enable small governments to provide meaningful and
timely input in the development of the regulatory proposal.''
So, if recognition of a tribe is mandated by a Federal agency
action and has consequence in a local jurisdiction, how can the
agency not comply with the Unfunded Mandates Act?
Mr. Toulou. Without studying the Act further, it strikes me
that act is designed to deal with legislation that deals
specifically with that community. And while this may be an
incidental impact, I am not sure how the Act and the judicial
history of the Act afterwards balances incidental impacts. That
would be my concern in answering that, whether or not this is a
direct impact or an incidental impact and how much the bill is
intended to deal with those incidental impacts.
Mr. Ose. Mr. McCaleb, has the agency had any deliberation
on this as to whether or not Unfunded Mandates Act applies to
the recognition of a tribe?
Mr. McCaleb. Not to my knowledge.
Mr. Ose. All right. So in terms of recognition of a tribe,
are you aware of any plan at BIA for providing what I would
call meaningful and timely input prior to publication in the
Federal Register on a regular basis from local or State
governments into the process?
Mr. McCaleb. In other areas, yes, there is. Under active
consideration right now, and it is very controversial, it has
to do with the other major step of creating the territory of
the tribe or taking land into trust status. We withdrew a new
Federal regulation on this and published our intent to include
a provision for notification to local governments when land is
taken into trust outside of the existing reservation
boundaries. That regulation has not been promulgated nor
reviewed or commented on, but we have published our intent to
do that.
Mr. Ose. The publication says it is the intention of the
agency to notice local and State governments at such time as
land outside the historical----
Mr. McCaleb. The intent was not that specific. It just said
that if the land is proposed to be taken into trust outside of
the reservation boundaries, it shall not adversely impact those
communities. It does specify tests for evidence for both the
tribe wishing to take land into trust and for the community who
opposes it for whatever reason.
Mr. Ose. This is kind of the intersection of Federal,
State, and local law.
Mr. McCaleb. It is, absolutely.
Mr. Ose. This is the area I find most interesting. Because
if either Congress or the agency confers tribal status on a
group, then subsequent to that new tribe goes out and seeks to
have land taken into trust on their behalf, that land may well
be off the historical reservation but in the middle of an urban
area, in which case a local government, depending on the State,
may then be faced with a decision as to whether or not to allow
the development of that property in whatever fashion. You can
see my unfunded mandates issue.
Mr. McCaleb. Absolutely. Yes.
Mr. Ose. It is just a very ticklish question between
Federal, State, and local government as to who has got control
over that land. So I am asking again, what means of
consultation exists?
Mr. McCaleb. Well, I think that is what I am trying to
respond to you. I am saying that one of the reasons that rule
was withdrawn was to try to provide that method of notification
and consultation between the community and the tribe to create
some level of consensus on how that land was to be utilized.
That is very controversial in the Indian community, it is also
controversial in the non-Indian community, and it will be a
subject of considerable discussion as those rules are
promulgated. But it is right on point of the issue that you are
raising.
Mr. Ose. Do you have any idea on the schedule when that
revised proposal will appear in the Federal Register?
Mr. McCaleb. We had it scheduled before now, but we are
involved in an extensive consultation schedule on the proposed
reorganization of the trust asset management activities in the
Bureau of Indian Affairs that has kept me on the road every
week for the last 7 weeks. So it will probably be sometime
later on this spring. I am sorry to be indefinite, but we do
not have a specific date.
Mr. Ose. All right. Hold on a minute. As you might have
noticed, a number of Members from across the country have very
specific interests here on this issue of tribal recognition.
Given the time, what I would like to do is I want to go ahead
and complete the hearing. But we have a lot of questions that
did not get asked. So we are going to leave the record open for
a period of time, 10 days. We are going to send you some
questions subsequent to that time period, we hope you would
answer in a timely fashion, and they might be technical, they
might be very specific in terms of individual Members'
districts, but we would appreciate your cooperation. We look
forward to your responses.
I do want to say I have learned an enormous amount.
Normally, these things are somewhat dreary or dull. But I have
learned an incredible amount today, and I appreciate you guys
taking the time to come down and visit with us. This falls
under the jurisdiction of this committee and we will be
revisiting it. So, again, I thank you for testifying. I look
forward to working with you in the future.
Mr. McCaleb. Thank you, Mr. Chairman.
Mr. Ose. This hearing is adjourned.
[Whereupon, at 12:20 p.m., the subcommittee was adjourned,
to reconvene at the call of the Chair.]
[The prepared statement of Hon. John J. Duncan and
additional information submitted for the hearing record
follow:]
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