[House Report 109-694]
[From the U.S. Government Publishing Office]
109th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 109-694
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TO REQUIRE THE PROMPT REVIEW BY THE SECRETARY OF THE INTERIOR OF THE
LONGSTANDING PETITIONS FOR FEDERAL RECOGNITION OF CERTAIN INDIAN
TRIBES, AND FOR OTHER PURPOSES
_______
September 28, 2006.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Pombo, from the Committee on Resources, submitted the following
R E P O R T
[To accompany H.R. 512]
[Including cost estimate of the Congressional Budget Office]
The Committee on Resources, to whom was referred the bill
(H.R. 512) to require the prompt review by the Secretary of the
Interior of the longstanding petitions for Federal recognition
of certain Indian tribes, and for other purposes, having
considered the same, report favorably thereon without amendment
and recommend that the bill do pass.
PURPOSE OF THE BILL
The purpose of H.R. 512 is to require the prompt review by
the Secretary of the Interior of the longstanding petitions for
Federal recognition of certain Indian tribes, and for other
purposes.
BACKGROUND AND NEED FOR LEGISLATION
H.R. 512 expedites the evaluation of several longstanding
petitions for federal acknowledgment and recognition filed by
certain Indian groups. Because Article I, Section 8 of the
Constitution delegates to Congress plenary authority over
commerce with Indian tribes, the federal government's decision
to recognize a group as an Indian tribe is a solemn
responsibility.
Historically, Indian tribes have been recognized through
treaties, Acts of Congress, Executive Orders, rulings by
federal courts, and administrative decisions. In 1978, the
Bureau of Indian Affairs in the Department of the Interior
established a process for acknowledging Indian tribes known as
``Procedures for Establishing that an American Indian Group
Exists as an Indian Tribe,'' found at 25 Code of Federal
Regulations Part 83. In petitioning for recognition under these
procedures, a group must establish a substantially continuous
tribal existence and that it has functioned as an autonomous
entity throughout history until the present. To meet this
standard, a petitioner must meet seven mandatory criteria.
While there is general agreement among experts that the
seven mandatory criteria are basically sound, the process of
managing and evaluating acknowledgment petitions is fraught
with major delays and failure to establish deadlines. When the
acknowledgment and recognition regulations were established in
1978, it was widely believed that the process of verifying the
accuracy of the petition and whether a tribe met standards for
federal recognition would be thorough but reasonably quick.
According to a January 9, 1977, Department of Interior
memorandum prepared for the Assistant Secretary of Indian
Affairs by the Director of the Office of Indian Services, the
Department estimated the completion time for an average
petition at 195 days, with the potential of reducing this
period to 150 days with changes in the regulations prior to
finalization. The memo further estimated that each staff member
could handle 4 to 6 petitions concurrently, and at maximum
effort, the Department could process 96 petitions per year.
Obviously these goals set forth by the Department in 1977
have come nowhere near being realized. Many petitioning tribes
have waited decades to go through the process, literally seeing
generations of elders pass away while still receiving no answer
to their petition. The current list of petitioners has tribes
that first applied back in the early 1970s, before the process
for recognition had even been finalized. Many of these
petitioners are still awaiting an answer. Even more
discouraging to them is the fact that other tribes who did not
even make their first application until the late 1990s have
already completed the process and have received decisions on
their recognition.
Both the Government Accountability Office and the
Department acknowledge problems with timeliness in the process
and have recommended improvements, such as the establishment of
clear time frames and time sensitivity in considering
petitions.
No one should have to wait decades for the government to
abide by its own regulations to render a decision on a
petition. H.R. 512 addresses the lack of clear time frames for
several tribes with longstanding, fully documented petitions.
Specifically, H.R. 512 enables eligible tribes to obtain a
final determination from the Secretary of the Interior on their
petitions within one year, and failing that, to obtain a
determination from a federal judge. To be eligible, a tribe
must have filed its initial petition before October 17, 1988,
and fully documented its petition by July 1, 2004. No eligible
tribe is required to invoke its right to an expedited decision
under this bill; opting in to the process is entirely voluntary
on the part of the petitioner.
Significantly, the bill does not change any criteria or
standard of review for recognition under the 1978 regulations.
Thus, the Secretary will not construe a requirement for
rendering a speedy decision to influence the final decision on
the merits of the petition.
To ensure the Secretary can marshal the resources necessary
to perform an expedited review of tribes who opt to invoke an
expedited decision, subsection 1(g) of H.R. 512 puts incomplete
and inactive petitions on hold until the Secretary acts on
petitions of tribes eligible for an expedited review. It should
be emphasized that under subsection 1(g), petitions listed as
``Active'' or ``In Post-Final Decision Appeal Process'' should
be processed promptly and fairly by the Department.\1\
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\1\ The terms ``Active'' and ``In Post-Final Decision Appeal
Process'' used in subsection 1(g) refer to the tribes under the
respective headings ``Active Status'' and ``In Post-Final Decision
Appeal Process'' in the ``Status Summary of Acknowledgment Cases''
maintained by the Bureau of Indian Affairs.
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A hearing was held on H.R. 512 on February 10, 2005.
Testimony was received from the acting Deputy Assistant
Secretary for Indian Affairs of the Department of the Interior,
the General Accountability Office, an expert on the recognition
process, and a witness representing a petitioner seeking
recognition.
One issue that came to light in testimony submitted in this
hearing is the fact that new petitions for recognition are
still being filed by new groups to this day. At present, there
are about 250 unresolved petitions on file at the Bureau of
Indian Affairs (BIA). The vast majority were filed around the
time the 1978 acknowledgment regulations were published in the
Federal Register. After 1979, the number of petitions steeply
declined, and then began to increase in 1998--the year Congress
enacted the Indian Gaming Regulatory Act. And more are being
filed today.
According to the Department's testimony, 134 of these 250
letters of petition had no documentation submitted in support
of the petitioner's cause. Seventy-one petitions were
incomplete because only partial documentation had been
submitted. Ten groups were no longer in contact with BIA.
These data indicate that a majority of the petitioners have
not followed up with the submission of any documentation--even
partial documentation--to demonstrate their claimed status of
being an Indian tribe due all the benefits, privileges,
services and responsibilities of federal recognized tribes.
While no one expects a petitioner to fully document a petition
within a short time frame or without a significant amount of
resources, some of the petitions lacking any documentation were
filed as long ago as 1976.
In light of these facts, the Congress and the Secretary
should consider how to deal with petitions that are effectively
abandoned. Recognition reaffirms the continuous existence of a
sovereign Indian Nation. World history is rife with examples of
peoples impatient to declare themselves sovereign, autonomous
nations. A measure of a real Indian Nation would be the
persistence and pursuit demonstrated by the tribes that meet
the criteria for a decision in H.R. 512. The credibility of the
BIA is weakened by keeping so many completely inactive and
possibly abandoned petitions alive. Petitioners have had 28
years to get acquainted with the BIA process. The aim of H.R.
512 is to expedite decisions on petitions that were filed in an
era when information about the regulations was not well-known,
and resources needed to begin the process were not readily
available. It is reasonable to ask whether a time has arrived
to phase out the Secretary's authority to recognize groups who
file petitions after enactment of this bill. While it is
unreasonable to suggest a petitioner must know how to fully
document a petition, it is reasonable to require that a simple
letter of intent to petition be filed by a time certain date.
Holding the BIA process open on a permanent basis cheapens
the process of being recognized. A number of petitioners are
actively assembling documents, corresponding with the BIA, and
earnestly seeking a determination of their status. No one
wishes to hinder their efforts. In fact, in almost all of these
cases, the initial letter to petition for recognition was sent
in a time (which was not many years ago) when information about
and knowledge of the process was hard to understand or to
ascertain. These conditions hardly exist in this era, when a
person has the capability of communicating around the globe at
the speed of light.
Although some might say that a sunset is fair to tribes who
lack the resources to assemble a documented petition by a time
certain date, it is perfectly reasonable to demand that a
simple, undocumented letter of petition be sent by a time-
certain date.
In any case, imposing a sunset on the authority of the
Secretary of the Interior to acknowledge tribes who have not
yet filed petitions for recognition has no effect on the
ability of anyone to petition Congress. It is appropriate to
note here that the regulations at 25 C.F.R. 83 are not
specifically authorized by an Act of Congress, and that
Congress has the final word on whether to continue this
program.
For these foregoing reasons, consideration of amending H.R.
512 on the Floor to include a sunset provision on the
Secretary's authority to recognize tribes filing petitions
after enactment of the bill is warranted. While an amendment by
the Chairman for this purpose was proposed during Committee
consideration of the bill, he did not offer it in order to
continue a discussion with dissenters of a sunset provision. In
all other respects, the bill enjoyed strong bipartisan support.
COMMITTEE ACTION
H.R. 512 was introduced on February 2, 2005, by Chairman
Richard W. Pombo (R-CA). The bill was referred to the Committee
on Resources. On February 10, 2005, the Full Resources
Committee held a hearing on the bill. On June 21, 2006, the
Full Resources Committee met to consider the bill. No
amendments were offered and the bill was ordered favorably
reported to the House of Representatives by voice vote.
COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Resources' oversight findings and recommendations
are reflected in the body of this report.
CONSTITUTIONAL AUTHORITY STATEMENT
Article I, section 8, clause 3 of the Constitution of the
United States grants Congress the authority to enact this bill.
COMPLIANCE WITH HOUSE RULE XIII
1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the
Rules of the House of Representatives requires an estimate and
a comparison by the Committee of the costs which would be
incurred in carrying out this bill. However, clause 3(d)(3)(B)
of that rule provides that this requirement does not apply when
the Committee has included in its report a timely submitted
cost estimate of the bill prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974.
2. Congressional Budget Act. As required by clause 3(c)(2)
of rule XIII of the Rules of the House of Representatives and
section 308(a) of the Congressional Budget Act of 1974, this
bill does not contain any new budget authority, spending
authority, credit authority, or an increase or decrease in
revenues or tax expenditures.
3. General Performance Goals and Objectives. This bill does
not authorize funding and therefore, clause 3(c)(4) of rule
XIII of the Rules of the House of Representatives does not
apply.
4. Congressional Budget Office Cost Estimate. Under clause
3(c)(3) of rule XIII of the Rules of the House of
Representatives and section 403 of the Congressional Budget Act
of 1974, the Committee has received the following cost estimate
for this bill from the Director of the Congressional Budget
Office:
H.R. 512--A bill to require the prompt review by the Secretary of the
Interior of the longstanding petitions for federal recognition
of certain Indian tribes, and for other purposes
Summary: H.R. 512 would require the Department of the
Interior (DOI) to process and settle certain petitions for
official recognition of Indian groups by the federal
government. The bill would mandate that the department respond
to all eligible petitions within one year of its enactment.
Based on information from DOI, CBO expects that current staff
are insufficient to meet that deadline. Assuming that the
department hires enough new staff to respond to all eligible
petitions as rapidly as feasible, CBO estimates that
implementing H.R. 512 would cost about $5 million over the
2007-2011 period, subject to appropriation of the necessary
amounts.
H.R. 512 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
and would impose no costs on state, local, or tribal
governments. Enacting H.R. 512 would have no impact on direct
spending or revenues.
Eestimatd cost to the Federal Government: The estimated
budgetary impact of H.R. 512 is shown in the following table.
The costs of this legislation fall within budget function 450
(community and regional development).
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By fiscal year, in millions of dollars--
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2007 2008 2009 2010 2011
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CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Estimated Authorization Level...................................... 1 2 2 0 0
Estimated Outlays.................................................. 1 2 2 0 0
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Basis of estimate: For this estimate, CBO assumes that the
bill will be enacted near the beginning of fiscal year 2007 and
that the necessary amounts will be appropriated to allow DOI to
comply with the deadlines in the bill to the extent possible.
Indian tribes may be recognized by the federal government
through an act of the Congress, DOI administrative procedure,
or a decision by a United States court. The usual route to
federal recognition is through DOI's administrative process.
Federal recognition of an Indian group entitles the group to
participate in federal programs operated for the benefit of
Indians. It also creates a government-to-government
relationship between the tribe and the federal government.
Within DOI, the Office of Federal Acknowledgment (OFA)
reviews and recommends findings on petitions by interested
Indian groups for federal recognition. Once a petitioning group
has submitted their documentation and undergone a technical
review, OFA lists the group as ready for active consideration.
Following the delivery of a proposed finding, regulations
governing the federal acknowledgment process require a minimum
public comment period of at least 180 days. After that, the
department has 60 days to issue a final determination.
H.R. 512 would require DOI to begin active consideration of
all petitions on the ``ready'' list filed prior to 1988. As of
February 2006, nine petitions were listed as ready for
consideration by DOI, and seven of those would be covered by
the provisions of this bill. The bill would require the
department to complete all proposed findings within six months
of the bill's enactment and complete all final determinations
within one year for these groups. Because the current
regulations require at least eight months between delivery of a
proposed finding and preparation of a final determination, CBO
expects that DOI might be unable to comply with the deadlines
in the bill even with additional resources. In that event, the
affected tribes could pursue judicial recognition as they may
under current law.
To properly evaluate the seven affected petitions as
expeditiously as possible, in addition to eligible petitions
currently under active consideration, the department would need
additional research personnel. OFA currently employs four
three-member research teams that each produce roughly one
proposed finding and one final determination per year. CBO
estimates that OFA would need to hire about 15 personnel for
roughly a two-year period toprocess all eligible petitions
under H.R. 512. CBO estimates that the additional staff would
cost about $5 million for salaries and training over the 2007-
2009 period, subject to appropriation ofthe necessary amounts.
Expediting the recognition process may also cause some
groups to be eligible for programs operated for the benefit of
Indians earlier than would otherwise have occurred in absence
of the proposed legislation. CBO does not have enough
information on the likelihood of recognition for the eligible
petitions to estimate a cost for this effect. Any such
additional costs would be subject to the availability of
appropriated funds.
Intergovernmental and private-sector impact: H.R. 5134
contains no intergovernmental or private-sector mandates as
defined in UMRA and would impose no costs on state, local, or
tribal governments.
Estimate prepared by: Federal Costs: Daniel Hoople. Impact
on State, Local, and Tribal Governments: Marjorie Miller.
Impact on the Private Sector: Tyler Kruzich.
Estimate approved by: Peter H. Fontaine, Deputy Assistant
Director for Budget Analysis.
COMPLIANCE WITH PUBLIC LAW 104-4
This bill contains no unfunded mandates.
COMPLIANCE WITH HOUSE RESOLUTION 1000
This bill and report contains no provisions which require
disclosure under this authority.
PREEMPTION OF STATE, LOCAL OR TRIBAL LAW
This bill is not intended to preempt any State, local or
tribal law.
CHANGES IN EXISTING LAW
If enacted, this bill would make no changes in existing
law.