FEDERAL ACKNOWLEDGMENT WORKING GROUP STATEMENT The working group on federal acknowledgment was assembled at the request of the Senate Select Committee on Indian Affairs. The group was composed of witnesses who testified at the Committee's oversight hearing held last year and who were supportive of legislative reform. Originally, the Committee proposed that legislation be introduced in fall 1988. became readily apparent a credible bill would require extensive work and the 101st Congress became the target for introduction. But it Our first meeting took place on October 31, - 1988. Since that time we have had numerous meetings and each person has expended considerable time in drafting and reviewing legislation, attending meetings, and conducting research. The starting point was how to take the testimony from the oversight hearing of last year and bring together a bill that would correct the problems and address the issues raised. This task was not easy. Each of us involved held similar as well as different points of view. As we worked, debated, and drafted and redrafted the bill, an overall consensus as to the structure of a bill finally emerged which is reflected by S. 611. Its outline generally follows the FAP regulations with some clarifications and additions. We would like to explain the underlying precepts of our approach. Some of us will also be submitting individual testimony and will elaborate further as to particular issues. In addressing the scope of the legislation the group kept in place the current regulations that allows all Indian groups to submit petitions for acknowledgment, whether in Alaska or in the lower-48. The legislation was never conceived to include Native Hawaiians and, if necessary, technical amendments can be made to clarify this issue. Terminated tribes are allowed to go through s. 611, but in no way is that mandatory nor exclusive. We believe the preferable route will be for terminated tribes to be legislatively restored. At the core of the group's task was to come up with standardized criteria. This was to ensure that petitions for federal acknowledgment were being uniformly evaluated. Much to our dismay, rumors have been circulating in Indian country to the effect that S. 611 lessens the criteria such that anyone could qualify as an Indian. Each requirement under Part 83 is still required except that the provision barring terminated tribes from availing themselves of the process is deleted. Definitions are provided, and the bill makes clear the types of documents or showings of proof needed to satisfy each criteria. The group relied on those witnesses from last year's hearing who are anthropologists and historians to guide the deliberations so the changes meet the current practice in the social sciences. In addition, the Group believed that the process should ensure that a petitioner receives a fair, impartial and reasonably quick review of its petition . Thus, the bill creates a new Office of Federal Acknowledgment, modeled after BAR, but outside the BIA. The Group felt that this was a necessary approach because only 40% of the BAR's time is spent on petition work under active consideration. In addition, there is at least the potential of conflicts of interest between the BAR and the BIA. The new office ensures prompt review and removes even the appearance of conflict in that it would be accountable strictly to its work, and not to administration policy, budget considerations, competing obligations, nor political influence from recognized tribes who the BIA serves. Another issue of importance that S. 611 deals with is lack of an independent board to review a determination against federal acknowledgment. Currently, the regulations allow the Under Assistant Secretary's decision to be final for the Department unless the Secretary requests him to reconsider. reconsideration the Assistant Secretary consults with the Secretary to review his initial determination and whether to reconsider it. Therefore the initial decision goes back before the Assistant Secretary (Branch of Acknowledgment and Research) who made the negative finding in the first place. Under S. 611, an independent scholarly panel will review the staff work. If the panel and the office disagree, then the petition goes to the Secretary for a final determination. This independent panel will help to ensure "correct" decisions and provides additional due process protections. The possible alternative of a hearing before the Office of Indian Hearings and Appeals is an inferior alternative given the nature of the review that must be engaged in. Going before the Office of Hearing and Appeals would turn the process from a scholarly and potentially cooperative process to an adversarial and legal process. Finally, the Group was confronted with the legal proposition that unless an Indian tribe has been terminated by Congress, its legal relationship with the United States continues. Some petitioners, for example, are named in a treaty that was never abrogated. Their legal status is different than a group that was never acknowledged by the federal government. The expedited review in S. 611 specifies those instances of prior acknowledgment (treaty, executive order, or act of Congress) and creates a presumption to that effect which can be rebutted by the new acknowledgment office. This approach reflects the case law and pre-1978 BIA practice. Unfortunately, much misinformation has circulated about S. 611 that we believe deflects attention from the central issues that must be addressed and are addressed in S. 611. Of course, while we are all in agreement that S. 611 presents a comprehensive, reasoned approach, we recognize that some comments have been raised which indicate that further refinements to some specific provisions in the bill may be necessary and we encourage the Committee to consider such 98-364 0 - 89 - 7 refinements. However, if the purpose of federal acknowledgment reform is to maintain the status quo by legislating the current regulations, this poses a non-answer to a very serious problem. While the motivating factor for Committee action naturally comes from the constituents in the members respective states and from the tribes who are served by the Committee, we urge the Committee to recognize that this issue cannot be viewed under so limiting a perspective. There are communities who have existed from historical times to the present with an Indian identity and who deserve fair consideration of whether they should be federally acknowledged. Because of limited resources, these communities are frequently unable to have their views heard. We urge the Committee to act on this issue based upon the merits of this problem. |