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Act, written notice under section 8(b) of obvious defi

ciencies or significant omissions in the evidence submitted with respect to any petition for acknowledgment under section 7(c) that is a pending petition on the date

of enactment of this Act but is not described in clause (i), and

(iii) begin active consideration of any petition for acknowledgment under section 7(d) that is submitted to the Director under section 7 or subsection (a).

(B) Any petition described in subparagraph (A)(i) shall 11 be considered under the criteria set forth in section 7(c). Such 12 petitions may not be removed from active consideration on 13 the basis that additional information is necessary to meet 14 such criteria.

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(3) During the second year of the 2-year period begin16 ning on the date of enactment of this Act, the Director 17 shall

(i) make a preliminary ruling under section 8(d) on

either

(I) all petitions described in paragraph (2)(A)(ii) that are under active consideration or awaiting active consideration on the date that is 1 year after the date of enactment of this Act, or

(II) if the number of such petitions exceeds 10, at least 10 of such petitions,

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(ii) make a preliminary ruling under section 9(c)(1)

with respect to either

(I) all petitions described in paragraph

(2)(A)(iii), or

(II) if the number of petitions described in paragraph (2)(A)(iii) exceeds 10, at least the first 10 of such petitions that were submitted to the Director, and

(iii) begin active consideration of any petitions described in paragraph (2)(A)(ii) for which a preliminary ruling is not made during such year, but only if the pe

titioner has responded to any notice of obvious deficiencies or significant omissions that the Director has provided to the petitioner.

(4) For purposes of this subsection, the terms "active 16 consideration" and "awaiting active consideration" have the 17 respective meaning given to such terms under the regulations 18 and procedures applied by the Bureau of Indian Affairs of the 19 Department of the Interior on the day before the date of 20 enactment of this Act with respect to petitions for acknowl21 edgment.

22 (c) If an Indian group was the subject of a final determi23 nation denying acknowledgment under the regulations in 24 force prior to the enactment of this Act, or under a judicial 25 decision made before the enactment of this Act, the Indian

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1 group may apply directly to the Panel for reconsideration of 2 the determination, based upon the prior administrative or ju3 dicial record. The Panel shall then review the application of 4 the Indian group for reconsideration of the determination in

5 accordance with the criteria set forth in this Act.

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AUTHORIZATION OF APPROPRIATIONS

SEC. 15. (a) There are authorized to be appropriated for

8 the Department of the Interior for the purpose of carrying

9 out the provisions of this Act

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(1) $3,000,000 for each of the fiscal years 1990, 1991, and 1992, and

(2) $2,000,000 for each of the fiscal years 1993, 1994, and 1995.

(b) There are authorized to be appropriated for the Ad15 ministration for Native Americans of the Department of 16 Health and Human Services for the purpose of carrying out 17 the provisions of section 13, $500,000 for each of the fiscal 18 years 1990, 1991, 1992, 1993, 1994, and 1995.

STATEMENT OF HON. JOHN MCCAIN, U.S. SENATOR FROM ARIZONA, VICE CHAIRMAN, SELECT COMMITTEE ON INDIAN AFFAIRS

Senator MCCAIN. Thank you, Mr. Chairman.

I am pleased to be here today to hear testimony on S. 611 which would establish administrative procedures to extend Federal recognition to certain Indian groups. In prior hearings we have heard testimony that the current administrative process for Federal recognition of certain Indian groups is a very costly and protracted one. There needs to be consistency and fairness in the Federal recognition process, which has too often been characterized by inconsistency and a lack of fairness.

There can be no doubt that the Congress holds the full authority to regulate relations between the Federal Government and the tribes. The commerce clause of the Constitution is explicit in this regard and the Federal courts have consistently affirmed this authority. From the earliest times, the Congress has acted to recognize the unique government-to-government relationship with the tribes. I emphasize the word "recognize." The fact of the existence of an Indian tribe is distinct from the fact of recognition. In the matter of recognition we are concerned with the Federal/tribal political relationship. There are, and always have been, some Indian tribes which have not been recognized by the Federal Government. This lack of recognition does not alter the fact of the existence of the tribe, it merely means that there is no formal political relationship between the tribes and the Federal Government.

Over the years, our courts have ruled that recognition, while solely within the authority of the Congress, may also be conferred through actions of the Executive branch. Indeed, both the President and the Secretary of the Interior have historically acted in ways which the courts have found to constitute recognition of Indian tribes. During 1978, the Secretary of the Interior promulgated regulations specifically establishing criteria and procedures for the recognition of Indian tribes.

It should be noted that the Secretary did not act in the absence of substantial pressure. Various Indian tribes, both recognized and unrecognized, as well as the Select Committee on Indian Affairs were very active in urging the Secretary to establish uniform procedures and criteria to be utilized in making recognition decisions. Subsequent congresses have acquiesced in the Secretary's regulations by annually appropriating funds to provide for the review of tribal petitions for recognition. Since 1978, tribal groups have filed 114 petitions for recognition. The Branch of Acknowledgment and Research of the Bureau of Indian Affairs has acted on 19 of these petitions. Of this number 11 petitioners were denied recognition and 8 were granted recognition.

In 1978, 1983, and 1988 the Select Committee on Indian Affairs held oversight hearings on what has come to be known as the "Federal Acknowledgment Process" (FAP). At each of these hearings the record has clearly shown that FAP is not working properly. For petitioners, the process is costly, too lengthy, and sometimes arbitrary. For the Department of the Interior, the process is most often frustrating primarily due to the lack of staff and resources

needed to fairly and promptly review all petitions. At the present time, about 10 employees of the BIA's Tribal Government Services Offices are involved in the administration of FAP. The annual cost to the Federal Government is estimated at $450,000.

The record from our previous hearings reveals a clear need for the Congress to provide direction and funding to the BIA for the recognition process. I believe that the bill which I introduced this week will go a long way toward resolving the problems which have plagued both petitioners and the Department over the years.

This bill is not an attempt to rewrite the body of laws that apply to the recognition process. It incorporates the Secretary's existing recognition criteria. By doing so, the bill avoids the need to reevaluate prior decisions of the Department and the need for tribal groups to file new petitions. The bill provides realistic time lines to guide the Department in the review and decision process. Some petitioners have waited 10 or more years for even a cursory review by the BIA. This bill requires the Secretary to complete an initial review within 18 months from the date of the filing of the petition. The overall review and decision process cannot exceed 6 years. Any petition which is still pending after 6 years will become subject to review by the Federal courts.

To ensure fairness, the bill provides for appeals of adverse decisions to the Department's Office of Hearings and Appeals. Final decisions on appeal are subject to further review in the Federal courts. To ensure promptness, the bill authorizes increased funding for the Department. The present annual funding level of $450,000 would be increased to $1.5 million. In addition, all petitions would be processed on a first come, first served basis to avoid arbitrary decisions about the priority for processing applications. To assist petitioners in the preparation and filing of their petitions, the Administration on Native Americans of the Department of Health and Human Services is authorized to provide up to $500,000 per year in grants to unrecognized tribal groups.

This bill will also provide some finality for both the petitioners and the Department. The Department has had a process for recognizing Indian tribes, in one form or another, since the 1930s. Great uncertainty has existed in the Department as well as among tribal groups about when or how this process might be concluded. I believe that it is in the interest of all parties to establish a clear deadline for the completion of the Department's recognition process. Accordingly, the bill requires all interested tribal groups to file their petitions within six years of the date of enactment. The Department is required to complete action on all petitions no later than 12 years after the date of enactment. Of course, it will still be possible for any tribal group seeking recognition to directly petition the Congress.

Mr. Chairman, I would be remiss if I did not take a moment to compliment you on your efforts in this area. It is largely due to your leadership and diligence that the problems involved in the recognition process have come to light. S. 611 is the culmination of those efforts and would do much to correct the deficiencies in the Department's handling of recognition petitions. As always, I appreciate and respect your leadership and initiative.