the hills. They should be entitled to recognition and acknowledgement.

Then there are some tribes, like in the State of California, where they were just virtually hunted down. There is a terrible record on that. I think there is a strong compelling reason of equity to consider them.

I have always had trouble with one of the criteria that is in the current regulations; that is the requirement that a tribe continuously assert political authority and social cohesion. I thought when I was in the Department that was an unrealistic criterion and I urged against it. Ultimately the regulations that were adopted after I left included that.

I think given the history of outright discrimination against Indian tribes, given the forcible repression of Indian culture that went on for long periods of our history, it is perfectly understandable that a lot of tribes would have simply have gone underground basically and wouldn't have documents and wouldn't have openly functioned as an Indian tribe. So I think that criterion needs to be given careful reconsideration.

What I'm honestly very unsure about is the provision in your bill in section 4.5 that sets up a presumption that if there is not more than a 50-year gap between two exercises of political authority, that should satisfy the continuity requirement. I'm really unsure about that. I hadn't focused on that until I read your bill in the last couple of days, and I honestly don't know whether I support that or whether there should be some other standard. I do think the current standards in the regulations do deny reality, and I think that some new standard in this area needs to be worked out. I think it needs to balance two things: (1) the fairness and the equity to the groups that have been left behind for basically historical and fairly arbitrary reasons, with (2) the concept that the United States provides Federal protection for groups that have a culture, that have a government, and that can flourish. I think that societies can change over time. They are changing in Eastern Europe now, as in the Soviet Union, where nationalities that were repressed during Stalinist times or other times are now reasserting a nationality. That's perfectly common in the world. Political communities evolve, so the bill needs to have some latitude and some generosity in this. But I don't think you want to be creating tribes where there isn't this culture, where there isn't this potential for separate government. I think you need to think about this issue. Certainly I would want to think about it before I'd know exactly how to do it.

The last point I want to make concerns funding. You've been commendably vigilant on this on water projects for Indian tribes where Congress has at long last really moved and moved very effectively to fund them in Arizona, Colorado, and in other states. There is no justification for that funding subtracting from existing tribal governments. If there are going to be an expansion of recognized tribal governments, and I think there should be, it should not come off the hide of existing recognized tribes. Existing tribes are really strapped right now by Federal cutbacks. Some of my clients have suffered cutbacks in the range of 50 percent of what their funding was 3 or 4 years ago in real terms. So this needs to be done

in a way that doesn't disrupt the existing federally recognized tribal governments, but yet provides equity and fairness for the groups that should be included.

Mr. Chairman, and members of the Committee, that concludes my statement. I'm honored and appreciate your inviting me here today. I'd be happy to answer any questions you may have.

[Prepared statement of Mr. Chambers appears in appendix.] The CHAIRMAN. Thank you very much, Mr. Chambers.

You spoke of automatic recognition if a treaty exists. In California, by treaty, we set aside four reservations in which we gathered culturally unrelated, politically unrelated, and socially unrelated tribes. Many tribes were small but there were one or two dominant tribes there and the treaty was signed with the leaders of the dominant tribes. Now these lesser tribes are seeking recognition. Can they use this treaty as a basis for their recognition? For example, in the Hoopa Valley there are several smaller tribes that have different languages, different culture, different social structure, different dress, and even to the uninitiated they look different. But history shows that they were forced to live in this one area because instead of having 150 reservations, we decided to have four.

Mr. CHAMBERS. I know the Hoopa-Yurok situation generally, but I'm not very familiar with that. The Yuroks were not signatories to the treaty, as I recall. There were unratified treaties in California but I believe they weren't signatories to any ratified treaty. Unless I'm wrong on that. Then I think they would have to go through the recognition process as a nontreaty tribe. What I was thinking of with the treaty situation is that once Congress has concluded a treaty, that's it. It is just simply Executive overreaching for the Executive to decide that it is not going to perceive this tribe anymore. I think that is Executive termination and I think it's unlawful. The CHAIRMAN. Do the treaties have to be ratified?

Mr. CHAMBERS. To have lawful effect under Federal Indian law they do, Senator. California is where I started working in Indian affairs. Your staff director was one of my students, actually. We were both out at UCLA law school then, longer ago probably than either of us care to admit. That was a terrible situation in California. Congress didn't just not ratify the treaties. They hid them. They were hidden and didn't come to light for about 50 or 60 years afterwards, because the Government wanted to keep it a secret that they'd signed those treaties.

So I think this creates strong and compelling equities for California Indian groups that have shown great courage and tenacity in surviving to this day. But I don't think as a legal matter that you want to get into ratifying ancient unratified treaties. Of course, Congress has the Constitutional power to do it. I don't understand any Constitutional objections that could be raised against your power to do that, but I think it would be preferable to confine the treaty situation to ratified treaties.

The CHAIRMAN. My final question is on the deadline. What mechanism would you suggest in lieu of the deadline? As we have at the present time, the process is being dragged out indefinitely.

Mr. CHAMBERS. There's no justification for the kinds of delays and the paper work that the groups have been put to. I think you do have to have deadlines. With all respect, Mr. Chairman, I had a

feeling that some of the deadlines in your bill simply were unmeetable. I think Congress did the right thing-being a private attorney, maybe this isn't the right example to give-back in 1968 there were similar delays in approving private attorney contracts. Tribes needed legal representation, they couldn't wait, they had emergencies, they needed to bring law suits. So Congress passed a statute in 1968 that if the Secretary didn't act within 90 days, then an attorney contract was considered approved. The Secretary's review in that area is more ministerial, or it has developed as being more ministerial. They check to see whether the attorney is a member of a bar, and hasn't been disbarred and is charging a rate that is not excessive, and that kind of thing.

But in this recognition area, Mr. Chairman, I think this is an awfully important determination. It is kind of a bedrock essential determination of where the political trust relationship extends. I think it does take more time. I can't say that a particular deadline seemed 30 days too short, or something like that, but it seemed to me that this is something that is going to take a few years to sort out. It's not something that can be done in 180 days, or in a time frame like that.

I don't think it is something as a matter of policy that the Congress should say that if the Government misses a deadline, but the review is substantially completed, that you then want to recognize a group that maybe shouldn't be recognized. It is very important, however, that you come up with a bill and that you get one passed. I think that everybody feels that this has just dragged on too long. The CHAIRMAN. Thank you, Mr. Chambers.

Senator McCain.

Senator MCCAIN. Thank you, Mr. Chairman.

Mr. Chambers, I appreciate your testimony and your years of work on behalf of Native Americans.

One of the people who I've grown to admire over the years, is Felix Cohen-

Mr. CHAMBERS. Oh, yes, he's the Shakespeare of our field, Mr. Vice Chairman. All of us who come after him can't get anywhere near him.

Senator MCCAIN. Let me give you a quote from him and ask you if you agree or disagree with it. In passing on the status of the Miami and Peoria Indians case some years ago he said, "It is not enough that the ethnographic history of the two groups shows them in the past to have been distinct and well-recognized tribes or bands. A particular tribe or band may well pass out of existence as such in the course of time. The word "recognized," as used in the Oklahoma Indian Welfare Act, involves more than past existence as a tribe and its historical recognition as such. There must be a currently existing group distinct and functioning as a group in certain respects and recognition of such activity must have been shown by specific actions of the Indian Office, the Department, or by Congress." Do you agree with that?

Mr. CHAMBERS. I generally agree with it. I don't know the detailed facts, Senator, on the groups he's speaking of. It's one of those groups in Northeastern Oklahoma.

I agree that in order to be recognized you need to have an effective, functioning government and culture today. I agree that you

need to have had it in treaty times. I agree that there needs to be some continuity on that. But I think some cases-and I'm particularly thinking of the Mashpee case-have required that it be shown decade by decade, that kind of thing. You have the lawful power to overrule that kind of case and I think you should.

I think that political societies have ebbs and flows in them and given the history of Indian tribes in the country, it seems to me very understandable that in long periods of time where there was strong assimilation pressures, tribes didn't function openly. I'm representing a new client, the Chitimacha Tribe in Louisiana, for example. They showed me a newspaper article that I just couldn't believe. Around the turn of the century on Christmas day some white citizens of the town just went out and shot up some people for being Indians and got away with it. That's incredibly sad. It wasn't even a frontier area or something like that. But the kind of pressures that those people were under during those decades and in those times, were incredible. For them to be around today and to be preserving their culture and functioning is just a marvelous testament to the courage of those people. Some of the same family names are there, this is a recognized tribe so there's no question of recognition, but they've survived with that kind of pressure, with that kind of tension. I can really understand why they probably didn't hold tribal council meetings for a couple of decades in a formal sense. But if you go out there today on that Bayou they are functioning as a culture and as a society, and they ought to be recognized, and are. That's my thinking on it, but I agree generally with what Felix Cohen is saying.

Senator MCCAIN. We've always had groups of Indians or people of some Indian descent, which were not recognized because these groups have not existed as separate, distinct, sovereign entities. Should we change Federal policy and recognize such groups?

Mr. CHAMBERS. I think so, if I understand your question. I think Federal policy is too restrictive in the administrative regulations within the Interior Department. I don't think they're a lot too restrictive. I think I agree with something like five of the_seven present criteria. I think it needs to be loosened a little bit. I don't know the facts of the 114 petitions, but I would be surprised if all of those ought to be granted.

Senator MCCAIN. We're going to hear from other witnesses from federally recognized tribes that they believe that this policy change would have the effect of diminishing tribal sovereign powers.

Mr. CHAMBERS. Absolutely, and I think reasonable minds can reasonably differ on this. I think that the two bills ought to be harmonized and that they are both useful suggestions for promising

reform.

Senator MCCAIN. I read your statement with interest and I think it's an excellent statement. If 50 years is not the correct period of time for determining continuous existence, what is? Should it be 10 years, 200 years, or do you have any ball park figure? In other words, you raise an objection to 50 years and I wonder what your recommendation is as to what would be reasonable.

Mr. CHAMBERS. I don't know and I apologize for that. Those of you who know me know that I don't usually come up here and be equivocal. I want to think about it. I think it needs to be worked

out and something needs to be done. I think this is becoming the kind of the mess that the Indian Claims Commission became where it just goes on and on and on. It is something that you're rightly getting into now and I do think you need to do something. Maybe it's not a number of years. It may not be an issue of picking a precise number of years. It may be more of an equitable assessment, Senator, I'm not sure.

Senator MCCAIN. It is refreshing, frankly, to hear somebody say "I'm not sure."

Mr. CHAMBERS. Well, when you don't know you have to say so, Senator. You just don't want to do it too often.

Senator MCCAIN. In regard to treaty tribes, you recommend a preference or an expedited process. Would you apply that preference to groups with unratified treaties?

Mr. CHAMBERS. No; I would not. Incidentally I don't see it as a preference, or an expedited process, for treaty tribes, so much as simply a declaration that you've decided this. Congress are the ones that have plenary power, the Executive does not. Your predecessors decided that question when they ratified those treaties. So I think those could just be disposed of.

Senator MCCAIN. Do you have any idea how many tribes with ratified treaties are currently not federally recognized?

Mr. CHAMBERS. No, I have no idea, Senator. That would be real findable. As Senator Inouye said, I think there are 371 ratified treaties and

Senator MCCAIN. Would you suspect that there is just a handful of tribes or would you suspect that there are a lot of tribes out there with ratified treaties that we have not recognized?

Mr. CHAMBERS. I would guess we would be talking about somewhere around 40 or 50. That's really just a guess, I could be off by a factor of two.

Senator MCCAIN. I understand. Thank you for your testimony, Mr. Chambers.

Mr. CHAMBERS. Thank you very much, Senator.

The CHAIRMAN. May I just ask a question on sovereignty. Do you consider Indian tribes to be sovereign?

Mr. CHAMBERS. I certainly do.

The CHAIRMAN. As a sovereign, can that political unit determine citizenship?

Mr. CHAMBERS. Yes; absolutely. It has absolute power to do that. It can't decide, I guess, that a non-Indian could be a citizen, or at least that non-Indian wouldn't be a person encompassed within Federal services. But tribes have the authority, and cases are very clear on this, to determine their members, and the courts have indicated this. We had just such a case for the Narragansetts a couple of years ago.

The CHAIRMAN. So if the tribal organization decides that notwithstanding the fact that this Indian came from another tribe, he or she will from this day forward be a member of this tribe?

Mr. CHAMBERS. You're thinking of a dual citizenship situation? The CHAIRMAN. No; let's say that this member from the Apaches has been living with the Cherokees now for 50 years, can the Cherokee tribal council decided that this Apache man can be a member of the Cherokees?