Hearing of the Committee on Indian Affairs on Federal Recognition of Indian Tribes
STATEMENT OF HON. JOHN McCAIN, U.S. SENATOR FROM ARIZONA, CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS
The Chairman. Good morning.
In 1978, after years of ad-hoc decisions, the Department of the Interior promulgated regulations intended to ensure a fair,
timely and rigorous process for the administrative recognition of Indian tribes.
Since that time, this committee has held numerous oversight hearings on that process. What those hearings have shown us is that from the beginning this process, though well intentioned, has been criticized as too slow, too costly and too opaque.
Congressional recognition, on the other hand, has been criticized for being too summary and too unfair.
Events in recent years have raised the specter of improper conduct by Federal officials, including well-reported accounts
of paperwork being signed through car windows by departing officials, and officials resigning Federal employ to
immediately work with tribes they recently recognized.
The role that gaming and its non-tribal backers have played in the recognition process has increased perceptions that it is
unfair, if not corrupt. The solemnity of Federal recognition, which establishes a government-to-government relationship
between the United States and an Indian tribe, demands not only a fair and transparent process, but a process that is above
While the relationship established is Federal, the impacts are felt locally as well, as has been reported to this committee by states attorneys general and local communities. Congress retains the ultimate authority and responsibility to recognize and deal with Indian tribes, including oversight of the Federal agencies also charged with those responsibilities.
Therefore, it is Congress' responsibility to ensure that administrative agency action is conducted in a transparent
fashion, in keeping with good governance. The committee will hear from a variety of witnesses today, including colleagues
from the Senate and House. I anticipate that informed by this and past hearings, this committee will begin looking at ways to
fix the process.
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The State of Connecticut is well represented here this morning. I would like to thank all of my friends from the
House, as well as my colleagues from the Senate, for being here. I would like to mention that the attorney general of the
State of Connecticut had requested to appear here today as well. We did not receive his request until late. We received
written testimony from him. We will have a series of hearings on this issue, and we will invite him in the future.
We usually begin not only by seniority, but by age. And so Senator Dodd, I think you qualify in both categories. We
welcome you to the committee.
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The Chairman. Thank you very much, Mr. Fleming.
Ms. Kendall, you find nothing wrong with casino interests providing financial backing for tribes seeking recognition. Is
that what you testified to?
Ms. Kendall. Not exactly, Mr. Chairman. We are concerned about the financial backing issues and the lobbying access to
the Department. What we did not find anything wrong with was the actual process by which the acknowledgment was rendered.
The Chairman. Well, let's look at a situation in the State of North Dakota. There is an entity seeking recognition and
they are in a sparsely populated area, probably not a good place for a casino to be located. It would probably be pretty
difficult for Mr. Trump to come in in his zeal and advocacy for Native Americans to probably go in there. Yet, you have an
entity in the Northeast that is seeking recognition, as was testified by Congressman Shays, that gaming interests come in
and provide the financial backing for them.
Isn't there something wrong with that picture?
Ms. Kendall. I do not disagree with you, Mr. Chairman. I think there is something wrong with that picture. Our concern
is that there is no statutory or regulatory mechanism presently in place that would regulate or control that access.
The Chairman. You know, at one time the Inspector General called the recognition process permissive and inherently
flexible. Do you think that some of the changes that have been made since then probably would make for a different
Ms. Kendall. I am not familiar with that description, Mr. Chairman.
The Chairman. Do you believe that that is the case today?
Ms. Kendall. I am not sure that I could say that I believe it is the case. I believe, as both a lawyer and a career civil
servant, that the administrative process that governs the tribal acknowledgment process should ferret out that kind of
problem if it is not founded in law or regulation.
The Chairman. I think you obviously agree that we should have the same revolving door provisions for employees of the
BIA as we have for other branches of government.
Ms. Kendall. I believe Mr. Devaney testified last month when he appeared before this committee that he, and I agree
with him, believes that the revolving door provision that allows people to leave the Department and immediately represent
tribes is a provision that has outlived its purpose, yes.
The Chairman. You testified that an investigation in 2001 revealed that there were improprieties.
Ms. Kendall. Yes, sir.
The Chairman. Who were the individuals who acted improperly?
Ms. Kendall. Our finding in that investigation specifically was the acting assistant secretary at the time, who
The Chairman. Whose name is?
Ms. Kendall. I believe it was Michael Anderson, Mr. Chairman.
The Chairman. Do you know what Mr. Anderson does today?
Ms. Kendall. I believe he is with a law firm.
The Chairman. That represents Native Americans?
Ms. Kendall. That is my understanding, yes, sir.
The Chairman. But there were never any charges brought against Mr. Anderson.
Ms. Kendall. At the time, our investigation concluded, and actually at the time he signed the documents, he was no longer
an employee of the Department.
The Chairman. So he is no longer an employee, so therefore he did not fall under any Federal regulations or law.
Ms. Kendall. He did not fall under our jurisdiction, Mr. Chairman. And as a former employee, the Department had no
authority to take any administrative action against him.
The Chairman. I understand.
Mr. Fleming, how many new letters of intent, approximately, have you received since 1988, the passage of the Indian Gaming Regulatory Act?
Mr. Fleming. I would have to quantify that for you, but I can give you an idea of the number of petitioners that were
received before and after 1988. As an example, in 1980, we received 10 petitioning group letters of intent; in 1981,
seven; in 1982, five; in 1983, seven; in 1984, seven; in 1985, five; in 1986, zero; in 1987, two.
In 1988, we received five; in 1989; six; in 1990, seven; in 1991, five; in 1992, eight; in 1993, seven; in 1994, nine; and
then in 1995, we received 17; in 1996, 12; in 1997, nine; in 1998, 21; in 1999, 17; in 2000, 15; in 2001, 13; in 2002, 19;
in 2003, 12; and in 2004, nine.
The Chairman. Thank you very much.
How many final decisions do you anticipate making over the next several years, roughly?
Mr. Fleming. Roughly, we have seven groups that are on active consideration that are awaiting final actions. They are
in various stages, either during a public comment period, response period, or the development of final determinations.
The Chairman. In your written testimony, you said on the issue of other improvements to the Federal acknowledgment
process, you say some tasks will take longer to implement because they may require congressional action, regulatory
amendments or access to the Internet. What are these congressional actions that you think may need to be taken?
Mr. Fleming. We have discussed the congressional assistance with dealing with our Freedom of Information Act requests. We have discussed and provided testimony in the past that the Department does support sunset rules so that we would know a finite number of petitioning groups yet to address, and those are some of the aspects that would need congressional action.
The Chairman. Thank you very much.
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The Chairman. Thank you very much, Mr. Cooper.
Chief Velky, do you intend to build a casino in Kent?
Mr. Velky. No, Mr. Chairman; we do not.
The Chairman. Do you intend to start a gaming enterprise on your tribal lands?
Mr. Velky. As it stands today on our tribal lands, not in Kent, no, sir.
The Chairman. Anywhere on your tribal lands?
Mr. Velky. It is our intention in the future to have a gaming facility, yes, sir.
The Chairman. And you refuse to, during this process, to disclose who your financial backers were?
Mr. Velky. No; we did not, sir. That has been in the newspapers back home continuously.
The Chairman. Who are your financial backers?
Mr. Velky. It is Subway, Mr. Fred DeLuca is the main backer. We are in dispute right now, however.
The Chairman. About what?
Mr. Velky. Just about being able to get along. This process is not an easy process, as I had outlined, Senator. It is
unfortunate, but when we have groups such as TASK that are willing to pay lobbyists some $2 million in order to fight the
Schaghticoke Nation, when the Schaghticoke Nation has to come and defend itself against a whole delegation of the State of
Connecticut, it is extremely costly for us to get through and it is unfortunate that the tribes need to go out and borrow
this money. But if the tribe is not able to go out there and borrow the money, we will do some type of a damage from
borrowing the money, but if we do not meet our recognition, sir, we will not be able to overcome that cost.
The Chairman. Thank you.
Chief Adkins, I take it from your testimony that you believe that so many tribal documents and other historical
records were destroyed that would be hard for you to achieve recognition through the BIA process. Is that correct?
Mr. Adkins. That is correct, but I would like to qualify it. We are up against a situation where, and I would say I do
not have a problem with the seven criteria. I have some problem with the process because when I look at what happened in
Virginia, the Racial Integrity Act of 1924, the Indian Reorganization Act of 1934, and then in 1966 the Virginia Supreme Court upheld the 1924 laws, which were overturned at the Federal level.
So coming out of Virginia, we have found success in the Federal recourse. In 1982, Virginia did form a subcommittee
that reported on our State recognition efforts. The Virginia Commission on Indians was formed and State recognition was
afforded. In 1997, then-Governor Allen supported a statute or signed into statute.
The Chairman. I understand that. It was part of your testimony.
Mr. Adkins. Okay. Right. So the point that I am making is the process hurts us because of where we were in the State. It
is the 20th century that caused us more concern than the historical portion.
The Chairman. Thank you.
Chief Barnett, if you would submit to us in writing the recommendations you have that could prevent, you went through a
23-year process. Is that correct?
Mr. Barnett. A 25-year process.
The Chairman. A 25-year process. If you could submit in writing to us recommendations on how this process could be
expedited and be made more fair. And by the way, how much of that delay was due to your efforts to collect documents and
Mr. Barnett. I would say that a considerable amount of time. We would have to go back because of the obvious
deficiency letters, to gather the additional information.
The Chairman. So not all of it was just because of BIA inefficiency.
Mr. Barnett. Yes; personally, I think the Cowlitz people, they realized that the BIA and the Federal acknowledgment
process is a fair standard process that has to meet high bars. We were certainly willing to go to that level to do it. We do
not at all feel compromised by the fact that it took as long as it did. However, I think that those tribes coming behind us
deserve a little bit more fair situation than what we went through.
The Chairman. Mr. Cooper, have you had discussions with the tribe and tribal leaders about the issue of gaming in your
Mr. Cooper. No; we have not.
The Chairman. Have you attempted to?
Mr. Cooper. No; we have not, Mr. Chairman.
The Chairman. Why not?
Mr. Cooper. Because they are currently not a federally recognized tribe, and if we have discussions with them to make
agreements. They are not bound by those discussions after the Federal recognition process. And the second point, Mr.
Chairman, is we are a grassroots organization. The elected officials of the town of Kent and the attorney general are
really the appropriate authorities to be conducting those discussions.
The Chairman. I thank you, Mr. Cooper, and I apologize to the witnesses. I had many more questions, but I think we have a