To establish procedures for the acknowledgment of Indian tribes.

February 26, 2003

Mr. DODD (for himself and Mr. LIEBERMAN) introduced the following bill; which was read twice and referred to the Committee on Indian Affairs

To establish procedures for the acknowledgment of Indian tribes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Tribal Acknowledgment and Indian Bureau Enhancement Act of 2003'.

SEC. 2. FINDINGS.

Congress finds that--

(1) the United States has an obligation to recognize and respect the sovereignty of Native American people who have maintained social, cultural, and political identity;

(2) each Native American tribal government that represents an Indian tribe that has, to the maximum extent practicable, maintained social, cultural, and political identity during the historical period is entitled--

(A) to establish government-to-government relations with the United States; and

(B) to the rights relating to sovereign governments;

(3) the Bureau exercises responsibility for determining whether Native American groups--

(A) constitute federally-acknowledged Indian tribes; and

(B) for that reason, are to be acknowledged by the United States as sovereign nations;

(4) in recent years, the decisionmaking process used by the Bureau to resolve claims of tribal sovereignty has been widely criticized; and

(5) in order to ensure continued public confidence in the decisions of the Federal Government pertaining to tribal acknowledgment, it is necessary to reform the acknowledgment process.

SEC. 3. PURPOSES.

The purposes of this Act are--

(1) to establish administrative procedures to extend Federal acknowledgment to certain Indian groups;

(2) to extend to Indian groups that are acknowledged--

(A) the protection, services, and benefits available from the Federal Government in accordance with the Federal trust responsibility with respect to Indian tribes; and

(B) the immunities and privileges available to other federally-acknowledged Indian tribes by virtue of their status as Indian tribes with a government-to-government relationship with the United States;

(3) to ensure that, if the Federal Government extends acknowledgment to an Indian group, the Federal Government does so based on clear, factual evidence derived from an open and objective administrative process;

(4) to provide clear and consistent standards of administrative review of documented petitions for Federal acknowledgment; and

(5) to clarify evidentiary standards and expedite the administrative review process by providing adequate resources to process documented petitions.

SEC. 4. DEFINITIONS.

In this Act:

(1) ACKNOWLEDGMENT- The term `acknowledgment', with respect to a determination by the Secretary, means acknowledgment by the United States that--

(A) an Indian group is an Indian tribe having a government-to-government relationship with the United States;

(B) the members of the Indian group are eligible for--

(i) the protection, programs, and services provided by the United States to members of Indian tribes because of the status of those members as Indians; and

(ii) the immunities and privileges available to an Indian tribe by virtue of the government-to-government relationship of the Indian tribe with the United States;

(C) the Indian group has the responsibilities, powers, limitations, and obligations of an Indian tribe; and

(D) the Indian group is subject to the same authority of Congress and the United States to which other Indian tribes are subject.

(2) BUREAU- The term `Bureau' means the Bureau of Indian Affairs of the Department of the Interior.

(3) DEPARTMENT- The term `Department' means the Department of the Interior.

(4) DOCUMENTED PETITION- The term `documented petition' means a petition for acknowledgment consisting of--

(A) detailed arguments made by a petitioner to substantiate the claim of the petitioner to existence as an Indian tribe during the historical period; and

(B) the factual exposition and all documentary evidence necessary to demonstrate that the arguments address the mandatory criteria for acknowledgment described in section 9(b).

(5) HISTORICAL PERIOD- The term `historical period' means the period beginning when a petitioner first sustained contact with non-Indians and continuing through the date of submission of a documented petition under this Act.

(6) INDIAN- The term `Indian' means an individual that is a member of an Indian group or Indian tribe.

(7) INDIAN GROUP- The term `Indian group' means any Indian or Alaska Native aggregation within the continental United States that the Secretary does not acknowledge to be an Indian tribe.

(8) INDIAN TRIBE- The term `Indian tribe' means any Indian group that the Secretary determines to have met the mandatory criteria for acknowledgment described in section 9(b).

(9) PETITIONER- The term `petitioner' means any Indian group that submits to the Secretary a letter of intent requesting acknowledgment.

(10) SECRETARY- The term `Secretary' means the Secretary of the Interior.

SEC. 5. INDIAN GROUPS ELIGIBLE FOR ACKNOWLEDGMENT.

(a) IN GENERAL- This Act applies only to an Indian group that--

(1) is indigenous to the continental United States;

(2) is not acknowledged as of the date of submission of a documented petition under this Act; and

(3) presents evidence of a substantially continuous tribal existence, and functioning as an autonomous entity, throughout the historical period.

(b) INELIGIBLE INDIAN GROUPS- The following groups shall not be eligible to submit a documented petition under this Act:

(1) Any Indian tribe, organized band, pueblo, community, or Alaska Native entity that, as of the date of enactment of this Act, is acknowledged.

(2) An association, organization, corporation, or group of any character that is formed for the purpose of seeking Federal acknowledgment after December 31, 2002.

(3) Any Indian group, political faction, or community that separates from the main population of an Indian tribe, unless the Indian group, faction, or community establishes to the satisfaction of the Secretary that the Indian group, political faction, or community has functioned as an autonomous Indian group throughout the historical period.

(4) Any Indian group, or successor in interest of an Indian group (other than an Indian tribe, organized band, pueblo, community, or Alaska native entity described in paragraph (1)), that, before the date of enactment of this Act, in accordance with part 83 of title 25, Code of Federal Regulations, petitioned for, and was denied, acknowledgment based on the merits of the documented petition (except that nothing in this paragraph excludes any group that Congress has identified as an Indian group but has not identified as an Indian tribe).

(5) Any Indian group the relationship of which with the Federal Government was expressly terminated by an Act of Congress.

(c) INDIAN GROUPS WITH PENDING PETITIONS-

(1) IN GENERAL- An Indian group the documented petition of which, as of the date of enactment of this Act, is under consideration by the Secretary in accordance with part 83 of title 25, Code of Federal Regulations (as in effect on the day before that date), and for which a determination of acknowledgment is not final and effective as of that date, shall be subject to this Act.

(2) ORDER OF CONSIDERATION- Nothing in paragraph (1) shall affect the order in which a documented petition of an Indian group described in that paragraph is considered by the Secretary.

(d) CLAIMS OF PREVIOUS ACKNOWLEDGMENT- Section 83.8 of title 25, Code of Federal Regulations (as in effect on the date of enactment of this Act), shall apply with respect to a petitioner that claims acknowledgment before the date of enactment of this Act.

SEC. 6. LETTER OF INTENT.

(a) IN GENERAL- An Indian group that seeks a determination of acknowledgment and that can meet the mandatory criteria for acknowledgment described in section 9(b) shall submit to the Secretary, before or simultaneously with submission of a documented petition, a letter of intent to seek acknowledgment.

(b) APPROVAL OF GOVERNING BODY- A letter of intent shall be produced, dated, and signed by the governing body of the Indian group submitting the letter.

SEC. 7. DUTIES OF THE DEPARTMENT.

(a) PUBLICATION OF LIST OF INDIAN TRIBES- Not less often than every 3 years, and more frequently as determined by the Secretary, the Secretary shall publish in the Federal Register a list of all Indian tribes.

(b) GUIDELINES FOR PREPARATION OF DOCUMENTED PETITIONS-

(1) IN GENERAL- The Secretary shall make available guidelines for the preparation of documented petitions that include--

(A) an explanation of the criteria and other provisions relevant to the consideration by the Secretary of a documented petition;

(B) a discussion of the types of evidence that may be used to demonstrate satisfaction of particular criteria;

(C) general suggestions and guidelines relating to the manner in which and locations at which research relating to a documented petition may be conducted; and

(D) an example of a format for a documented petition (except that the example shall not preclude the use of any other format).

(2) SUPPLEMENTATION AND REVISION- The Secretary may supplement or update the guidelines as the Secretary determines to be necessary.

(c) ASSISTANCE- The Secretary--

(1) shall, on request by a petitioner, provide the petitioner with suggestions and advice regarding preparation of a documented petition; but

(2) shall not be responsible for any research necessary to prepare a documented petition.

(d) NOTICE TO GROUPS WITH A LETTER OF INTENT- The Secretary shall provide to each Indian group that, as of the date of enactment of this Act, has submitted a letter of intent to the Secretary under section 6(a) but has not yet submitted a documented petition, a notice informing the Indian group that any documented petition submitted by the Indian group shall be considered in accordance with this Act.

SEC. 8. REQUIREMENTS FOR DOCUMENTED PETITION.

(a) IN GENERAL- A documented petition submitted to the Secretary under this Act--

(1) may be in any readable form that contains detailed, specific evidence in support of a request to the Secretary for acknowledgment;

(2) shall include a certification, signed and dated by members of the governing body of the petitioner, stating that the documented petition is the official documented petition of the petitioner; and

(3) shall include thorough explanations and supporting documentation pertaining to each of the mandatory criteria for acknowledgment described in section 9(b).

(b) SATISFACTION OF MANDATORY CRITERIA- To be acknowledged under this Act, a petitioner shall meet each of the mandatory criteria for acknowledgment described in section 9(b).

(c) STANDARDS FOR DENIAL-

(1) IN GENERAL- Subject to paragraph (2), the Secretary shall not acknowledge a petitioner if the Secretary determines that evidence presented by the petitioner or any other person is insufficient to demonstrate that the petitioner meets each of the mandatory criteria for acknowledgment described in section 9(b).

(2) STANDARDS FOR MEETING MANDATORY CRITERIA- With respect to a mandatory criterion for acknowledgment described in section 9(b)--

(A) the Secretary shall consider a petitioner to have met the mandatory criterion if the Secretary determines that it is more likely than not that the evidence presented demonstrates that the petitioner has met the mandatory criterion; and

(B) conclusive proof of the facts relating to the mandatory criterion shall not be required in order for the Secretary to consider the mandatory criterion to have been met.

(d) CONSIDERATION OF SITUATIONS AND LIMITATIONS DURING HISTORICAL PERIOD-

(1) IN GENERAL- In considering a documented petition under this Act, the Secretary shall take into account--

(A) evidentiary situations and limitations (including limitations inherent in demonstrating the historical existence of community and political influence or authority) during the historical period; and

(B) periods during the historical period for which evidence relating to the documented petition is demonstrably limited or not available.

(2) SUBSTANTIALLY CONTINUOUS BASIS OF EXISTENCE- In demonstrating the historical existence of community and political influence or authority with respect to any mandatory criterion for acknowledgment described in section 9(b)--

(A) a petitioner--

(i) shall make such a demonstration on a substantially continuous basis; but

(ii) shall not be required to make the demonstration with respect to each point in time during the historical period; and

(B) any fluctuation in tribal activity during any period of time shall not be the sole reason for a denial of acknowledgment.

SEC. 9. MANDATORY CRITERIA FOR ACKNOWLEDGMENT.

(a) IN GENERAL- To be acknowledged under this Act, a petitioner shall meet each of the mandatory criteria described in subsection (b) to the satisfaction of the Secretary.

(b) MANDATORY CRITERIA-

(1) IDENTIFICATION ON A SUBSTANTIALLY CONTINUOUS BASIS-

(A) IN GENERAL- A petitioner shall demonstrate that the petitioner has been identified as an Indian group in the United States on a substantially continuous basis since 1900.

(B) PREVIOUS DENIALS OF STATUS- The Secretary shall not consider any evidence that the status of the petitioner as an Indian group has previously been denied to be conclusive evidence that the criterion described in subparagraph (A) has not been met.

(C) EVIDENCE RELATING TO IDENTITY- In determining the Indian identity of a petitioner, the Secretary may use as evidence 1 or more of the following:

(i) An identification of the petitioner as an Indian group by any department, agency, or instrumentality of the Federal Government.

(ii) A relationship between the petitioner and any State government, based on an identification of the petitioner by the State as an Indian group.

(iii) Any dealings of the petitioner with a county or political subdivision of a State in a relationship based on an identification of the petitioner as an Indian group.

(iv) An identification of the petitioner as an Indian group by an anthropologist, historian, or other scholar.

(v) An identification of the petitioner as an Indian group in a newspaper, book, or similar medium.

(vi) An identification of the petitioner as an Indian group by an Indian tribe or by a national, regional, or State Indian organization.

(vii) An identification of the petitioner as an Indian group by a foreign government or an international organization.

(viii) Such other evidence of identification as may be provided by a person or entity other than the petitioner or a member of the membership of the petitioner.

(2) DISTINCT COMMUNITY-

(A) IN GENERAL- A petitioner shall demonstrate that a predominant portion of the membership of the petitioner--

(i) comprises a community distinct from the communities surrounding that community; and

(ii) has existed as a community throughout the historical period.

(B) EVIDENCE RELATING TO COMMUNITY- In determining whether the membership of the petitioner meets the criteria described in subparagraph (A), the Secretary may use as evidence 1 or more of the following:

(i) Significant rates of marriage within the membership of the petitioner, or, as may be culturally required, patterned out-marriages with other Indian populations.

(ii) Significant social relationships connecting individual members of the petitioner.

(iii) Significant rates of informal social interaction that exist broadly among the members of the petitioner.

(iv) A significant degree of shared or cooperative labor or other economic activity among the membership of the petitioner.

(v) Evidence of strong patterns of discrimination or other social distinctions against members of the petitioner by nonmembers.

(vi) Shared sacred or secular ritual activity encompassing a majority of members of the petitioner.

(vii) Cultural patterns that--

(I) are shared among a significant portion of the members of the petitioner;

(II) are different from the cultural patterns of the non-Indian populations with whom the membership of the petitioner interacts;

(III) function as more than a symbolic identification of the petitioner as Indian; and

(IV) may include language, kinship, or religious organizations, or religious beliefs and practices.

(viii) The persistence of a named, collective Indian identity during a continuous period of at least 50 years, notwithstanding any change in name.

(ix) A demonstration of historical political influence or authority of the petitioner (such as political influence or authority demonstrated under paragraph (3)).

(C) SUFFICIENT EVIDENCE- The Secretary shall consider a petitioner to have provided sufficient evidence of community under this paragraph if the petitioner provides to the Secretary evidence demonstrating that, throughout the historical period--

(i)(I) more than 50 percent of the members of the petitioner reside in a particular geographical area exclusively, or almost exclusively, composed of members of the group; and

(II) the balance of the membership maintains consistent social interaction with other members of the petitioner;

(ii) not less than 50 percent of the marriages of members of the petitioner are between members of the petitioner;

(iii) not less than 50 percent of the members of the petitioner maintain distinct cultural patterns, including language, kinship, and religious organizations, or religious beliefs or practices;

(iv) distinct community social institutions (such as kinship organizations, formal or informal economic cooperation, and religious organizations) encompass a majority of the members of the petitioner; or

(v) the petitioner has met the criterion described in paragraph (3) using evidence described in paragraph (3)(A).

(3) POLITICAL INFLUENCE OR AUTHORITY-

(A) IN GENERAL- A petitioner shall demonstrate that the petitioner has maintained political influence or authority as an autonomous entity over members of the petitioner throughout the historical period.

(B) EVIDENCE RELATING TO AUTONOMOUS NATURE- In determining whether a petitioner is an autonomous entity under paragraph (1), the Secretary may use as evidence 1 or more of the following:

(i) A demonstration that the petitioner is capable of mobilizing significant numbers of members and significant member resource for purposes relating to the petitioner.

(ii) Evidence that most of the members of the petitioner consider actions taken by leaders or governing bodies of the petitioner to be of personal importance.

(iii) Evidence that there is widespread knowledge, communication, and involvement in political processes of the petitioner by a majority of the members of the petitioner.

(iv) Evidence that the petitioner meets the criteria described in paragraph (2) at more than a minimal level.

(v) A demonstration by the petitioner that there are conflicts within the membership that demonstrate controversy over valued goals, properties, policies, processes, or decisions of the petitioner.

(C) EVIDENCE OF EXERCISE OF POLITICAL INFLUENCE OR AUTHORITY- The Secretary shall consider a petitioner to have provided sufficient evidence to demonstrate the exercise of political influence or authority if the petitioner demonstrates that decisions by leaders of the petitioner (or decisions made through another decisionmaking process) have been made

throughout the historical period with respect to--

(i) the allocation of group resources such as land, residence rights, or similar resources on a consistent basis;

(ii) the settlement on a regular basis, by mediation or other means, of disputes between members or subgroups of members of the petitioner (such as clans or lineages);

(iii) the exertion of strong influence on the behavior of individual members of the petitioner, such as the establishment or maintenance of norms and the enforcement of sanctions to direct or control behavior; or

(iv) the organization or influencing of economic subsistence activities among the members of the petitioner, including shared or cooperative labor.

(D) PRESUMPTIVE EVIDENCE- A petitioner that meets the criteria described in paragraph (2)(A) shall be considered to have provided sufficient evidence to meet the criterion under this paragraph.

(4) GOVERNING DOCUMENT AND MEMBERSHIP CRITERIA-

(A) IN GENERAL- A petitioner shall include in the documented petition of the petitioner a copy of the governing document of the petitioner in effect as of the date of submission of the documented petition that includes a description of the membership criteria of the petitioner.

(B) ALTERNATIVE STATEMENT- If no written governing document described in subparagraph (A) exists, a petitioner shall include with a documented petition a detailed statement that describes--

(i) the membership criteria of the petitioner; and

(ii) the governing procedures of the petitioner in effect as of the date of submission of the documented petition.

(5) MEMBERSHIP OF PETITIONER-

(A) IN GENERAL- A petitioner shall include in a documented petition submitted under this Act--

(i) a list of all members of the petitioner as of the date of submission of the documented petition, as certified by the governing body of the petitioner, that includes for each member--

(I) a full name (and maiden name, if any);

(II) a date and place of birth; and

(III) a current residential address;

(ii) a copy of each available former list of members of the petitioner; and

(iii) a statement describing the methods used in preparing those lists.

(B) REQUIREMENTS FOR MEMBERSHIP- In determining whether to consider the members of a petitioner to be members of an Indian group for the purpose of a documented petition described in subparagraph (A), the Secretary shall require that the membership consist of descendants of--

(i) an Indian group that existed during the historical period; or

(ii) 1 or more Indian groups that, at any time during the historical period, combined and functioned as a single autonomous entity.

(C) EVIDENCE OF TRIBAL MEMBERSHIP- In making the determination under subparagraph (B), the Secretary may use as evidence 1 or more of the following:

(i) Tribal rolls prepared by the Secretary for the petitioner for the purpose of distributing claims money or providing allotments, or for other any other purpose.

(ii) Any Federal, State, or other official record or evidence identifying members of the petitioner as of the date of submission of the documented petition, or ancestors of those members, as being descendants of an Indian group described in clause (i) or (ii) of subparagraph (B).

(iii) Any church, school, or other similar enrollment record identifying members of the petitioner as of the date of submission of the documented petition, or ancestors of those members, as being descendants of an Indian group described in clause (i) or (ii) of subparagraph (B).

(iv) An affidavit of recognition by tribal elders, tribal leaders, or a tribal governing body identifying members of the petitioner as of the date of submission of the documented petition, or ancestors of those members, as being descendants of an Indian group described in clause (i) or (ii) of subparagraph (B).

(v) Any other record or evidence identifying members of the petitioner as of the date of submission of the documented petition, or ancestors of those members, as being descendants of an Indian group described in clause (i) or (ii) of subparagraph (B).

(6) MEMBERSHIP COMPOSED PRIMARILY OF INDIVIDUALS WHO ARE NOT MEMBERS OF AN INDIAN TRIBE-

(A) IN GENERAL- Except as provided in subparagraph (B), a petitioner shall demonstrate that the membership of the petitioner is composed primarily of individuals who are not members of an Indian tribe.

(B) EXCEPTION- A petitioner may be acknowledged if the membership of the petitioner

is composed primarily of individuals whose names have appeared on rolls of, or who have been otherwise associated with, an Indian tribe, if the petitioner establishes that--

(i) the petitioner has functioned throughout the historical period as a separate and autonomous Indian group;

(ii) the members of the petitioner do not maintain a bilateral political relationship with any Indian tribe; and

(iii) the members of the petitioner have provided written confirmation of their membership in the petitioner.

(7) LEGISLATION TERMINATING OR PROHIBITING ACKNOWLEDGMENT- A petitioner shall demonstrate that neither the petitioner, nor any members of the petitioner, are the subject of any Act of Congress expressly terminating or prohibiting acknowledgment of the petitioner.

SEC. 10. NOTICE OF RECEIPT OF A LETTER OF INTENT OR DOCUMENTED PETITION.

(a) NOTICE OF RECEIPT OF A PETITION-

(1) NOTICE TO PETITIONER- Not later than 30 days after the date on which the Secretary receives a letter of intent under section 6(a) (or a documented petition, if the Secretary has not received a letter of intent), the Secretary shall provide to the petitioner submitting the letter or documented petition a written notice of the receipt.

(2) PUBLICATION OF NOTICE-

(A) IN GENERAL- Not later than 60 days after the date on which the Secretary receives a letter (or documented petition) under section 6(a), the Secretary shall publish, in 1 or more major newspapers of general circulation in the town or city nearest to the petitioner and in the Federal Register, a notice of receipt of the letter (or documented petition).

(B) INCLUSIONS- The notice under subparagraph (A) shall include--

(i) the name, location, and mailing address of the petitioner;

(ii) such other information as the Secretary determines will identify the petitioner;

(iii) the date of receipt of the letter (or documented petition);

(iv) information describing 1 or more locations at which a copy of the letter (or documented petition) and related submissions may be examined by the public; and

(v) a description of the procedure by which an interested party may submit--

(I) arguments or evidence in support of or in opposition to the request of the petitioner for acknowledgment; or

(II) a request to be kept informed of all actions affecting the letter or documented petition.

(b) NOTIFICATION OF OTHER PERSONS- The Secretary shall submit a copy of the notice published under subsection (a)(2) to--

(1) the Governor of, members of Congress representing, and attorney general of--

(A) each State in which the petitioner is located; and

(B) each State that, as determined by the Secretary, has a significant interest in the petition;

(2) each Indian tribe, and each other petitioner, that, as determined by the Secretary--

(A) has a relationship with the petitioner (including any relationship at any time during the historical period); or

(B) that may otherwise be considered to have a potential interest in a determination of acknowledgment of the petitioner; and

(3) the chief executive officer of each county and municipality located in the geographic area occupied by the petitioner.

SEC. 11. PROCESSING OF DOCUMENTED PETITIONS.

Section 83.10 of title 25, Code of Federal Regulations (as in effect on the date of enactment of this Act) shall apply with respect to the processing of a documented petition under this Act.

SEC. 12. TESTIMONY AND THE OPPORTUNITY TO BE HEARD.

(a) IN GENERAL- In determining whether to acknowledge a petitioner under this Act, the Secretary shall consider all relevant evidence from any interested party, including evidence from a municipality located in the same area in which the petitioner is located.

(b) HEARING ON REQUEST- On request by an interested party, for good cause, the Secretary may conduct a formal hearing with respect to a documented petition at which all interested parties may--

(1) present evidence;

(2) call witnesses;

(3) cross-examine witnesses; or

(4) rebut evidence in the record or presented by other parties during the hearing.

(c) TRANSCRIPT REQUIRED- A transcript of any hearing under this section shall be included in the administrative record on which the Secretary relies in determining whether to acknowledge a petitioner under this Act.

SEC. 13. WRITTEN SUBMISSIONS BY INTERESTED PARTIES.

In determining whether to acknowledge a petitioner under this Act, the Secretary shall consider any written materials submitted to the Bureau from any interested party that possesses relevant information relating to the petitioner, including evidence from a municipality located in the same area in which the petitioner is located.

SEC. 14. PUBLICATION OF FINAL DETERMINATION.

On making a determination whether to acknowledge a petitioner under this Act, the Secretary shall publish in the Federal Register a detailed explanation of the final determination of the Secretary regarding the acknowledgment and the documented petition of the petitioner, including an express finding of facts and of law with respect to each of the mandatory criteria for acknowledgment described in section 9(b).

SEC. 15. INDEPENDENT REVIEW, RECONSIDERATION, AND FINAL ACTION.

Section 83.11 of title 25, Code of Federal Regulations (as in effect on the date of enactment of this Act), shall apply with respect to the independent review, reconsideration, and final determination of the Secretary with respect to a documented petition under this Act.

SEC. 16. IMPLEMENTATION OF DETERMINATION OF ACKNOWLEDGMENT.

Section 83.12 of title 25, Code of Federal Regulations (as in effect on the date of enactment of this Act), shall apply with respect to the implementation of a determination of acknowledgment by the Secretary under this Act.

SEC. 17. AUTHORIZATION OF APPROPRIATIONS.

There is authorized to be appropriated to carry out this Act $10,000,000 for fiscal year 2004 and each fiscal year thereafter.

END