SPEAKERS CONTENTS INSERTS
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51–984 l
1998
THE SWAN CREEK BLACK RIVER CONFEDERATED OJIBWA TRIBES
HEARING
before the
COMMITTEE ON RESOURCES
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTH CONGRESS
SECOND SESSION
on
H.R. 2822, TO REAFFIRM AND CLARIFY THE FEDERAL RELATIONSHIP OF THE SWAN CREEK BLACK RIVER CONFEDERATED OJIBWA TRIBES AS A DISTINCT FEDERALLY RECOGNIZED INDIAN TRIBE, AND FOR OTHER PURPOSES
OCTOBER 7, 1998, WASHINGTON, DC
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Serial No. 105–116
Printed for the use of the Committee on Resources
Available via the World Wide Web: http://www.access.gpo.gov/congress/house
or
Committee address: http://www.house.gov/resources
COMMITTEE ON RESOURCES
DON YOUNG, Alaska, Chairman
W.J. (BILLY) TAUZIN, Louisiana
JAMES V. HANSEN, Utah
JIM SAXTON, New Jersey
ELTON GALLEGLY, California
JOHN J. DUNCAN, Jr., Tennessee
JOEL HEFLEY, Colorado
JOHN T. DOOLITTLE, California
WAYNE T. GILCHREST, Maryland
KEN CALVERT, California
RICHARD W. POMBO, California
BARBARA CUBIN, Wyoming
HELEN CHENOWETH, Idaho
LINDA SMITH, Washington
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GEORGE P. RADANOVICH, California
WALTER B. JONES, Jr., North Carolina
WILLIAM M. (MAC) THORNBERRY, Texas
JOHN SHADEGG, Arizona
JOHN E. ENSIGN, Nevada
ROBERT F. SMITH, Oregon
CHRIS CANNON, Utah
KEVIN BRADY, Texas
JOHN PETERSON, Pennsylvania
RICK HILL, Montana
BOB SCHAFFER, Colorado
JIM GIBBONS, Nevada
MICHAEL D. CRAPO, Idaho
GEORGE MILLER, California
EDWARD J. MARKEY, Massachusetts
NICK J. RAHALL II, West Virginia
BRUCE F. VENTO, Minnesota
DALE E. KILDEE, Michigan
PETER A. DeFAZIO, Oregon
ENI F.H. FALEOMAVAEGA, American Samoa
NEIL ABERCROMBIE, Hawaii
SOLOMON P. ORTIZ, Texas
OWEN B. PICKETT, Virginia
FRANK PALLONE, Jr., New Jersey
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CALVIN M. DOOLEY, California
CARLOS A. ROMERO-BARCELÓ, Puerto Rico
MAURICE D. HINCHEY, New York
ROBERT A. UNDERWOOD, Guam
SAM FARR, California
PATRICK J. KENNEDY, Rhode Island
ADAM SMITH, Washington
WILLIAM D. DELAHUNT, Massachusetts
CHRIS JOHN, Louisiana
DONNA CHRISTIAN-GREEN, Virgin Islands
RON KIND, Wisconsin
LLOYD DOGGETT, Texas
LLOYD A. JONES, Chief of Staff
ELIZABETH MEGGINSON, Chief Counsel
CHRISTINE KENNEDY, Chief Clerk/Administrator
JOHN LAWRENCE, Democratic Staff Director
C O N T E N T S
Hearing held October 7, 1998
Statement of Members:
Calvert, Hon. Ken, a Representative in Congress from the State of California
Camp, Hon. David, a Representative in Congress from the State of Michigan
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Prepared statement of
Faleomavaega, Hon. Eni F.H., a Delegate in Congress from American Samoa
Kennedy, Hon. Patrick J., a Representative in Congress from the State of Rhode Island, prepared statement of
Kildee, Hon. Dale E., a Representative in Congress from the State of Michigan
Prepared statement of
Knollenberg, Hon. Joe, a Representative in Congress from the State of Michigan
Prepared statement of
Miller, Hon. George, a Representative in Congress from the State of California, prepared statement of
Statement of Witnesses:
Chamberlain, Kevin, Chief, Saginaw Chippewa Tribe, Mt. Pleasant, Michigan
Prepared statement of
Gould, Gerald, Chief, Swan Creek Black River Confederated Ojibwa Tribes of Michigan, Saginaw, Michigan
Prepared statement of
Gould, Harold, Administrative Subchief, Swan Creek Black River
Gover, Kevin, Assistant Secretary, Indian Affairs, United States Department of the Interior
Prepared statement of
Jackson, Deborah Davis, Ph.D., prepared statement of
McClurken, James Michael, Ethno-Historical Consultant, prepared statement of
Patterson, L. Brooks, County Executive, Oakland County, Michigan
Prepared statement of
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Additional material supplied:
Engler, Hon. John, Governor, State of Michigan, letter to Mr. Knollenberg
Further letter to Mr. Knollenberg
H.R. 2822, text of
Lawson, Michael L., Ph.D., Senior Associate, Morgan, Angel & Associates, Washington, DC, prepared statement of
HEARING ON H.R. 2822, TO REAFFIRM AND CLARIFY THE FEDERAL RELATIONSHIP OF THE SWAN CREEK BLACK RIVER CONFEDERATED OJIBWA TRIBES AS A DISTINCT FEDERALLY RECOGNIZED INDIAN TRIBE, AND FOR OTHER PURPOSES
WEDNESDAY, OCTOBER 7, 1998
House of Representatives,
Committee on Resources,
Washington, DC.
The Committee met, pursuant to other business, at 1:06 p.m., in room 1324, Rayburn House Office Building, Hon. Ken Calvert [acting chairman of the Committee] presiding.
Mr. CALVERT. [presiding] The Committee will come to order.
STATEMENT OF HON. KEN CALVERT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
Mr. CALVERT. Today, we are meeting to adopt an oversight report regarding the designation of the Escalante Grand Staircase National Monument. Immediately following the consideration of this report, we will hear testimony on H.R. 2822, except that we're going to reverse that order—the Swan Creek Black River Confederated Ojibwa Tribes of Michigan Act authored by Congressman Knollenberg.
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I appreciate the hearing witnesses accommodating our change in schedule, as Congressmen Miller and Kildee—who are very interested in this legislation—weren't able to come here this morning at 11 a.m. So, we're going to proceed with the hearing, since our witnesses are here, as a courtesy to them and I look forward to hearing from all the witnesses—and, without further comment, I will recognize my colleague on my left for his opening statement. Thank you.
STATEMENT OF HON. DALE E. KILDEE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN
Mr. KILDEE. Thank you, Mr. Chairman, members of the Committee. As a senior member of this Committee and as co-chairman of the Congressional Native American Caucus, there's no one who is more strong in his support of sovereignty but also unity and today I am stating for the record my strong opposition to H.R. 2822, a bill that would grant Federal recognition to the Swan Creek Black River Confederated Ojibwa group.
Mr. Chairman, I oppose the scheduling of a hearing on H.R. 2822 this year because of my strong belief that Congress should not interfere with the internal political affairs of sovereign tribes. We should urge the Swan Creek members to utilize the internal processes of the Saginaw Chippewa Tribe to resolve their disputes. Although this Committee approved legislation in previous years granting Federal recognition to various tribes, H.R. 2822 does not warrant the same treatment by this Committee.
Mr. Chairman, it is my understanding that the Swan Creek claimed to be the successors and interests to the Swan Creek and Black River Bands of the Chippewa Indians. These bands, however, have always been recognized and treated by the Federal Government as part of the Saginaw Chippewa Tribe. The Swan Creek have not existed as a political entity for more than 140 years. They ceased to exist as a political entity after the 1855 Treaty of Detroit. To recognize them now would severely undermine the sovereignty of the Saginaw Chippewa Tribe.
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The United States has treated Saginaw Chippewa Tribe as one entity through the Treaty of 1864, the Indian Reorganization Act—a judgment upon legislation—and continues to treat it as one body politic today. Congress should not now, in direct contradiction to the historical evidence presented here today, split the Saginaw Chippewa Tribe into two entities.
In 1978, the Department of the Interior through the Bureau of Indian Affairs promulgated regulations establishing procedures for Federal acknowledgment of Indian tribes. Any group of Indians seeking Federal acknowledgment must first meet the scope of the regulations found at 25 SFR, part 83. These regulations preclude any—and this is a term used in that part—any splinter group from gaining Federal acknowledgement by separating from the main body of a federally recognized tribe.
In 1993, the Swan Creek made an ineffective attempt at administrative recognition. The Swan Creek submitted a letter of intent to petition the Bureau of Indian Affairs' Branch of Acknowledgment and Research for Federal acknowledgement. In 1997, the BIA placed the Swan Creek file on inactive status for failing to submit a fully documented petition. It is my understanding that a fully documented petition includes, among other things, documentation that a group has existed continuously as a political entity since the first contract with non-Indians.
I strongly believe that the Swan Creek constitute a splinter group. They cannot satisfy the mandatory criteria necessary for acknowledgment. Nevertheless, I believe that it is appropriate for the Swan Creek to pursue the administrative route for their recognition.
Mr. Chairman, many members of the Swan Creek received services and per capita payments by virtue of their membership in the Saginaw Chippewa Tribe and not by virtue of their Swan Creek identity. In reviewing the multitude of programs provided to this group—from education to health care to paying house payments—it is hard to believe that the Swan Creek received disparate treatment in the Saginaw Chippewa Tribe, as they claim they do.
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The Saginaw Chippewa Tribe met with the Swan Creek representatives to see how the tribe could better meet their needs. The Swan Creek, however, claimed that no amount of increased services or benefits would accommodate them. This only begs the question of what it is the Swan Creek really wants.
It is no secret that the motivation behind H.R. 2822 is gaming. H.R. 2822 is a gaming bill. This bill is nothing more than a product of investors trying to create an Indian tribe in order to open a casino outside of Detroit. I'm appalled at this notion of a gaming interest seeking to create a tribe, then seeking a Member of Congress to introduce a bill for that group, even though this group does not reside in the member's district, nor is the proposed gaming site in the member's district. If the Swan Creek was serious about becoming a tribe, they would have pursued the administrative process as vigorously as they have pursued the legislative process.
I close by saying, once again, the Saginaw Chippewa Tribe should be allowed to manage its affairs without intervention from Congress, that I will oppose further legislative action on this bill. And, I strongly urge my colleagues to do the same. But, however, Mr. Chairman, I intend to remain here today so I can benefit from the testimony of all the witnesses.
I yield back the balance of my time.
[The prepared statement of Mr. Kildee follows:]
STATEMENT OF HON. DALE E. KILDEE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN
INTRODUCTION
Good Afternoon, Mr. Chairman and members of the Committee. As a senior member of this Committee and as Co-Chairman of the Congressional Native American Caucus, I am stating today for the record my strong opposition to H.R. 2822, a bill that would grant Federal recognition to the Swan Creek Black River Confederated Ojibwa group (Swan Creek).
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Mr. Chairman, I opposed the scheduling of a hearing on H.R. 2822 this year because of my strong belief that Congress should not interfere with the internal political affairs of sovereign tribes. We should urge the Swan Creek members to use the internal processes of the Saginaw Chippewa Tribe to resolve their disputes. Although this Committee approved legislation in previous years granting Federal recognition to various tribes, H.R. 2822 does not warrant the same treatment by this Committee.
HISTORICAL TREATMENT
Mr. Chairman, the Swan Creek group claims to be the successors in interest to the Swan Creek and Black River Bands of the Chippewa Indians. The Federal Government has always recognized and treated these bands, however, as part of the Saginaw Chippewa Tribe. The Swan Creek has not existed as a political entity for more than 140 years. They ceased to exist as a political entity after the 1855 Treaty of Detroit. To recognize them now would severely undermine the sovereignty of the Saginaw Chippewa Tribe.
The United States has treated the Saginaw Chippewa Tribe as one entity—through the Treaty of 1864, the Indian Reorganization Act, the judgement fund legislation—and continues to treat it as one body politic today. Congress should not now, in direct contradiction to the historical evidence presented here today, split the Saginaw Chippewa Tribe into two entities.
BIA ADMINISTRATIVE PROCESS
In 1978, the Department of the Interior, through the Bureau of Indian Affairs, promulgated regulations establishing procedures for Federal acknowledgment of Indian tribes. Any group of Indians seeking Federal acknowledgment must first meet the scope of the regulations found at 25 C.F.R. part 83. These regulations preclude any ''splinter group'' from gaining Federal acknowledgment by separating from the main body of a federally recognized tribe.
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In 1993, the Swan Creek made an ineffective attempt at administrative recognition. The Swan Creek submitted a letter of intent to petition the Bureau of Indian Affairs, Branch of Acknowledgment and Research, for Federal acknowledgment. In 1997, the BIA placed the Swan Creek file on inactive status for failing to submit a ''fully-documented petition.'' It is my understanding that a fully-documented petition includes, among other things, documentation that a group has existed continuously as a political entity since first contact with non-Indians. I strongly believe that the Swan Creek is a ''
''splinter group'' and that they cannot satisfy the mandatory criteria necessary for acknowledgment. Nevertheless, I believe that it is appropriate for the Swan Creek to pursue the administrative route for their recognition.
SWAN CREEK RECEIVES TRIBAL SERVICES AND PAYMENTS AS SAGINAW CHIPPEWA TRIBAL MEMBERS
Mr. Chairman, many members of the Swan Creek receive services and per capita payments by virtue of their membership in the Saginaw Chippewa Tribe, and not by virtue of their Swan Creek identity. In reviewing the multitude of programs provided to this group, from educational-to health care-to-paying house payments, it is hard to believe that the Swan Creek receives disparate treatment from the Saginaw Chippewa Tribe as they claim they do.
The Saginaw Chippewa Tribe met with the Swan Creek representatives to see how the Tribe could better meet their needs. The Swan Creek, however, claims that no amount of increased services or benefits would accommodate them. This only begs the question of what is it that the Swan Creek really want.
GAMING INTERESTS
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It is no secret that the motivation behind H.R. 2822 is gaming. H.R. 2822 is a gaming bill. This bill is nothing more than a product of investors trying to create an Indian tribe to open a casino outside of Detroit, Michigan. I am appalled at this notion of gaming interests seeking to create a tribe. Then seeking a Member of Congress to introduce a bill for that group, even though this group does not reside in the Member's district, nor is the proposed gaming site in the Member's district. If the Swan Creek was serious about becoming a tribe, it would have pursued the administrative process as vigorously as they have pursued the legislative process.
CONCLUSION
I close by saying once again, the Saginaw Chippewa Tribe should be allowed to manage its affairs without intervention from Congress. And that I will oppose further legislative action on this bill. I strongly urge my colleagues to do the same. In the meantime, however, I will listen attentively to our witnesses who have traveled far to be with us today. Thank you.
Mr. CALVERT. I thank the gentleman.
Mr. KILDEE. I'd also like to ask consent to submit a testimony for Mr. Miller.
Mr. CALVERT. Without objection, so ordered.
[The prepared statement of Mr. Miller of California follows:]
STATEMENT OF HON. GEORGE MILLER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
I'd like to thank the tribal members who came here to testify as well as thank Assistant Secretary Kevin Gover for being here to personally testify on this bill. I think that there has been a real positive and noticeable turnabout in Indian relations under Assistant Secretary Gover and we all appreciate the excellent work he has done with the Tribes this Congress. Unfortunately, this Congress has not been what you'd call a ''hotbed'' of legislative activity, especially when it pertains to Indian affairs. So, we don't have a lot to celebrate or even look back upon, but I still have hope that we may get a few Indian bills such as Self-Governance or Employment Training to the President's desk before we all go home.
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As far as this bill goes, I would like to agree that there are some pretty substantial questions out there regarding the historical and legal issues that the Swan Creek Black River Tribe and Congress need to address. Right now, the record that we have is pretty thin. I understand that the basic issue is whether or not Swan Creek is a separate distinct Indian tribe or whether it is really part of the Saginaw Chippewa Tribe. I think we all agree that they once were a separate tribe and they have the treaties to back them up. It's what happened in subsequent years that needs to be addressed and I want to see that happen. But I think that the Administration is correct that this probably should go through the BAR process which is where a comprehensive and accurate historical and cultural record really ought to be developed first. If it turns out that the Tribe is not a splinter group, then the BAR process should work. If it doesn't then that's where we should get involved again.
Mr. CALVERT. The gentleman from American Samoa has an opening statement?
STATEMENT OF HON. ENI F.H. FALEOMAVAEGA, A DELEGATE TO CONGRESS FROM AMERICAN SAMOA
Mr. FALEOMAVAEGA. Yes, Mr. Chairman, I would like——
Mr. CALVERT. The gentleman is recognized.
Mr. FALEOMAVAEGA. Mr. Chairman, this bill comes before us at an unusual time. Not only are we within a week of our expected adjournment date, but we are just 2 days from the House having considered and rejected a bill to establish a fair administrative procedure to consider the recognition of Native American Indian tribes.
As many in this room know, I have worked on that legislation for over 6 years and I was very discouraged to see it defeated out of fear of perceived future abuse, especially on this issue—gaming—is concerned. And, the hypocrisy of this whole thing, Mr. Chairman—as I recall in the debate on the floor of the House yesterday—was the fact that the procedures to provide recognition of Indian tribes had nothing to do with gaming whatsoever. The hypocrisy that members representing these very States who collect hundreds of millions of dollars—oh no, horse racing is not gaming, no, lottery is not gaming. Then, what is gaming?
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Mr. Chairman, in the past 2 years, I have not supported bills for recognition in an effort to force action on the legislative remedy. Now, at the end of this Congress, I do not believe it is time to return to a course of legislative recognition. I recognize Congress's constitutional plenary authority over this country's relations with Native American Indians. But, I am convinced that an objective, public administrative process remains the best approach toward the resolution of this issue at this time.
To that extent, I agree with the administration's prior statements. I appreciate the willingness of Assistant Secretary Gover to go over with me in crafting legislation to address this very important area and hope our relationship will continue toward a final resolution in giving proper recognition to these tribes that have been waiting—some tribes have been waiting for 8 years, one tribe I know particularly in North Carolina has been waiting for over 100 years and, given the fact that even the Congress officially recognized this Indian tribe and the only reason why it was rejected was because supposedly limited resources to be given to other federally recognized tribes, which to me is absurd.
Concerning the bill today, Mr. Chairman, I am not familiar with the detailed history of the relationship between the Swan Creek Indians and the Saginaw Chippewa Indians but I do look forward to hearing from the witnesses this afternoon. I thank the chairman for the opportunity.
Mr. CALVERT. I thank the gentleman.
We have a vote on the floor on the rule—on something dear to our hearts for this Committee. So we will suspend this hearing and come back immediately for the vote and Mr. Knollenberg and Mr. Camp are both here to be in the first panel. So, hopefully they'll be able to come right back. We'll be back here in 15 minutes and reconvene at 1:30.
[Recess.]
Mr. CALVERT. This hearing will come to order.
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Our first panel, we have the Honorable Joe Knollenberg and the Honorable David Camp. So, without any further hesitation, we'll recognize our colleague, Joe Knollenberg.
STATEMENT OF HON. JOE KNOLLENBERG, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN
Mr. KNOLLENBERG. Thank you, Mr. Chairman. I appreciate the opportunity to come before the Committee. I want to thank you for presiding today and I just want to take exception to some of Mr. Kildee's comments saying that this is nothing but a casino bill. If Mr. Kildee is so opposed to casino gambling, I'd recommend he criticize the Saginaw Chippewa Tribe who have been operating a casino for years. This bill is about doing justice and that, as Mr. Kildee pointed out—correctly, I think—has been put off for over 100 years.
I want to ask unanimous consent to revise and extend my remarks and provide an extended commentary.
Mr. CALVERT. Without objection, so ordered.
Mr. KNOLLENBERG. Thank you, Mr. Chairman.
The Swan Creek Black River's aboriginal land, ceded to the United States by treaty in 1807, are located in my district and in southern Michigan. Both county and local officials support my effort to help this tribe regain its Federal recognition.
Since I introduced this bill in November 1997, I have been urging action on it. Despite the lateness of this hearing in the session, we are determined to move H.R. 2822 expeditiously through the legislative process.
The Swan Creek Black River is recognized by the State of Michigan as a tribe and, for centuries, the Swan Creek Black River has been a tribe separate and distinct from any other tribe. As you will hear in greater detail this afternoon, Swan Creek Black River is the political successor in interest to the signatories of numerous 18th and 19th century treaties and its government-to-government relationship with the United States continued well beyond the treaty period.
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Unfortunately, when the tribe submitted its request in 1936 to reorganize under the Indian Reorganization Act, the Department of Interior made a terrible mistake and, in effect, illegitimately terminated the Swan Creek Black River's Federal recognition.
It is well settled, however, that administrative action cannot terminate an Indian tribe's Federal recognition. This Congress has cured administrative mistakes and legislatively restored the Federal recognition of many other Michigan tribes, tribes such as the Lac Vieux Desert Band of Lake Superior Chippewa Indians, the Pokagon Band of Potawatomi Indians, the Little Traverse Bay Bands of Odawa Indians and the Little River Band of Ottawa Indians.
As the evidence demonstrates, the fact pattern of the Federal relationship with the Swan Creek Black River is almost identical to these other Michigan tribes.
[Chart.]
As indicated by the chart—and the chart is displayed, I believe—the Federal Government often entered into treaties with more than one tribe. This joiner, however, was simply for administrative ease and did not in any way lessen the integrity of any of the tribes' political structures. Yet, in the 1930's, when these tribes attempted to reorganize under the Indian Reorganization Act, their Federal recognition was unilaterally and wrongfully ended by the Department of the Interior.
Just as Congress legislatively reaffirmed these tribes, so too should we reverse the effective termination of this tribe by promptly enacting H.R. 2822. Swan Creek Black River's mission is to reaffirm its Federal recognition and restore to its tribal members some of their aboriginal lands and Federal services to which they are entitled because of their status as Indians.
It is neither the intent of Swan Creek Black River nor my bill to infringe on the rights of any other federally recognized tribe or seek to acquire property that is rightfully within another tribe's aboriginal lands or diminish or compete with their Federal funding or other revenue sources or compete for membership or health and other services. Quite frankly, a cause of great frustration to us these past months has been the inaccurate characterization of Swan Creek Black River as nothing more than a disgruntled splinter group with a mere intra-tribal conflict with the Saginaw Band of the Isabella Reservation.
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It has been suggested that these two tribes should resolve their conflicts between themselves, first before the Swan Creek Black River presents its case to Congress. To this end, the Swan Creek Black River advised me they had initiated calls to the Saginaw Tribe and arranged an attentive one cordial but inconclusive meeting with the Saginaw Tribe's leadership. Then, the Saginaw Tribe postponed the planned follow-on meeting and never returned subsequent phone calls by Swan Creek Black River to reconvene.
I am told that last week the general counsel of Saginaw Tribe contacted a representative of the Swan Creek Black River, suggesting that a meeting could be held between the leadership of the two tribes if the Swan Creek Black River would agree to cancel this hearing. Neither the Swan Creek Black River nor I believe that tradeoff—that particular tradeoff—is constructive nor do I believe that a meeting of the minds between these two tribes should be a precondition to congressional action to restore Swan Creek Black River's Federal recognition.
I do, however, believe, that a meeting of these tribes' minds would smooth the path. And, therefore, I call on my colleagues who have taken the greatest interest in this matter—Congressman Kildee, Congressman Camp, Congressman Barcia, and Congressman Stupak—to join me in hosting a meeting between the two tribes to discuss and agree on amendments to H.R. 2822 that will resolve outstanding concerns.
With or without such a meeting, I am committed to fight for prompt enactment of H.R. 2822 to reaffirm the relationship between the government of the Swan Creek Black River and the government of the United States. It is time to begin to correct the injustices that the Swan Creek Black River has suffered for so long. I urge the members of the Subcommittee to support this bill, H.R. 2822, and report it to the House of Representatives without further delay.
And, once again, Mr. Chairman and the members of the Committee, I thank you very much for my allowance to testify today. I would also like to suggest if I could—I noticed his name was omitted from the roster, the agenda today—the county executive of the county in which I live, L. Brooks Patterson, would also like to make some comments and I would urge if we possibly can see fit to allow him to speak his mind during the panel 2 session.
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Mr. CALVERT. We could add him to the panel, without objection. No objection, we will add him to panel 2.
Mr. KNOLLENBERG. Thank you, Mr. Chairman. I'd be glad to answer any questions.
[The prepared statement of Mr. Knollenberg follows:]
STATEMENT OF HON. JOE KNOLLENBERG, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN
Mr. Chairman, I want to thank you for presiding today and to thank Chairman Young for scheduling this long-awaited hearing on H.R. 2822, the bill I sponsored along with Congressman Barcia to reaffirm the Federal relationship with the Swan Creek Black River Confederated Ojibwa Tribes of Michigan. The Swan Creek Black River's aboriginal lands, ceded to the United States by treaty in 1807, are located in my district and in southern Michigan. Both county and local officials support my effort to help this tribe regain its Federal recognition.
Since I introduced this bill in November of 1997, I have been urging action on it. Despite the lateness of this hearing in the session, we are determined to move H.R. 2822 expeditiously through the legislative process.
The Swan Creek Black River is recognized by the state of Michigan as a tribe, and for centuries the Swan Creek Black River has been a tribe separate and distinct from any other tribe. As you will hear in greater detail this morning, Swan Creek Black River is the political successor in interest to the signatories of numerous 18th and 19th century treaties, and its government-to-government relationship with the United States continued well beyond the treaty period. Unfortunately, when the tribe submitted its request in 1936 to reorganize under the Indian Reorganization Act, the Department of the Interior made a terrible mistake and, in effect, illegitimately terminated the Swan Creek Black River's Federal recognition.
It is well settled, however, that administrative action cannot terminate an Indian tribe's Federal recognition. This Congress has cured administrative mistakes and legislatively restored the Federal recognition of many other Michigan tribes, such as: (1) the Lac Vieux Desert Band of Lake Superior Chippewa Indians; (2) the Pokagon Band of Potawatomi Indians; (3) the Little Traverse Bay Bands of Odawa Indians; and (4) the Little River Band of Ottawa Indians.
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As the evidence demonstrates, the fact pattern of the Federal relationship with the Swan Creek Black River is almost identical to these other Michigan tribes. Like the Swan Creek Black River, these tribes are the political successors in interest to the signatories of treaties with the Federal Government, treaties which were signed both independently and together with other tribes. As indicated by the chart, the Federal Government often entered into treaties with more than one tribe. This joinder, however, was simply for administrative ease and did not, in any way, lessen the integrity of any of the tribes' political structures. Yet, in the 1930s, when these tribes attempted to reorganize under the Indian Reorganization Act, their Federal recognition was unilaterally and wrongfully ended by the Department of the Interior.
Just as Congress legislatively reaffirmed these tribes, so too should we reverse the effective termination of this tribe by promptly enacting H.R. 2822. Swan Creek Black River's mission is to reaffirm its Federal recognition and restore to its tribal members some of the their aboriginal lands and Federal services to which they are entitled because of their status as Indians. It is neither the intent of Swan Creek Black River, nor my bill, to infringe on the rights of any other federally recognized tribe, or seek to acquire property that is rightfully within another tribe's aboriginal lands, or diminish or compete with their Federal funding or other revenue sources, or compete for membership, or health and other services. If we need to clarify or otherwise amend provisions of my bill to accommodate legitimate, documented concerns, we are and have been open to and available for those kinds of constructive discussions.
As you will hear in more detail later in this hearing, the Swan Creek Black River seek to reaffirm Federal recognition of their government-to-government relationship with the United States, established in the early 1800s through numerous treaties. The Swan Creek Black River's sovereignty must be restored and the tribes granted their rightful Federal recognition because: (1) they had treaty relations with the U.S.; (2) they were denominated as tribes by Acts of Congress; (3) they were treated by the U.S. as having collective rights in tribal lands and funds; (4) they meet these primary, and all other criteria for Federal recognition; and (5) they have never relinquished their tribal sovereignty (although the U.S. unilaterally and improperly abandoned the Federal relationship). For these reasons, the Swan Creek's case for Federal recognition is equally or more compelling than the other six Michigan tribes which have reclaimed their status as distinct tribal governments.
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Quite frankly, a cause of great frustration to us these past months has been the inaccurate characterization of Swan Creek Black River as nothing more than a disgruntled splinter group with a mere intra-tribal conflict with the Saginaw Band of the Isabella Reservation.
It has been suggested that these two tribes should resolve their conflicts between themselves first before the Swan Creek Black River presents its case to Congress. To this end, the Swan Creek Black River advised me that they initiated calls to the Saginaw tribe, and arranged and attended one cordial but inconclusive meeting with the Saginaw tribe's leadership. Then the Saginaw tribe postponed the planned follow on meeting, and never returned subsequent phone calls by Swan Creek Black River to reconvene.
I am told that last week the general counsel of the Saginaw tribe contacted a representative of the Swan Creek Black River suggesting that a meeting could be held between the leadership of the two tribes if the Swan Creek Black River would agree to cancel this hearing. Neither the Swan Creek Black River nor I believe that trade off is constructive. Nor do I believe that a meeting of the minds between these two tribes should be a pre-condition to congressional action to restore Swan Creek Black River's Federal recognition. I do, however, believe that a meeting of these tribes' minds would smooth the path. Therefore, I call on my colleagues who have taken the greatest interest in this matter—Congressmen Kildee, Camp, Barcia, and Stupak—to join me in hosting a meeting between the two tribes to discuss and agree on amendments to H.R. 2822 that will resolve outstanding concerns.
With or without such a meeting, I am committed to fight for prompt enactment of H.R. 2822 to reaffirm the relationship between the government of the Swan Creek Black River and the government of the United States. It is time to begin to correct the injustices that the Swan Creek Black River has suffered for so long. I urge the members of this Committee to support H.R. 2822 and report it to the House of Representatives without further delay.
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Once again, thank you, Mr. Chairman, and the members of the Committee for allowing me to testify today.
Mr. CALVERT. Before we start with Mr. Camp, I would remind the audience that any phones or beepers, please put them on vibrate or turn them off. We would appreciate your courtesy.
And with that, Mr. Camp, you're recognized for 5 minutes.
STATEMENT OF HON. DAVID CAMP, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN
Mr. CAMP. Thank you, Mr. Chairman. Thank you for holding this hearing and for the opportunity to testify on H.R. 2822.
I, too, have a written statement that I would ask be made part of the record.
Mr. CALVERT. Without objection, so ordered.
Mr. CAMP. I also have a letter from the Governor of the State of Michigan, written to all members of the Michigan Congressional Delegation, expressing his explicit opposition to congressional acknowledgement of additional Indian tribes and would ask that that be made part of the record as well.
Mr. CALVERT. Without objection, so ordered.
[The information referred to may be found at end of hearing.]
pages 14 to 20
Mr. CAMP. Mr. Chairman, the Saginaw Chippewa Indian Tribe has its home in the Fourth Congressional District of Michigan, located in the heart of the Fourth Congressional District which I represent. I'm here today to testify in opposition to H.R 2822, a bill that would accord Federal recognition to the Swan Creek Black River group.
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Several of the individuals who are advocating Federal recognition of the Swan Creek Band of Chippewas are currently members of the Saginaw Chippewa Tribe. These individuals have several disagreements with the leadership of the Saginaw Chippewa Tribe and I fear that Congress is on the verge of interfering in the internal matters of a recognized tribe, which would clearly violate their sovereign right to determine their own membership.
This is, in my mind, a matter that should not be before the Congress. There is already a process in place for recognizing tribes. The Bureau of Indian Affairs has been given the authority to review the recognition petitions, not the U.S. Congress.
Federal recognition is a very serious matter. Federal recognition grants tribes protection, services, and monetary benefits of the Federal Government. Acknowledgement also entitles tribes to the immunities and privileges available to federally recognized tribes by virtue of a government-to-government relationship with the United States of America as well as the responsibilities, powers, limitations, and obligations of those tribes.
In 1978, Congress recognized that the issue of reestablishing Federal recognition of tribes was difficult and subject to too many political considerations. The Branch of Acknowledgement and Recognition, BAR, was established under the Bureau of Indian Affairs for the specific purpose of deciding these issues on the facts. The specialized staff of the BAR exists for the sole purpose of reviewing and analyzing petitions for Federal recognition.
In 1993, the Swan Creek Band of Chippewas filed a petition with the BAR and, while that petition remains open, little action has been taken to proceed with this congressionally established recognition process. I understand that the BAR is understaffed and underfunded and that many tribes with valid cases must wait years for actions on their petitions. However, I am very concerned that in the last 5 years not enough information has been provided to move the Swan Creek petition forward. Instead, Congress is being asked to play the role of the BAR, a task we are unsuited to undertake.
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We have passed legislation recognizing tribes in the past, including several in Michigan, but those situations were significantly different. Congress should be the last stop in seeking Federal recognition. There are over 100 groups currently awaiting action by the BAR. To allow the Swan Creek to circumvent the entire BAR process would be a grave injustice to those groups who are awaiting BAR action. This Committee must consider these other groups also when acting on this bill.
We should encourage groups to follow the guidelines established by Congress 20 years ago. A precedent could be set which would have this Committee holding dozens of similar hearings in the future, as groups see that the BAR process need not be followed.
I want to close by stressing my disappointment with the slow pace of the BAR process. On May 20 of this year, this Committee marked up and passed H.R. 1154, the Indian Federal Recognition Administrative Procedures Act of 1997 and—although I had some concerns with certain aspects of that legislation which the House failed to pass—I applaud the Committee for moving to reform the process and provide a third party to review and approve petitions. In light of your work on this legislation, I urge you to continue to work to improve the process so that groups may have the confidence that their requests will be met in a timely and fair manner.
It is my hope that the Committee will recommend that the Swan Creek follow the BAR process and not pass a bill until BAR has a chance to conduct a thorough review. I hope the Committee will also consider the sovereign rights of the Saginaw Chippewa and their rights to determine their own membership. Thank you.
[The prepared statement of Mr. Camp follows:]
STATEMENT OF HON. DAVE CAMP, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN
I want to thank the Committee on Resources again for the opportunity to testify on H.R. 2822.
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My reason for testifying on this bill is because of my deep concern for the rights of a federally recognized tribe, the Saginaw Chippewa Tribe, and for need to abide by the Congressionally established process of tribal recognition. The Committee today will hear testimony in support of and in opposition to a bill that would accord Federal recognition to the Swan Creek Black River band. I am in opposition to H.R. 2822 because it fails to recognize the rights of the Saginaw Chippewa Tribe and circumvents the recognition process put into place by Congress itself. I have met with both of the interested parties on numerous occasions to listen to their arguments. I have come to two conclusions based on these meetings.
First: I am not an expert in 17th and 18th century treaties and Native American ethnogenealogy and I would venture to say that neither is any other Member of Congress. There are however, a group of people who not only have expertise in this area but are directed by Congress to use their considerable skills in these areas to determine whether a group of Native Americans meet the Congressional defined criteria for recognition as a federally recognized tribe.
In 1978, Congress recognized that the issue of re-establishing Federal recognition of tribes was difficult and subject to too many political considerations. The Branch of Acknowledgment and Recognition (BAR) was established under the Bureau of Indian Affairs (BIA) for the specific purpose of deciding these issues on the facts. The specialized staff of the BAR exists for the sole purpose of reviewing and analyzing petitions for Federal recognition.
The Federal Acknowledgment Process (FAP) is set forth in 25 C.F.R. Part 83. Any group that petitions the BAR for recognition must, under the FAP, be able to demonstrate that it is a distinct social and political entity that existed continuously from the period of first sustained contact with Euro-Americans until the present day. For Congress to determine this, along with the other criteria, would be difficult to say the least. Other than the standards Congress set and instructed the BAR to enforce, Congress has no discernable criteria by which to judge tribal status. We established criteria and assigned the BAR to ensure that these criteria are met in order for a tribe to be recognized.
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Federal recognition is a most serious matter. Bestowing Federal recognition grants recognized tribes with the protection, services and monetary benefits of the Federal Government. Acknowledgment also entitles tribes to the immunities and privileges available to federally recognized tribes by virtue of government-to-government relationship with the United States as well as the responsibilities, powers, limitations and obligations of such tribes.
The Swan Creek band has presented me with a case for their recognition as a separate tribe. I do not believe I possess the knowledge to determine whether their statements are factual. The BIA's own publication ''What is the Background of the Federal Acknowledgment Regulations?'' states the following:
The BIA cannot take the petitioners' statements on face value, as much as the petitioner themselves may believe in them. This is why petitioners must document their claims, and professional staff employed by the BIA must verify the claims.
In the case of H.R. 2822, Congress is being asked to play the role of the BIA, a task we are unsuited to undertake. Congress should not be the first stop in seeking Federal recognition, as it is with the Swan Creek. There are over 100 groups who have filed petitions with the BAR and are currently awaiting action on those petitions. One of these groups is the Swan Creek, who submitted their petition on May 4, 1993. What has happened since 1993 that would warrant Congress acting ahead of BAR on this matter? Nothing. The Swan Creek have not provided their information to the BAR that might prove their case. They have, however, provided me with a great deal of information that seems like it should belong at the BAR to be researched and verified. To allow the Swan Creek to circumvent the entire BAR process would be a grave injustice to those groups who have spent years and even decades in some cases working with the BAR to meet the criteria. This Committee must consider these groups when acting on this bill.
True, we have, years ago, passed legislation recognizing tribes, including several in Michigan, but those situations were significantly different. The Swan Creek will argue that their case is similar to those cases. One of the three Michigan tribes recognized legislatively was the Pokagon Band, who had nearly completed the BAR process at the time of legislative recognition. The Little Traverse Bay Band of Odawa Indians and the Little River Band of Ottawa Indians pursued the BAR process and were recognized because of their long histories of separate political organizations. They also had the support of the Tribes with which they were previously associated, who endorsed their efforts to gain legislative recognition. That situation does not exist with the Swan Creek, who face strong opposition from the Saginaw Chippewa Tribe.
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My second conclusion: The Saginaw Chippewa Tribe has rights as a sovereign nation that must not be trampled by Congress. Many of the individuals who are advocating Federal recognition of the Swan Creek are presently members of the Saginaw Chippewa Tribe who have differences with the tribal leadership. Under the approach of H.R. 2822, the ties which have bound these Chippewa Indians would be broken. Congress cannot remove a member of a tribe from his tribe. This legislation might actually do just that by forcing currently enrolled members of the Saginaw Chippewa Tribe to essentially choose between competing factions of the Saginaw Chippewa Tribe. I fear that Congress is on the verge of interfering in the internal matters of a recognized tribe, which would clearly violate their sovereign right to determine their own membership. This, in my mind, is a matter that should not be under the jurisdiction of Congress.
I want to close by stating that I am disappointed with the effectiveness of the BAR process. On May 20 of this year, this Committee marked-up and passed H.R. 1154, the Indian Federal Recognition Administrative Procedures Act of 1997. The House recently considered this bill just two days ago but failed to approve it. I applaud the Committee for moving to speed the process and provide a third party to review and approve petitions. In light of your work on this legislation, I urge you to continue to work to improve the process so that groups may have the confidence that their requests will be met in a timely and fair manner, and not seek to avoid the process altogether.
It is my hope that the Committee will recommend that this group follow the BAR process and not pass a bill until BAR has a chance to conduct a thorough review. I hope that the Committee will also consider the sovereign rights of the Saginaw Chippewa and their rights to determine their own membership. Thank you.
Mr. CALVERT. I thank the gentleman for his testimony.
Mr. Kildee, do you have any questions?
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Mr. KILDEE. Pardon me.
Mr. Chairman, I have no questions of the members, both for whom I have the greatest respect even though they have different points of view on this. But, we have a deep friendship and respect and this is what makes the Congress work. I appreciate it.
Mr. CALVERT. I thank the gentleman for his remarks.
Any other member have any questions?
The gentleman from American Samoa.
Mr. FALEOMAVAEGA. I just want to compliment both gentlemen for their fine statements and I appreciate their support for what was supposed to be a significant improvement in the procedures on how to recognize Native American Tribes but, unfortunately, some of our colleagues thought that this was a gaming scheme behind the whole proposed legislation and I say, Mr. Chairman, that was a very unfortunate turn of events on the legislation on the floor yesterday.
And, I want to compliment Mr. Camp's statement that I've been following this issue of tribal recognition since I've been here, for almost 10 years now, and, given the fact that Assistant Secretary Gover and I have made every earnest effort to see that we were not asking for making the process easier for the tribes—we're only asking for making the process more fair. We've got situations that—I think Assistant Secretary Gover will testify to that situation—but it's really unfortunate to see that both groups are here before this Committee and expecting us to find a resolution to the problems that I think it's really inherent to the State of Michigan.
And, I want to acknowledge—certainly want to thank—Congressman Knollenberg for his suggestion that the congressional members in Michigan and the two tribes get together and see if this can be done outside of parameters of having a committee to decide whether or not this tribe is a tribe. I mean, it's—I just wish we wouldn't have to be forced into making these kinds of decisions, which I honestly believe ought to be done outside of this Committee.
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But, I look forward to hearing from the witnesses and, Mr. Chairman, I thank you.
Mr. CALVERT. I thank the gentleman and, as a courtesy to our two colleagues, if you would like to remain and come up to the dais with unanimous consent, I'm sure that no one here would mind, if you would like to join us for the second panel.
Mr. CAMP. I appreciate that.
Mr. KNOLLENBERG. Thank you.
Mr. CALVERT. Thank you.
OK. Panel No. 2: Mr. Kevin Gover, the Assistant Secretary of Native American Affairs, the United States Department of Interior; Chief Kevin Chamberlain, Saginaw Chippewa Tribe, Mt. Pleasant, Michigan; and Chief Gerald Gould, Swan Creek Black River Confederated Ojibwa Tribes of Michigan, Saginaw, Michigan. And the gentleman, Mr. Brooks Patterson, would also please—a county executive of Oakland county, Michigan.
Mr. KILDEE. Mr. Chairman, if I may—while they're taking their seats—I always point out whenever I see L. Brooks Patterson that L. Brooks Patterson was a student at University of Detroit High School when I was teaching there and I will add a very, very good student. I won't add the second part—you might want to add that—but he was a very, very good student, person for whom I have enormous respect. We worked very closely together.
Mr. PATTERSON. Well, Mr. Chairman, he always adds that it's obvious that I didn't teach him political science.
Mr. KILDEE. That's right. That's usually a line I add to that——
Mr. CALVERT. Right. The gentleman must have graduated from college at a very young age.
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[Laughter.]
Mr. CALVERT. OK. If everyone is present, we welcome this panel and would recognize Mr. Kevin Gover first. Before you start your opening statement, just as a reminder, we have those little lights there. We ask that each of the witnesses keep their opening remarks to 5 minutes. If you have extended remarks, we'd be more than happy to accept them and make them part of the record. Again, a light will come on, we'll give you 1 minute warning and then the red light.
So, with that, Mr. Kevin Gover, you are recognized for 5 minutes.
STATEMENT OF KEVIN GOVER, ASSISTANT SECRETARY, INDIAN AFFAIRS, UNITED STATES DEPARTMENT OF THE INTERIOR
Mr. GOVER. Thank you, Mr. Chairman. We've submitted written testimony which we request be made a part of the record.
Mr. CALVERT. Without objection, so ordered.
Mr. GOVER. Mr. Chairman, first, since this may be the last time I'll appear before the Committee in this Congress, I want to thank the Committee for all of its assistance and work during the past year and that we look forward very much to working with all of you in 106th Congress.
Mr. Chairman, our testimony is very simple this morning. We oppose this bill for the simple reason that we are unable to say with any degree of confidence whatsoever that this is or is not a tribe. The group has submitted to us a petition—or more accurately—a notice that it intends to petition for Federal recognition and did so in 1993. Since that time, there's been no further action on the petition and I want to make clear that we don't fault the tribe for that. There's been no call for any action because it's simply not at the point in the process where they're required to submit materials but certainly they could if they choose to do so.
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We have no opinion as to exactly what the status of this group of Indian people is. What we would prefer very much is to be allowed to develop such an opinion, to review a complete petition, and to either recognize or not recognize this group as a federally recognized tribe.
We have a number of specific concerns about the bill that—were this Committee and the Congress to choose to move forward, we would certainly want to see those other matters addressed as well. But, our primary concern, Mr. Chairman, is that this group simply has not yet gone through the process that's been established and that we've been administering for some time.
Let me also say that I'm very sensitive to the criticisms of the Branch of Acknowledgement Research (BAR) and that there clearly has been a problem over the years that we're not proceeding quickly enough on these petitions. We recently had a change in leadership in BAR. We've been working with Mr. Faleomavaega this year to try to find some common ground and to improve upon this process. We are very hopeful that that would have moved forward so that we could join the debate further in the Senate and perhaps agree on an appropriate way to handle what is, perhaps, the most fundamental of questions when it comes to our Indian communities. That is, whether or not there is a group that is going to be recognized by the United States of America and if it will be afforded the many benefits and advantages and, frankly, some of the disadvantages that accompany being recognized as a Indian tribe by the United States.
That's a summary of my testimony, Mr. Chairman. I'd be happy to answer any specific questions you might have.
[The prepared statement of Mr. Gover may be found at end of hearing.]
STATEMENT OF HON. KEVIN GOVER, ASSISTANT SECRETARY FOR INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR
Good morning, Mr. Chairman and members of the Committee. My name is Kevin Gover, Assistant Secretary for Indian Affairs at the Department of the Interior (Department). Thank you for the opportunity to testify on H.R. 2822, a bill to ''to reaffirm and clarify the Federal relationship of the Swan Creek Black River Confederated Ojibwa Tribes as a distinct federally recognized Indian tribe, and for other purposes.''
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H.R. 2822 would extend Federal recognition to an organization known as the Swan Creek Black River Confederated Ojibwa Tribes of Michigan, Inc. (Swan Creek). Swan Creek submitted a letter of intent in 1993 to petition under the acknowledgment regulations, 25 CFR Part 83. To date, they have not submitted any documentation to the Department to support their petition. They remain on inactive status on the ''Register of Letters of Intent to petition.''
The Department opposes H.R. 2822 for the following reasons:
There are many unanswered questions concerning the group's membership, history, community, and tribal government that should be resolved before legislation is considered. For instance, the group has not submitted a current membership list, which is the one document that is essential in identifying the group. Additionally, we do not know whether they represent the main body of current descendants of the historic Swan Creek Band.
A good possibility exists that a significant proportion of the Swan Creek membership is also part of the Saginaw Chippewa Indian Tribe of Michigan (Saginaw Chippewa), a federally recognized Indian tribe. If the Swan Creek people are closely related to and have participated in the political life of the Saginaw Chippewa, Swan Creek may be a splinter group from the Saginaw Chippewa Tribe. The Department opposes the splintering of recognized tribes. However, because so little information has been submitted to the Department about the group and its membership, it is not possible to adequately evaluate the current political relationship between the group and the Saginaw Chippewa Tribe. We note that the Saginaw Chippewa Tribe has expressed strong opposition to the Swan Creek petition on the grounds that it is a splinter group and that the Saginaw Chippewa Tribe is the exclusive successor in interest to the Saginaw, Swan Creek and Black River Bands of Chippewa Indians.
Historically, the Swan Creek Band has been associated with the Saginaw Chippewa Band since the early 19th century. The two bands co-signed a treaty in 1855. This treaty and a subsequent 1864 treaty established a reservation for these bands near modern-day Mount Pleasant, Michigan. The historical record is clear that while some members of the Swan Creek Band refused to relocate to the Isabella Reservation as contemplated by the treaties, others did so. Some Saginaw Chippewa Band members also did not relocate to the reservation. We do not have clear evidence that a separate Swan Creek Band remained after treaty times, or that those who did not choose to move to the reservation formed an independent tribe.
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No information has been provided to the Department to substantiate the claim that the Swan Creek have maintained a separate political existence from the Saginaw Chippewa since the organization of a tribal government under the Indian Reorganization Act (IRA) in 1937, or that Swan Creek had previously maintained a separate political existence between 1855 and 1937.
Because of the complex history of enrollment of the Saginaw Chippewa Tribe, and the lack of a membership list for the Swan Creek organization, it is impossible to develop a clear picture of the group and it's relationship to the recognized Saginaw Chippewa Tribe. However, some conclusions can be drawn which illustrate that the circumstances of this case merit further study before any legislation is enacted.
The Saginaw Chippewa Tribe as organized in 1937 under the IRA included all of the residents of the reservation, including descendants of the Swan Creek Band. However, it excluded from membership a large number of the descendants from the Saginaw Chippewa and Swan Creek Bands who had not relocated, as well as others who had migrated from the reservation. This exclusion was the subject of protests for some years. This circumstance changed in 1986, when the Saginaw Chippewa Tribe modified its constitution and opened its enrollment for 18 months to individuals who could demonstrate Swan Creek or Saginaw Chippewa ancestry and one-fourth or more degree Indian blood. This change was made to allow many descendants of these bands who had not been eligible for membership under the 1937 constitution the opportunity to enroll. The enrollment change resulted from a compromise between the tribe and unenrolled off-reservation descendants over whether the latter were entitled to share in funds awarded in Docket 59 and 13-E before the Indian Claims Commission, and 13-F before the United States Court of Claims. The compromise was incorporated in Public Law 99-346, the ''Saginaw Chippewa Indian Tribe of Michigan Distribution of Judgment Funds Act'' of 1986.
Approximately 1,900 people enrolled within the 18-months, tripling the membership of the Saginaw Chippewa Tribe from about 900 to 2,800. Thus, much of the off-reservation Swan Creek Band descendants are likely to have become members of the Saginaw Chippewa Tribe in 1986. Because the expansion of the enrollment included so many non-residents, it is likely that there is a substantial overlap between the Swan Creek organization's membership and that of the Saginaw Chippewa Tribe.
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We offer the following additional comments on H.R. 2822:
Section 4 (b)(2) describes the service area of the tribe. It concludes by providing that Federal services came provided to members outside the named service area unless prohibited by law or regulation. At the same time, the preceding paragraph, Section 4 (B)(1), authorizes the provision of services and benefits without regard to the existence of a reservation or the location of the residence of any member on or near a reservation. It is not clear what function, if any, it serves to define a service area and at the same time authorize the provision of services and benefits without regard to residence. The provision of services to Indian tribal members generally is limited to those residing on or near a reservation or within a defined area.
Section 4 (b) would establish a very large, twelve county service area which includes highly populated counties and the city of Detroit. Given the size of this area, without an analysis of the tribe's population in these counties and present access to services from other sources, it is difficult to reach definite conclusions. However, we have concerns about the manageability and appropriateness of such a large area from the perspective of providing social services. We are concerned about whether it would be feasible for the tribe to operate Federal and Bureau programs in twelve counties. The designation of service areas for programs is usually accomplished administratively, with an appropriate analysis of needs, funding and staffing.
The language in Section 6, Tribal Lands, could be read to limit the Secretary's discretion in accepting title to lands in trust for the tribe. We suggest that this section read that ''The Secretary may accept land in the tribe's service area specified in this Act pursuant to his authority under the Act of June 18, 1934 (25 U.S.C. 461 et seq. Commonly referred to as the 'Indian Reorganization Act').''
For purposes of gaming, Section 6 places no limitations on the number of parcels that the tribe can acquire, and does not limit the amount of time that the tribe can acquire land, that would qualify under the exceptions in the Indian Gaming Regulatory Act, 25 U.S.C. 2719(b)(1)(B)(iii). From the Department's experience and from actions the Department has taken with other tribes, the bill should establish reasonable limits on the amount of land that would qualify under the exceptions and the period of time during which it could be acquired.
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Sections 7 and 8 do not clearly designate either a membership list/roll or a constitution or bylaws that would articulate the criteria for membership. Section 8 refers only to ''the governing documents in effect on the date of enactment of this Act.'' The Act should designate a specific governing document or documents, identified by their date of adoption by the group. Ideally, it should also designate an existing roll as the base or initial roll, and specify the criteria for adding members either by describing them in the legislation or by identifying a specific governing document. We have not seen the governing document and thus cannot comment on it. There is presently no way to clearly determine who would be recognized as the Swan Creek Tribe and no legislative guidance as to what the criteria for membership should be.
Section 7 stipulates that ''[n]ot later than 18 months after the date of the enactment of this act, the Tribe shall submit to the Secretary membership rolls consisting of all individuals eligible for membership in the Tribe.'' The phrase ''all individuals eligible for membership'' should be omitted, since it may create unintended difficulties. Commonly, tribal rolls do not include all eligible persons, since individuals eligible to enroll in more than one tribe may choose to enroll elsewhere, e.g., the Saginaw Chippewa Tribe. The roll should be a complete list of all of the enrolled members of the tribe. We would also note that while we're aware of a couple of statutes which require publication of the roll in the Federal Register we believe such publication is an unnecessary invasion of privacy of the members.
Section 8 stipulates that ''the governing body of the Tribe shall be the governing body in place on the date of the enactment of this Act, or any new governing body selected under the election procedures specified in the interim governing documents of the Tribe.'' Without a clear designation by Congress of the governing documents, there could arise problems determining how such an election would proceed.
Section 8 of the bill requires the Secretary to call and conduct an election in accordance with the Indian Reorganization Act (IRA) to ratify the Tribe's constitution. Is this to imply that the Tribe has committed itself to organize under the IRA? Section 8 also calls for the Secretary to conduct the initial election of tribal of finials after adoption of this constitution. The election of officers should be the responsibility of the Tribe and not the Secretary.
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The Department has strongly opposed dividing recognized tribes. There are presently a substantial number of instances around the country where parts of recognized tribes are seeking or have recently sought to separate themselves from the main body of the tribe, usually as the result of intra-tribal disputes. These conflicts are often the result of historical circumstances under which separate bands or tribes were placed on the same reservation and combined into a single tribe. While these groups, as here, may have some separate history, we do not believe it is an adequate or appropriate solution to tribal disputes to now divide the tribes. Resolution should be sought within the constitutional processes of the tribe. We believe that legislation here would encourage other groups to seek a similar solution, which we do not believe is appropriate except under very special circumstances such as that at Lac Vieux Desert.
If, however, the Swan Creek is not a splinter group and has historically remained a separate, politically autonomous Band since treaty times, then the most appropriate route is for them to be evaluated under the acknowledgment process.
This concludes my prepared statement. I will be happy to answer any questions the Committee may have.
Mr. CALVERT. I thank the gentleman.
Chief Chamberlain, you're recognized for 5 minutes.
STATEMENT OF KEVIN CHAMBERLAIN, CHIEF, SAGINAW CHIPPEWA TRIBE, MT. PLEASANT, MICHIGAN
Mr. CHAMBERLAIN. Good morning, Mr. Chairman. My name is Kevin Chamberlain, Chief of the Saginaw Chippewa Indian Tribe of Michigan. I'd like to thank you for the opportunity to appear before this distinguished body to voice our tribe's opposition to H.R. 2822.
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My testimony will consist of brief remarks on why the Committee should oppose H.R. 2822. I respectfully request that my full written testimony, including our historical analysis, be entered into the record.
Mr. CALVERT. Without objection, so ordered.
Mr. CHAMBERLAIN. Thank you.
The Saginaw Chippewa Tribe opposes H.R. 2822. Any action on this bill is of utmost concern to the tribe because its effect would be to separate the federally recognized Saginaw Chippewa Tribe into two separate tribes and it would allow a splinter group to claim treaty-preserved rights, political jurisdiction, and sovereignty currently held by the Saginaw Chippewa Tribe. Our position is staunchly set upon our desire to preserve our tribe's heritage and sovereign status and to protect tribal sovereignty of all Indian nations by preventing political factions and splinter groups from being able to secede from their tribes and create sovereign nations unto themselves.
This claim has no merit; it is an attempt by businessmen to buy a tribe and push a bill through Congress to further their goal of opening a casino.
The membership issues—the Saginaw Chippewa Tribe not only opposes this bill's content but also opposes the holding of this hearing today. This bill deals directly with an intra-tribal membership matter. The United States courts have consistently held that one of the Indian tribe's most basic powers is the authority to determine the questions of its own membership. There should be no congressional intervention on a matter so fundamental to a sovereign nation's existence. The sovereign nation of the Saginaw Chippewa Tribe should handle this membership issue.
The Swan Creek group, the party pushing this bill, claims that they are a successor in the interest of the Swan Creek and Black River Bands of Chippewa Indians. Since the 1855 Treaty of Detroit, the Swan Creek and Black River Bands have been considered part of the Saginaw Chippewa Tribe. Before then, they were considered a part of the Missisauga Chippewa, the name used for the large group of southeastern Michigan bands before and during the treaty era.
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The Swan Creek group, however, claims that they are a separate entity deserving of sovereign nation status. This is absolutely untrue. Many of the Swan Creek group's participants are currently enrolled members of the Saginaw Chippewa Tribe, including Mr. Gerald Gould, the Swan Creek's organizer. They wish to split from the tribe, obviously.
Individuals who are members and beneficiaries of one Indian nation should not be able simply secede from the Nation and create their own nation complete with the rights and privileges of all tribes whether because of political differences, personal choices to live away from the reservation, or for any other reason. The existing sovereign nation to which the individuals belong should resolve membership issues internally. Tribal politics is not a matter for Congress; it is a matter for members of the Saginaw Chippewa Tribe and its elected leaders.
For the record, the Saginaw Chippewa's Tribal Council serves all of its members with health, education, vocational, housing and other programs without distinguishing bands they may descend. The tribe provides an at-large program which specifically serves those living off the reservation.
Annually, the tribe spends approximately $970,000 on at-large programs, which include but are not limited to health services, medical services—including transportation to medical appointments—living expense needs, food costs—house payments, rent, land tax payments, utilities—burial grants, educational seminars, and family services. Further, the tribe spends roughly $550,000 per year on cultural enrichment programs for the at-large residents and $468,000 on medical coverage.
The programs are freely accessible to all at-large persons. Over 1,290 at-large persons live within 2 hours of the reservation and take full advantage of these programs. If the Swan Creek group is stating that they get disparate treatment for not living on the reservation, this is absolutely not the case. They are free to take advantage of all programs. It is not the tribe's fault if persons live far away from the reservation. It can only provide the services and programs to the best of its ability. The at-large programs funded and administered by the tribe generously provide for a myriad of needs for the tribe's at-large membership.
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Also, there is a seat guaranteed on the Council for a representative of the tribe in the at-large district, so that such individuals that comprise this district are fully represented and have a voice in the governing body.
The Saginaw Chippewa Tribal Council has also met many times with representatives of the Swan Creek group to better understand and address its concerns. In most recent meetings held earlier this year, the Swan Creek group informed the tribal leaders and myself that no political accommodations or additional benefits would appease them; they simply want their own tribe.
H.R. 2822 obviously circumvents the administrative process. Since Congress has decided to become involved in the intra-tribal issue, the Saginaw Chippewa Tribe wants to voice its opinion that this bill is nothing more than an attempt to politically circumvent the appropriate process for becoming a fairly recognized tribe.
In closing, the Saginaw Chippewa Tribe would like to reiterate its opposition to holding this hearing. The tribe firmly believes that this is a tribal membership issue in which Congress should play no role. Further, the Saginaw Chippewa Tribe believes that since the Swan Creek group would not be able to meet the administrative criteria, it certainly should not gain recognition from Congress based upon 5 minutes of testimony. Federal recognition of sovereign nations should be granted only after careful research and deliberate review. If Congress takes any action on this bill, it should only be to the extent of directing the Swan Creek group back to the line at the BIA.
For these reasons, the Saginaw Chippewa Tribe respectfully requests that this Committee vote against H.R. 2822. I have attached our historical analysis and relevant documentation as part of my testimony. I'd like to thank you again for my opportunity to testify and I also welcome questions from the Committee as would our tribe's ethno-historian, Dr. James McClurken. Thank you.
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[The prepared statement of Mr. Chamberlain may be found at end of hearing.]
Mr. CALVERT. I thank the gentleman.
Next, Chief Gould is recognized for 5 minutes.
STATEMENT OF GERALD GOULD, CHIEF, SWAN CREEK BLACK RIVER CONFEDERATED OJIBWA TRIBES OF MICHIGAN, SAGINAW, MICHIGAN
Mr. GERALD GOULD. Thank you. Good afternoon, Mr. Chairman, members, and guests. My name is Gerry Son-non-quet Gould and I am Chief of the Swan Creek Black River Ojibwa Tribe.
I would first like to thank Representatives Knollenberg and Barcia for sponsoring H.R. 2822 and recognizing issues facing my people today. This is an historic moment in our tribe's history. I am honored to address you on behalf of our tribe, many of whom have traveled all night by bus in order to witness this historic occasion. We come to ask that Congress enact promptly H.R. 2822 to reaffirm the trust relationship promised to our ancestors over 190 years ago.
When I was a young boy, my mother shared with me, as her mother shared with her, and as my great-grandmother shared with my grandmother, the rich traditions of our people. My great-grandmother was born in 1848 and lived in the areas beyond the white settlements. The story my mother told me was of a land of abundance, and a time of health and simple prosperity in southern Michigan. My people were trappers, fishermen, hunters, and farmers. They were communities of grandfathers and grandmothers, fathers and mothers, sons and daughters, elders and infants. It was a time before the reservations when our people lived in harmony with their environment, with nature, and with each other. This was our proud heritage before the settlers came.
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As my mother explained to me, and her mother to her, the non-Indians promised that if we would sign the Treaty of Detroit of 1807, the United States would take only a small portion of our lands, leaving us the rest upon which to hunt, fish, and make our living. We signed with the belief and hope that our people and the non-Indians would dwell together in peace. As white settlements grew, we were forced to move numerous times during that period.
We have awaited this moment with great anticipation and also with some regret, for there is much to be said in the yet precious few moments that we have together. This afternoon I would like to describe how, as a result of Federal Government action—which violated the trust relationship—the BIA refuses to acknowledge our tribe. As a result, our people are disenfranchised by the very governmental agency which is obligated to act in our trust.
We have signed 15 treaties with the United States, including one where we are the sole tribal signatory. Despite our extensive treaty relationship with the United States, Federal actions and policies have resulted in the effective loss of our Federal recognition.
First, the United States artificially combined us with other tribes on the same reservation, solely for its administrative convenience pursuant to the Treaty of 1855.
Second, in 1936, the BIA compounded this error by rejecting: one, the Swan Creek Black River's request to organize as a separate IRA tribe; and two, the draft constitution whose preamble listed the Swan Creek Black River and the Saginaw Bands as separate tribes. Instead, the BIA organized an IRA tribe on the Isabella Reservation, decreeing that only members living on the reservation were eligible for membership. At that time, the individuals residing there were Odawa, Potawatomi and Ojibwa—mostly Ojibwa of the Saginaw Chippewa Tribe. In contrast, the overwhelming majority of the Swan Creek Black River lived off the reservation.
To complicate matters, in 1939 the Department of the Interior determined to withdraw funding gradually and prohibit any future tribal organization under the IRA. By ignoring the Swan Creek Black River's separate tribal existence, the United States breached its trust obligations to our tribal members. Notwithstanding the Federal Government's unilateral action—which was legally and morally wrong—the Swan Creek Black River people continued to function as a tribe. Indeed, we remain a tribe, since only the Congress can terminate a tribe and it has never taken this action.
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[Chart.]
This chart that we have brought with us depicts how the United States, through treaties, combined tribes in Michigan together. In virtually every case, the United States has untangled these artificial groupings, reaffirming the individuality, sovereignty of each previously combined tribe.
We appeal to you today to remedy this historic injustice. The Swan Creek Black River has never surrendered or relinquished our sovereignty. We have undertaken extensive historical, anthropological, and genealogical research, all of which supports our position.
We are submitting this box of documents as part of this hearing's official record.
[The information referred to may be found at end of hearing.]
Mr. GERALD GOULD. This research proves that we have maintained ourselves as a distinct tribe with distinct kinship relationships, distinct annuity roles, distinct genealogy, distinct culture, and a distinct geographic area. In addition to the substantial documentation we have submitted for the record, we are accompanied by our experts to answer any questions you may pose.
We do not seek to harm any other tribe; we simply seek to be treated like the other sovereign Michigan tribes whose Federal recognition, in recent years, has been reaffirmed by Acts of Congress.
We sincerely hope that you will support our effort toward the restoration of our trust relationship with you. In the Civil War, Swan Creek Black River tribal members fought and died for the Union to emancipate other subjugated peoples. The outcome of that great conflict brought new meaning to the phrase ''we, the people.'' Thus, the concept ''we, the people'' holds an even special meaning for us. At this time, ''we, the Swan Creek Black River people'' request the Congress to restore these same rights possessed by other sovereign Indian nations.
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Thank you. We also have brought Dr. Michael Lawson, our expert on the BIA acknowledgement process, to address the Committee if you would like. Thank you.
[The prepared statement of Mr. Gerald Gould may be found at end of hearing.]
Mr. CALVERT. I thank the gentleman.
Next, Mr. Patterson, would you like to have an opening statement?
STATEMENT OF L. BROOKS PATTERSON, COUNTY EXECUTIVE, OAKLAND COUNTY, MICHIGAN
Mr. PATTERSON. Good afternoon, Mr. Chairman and ladies and gentlemen. My name is Brooks Patterson and I'm the elected county executive from Oakland county, Michigan.
Permit me to set the stage for my brief remarks by telling you a little bit about the 910 square miles that we call Oakland. It's a naturally beautiful county with rolling hills and 450 lakes. We are the headwaters for five separate rivers that wind their way through the county, some ending up in neighboring Lake St. Clair, others pouring eventually into the Detroit River. By our very name you can imagine the sturdy oak trees that crowd the landscape.
Back in the 17th and 18th centuries, Indian tribes—specifically the Swan Creek Black River tribe—roamed this beautiful territory, fishing its streams and hunting its thick forests.
Much has changed since those early days in Oakland county. Now nearly 1.2 million residents enjoy a unique and rich quality of life in Oakland county. We have 40,400 businesses thriving there. We are headquarters for many Fortune 500 companies, not least among them Chrysler Corporation, K-Mart and Meritor.
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Oakland was beautiful and rugged in the 17th and 18th centuries and it combines an urban and rural beauty today. To preserve much of what the Swan Creek Black River tribe enjoyed, we have set aside in our county over 87,000 acres of public park land. For purposes of identifying my county still further for members of the Committee, we are also home to some of your colleagues—Spence Abraham lives in Auburn Hills, Carl Levin in Southfield, Sandy Levin in Royal Oak, Representative Joe Knollenberg, in the heart of the territory claimed by this tribe, in Bloomfield township. Those are the residents.
As Oakland county executive, among my many responsibilities, I am broadly charged as the steward of Oakland county's vast resources. To that extent, I feel a real connection with those stewards similarly charged 200 years ago. Out of deep sense of respect and duty to the ancestors of Chief Gerald Gould—who sits to my right—I am here to acknowledge the past and rectify a 2-century-old miscarriage.
My testimony today is small repayment for what the Swan Creek Black River Indians lost. What they seek today is recognition of a historical fact: Oakland county was their aboriginal land and, through the inevitable passage of time and events, they have been disenfranchised.
Their case for recognition is replete with compelling evidence of the tribe's existence and territorial claims contained in that box. Not least among the evidence are signed treaties with the very Federal Government before which I appear this afternoon. Some experts familiar with the Bureau of Indian Affairs and the whole recognition process have stated that the Swan Creek Black River has presented as compelling a documented case as they have ever examined.
I fear some oppose the rightful restoration of the tribe's identity and heritage this afternoon for one simple albeit selfish reason: what will the tribe do with its new found recognition? Will they eventually open a casino? Maybe. Will they build clinics and schools for their people? Probably. Will they bask in the pride that their heritage has been restored, their historical role has been recognized, and the long nightmare in search of their identity and self-esteem is finally over? Absolutely.
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What we are engaged in here this afternoon rises far above attempting to influence or manipulate a congressional committee in hopes of protecting one city or one tribe's avaricious gaming monopoly. What we are engaged in here is a far more noble cause; it truly touches upon dignity, self-esteem, morality and justice.
In conclusion, let me respectfully suggest that the question before this Committee is not what the tribe may or may not do when granted Federal recognition. The question is, have they proven their case by clear and convincing evidence.
And, as to a comment made by Chief Chamberlain, I can assure you, sir, that Oakland county is not interested in buying a tribe. As its elected representative, I am interested in them fighting against the maxim that justice delayed is justice denied. Thank you.
[The prepared statement of Mr. Patterson may be found at end of hearing.]
[Applause.]
Mr. CALVERT. I thank the gentleman.
Mr. Kildee, you're recognized for questions.
Mr. KILDEE. Thank you very much, Mr. Chairman.
I have a question first of all for Chief Chamberlain. From what I've heard today, there seems to be some confusion about the circumstances surrounding the reorganization of the Saginaw Chippewa Tribe under the Indian Reorganization Act. Could you explain to this Committee exactly what occurred and the impact it had?
Mr. CHAMBERLAIN. In 19—under our—when our constitution was formed?
Mr. KILDEE. The Indian Reorganization Act.
Mr. CHAMBERLAIN. For our tribe specifically?
Mr. KILDEE. Yes, right.
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Mr. CHAMBERLAIN. Well, again, the group of the Swan Creek Black River and those living within the area of Isabella Reservation, which were comprised of both the Ojibwa, Odawa and the Potawatomi—our whole existence is based on the compilation of those people. The same treaty areas that we're talking about today and that have been discussed by them are the same exact treaties we're formed under. The same ceded land territories. How are you going to split that?
You'd have to split that. When we were organized in 1936—when IGRA came about and our tribe was formed and we formed our first constitution—it was based on everything that they're claiming now, that this particular group is claiming. And, I guess my question is—and kind of a question back to just anybody in the room—how can they split off from everything we're based on? Everything we're based on. I mean, that's what the Saginaw Chippewa Tribe—and I'm sorry but the majority of the treaties were also signed by our group, too, and only one or two were solely done by the Swan Creek Black River.
I sit before you as a Swan Creek Black River person, myself. I don't know if that answers your question or not, but——
Mr. KILDEE. It does. Could you also—there seems to be some confusion about article VI of the 1855 Treaty. Could you give some explanation of its impact?
Mr. CHAMBERLAIN. I would like to defer, if I could, those questions to our ethno-historian.
Mr. KILDEE. Sure.
Mr. GERALD GOULD. Mr. Chairman? Could I——
Mr. KILDEE. Chief Gould, I'm still talking to——
Mr. CALVERT. The gentleman, Mr. Kildee, controls the time at the present moment.
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Mr. KILDEE. Could I have counsel come forward?
Mr. CALVERT. Will the gentleman recognize himself at the microphone, please?
Dr. MCCLURKEN. Thank you for calling me, Congressman.
Mr. CALVERT. Please recognize yourself for the record.
Dr. MCCLURKEN. My name is James Michael McClurken and I'm an ethno-historical consultant for the tribe.
Mr. FALEOMAVAEGA. Mr. Chairman, may I suggest that the gentleman can sit on the dais there in the bottom? It would probably be easier——
Mr. CALVERT. I would say the gentleman—he can pull up a chair or——
Mr. KILDEE. I will pull up a chair, Mr. Chairman.
Mr. CALVERT. If you could please spell your name for the Clerk?
Dr. MCCLURKEN. M-C-C-L-U-R-K-E-N. Sir, the dissolution language in the 1855 Treaty has no implemental meaning for the Saginaw Swan Creek or Black River Chippewas at all. That language was created in a treaty that was negotiated 2 days earlier with the Ottawas and Chippewas on the west side of the state.
In 1836, Henry Schoolcraft and Lewis Cass invented a tribe called the Ottawa and Chippewa Nation of Michigan. That tribe was created to compel the Ottawas—who had determined not to sell their land in Michigan to the United States—to sell. The Chippewas who were also parties to that treaty were determined to sell the land. And, the Chippewas who were part of the delegation were also the relatives of the Indian agent at the time. To force the Ottawas to sell, he told them that the Chippewas were willing to sell and if the Ottawas didn't sign the Chippewas would get all the benefits from the sale.
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The Ottawas were angry about that for 20 years. They lost all of their land, they lost their annuities, they lost their reservation and, when they made a treaty with the United States in 1855, they insisted that the fictitious tribe called the Ottawas and Chippewas of Michigan be dissolved and that each of the independent tribes be allowed to negotiate in their own interest. That was done at the insistence of the tribe itself. I've submitted documentation in my report from the treaty journal itself to show the origin of that language.
The Treaty of 1855 negotiated with Saginaw Chippewas 2 days later incorporated a lot of the language of the treaty that was made previously. The treaty with the Saginaw Chippewas was almost an afterthought for the treaty negotiators at that time. The Chippewas had no reservations in Michigan, they had no remaining annuities, and, as an afterthought, they negotiated a treaty to try to solve a bad political problem.
The dissolution clause in the 1855 Treaty with the Saginaw Chippewas had no operative meaning; in fact, that language was never raised in any discussions about that treaty with the Saginaw Chippewas until the year 1870, after the Saginaw Swan Creek and Black River Chippewas had negotiated another treaty with the United States.
The Indian agent in 1870 questioned the Commissioner of Indian Affairs on whether or not a tribe that was dissolved could negotiate a valid treaty with the United States. And, the Commissioner of Indian Affairs examined the situation and said, yes, they are an Indian tribe and they can negotiate a valid treaty. The dissolution language of the 1855 treaty was never again used in documents that I've seen concerning the Saginaw Chippewa Tribe, though it was raised and was used consistently to harm and damage the interests of the Ottawas and Chippewas from 1870 up until 1970.
Mr. KILDEE. The time has expired——
Mr. CALVERT. Does that answer your question?
[Laughter.]
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Mr. KILDEE. And that is—you will submit that for the record?
Dr. MCCLURKEN. That has been submitted for the record, sir.
Mr. KILDEE. It has been, for the record. Right.
[The information referred to may be found at end of hearing.]
Mr. KILDEE. Very good. I think my time has expired.
Mr. CALVERT. I'm sure we'll be coming right back to you——
Mr. KILDEE. Yes, the second round.
Mr. CALVERT. Mr. Knollenberg.
Mr. KNOLLENBERG. Thank you very much. I would like to extend as a matter of courtesy to all of the witnesses the opportunity to revise and extend their remarks and to submit in its entirety all of their summary, comments, charts, et cetera and, in particular, I believe it may already be a part of the information——
Mr. CALVERT. Indeed, all of these can be submitted to the record——
Mr. KNOLLENBERG. Including the chart, in particular?
Mr. CALVERT. Including the chart.
Mr. KNOLLENBERG. Thank you, Mr. Chairman. Thank you.
I had to pause a little bit when I have heard it from a couple of different people—in fact, I think three now—that have testified that Congress should not meddle in this affair, Congress should get out. Congress was involved in the problem in the first place. That's why we have the difficulty that we're trying to straighten out today. That's why the injustice was created.
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And, frankly, Congress has the responsibility of taking care of its problems and this is one we're bringing to their attention today. So, I think it's perfectly within the rights of Congress obviously to deal with that.
Let me suggest also—I know there's been reference made by a couple of the folks who have testified here—that we should use the system that's in place which may take 10, 15, 20 years. And, when you think about it for a moment, when an injustice was created by Congress why should it take 10 or 15 or 20 years? There should be something far simpler, far more quickly done that would provide the proper recognition for the Act that took away their sovereignty some time back.
I would like to refer to Chief Gould for a moment to respond to the testimony which I have a very difficult time understanding provided by the historian just a moment ago. And, if he wishes and if it were in order, Mr. Chairman, he could refer to the historian of their tribe.
Chief?
Mr. GERALD GOULD. Thank you very much. What I'd like to do is take this opportunity to have our consultant, Dr. Michael Lawson, to respond to the comments made previously, if the Chair will allow.
Mr. CALVERT. The Chair will allow it.
Mr. GERALD GOULD. Thank you.
Mr. CALVERT. Just find a microphone on the other side.
Mr. LAWSON. I have prepared a statement that runs approximately five——
Mr. CALVERT. Please identify enter your name into the record.
Mr. LAWSON. Yes. My name is Michael Lawson. I am a historian and I have a wide range of experience evaluating and comparing relative the merits of tribal entities seeking recognition through both the Bureau of Indian Affairs process and through legislation. I am also familiar with Ojibwa history, having grown up in Genesee county, one of the six counties in which the Swan Creek Black River people primarily reside.
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For nearly 10 years, I was a historian with the BIA's Branch of Acknowledgement and Research, providing technical assistance to unrecognized tribes, evaluating the evidence contained in documented tribal petitions, and occasionally reviewing the evidence presented by tribes seeking recognition or restoration by Congress. I also helped draft the current revisions to the acknowledgment regulations. As a private consultant, I have conducted research and assisted unrecognized tribes seeking Federal recognition over the last 5 years.
On the basis of my experience and the extensive and high quality documentation I have reviewed, it is my conclusion that Swan Creek Black River presents a particularly compelling case for Federal reaffirmation.
Swan Creek Black River is a legitimate, treaty-based, tribal entity that represents a politically, socially and geographically distinct Indian community whose members have verifiable Ojibwa ancestry.
For years, Swan Creek Black River and its members and researchers have been gathering historical, anthropological and genealogical information and evidence that fits both the BIA and congressional evaluations of what is required based on the seven mandatory criteria set forth in the acknowledgment regulations. In my opinion, based on this evidence, if Swan Creek Black River were to submit a documented petition to the BIA, this tribe would have a very favorable chance of being acknowledged as a federally recognized tribe.
I am also of the fervent opinion that Swan Creek Black River could qualify for expedited consideration under the acknowledgment regulations based on its previous Federal recognition, perhaps as recently as 1982, when it was treated as having collective rights in a tribal judgment award of the U.S. Court of Claims—and I might add that Swan Creek Black River is still considered an active petitioner in the BIA process.
I have submitted to the Committee a more detailed statement summarizing the evidence collected by Swan Creek Black River that likely meet all seven of the acknowledgement criteria. However, I think it is important to note that Swan Creek Black River satisfies the tribal membership criterion, contrary to the claim that we've heard here that it is a splinter group where membership is composed primarily of people enrolled in Saginaw Chippewa Tribe. About 80 percent of the Swan Creek Black River members are enrolled only with Swan Creek Black River, while the number of Swan Creek Black River members currently constitute approximately less than 1 percent of the Saginaw Chippewa membership. Most of these people are members of an unrecognized tribal group and do not receive Federal services.
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[Applause.]
Mr. LAWSON. It is not unusual for members of unrecognized tribes also to be enrolled in other tribes prior to recognition. Such was the case, for example, of Lac Vieux Desert Band of Michigan, nearly all of whose members were previously enrolled in other tribes. Congress has recognized tribes for which it determines the administrative process is not appropriate because of compelling, extenuating, historical circumstances and because the administrative process has proven neither timely nor efficient.
In the 20-year period since the acknowledgement regulations were established in 1978, the BIA has resolved only 25 cases, a historical average of 1.25 cases per year. Still lacking adequate resources, the BIA now faces an overwhelming backlog of 27 fully acknowledged—fully documented but yet unresolved cases. At the present rate, the BIA might not take final action on Swan Creek Black River—for more than 20 years. This would mean that a generation of Swan Creek Black River elders would pass on without ever having the benefit of their right to continuous Federal recognition.
[Applause.]
Mr. LAWSON. It is neither appropriate nor fair that this tribe should have to wait 20 years or more to demonstrate that it meets the acknowledgement criteria since 1982 and, even if H.R. 1154 or a similar bill or reform legislation were enacted, it could take years before the new procedures were promulgated and even more years to clear the present backlog of cases.
Since 1982, Congress has legislatively recognized or restored eight worthy tribes that were also acknowledgement petitioners, including four in Michigan. Of the four Michigan tribes, however, only two proceeded very far in the BIA's process: the Little Traverse Band of Odawa and the Little River Band of Ottawa submitted letters of intent to proceed through the acknowledgement process. But, they never did. Instead, these tribes secured legislative recognition in 1994.
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My review of the evidence in these cases convinces me that Swan Creek Black River is similarly situated—if not better situated—than these other legislatively recognized tribes. In summary, while the acknowledgement process might be the best method for evaluating probably 95 percent of the unrecognized tribes that are still out there, given the extenuating circumstances that I have described it is more appropriate and fair for Swan Creek Black River to be reaffirmed legislatively.
And, in closing, I'd like to say that based on my knowledge of the history and issues involved it appears that the Saginaw Chippewa have badly distorted the facts and mischaracterized the Swan Creek Black River people and their history. Such——
[Applause.]
Mr. CALVERT. The Chair would ask the audience to refrain from public adulation.
Mr. LAWSON. Such audacious prejudgment of the case also ignores the fact that, one, the granting of tribal recognition or restoration is solely the Federal Government's decision to make and not the Saginaw Chippewas; and two, that this is not an adversarial process. Furthermore, not even the Saginaw Chippewa can credibly deny that the Swan Creek Black River have a constitutional right to petition Congress to address an unresponsive governmental bureaucracy.
Thank you, Mr. Chairman. That concludes my remarks.
[The prepared statement of Mr. Lawson may be found at end of hearing.]
Mr. CALVERT. I thank the gentleman.
The gentleman from American Samoa. The gentleman is recognized for 5 minutes.
Mr. FALEOMAVAEGA. Thank you, Mr. Chairman.
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I do have a couple of questions and I wanted to thank my good friend, Congressman Knollenberg, to again reemphasize the fact that Congress has the plenary authority to do whatever it pleases as it relates to the nations of the Indian tribes under the Constitution of the United States.
There are some problems that I would like to share with the members of the panel.
I would like to ask Chief Chamberlain, how many members make up the Saginaw Tribe?
Mr. CHAMBERLAIN. Approximately 2,800.
Mr. FALEOMAVAEGA. Twenty-eight hundred. And, Chief Gould, how many do you claim to represent in the Swan Creek Tribe?
Mr. GERALD GOULD. Approximately 200.
Mr. FALEOMAVAEGA. Am I correct to say that every Swan Creek and Saginaw are interrelated?
Mr. CHAMBERLAIN. I am Swan Creek Black River.
Mr. FALEOMAVAEGA. Chief Gould, are you also Saginaw?
Mr. GOULD. No. No, I'm not; I'm just Swan Creek Black River.
Mr. FALEOMAVAEGA. I noticed that Secretary Gover had indicated that the Swan Creek did file a letter of intent with the division of the BAR, they call it—the fancy title of the BAR—in 1993. Was that true?
Mr. GERALD GOULD. Yes.
Mr. FALEOMAVAEGA. Did you then receive an OD from the Department of the Interior—it's called an letter of Obvious Deficiencies and Significant Omissions. Has your tribe followed through since 1993 in responding to those areas of concern by the division of BAR?
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Mr. GERALD GOULD. We have done extensive research since 1992, 1993 and we looked at the difficulties of going through the current Federal application process and, based upon being a treaty-based tribe, have not continued that process after we researched it.
Mr. FALEOMAVAEGA. So, in other words, after receiving your OD from the—from this division that there——
Mr. GERALD GOULD. Well, because we did not receive an OD.
Mr. FALEOMAVAEGA. You didn't?
Mr. GERALD GOULD. No.
Mr. FALEOMAVAEGA. Secretary Gover, can you respond to that?
Mr. GOVER. No, that's correct. They've not received a letter of Obvious Deficiencies. They've only filed a notice. They haven't actually filed a petition, yet.
Mr. FALEOMAVAEGA. But, the BAR did not provide any response to the tribe?
Mr. GOVER. Only to acknowledge receipt of their letter of intent. But, we've received no further information from the tribe since that time.
Mr. FALEOMAVAEGA. I want to say to both Chiefs here, this is the very thing that I feared very much. Now we have two historians fighting among themselves as to who's telling the gospel truth about the case at hand and it's really sad to see that we're—I just can't conceive how we, as members of this panel, are going to be overnight experts and say who's telling the truth and who's not.
And, I find it very difficult to see how we're going to find a solution to the fact that everybody agrees that the current system of giving recognition to tribes is totally unacceptable. But, coming to that agreement and having tried for the past 6 years to provide legislation to provide a more fair system of recognition—and that has failed—so we're right back to ''square one'' and I'm sorry to say that we were not able to resolve that issue.
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I'd like to ask the historian for Chief Gould, if I could, you were personally involved as a historian with the recognition process and worked for the Department of the Interior, am I correct?
Mr. LAWSON. Yes, that's correct; from approximately 1984 until 1993.
Mr. FALEOMAVAEGA. And during that 10-year period, did you think the BAR was doing a great service to the Indian communities seeking recognition?
Mr. LAWSON. I think we were doing the best job that we could under the circumstances and I think that the circumstances are that there weren't enough resources for us to do a job in a timely manner.
Neither, I might add, do I think that there are enough resources for tribes that are seeking Federal recognition to adequately have allowed them to document, to present the large documentary record that's required by the acknowledgement process.
Mr. FALEOMAVAEGA. Recognizing the fact, Chief Gould, that since 1993 you felt that the system of Federal recognition was just bizarre, why have you waited until now to ask the Congress to give full recognition to your tribe? Why didn't you request immediately that let the Congress do the recognition process rather than BAR?
Mr. GERALD GOULD. Well, it's—even the legislative process is difficult. Even the legislative process is complicated for people who don't understand it. Plus, we were gathering documentation.
The case that we present to you today is the result of years and years of research, both here in Washington, DC—where you have the majority of the records and we don't live—and the State of Michigan, and we have spent many, many years gathering the documentation that we provide to you today. But, also, we're not familiar with the entire legislative process as well.
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Mr. FALEOMAVAEGA. My problem, Chief Gould—I know, Mr. Chairman, my time is up—you're to come up with 5,000 pages to justify your position and Chief Chamberlain is going to come up with 5,000 pages justifying his position and then it puts us in a very difficult situation who is who and what and where and, you know, what do we want to do about this. That's my problem and I'm sorry that my time is up.
Mr. CALVERT. You have the staff worried. That means they'd have to read 10,000 pages.
[Laughter.]
Mr. CALVERT. The gentleman from Michigan, Mr. Camp.
Mr. CAMP. Thank you, Mr. Chairman, and I want to follow up on the comments of my friend from American Samoa.
Mr. Gover, let me ask you this. If I understand your testimony correctly, the Department of Interior is opposed to H.R. 2822 because there are many unanswered questions regarding this situation.
Mr. GOVER. That's correct.
Mr. CAMP. And, I know that you have questions regarding the group's membership, their history, their community and their tribal government. In fact, I believe you don't even have a current membership list of the Swan Creek Black River Tribe. Is that correct?
Mr. GOVER. That's correct.
Mr. CAMP. And, because of that I know that you feel you could use more information and that because so little information has been provided to you that you aren't even in a position to adequately evaluate the political relationship between the group and the Saginaw Chippewa Tribe.
Mr. GOVER. That's right. At this point, we have no idea. We don't even know who the group is because we don't have a membership list. So, we're unable to say whether they're even Indians except by looking at them and that's usually not good enough for Federal recognition. That's why we would much prefer to, at least, make some progress on the BAR process so that we can have our historians who have no axe to grind here take a look and give us their best opinion on whether or not this group is a separate Indian tribe.
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Mr. CAMP. And, the two bands signed a treaty in 1855 and a later one in 1864 which established a reservation for these bands right near Mt. Pleasant, Michigan. Is that accurate?
Mr. GOVER. That's my understanding, yes.
Mr. CAMP. And that you don't have any clear evidence that the Swan Creek band remained after these treaties as a separate and distinct entity or independent tribe?
Mr. GOVER. We don't rule that out but we have no such evidence at this point.
Mr. CAMP. And you haven't received any evidence since 1993 to the contrary?
Mr. GOVER. Only a very minimal amount of evidence.
Mr. CAMP. Is it also true that, in 1986, in the Distribution of Judgment of Funds Act, there was a provision that said that the Saginaw Chippewa Tribe should open its enrollment for 18 months and that was open to individual who could demonstrate either Swan Creek or Saginaw Chippewa ancestry, is that correct?
Mr. GOVER. Yes.
Mr. CAMP. And, because of that, tribal membership increased during that 18 month enrollment period?
Mr. GOVER. Considerably, yes; it tripled.
Mr. CAMP. And you believe that much of the off-reservation Swan Creek band were likely to have become members of the tribe during that open enrollment process——
Mr. GOVER. Yes.
Mr. CAMP Is that true?
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Under this legislation, there is a 12-county service area proposed for this tribe, which would include the most populated counties in the State of Michigan—including the entire city of Detroit. Are there any problems with a service area of that size?
Mr. GOVER. Well, there are. That's unusually large for the tribes in Michigan and I notice that they define a service area as basically the aboriginal lands before their Treaty of Detroit. And, that's a very considerable service area for a tribe in that part of the country. It will certainly tax the tribe's resources and our own to be able to serve people in that broad of a geographic area.
Mr. CAMP. Thank you very much and I would just say that I think this is why the specialized staff of BAR exists—for reviewing this complex information and for analyzing these petitions for Federal recognition—and I guess, again, I would say that this process has not been utilized fully. There are some situations where unfair denial has occurred in the history of this country but there is a process there that is available and open and it's clear that that has not been used yet. And I would again thank the chairman for allowing me to testify and also to be a part of the panel later. Thank you.
Mr. CALVERT. I thank the gentleman. If everyone will be patient for a minute, Mr. Kildee has a couple of extra questions——
Mr. GERALD GOULD. Mr. Chairman?
Mr. CALVERT But before I do that, I'm going to go through a little business of this Committee and then I'll be recognizing Mr. Kildee and others for another round of questions.
Mr. GERALD GOULD. Could we have an opportunity to respond to the——
Mr. CALVERT. The gentleman will have some time to respond after I get through with this additional business.
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[Whereupon, at 2:36 p.m., the committee proceeded to other business, to resume at 2:37 p.m.]
Mr. CALVERT. [pres