[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]
BETTING ON TRANSPARENCY: TOWARD FAIRNESS AND INTEGRITY IN THE INTERIOR
DEPARTMENT'S TRIBAL RECOGNITION PROCESS
=======================================================================
HEARING
before the
COMMITTEE ON
GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
__________
MAY 5, 2004
__________
Serial No. 108-198
__________
Printed for the use of the Committee on Government Reform
Available via the World Wide Web: http://www.gpo.gov/congress/house
http://www.house.gov/reform
______
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COMMITTEE ON GOVERNMENT REFORM
TOM DAVIS, Virginia, Chairman
DAN BURTON, Indiana HENRY A. WAXMAN, California
CHRISTOPHER SHAYS, Connecticut TOM LANTOS, California
ILEANA ROS-LEHTINEN, Florida MAJOR R. OWENS, New York
JOHN M. McHUGH, New York EDOLPHUS TOWNS, New York
JOHN L. MICA, Florida PAUL E. KANJORSKI, Pennsylvania
MARK E. SOUDER, Indiana CAROLYN B. MALONEY, New York
STEVEN C. LaTOURETTE, Ohio ELIJAH E. CUMMINGS, Maryland
DOUG OSE, California DENNIS J. KUCINICH, Ohio
RON LEWIS, Kentucky DANNY K. DAVIS, Illinois
JO ANN DAVIS, Virginia JOHN F. TIERNEY, Massachusetts
TODD RUSSELL PLATTS, Pennsylvania WM. LACY CLAY, Missouri
CHRIS CANNON, Utah DIANE E. WATSON, California
ADAM H. PUTNAM, Florida STEPHEN F. LYNCH, Massachusetts
EDWARD L. SCHROCK, Virginia CHRIS VAN HOLLEN, Maryland
JOHN J. DUNCAN, Jr., Tennessee LINDA T. SANCHEZ, California
NATHAN DEAL, Georgia C.A. ``DUTCH'' RUPPERSBERGER,
CANDICE S. MILLER, Michigan Maryland
TIM MURPHY, Pennsylvania ELEANOR HOLMES NORTON, District of
MICHAEL R. TURNER, Ohio Columbia
JOHN R. CARTER, Texas JIM COOPER, Tennessee
MARSHA BLACKBURN, Tennessee ------ ------
PATRICK J. TIBERI, Ohio ------
KATHERINE HARRIS, Florida BERNARD SANDERS, Vermont
(Independent)
Melissa Wojciak, Staff Director
David Marin, Deputy Staff Director/Communications Director
Rob Borden, Parliamentarian
Teresa Austin, Chief Clerk
Phil Barnett, Minority Chief of Staff/Chief Counsel
C O N T E N T S
----------
Page
Hearing held on May 5, 2004...................................... 1
Statement of:
Blumenthal, Richard, attorney general, State of Connecticut;
Theresa Rosier, counselor to the Assistant Secretary for
Indian Affairs, Department of the Interior, accompanied by
Lee Fleming, Director, Office of Federal Acknowledgment,
Bureau of Indian Affairs; and Earl E. Devaney, inspector
general, Department of the Interior........................ 27
Boughton, Mark D., mayor, city of Danbury, CT; Rudy Marconi,
first selectman, town of Ridgefield, CT; Nicholas H.
Mullane II, first selectman, town of North Stonington, CT;
and Jeffrey R. Benedict, Connecticut Alliance Against
Casino Expansion........................................... 94
Flowers, Marcia, chairwoman, Tribal Council, Historical
Eastern Pequot Tribal Nation, accompanied by Mark
Sebastian, former chairman................................. 72
Letters, statements, etc., submitted for the record by:
Benedict, Jeffrey R., Connecticut Alliance Against Casino
Expansion, prepared statement of........................... 137
Blumenthal, Richard, attorney general, State of Connecticut,
prepared statement of...................................... 30
Boughton, Mark D., mayor, city of Danbury, CT, prepared
statement of............................................... 97
Davis, Chairman Tom, a Representative in Congress from the
State of Virginia, prepared statement of................... 4
Devaney, Earl E., inspector general, Department of the
Interior, prepared statement of............................ 45
Flowers, Marcia, chairwoman, Tribal Council, Historical
Eastern Pequot Tribal Nation, prepared statement of........ 78
Marconi, Rudy, first selectman, town of Ridgefield, CT,
prepared statement of...................................... 103
Mullane, Nicholas H., II, first selectman, town of North
Stonington, CT, prepared statement of...................... 125
Ose, Hon. Doug, a Representative in Congress from the State
of California, prepared statement of....................... 23
Rosier, Theresa, counselor to the Assistant Secretary for
Indian Affairs, Department of the Interior, prepared
statement of............................................... 39
Sebastian, Mark, former chairman, information concerning a
resolution................................................. 83
Shays, Hon. Christopher, a Representative in Congress from
the State of Connecticut, prepared statement of............ 9
Simmons, Hon. Rob, a Representative in Congress from the
State of Connecticut, prepared statement of................ 18
BETTING ON TRANSPARENCY: TOWARD FAIRNESS AND INTEGRITY IN THE INTERIOR
DEPARTMENT'S TRIBAL RECOGNITION PROCESS
----------
WEDNESDAY, MAY 5, 2004
House of Representatives,
Committee on Government Reform,
Washington, DC.
The committee met, pursuant to notice, at 10:04 a.m., in
room 2154, Rayburn House Office Building, Hon. Tom Davis of
Virginia (chairman of the committee) presiding.
Present: Representatives Tom Davis of Virginia, Shays, Ose,
Duncan, Maloney, Cummings, Kucinich, Watson, and Norton.
Also present: Representatives Johnson of Connecticut,
Simmons, and Wolf.
Staff present: David Marin, deputy staff director/director
of communications; Keith Ausbrook, chief counsel; John Hunter,
counsel; Robert Borden, counsel/parliamentarian; Drew Crockett,
deputy director of communications; Teresa Austin, chief clerk;
Brien Beattie, deputy clerk; Shalley Kim, professional staff
member; Robert White, press secretary; Michael Yeager, minority
deputy chief counsel; Earley Green, minority chief clerk; and
Jean Gosa, minority assistant clerk.
Chairman Tom Davis. Good morning. The quorum will come to
order, and I want to welcome everybody to today's hearing on
the process for recognition by the Federal Government of
American Indian tribes as sovereign Indian nations. The
committee will focus on the integrity, transparency, and
accountability of tribal recognition decisions made by the
Interior Department's Bureau of Indian Affairs.
Federal recognition of a particular Indian tribe can have a
profound effect on the tribe, the surrounding communities, the
State, and the Federal Government. For example, recognition is
a prerequisite for a tribe to receive Federal assistance and
obtain other rights. Recognized tribes receive exclusive
Federal funding for health, education, and other social
programs. Also, tribal lands are eligible to be taken into
trust for a tribe or its members by the Federal Government.
Today, over 45 million acres nationwide are held in trust,
basically creating a nation within a nation.
This is particularly critical because tribal lands held in
trust are exempt from most State and local laws, such as sales
tax and gambling regulations. A tribe must meet additional
requirements before it can exercise other rights. For instance,
before a recognized tribe can operate a casino on tribal land
held in trust, the tribe must comply with the requirements set
forth in the Indian Gaming Regulatory Act of 1988.
Today, the Secretary of the Interior has authority to
recognize American Indian tribes under regulations administered
by the BIA. Congress may also recognize a tribe through
legislation. Congress terminated recognition by treaty in 1871.
Until 1978, the Interior Department made tribal recognition
decisions on a case-by-case basis. Then, Interior established a
formal regulatory process for recognizing tribes and adopted
seven criteria that a petitioning tribe must meet to receive
Federal recognition. Before Interior implemented the current
recognition regulations in 1978, BIA received 40 petitions from
groups seeking formal tribal recognition. Since 1978, BIA has
received an additional 254 petitions. As of February 2004, a
total of 57 petitions have been resolved, 13 petitions are
ready for dispensation, 9 petitions are in active status, 2 are
in post-final decision appeals, 1 is in litigation, and 213 are
not ready yet for evaluation.
The Connecticut congressional delegation recently brought
to my attention two BIA recognition petitions filed by
Connecticut tribes and asked the committee to hold a hearing to
explore questions about the objectivity and transparency of the
BIA recognition process in connection with the decisions to
recognize the Historical Eastern Pequot and the Schaghticoke
tribes.
I readily agreed to hold this hearing because I think it is
imperative that the integrity of the BIA process be preserved.
Interested parties and the public have a right to be assured
that a critical procedure such as this one administered by an
agency of the Federal Government is completely fair, unbiased,
transparent and in accordance with the law. That mission fits
squarely within the jurisdiction of this committee.
Both the Schaghticoke and the Historical Eastern Pequot
decisions are being challenged on various grounds by the
Connecticut attorney general, municipalities subject to Indian
land claims, and other interested parties. In both cases, final
recognition was granted by the Assistant Secretary for Indian
Affairs despite proposed findings by BIA that the tribes did
not meet one or more of the seven mandatory criteria for status
as a sovereign Indian nation.
Our goal today is to look at these decisions as a case
study of the overall recognition process. Are these cases
unique, or are they symptomatic of a larger problem that calls
into question the integrity and fairness of the process? Do
these cases demonstrate that the ground rules underlying the
process are ever changing?
The committee will hear from witnesses who can help us
evaluate the fairness and efficiency of the BIA recognition
process, both generally and in the context of the two
Connecticut tribal recognition decisions. We will hear from the
Office of the Assistant Secretary for Indian Affairs of the
Department of the Interior about the recognition process, as
well as from the Interior inspector general. The committee will
also hear from the Connecticut attorney general, several
Connecticut municipalities affected by the decisions, and the
Historic Eastern Pequot Tribal Nation. We invited the
Schaghticoke Tribal Nation to testify, but they declined the
committee's invitation. Other witnesses will discuss their
assessment of and recommendations to improve the BIA
recognition process.
I want to thank all of our witnesses for appearing before
the committee, and I look forward to your testimony.
I also would ask unanimous consent that Nancy Johnson and
Rob Simmons from Connecticut, and Frank Wolf from Virginia be
allowed to join today's hearing. Without objection, so ordered.
And I welcome them to the committee this morning and invite
them to participate in today's hearing.
I now yield to the vice chairman of the committee, Mr.
Shays, for an opening statement.
[The prepared statement of Chairman Tom Davis follows:]
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Mr. Shays. Thank you. And thank you, Chairman Davis, on
behalf of the Connecticut delegation, for agreeing to hold this
hearing.
While the need to reform American Indian tribal recognition
procedures at the Department of the Interior is acutely felt in
our State today, the flawed system has a truly national impact,
affecting the sovereignty, social policy, and fiscal health of
every State.
What was once a purely historical, anthropological, and
genealogical inquiry has been transformed by the lure of casino
revenues into a high-stakes, winner-take-all political campaign
to possess a Federal gaming franchise. An academic
investigation designed to acknowledge cultural continuity and
restore political sovereignty is being overwhelmed and too
often overturned by the intense pressures and voluminous
submissions of tribal petitioners and their wealthy backers.
Two years ago, this committee's Regulatory Affairs
Subcommittee examined tribal recognition standards and
procedures. At that time, the General Accounting Office [GAO]
found serious weaknesses in the process, including a lack of
clear guidance on critical aspects of the mandatory recognition
criteria. Even on the quality and quantity of evidence needed
to demonstrate continuous existence, the criteria at the heart
of tribal sovereignty, GAO found a lack of consistency and
clarity.
About the same time, the Interior Department inspector
general discovered inconsistencies and a determination by
decisionmakers to recognize certain petitioners despite expert
conclusions they did not meet mandatory criteria.
Today we know the procedural irregularities and murky
standards that the Bureau of Indian Affairs [BIA] survive from
administration to administration, Republican and Democrat, as
the potent power of undisclosed gaming investors drives the
process to a predetermined outcome.
Just how far the BIA had strayed from legal and factual
reality was made starkly obvious last January. In an internal
briefing on recognition of the Schaghticoke Tribal Nation of
Connecticut, the staff offered guidance on how to recognize the
tribe ``even though evidence of political influence and
authority is absent or insufficient for two substantial
historical periods of time.'' The options presented: recognize
the tribe anyway by using State law recognition as an
unprecedented surrogate for required evidence, or decline to
recognize based on the regulations and BIA precedent, or
acknowledge the Schaghticokes outside of the regulations.
That the BIA even considered the first or third option is a
scandal. That they chose the first proves the process is
irreparably skewed, adrift in a sea of guilt, paternalism, and
greed. Substituting indirect evidence, such as State
recognition, for one or more of the mandatory criteria means
the process is utterly without objective standards. Arbitrary,
outcome-driven sophistry injected into final decisions puts BIA
procedures beyond the view of interested parties and
communities whose rights hinge on the opportunity to
participate meaningfully in a transparent, fair process.
Any lack of transparency denies the public the fundamental
right to know with whom their government is really doing
business. As we will hear in testimony today, casino backers
have spent many millions of dollars on experts and lobbyists to
gain Federal recognition and the substantial rights and
privileges that come with it, but neither the BIA nor the
Indian Gaming Regulatory Commission has any power to compel
disclosure of the real parties at interest before them until it
is too late to detect improper or corrupting influences.
We look forward to our witnesses' recommendations on how to
ensure the integrity, objectivity, transparency, and timeliness
of the tribal recognition process. They are here today because
they believe in the value of open discussion and honest dialog,
and we appreciate their being here. For reasons of their own,
some other invited witnesses declined our invitation to
testify.
I ask unanimous consent to insert into the record letters
from Mr. Thomas C. Wilmot, Sr., who is reported to have spent
$10 million supporting a tribal recognition application;
Attorney Robert Reardon, Jr., representing Mr. Donald Trump in
litigation to recover more than $9 million from a tribe and its
new backers; and Chief Richard Velky of the Schaghticoke Tribal
Nation, who initially agreed to attend but withdrew only late
yesterday.
If the committee concludes these individuals have
information essential to oversight, I know they will be invited
or, if necessary, compelled to provide that evidence in the
future.
Thank you, Mr. Chairman. I appreciate this hearing.
[The prepared statement of Hon. Christopher Shays follows:]
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Chairman Tom Davis. Well, thank you very much. That is the
correct statement, and I agree with it. Thank you very much,
Mr. Shays.
Ms. Watson, any opening statement?
All right, Mr. Simmons.
Mr. Simmons. Thank you, Mr. Chairman, and in particular for
the courtesy of including me. And on the basis of that
courtesy, I will ask that my full statement be entered into the
record, and I will make a brief summary, if that is OK.
First of all, I notice on the panel and in the audience
friends and constituents from Connecticut, Attorney General
Richard Blumenthal, who has been working these issues for many
years. I first started working with Dick on these issues when I
was a State representative, and it is good to see you here
today. We look forward to your testimony.
I also see Nick Mullane, first selectman from the town of
North Stonington, who is my constituent as a State
representative and as a Member of Congress, and as somebody who
has been very involved in the impacts of Indian casinos on our
small municipalities.
Mark Boughton, who is the mayor of Danbury. We served
together in the legislature. I see Marcia Flowers, who is a
friend and a constituent, who will be part of, I think, the
second or the third panel. And I also see Jeff Benedict, who is
a constituent and a friend, and who wrote a book called
``Without Reservation,'' which is a very complete summary of
these issues.
Among these friends and neighbors there will be
disagreement, but I think we all agree that the issue is very
significant and has great impact on the State of Connecticut.
The advent of Indian casinos to Connecticut comes as a mixed
blessing. We have two of the largest casinos in the world in my
district. Two of the largest casinos in the world. And they
bring revenue to the State, they provide jobs, especially at a
time when defense contracting and other types of manufacturing
are in decline. And members of tribes have been personally
generous in the community and in the State, and we welcome
that.
At the same time, there is considerable negative impact.
Local municipalities have no taxing authority, they have no
zoning authority. State and town roads which are used to
provide transportation to these facilities are maintained at
the cost of the local municipalities. Emergency services, in
many cases provided by volunteers, are overwhelmed and in some
cases have closed. So these are very real municipal impacts
that we face.
And the process itself, I believe, is corrupt and unfair:
corrupt in the sense of broken; unfair in the sense that it
does not deliver a fair product either to the petitioners or to
those who have to deal with the impacts of the petitions. And I
think probably the reason for that is because the promise of
money that comes with a Federal recognition and a casino is
what has distorted the process.
As a member of the Connecticut delegation, I met recently
with the Secretary of Interior and reiterated again to her my
concern that the seven mandatory regulatory criteria for
recognition be placed in statute, something that the delegation
has been trying to do for several years. Her response to us at
the time was ``she had no immediate objection to it.'' No
immediate objection to it.
I also expressed my concern about the revolving door, which
means officials of the Bureau of Indian Affairs can make
decisions that affect tribes, petitioning tribes, and then
leave the Bureau of Indian Affairs and, with no cooling off
period, go to work to represent or be employed by some of those
very same people who are affected by those decisions.
Both of those recommendations have been placed in a piece
of legislation that I introduced with the full delegation a few
weeks ago. We want more control over the process. We want more
transparency in the process. And we want relief provided to our
localities for what can be a very expensive battle on a very
uneven playing field.
And for those members who are not familiar with the
political organization of Connecticut, we do not have county
government in Connecticut. We have 169 small towns, and then we
have the State, and those small towns are not equipped and are
not resourced to deal with the lengthy legal battles that often
occur when the petitioning groups have multimillionaires
supporting them and the towns simply have the working citizens
and a small tax base.
It is time for Congress to step in and solve this problem
by reforming the system by statute and closing the revolving
door.
And with that, Mr. Chairman, I thank you again and look
forward to hearing from the witnesses. I will conclude by
saying that I do have a bill on the floor today, probably
around 11, the Alternative Minimum Tax. So I apologize if I
have to leave in the middle of the testimony.
[The prepared statement of Hon. Rob Simmons follows:]
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Chairman Tom Davis. It is an important bill, we understand,
and thank you again for helping call this issue to the
committee's attention.
Any other members wish to make opening statements?
Mr. Cummings. Just a very brief statement, Mr. Chairman.
Chairman Tom Davis. Yes, Mr. Cummings.
Mr. Cummings. Mr. Chairman, I want to also thank you for
holding this hearing to assess the legal sufficiency and
procedural fairness of the American Indian tribal recognition
process administered by the Interior Department's Bureau of
Indian Affairs. Recognized tribes receive exclusive Federal
Government funding for health, education, and other social
programs. As such, tribal lands are eligible to be taken into
trust by the Federal Government. The integrity of the BIA
process is very important.
Recently, the Assistant Secretary for Indian Affairs acted
on acknowledgment petitions filed by two Connecticut tribes,
the Eastern Pequot and the Schaghticoke tribes. These actions
raise questions about the tribal recognition process, since,
under BIA findings, these tribes did not meet any of the
mandatory criteria for status as a sovereign Indian nation. The
Assistant Secretary of Indian Affairs granted final recognition
to the tribes.
Federal recognition of an Indian tribe acknowledges that
the tribe is a sovereign entity which establishes a government-
to-government with the United States and makes the tribe
eligible for Federal programs through the Interior Department's
Bureau of Indian Affairs and the Indian Health Service. More
importantly, it allows gaming on Indian lands under the Indian
Gaming Regulatory Act.
Mr. Speaker, the potential for profit through gaming is
extremely high. In fact, Indian gaming is a $15 billion a year
business, and, as such, many existing Indian tribes, as well as
would-be tribes, are spending millions of dollars on political
campaigns, lobbying, and State ballot initiatives to preserve
the tax-free status of casinos, expand gaming operations, and
protect their sovereign immunity. Two-thirds of the groups
currently awaiting determinations on their applications are
reportedly financed by outside casino investors.
In order to maintain the accuracy and legitimacy of the
tribal recognition process, there must be a clear basis for
determining tribal status. The potential for exploitation of
the BIA process or tribal communities that might be linked to
the gaming industry must be avoided.
And with that, Mr. Speaker, I look forward to hearing from
all of our witnesses today, and, Mr. Chairman, I yield back.
Chairman Tom Davis. Thank you very much.
We have a distinguished panel today.
Mr. Ose. Mr. Chairman?
Chairman Tom Davis. Mr. Ose, you want to make a statement?
Mr. Ose. Yes, please.
Chairman Tom Davis. The gentleman is recognized.
Mr. Ose. Thank you, Mr. Chairman. First of all, let me
thank you for calling this hearing. We have been struggling
with this issue of tribal recognition for many decades. It has
been brought to my attention in previous Congresses by Mr.
Shays. We had a number of hearings on that. We are faced with a
diverse array of existing tribes numbering over 550, I believe,
already federally recognized tribes, and the task of
acknowledging a new group as a sovereign entity remains one of
our most difficult and complicated tasks.
As you heard from the other Members here, the recognition
of a tribe has a significant effect not only the tribe, but on
the surrounding communities. In my district, we have had some
very successful recognitions in which the tribes have gone on
to significant progress. We have also had some difficulty in
terms of tribes or groups of folks who have filed for
recognition who have been unsuccessful in getting that.
We have a process in place that has seven tests for
identifying groups who would otherwise quality as tribes. It is
not an easy test or an easy series of tests to accomplish. I do
think it is important that we review that periodically. I am
hopeful that this hearing will eventually lead to that.
In California, one of the overwhelming aspects that is on
the table, so to speak, from tribal recognition is the issue of
gaming and how many tribes wish to use that as the economic
vehicle for progress. It has had remarkably positive effects
for many tribes. There are many communities in which the tribes
are located which might otherwise suggest that the ancillary
impacts of that gaming have not been all that positive.
In that context, Mr. Chairman, I am pleased that you called
this hearing to examine this issue, and look forward to the
testimony of the witnesses.
[The prepared statement of Hon. Doug Ose follows:]
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Chairman Tom Davis. Thank you very much.
We are now ready for our first panel. We are very pleased
to have a very distinguished panel. We start with the Honorable
Richard Blumenthal, who is the attorney general of the State of
Connecticut; the Honorable Theresa Rosier, who is the Counselor
to the Assistant Secretary for Indian Affairs at the Department
of the Interior. I understand you are accompanied by Lee
Fleming, so we will swear Lee in, who is the Director of the
Office of Federal Acknowledgment, Bureau of Indian Affairs; and
the Honorable Earl E. Devaney, the inspector general for the
Department of the Interior.
Thank you all for being here. It is the policy of this
committee that we swear all witnesses, so if you would rise
with me and raise your right hands.
[Witnesses sworn.]
Chairman Tom Davis. Thank you very much.
We have lights in front. Your total statements are in the
record. After 4 minutes the light will turn from green to
orange; in 5 minutes it will turn red. If you could try to move
to summary as soon as it turns red, we can move ahead to
questions.
Before we start, Mr. Shays?
Mr. Shays. Thank you, Mr. Chairman. I should have mentioned
this in my opening statement, and I appreciate your indulgence.
I just, first, wanted to welcome the attorney general. I served
with him in the State House and while he was in the Senate, and
he has truly been a leader in this effort and just has been
both very strong, but very bipartisan and, frankly, nonpartisan
on this issue. He has confronted the previous administration in
a very real way, and so I just have immense respect for him.
And I do want to thank the Department of the Interior and
welcome our witness there and acknowledge, as well, the good
work of the Inspector General's Office.
I also want to say to our second panelists, that I have
tremendous respect for Marcia Flowers, the chairwoman, and want
her to know, as she hears these strong statements, that we
understand your role and will be very respectful of that.
And also Mark Sebastian, welcome. You have a wonderful
reputation. You are both wonderful people, terrific people, and
we thank you for coming to testify.
And let me just conclude by saying that we will have three
mayors, really, a mayor and two first selectmen. They are all
distinguished leaders in their community, and particularly
those nearest my community, Mr. Boughton, the mayor, as well as
First Selectman Marconi. They have bipartisan support,
overwhelming support in their communities because they have
done wonderful jobs, and it is very important that they
participate, and I thank them.
And just end by saying that Jeffrey Benedict has been
extraordinarily informed and has been leading this effort. We
will learn a lot from him.
So we have a wonderful three panels, and thank you for
giving me the opportunity just to express my appreciation to
all of them.
Chairman Tom Davis. Thank you. And before I start, Mr. Wolf
just came in. He has been a leader in terms of the gaming issue
in the Congress. I just want to allow him to make a statement,
and then, General Blumenthal, we will move to you.
Mr. Wolf. Thank you, Chairman Davis. I spent some time last
night putting this together, and I appreciate your giving me
this opportunity. And I want to thank you and Mr. Shays for
having this hearing. I feel very strongly about this, and I
just want to get this on the record.
As the author of the legislation which created the National
Gambling Impact Study, I have long had serious concerns about
the harmful effects of gambling on society and on Native
American tribes. If you look at a snapshot of what is happening
today, 80 percent of Native Americans live in poverty, poor
schools, inadequate infrastructure, and abysmal health care,
and the Congress and the administration can and should do more
to help Native Americans.
Consider the snapshot: a broken--it is so broken--broken
tribal recognition process subject to severe abuses, wealthy
investors and lobbyists, and this town is becoming full of
lobbyists in a way that is fundamentally corrupt, and yet
nobody seems to do anything about it; making money from
exploiting Native Americans while trying to get them recognized
and eventually engaged in gambling, and no one says anything
about it. Have the standards changed in this town and in this
Congress and in society? Money being made at the expense of
Native American tribes while few Native Americans ever, ever
see a dime from gambling and continue to suffer in poor
conditions.
This is the state of tribal recognition and Native American
gambling today. And I thank Mr. Davis for having this
opportunity where people can say something. The tribal
recognition process is broken. If this administration doesn't
realize it, then there ought to be changes at Interior where
they are willing to allow these things to exist. Congress and
the administration should take steps in light of the mounting
evidence.
When Time Magazine published a two-part cover story about
the many problems, no action was taken. Two parts, feature,
cover story, Time Magazine; Interior takes no action. Nothing
was done. There are countless news reports. My goodness, just
look at the news reports. Day after day of questions and
unethical, immoral, and maybe fundamental illegal activity is
taking place.
With all the evidence there is about the problems with
Native American gambling, Congress and the administration has
to take some proper steps. This process is supposed to be
marked by integrity--and I worked at Interior under Secretary
Roger C.B. Morton for 5 years when there was integrity there.
Now the Congress and the administration are not using the
opportunity to institute the needed reforms.
I have written the administration time after time after
time, and you almost never get a response from the Department
of the Interior. When there is a response it is not adequate.
This is a bipartisan failure. Both the Clinton administration
and the Bush administration and their respective Secretaries of
the Interior, Bruce Babbitt and Gail Norton, have stood by and
allowed Native Americans to continue to be exploited by
gambling interests.
Nearly 80 percent of Native Americans receive nothing from
gambling. Most tribes remain mired in poverty. Just go onto the
Indian reservations, and many are in areas whereby they cannot
take advantage of gambling because people are not going to go
to those areas to gamble, and tribes that are questionable are
reaping all the benefits, and the Native American community in
this country, 80 percent are living in abject poverty.
Congress has to act to turn around the tribal recognition
process. It is filled with abuses. They are stunning. In the
last administration, the Clinton administration, two officials
reversed the opinions of Interior Department staffers to
recognize three groups as Indian tribes, allowing them to open
casinos. The decision was made in the last days in office,
against the recommendation of the professional staff. Then the
two officials who decided to recognize the tribes took
positions representing Indian tribes. Clearly the seven
criteria that BIA applies to recognize tribes are being
skirted, and those making the decisions impacting tribes can
leave the Interior Department through a revolving door and then
represent tribes in the private sector. And, frankly, some of
these law firms that hire these people, these were law firms
that were distinguished firms, and now to be involved in this
type of activity is shocking.
In March, a Connecticut newspaper reported that Bureau of
Indian Affairs documents revealed that the BIA knew--knew--that
the tribe didn't meet the BIA rules for recognition, but the
staff in the BIA Office of Federal Acknowledgment wrote a memo
to the agency's director showing how to recognize the tribe
anyway.
Lobbyists and investors have exploited Native Americans in
order to use them. Frankly, those who may be with those law
firms, those of you who may have left the administration at
different times, how can you live with yourselves knowing the
exploitation that is taking place with regard to the poverty on
the Indian reservations?
The Government has walked away from its obligation to
Native Americans and, instead, relied on gambling as the
panacea for the problems. In fact, almost every administration
in Congress has said, well, if there is a problem, let them
have gambling. That is why you have seen the BIA budget has not
been increased and the programs for Indians have not been
increased. This approach has resulted in a Federal recognition
process with standards that are unevenly and unpredictably
applied, influenced by big money and harmful to the tribes and
those petitioning for recognition.
I am not going to get into the Connecticut situation, you
have Connecticut Members, but imagine if you lived in a
community in your State, in your region that was going through
what some of these Connecticut towns are going through. To all
of the big lobbyists out there, let us put a tribal operation
where you live and see how you would respond if you saw the
corruption and the abuse that was taking place.
Today, Mr. Chairman, I think there ought to be a
moratorium. The representatives of the Interior Department
ought to announce today they are going to have a moratorium.
The Bush administration ought to say we are going to have a 1-
year moratorium on the recognition process so there is time for
the Congress--because now there is enough information--and the
administration to review and fix the many problems. You have to
get the money interests out of the picture, do what is right
for the Native Americans, and really change, change this
process.
I will end by just quoting a 2002 GAO report: ``Weakness in
the process have created uncertainty about the basis for
recognition decisions, calling into question the objectivity of
the process.'' And for anyone who wonders about it, the
National Indian Gaming Commission, where there are 330 Indian
gambling tribes, reported at the end of fiscal year 2002 in 28
States with revenue of $14.5 billion and 67 people at the
National Indian Gaming Commission to carry out Federal
oversight, 67 people; and that may have changed, maybe there is
69, maybe there is 75. But in Atlantic City, for 12 casinos,
they have over 700 with oversight.
I have much more I would say. I will just submit the full
statement for the record. I appreciate the chairman having this
hearing.
I don't know who from the administration is there, but you
all have to change this. If you don't change it, there will be
major corruption scandals on this, and it will come back to
wash up on the shores. I implore this administration. Frankly,
the Clinton administration did nothing. They watched things go
on that were horrible. I happen to be a Republican who supports
this administration. I call on this administration. I call on
Secretary Gail Norton to do the right thing. They should say
how they feel if this were taking place in their own community.
And, last, to the administration, you should be more
aggressive in representing the interests of the Native
Americans. You think you are helping the Native Americans by
doing this. You are allowing them to be exploited by powerful
money interests and lobbyists in this town, and, frankly, this
administration is failing on that issue.
With that, Mr. Chairman, I yield back the balance of my
time.
Chairman Tom Davis. Thank you very much.
Mr. Blumenthal, thank you very much for your statement and
your continued interest in this. Your reputation precedes you.
We are honored to have you here today. Thank you very much for
being with us.
STATEMENTS OF RICHARD BLUMENTHAL, ATTORNEY GENERAL, STATE OF
CONNECTICUT; THERESA ROSIER, COUNSELOR TO THE ASSISTANT
SECRETARY FOR INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR,
ACCOMPANIED BY LEE FLEMING, DIRECTOR, OFFICE OF FEDERAL
ACKNOWLEDGMENT, BUREAU OF INDIAN AFFAIRS; AND EARL E. DEVANEY,
INSPECTOR GENERAL, DEPARTMENT OF THE INTERIOR
Mr. Blumenthal. Thank you very much. Thank you, Mr.
Chairman. I am honored to be back with you. Thank you for the
invitation, and I want to thank you for your leadership, most
especially Representative Shays for his continuing courage and
conviction on this issue, and Representative Simmons, who has
shown great determination and vision, as well as other members
of the panel who will probably be joining us.
And I want to join in thanking you for the Department of
the Interior being here, most especially Inspector General
Devaney, whose staff has recently visited Connecticut and is
doing excellent work; and the local officials who are joining
us today from Connecticut, as well as Chairman Flowers, because
she has shown great determination to be here as well, and I
thank her for her leadership.
I am not going to give in depth or detail my testimony, I
assume it will be in the record, but the comments--very
eloquent and articulate comments--made so far lead me to say
that we are at a historic turning point. I sense from the
comments that have been made so far this morning that there is
a clear recognition that reform is vital, that we have a unique
and historic opportunity, and really a window of opportunity to
make these changes before we do further damage to my State and
to the Nation, and not just in specific decisions that may be
incorrect or illegal, but further damage to the credibility and
trust of the entire recognition process.
Reform is no longer a luxury, it is a necessity, and Vice
Chairman Shays used a word, scandal, to describe the present
process. That is exactly the word that Senator Daniel Inouye
used to describe this process. Senator Ben Nighthorse Campbell
said that it is driven by money and politics. There is a
bipartisan consensus now that we need fundamental, far-reaching
reform.
I have described this agency as being lawless. I did so
most recently before the U.S. Court of Appeals for the Second
Circuit when I argued last week. It is an agency that is
lawless, out of control, arbitrary, capricious, and we need to
impose standards that assure the rule of law. In the
Schaghticoke decision, for example, my view is that the outcome
is as unprincipled as it is unprecedented. Never before has the
BIA recognized a tribe that is admitted by the agency itself to
completely lack evidence on two key required standards over
decades, seven decades for one of them. Never before has the
BIA combined in this way two such hostile factions, neither
accepting the other's legitimacy. And never before has the BIA
so twisted and distorted State recognition to cover its
deliberate disregard for absent evidence.
I must say, Mr. Chairman, that I am also very, very deeply
troubled by an order that was issued literally within the past
few days by the Secretary of the Interior that completely
delegates authority over all recognition and gaming decisions
within the BIA to the principal deputy, delegates that
decisionmaking power from the Assistant Secretary, who was
confirmed by the U.S. Senate to fulfill these responsibilities,
and who has recused himself, apparently, from all
decisionmaking relating to recognition or gaming activities. In
my view, that across-the-board general, complete delegation,
not a specific recusal on a case-by-case basis where there may
be a conflict of interest based on the facts, but a complete
delegation raises very, very profound and serious questions of
law. For example, the over-breadth of delegation, the lack of
oversight and accountability to the U.S. Congress which
confirmed this official to fulfill those responsibilities I
think merits immediate and urgent scrutiny, and I intend to
give it, and I know Members of Congress will be interested in
these issues as well.
I agree that there ought to be a moratorium on Bureau of
Indian Affairs tribal acknowledgment decisions or appeals
affecting Connecticut, and probably the United States, and
there ought to be a full and far-reaching investigation,
perhaps by this committee, but at the very least by the U.S.
Congress, of the BIA's actions. And I would join Congressman
Shays in urging that certain of the parties be invited again to
appear. If they are unable or unwilling to do so, they ought to
be subpoenaed to appear. We have used the subpoena as attorneys
general, as have other law enforcement agencies. This issue
raises profound issues of integrity and lawfulness that I think
go to the heart of the credibility and integrity of the
process.
I have proposed a number of reforms, and I will just repeat
them very briefly. I believe that one of those fundamental
reforms has to be creating an independent agency that is
insulated from politics and lobbying and personal agendas to
make these tribal recognition decisions, out of respect, a
profound respect that I share, for the sovereignty of tribes
that are recognized. The tribal groups that meet the criteria,
and they are sound criteria, in the law now ought to be
recognized. Those that fail to meet those criteria should not
be accorded this sovereign status. And an independent agency
much like, perhaps, the Federal Communications Commission or
the Federal Trade Commission, should be appointed to exercise
those powers.
Those criteria ought to be embodied in statute so there is
no question about how rigorously and faithfully they should be
applied, and resources ought to be provided to interested
parties, towns, cities, States, as well as the tribes
themselves, so that they can participate meaningfully in this
process.
And may I just summarize by saying that this issue really
is one that is bipartisan. It is not about party, it is not
about geography, or about interest group allegiance one way or
the other; it is about a common interest, which is the public
interest, and most importantly a public trust in the integrity
of these decisions that affect our Nation so vitally and so
irreversibly once they are made. And I believe, again, that we
are at a turning point when we can save ourselves from going
into a thicket of irreversible and mistaken decisions that
ultimately harm the Nation. We still have time to turn from
that thicket and avoid continued mistakes.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Blumenthal follows:]
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Chairman Tom Davis. Thank you very much, Mr. Blumenthal.
Ms. Rosier, thanks for being with us.
Ms. Rosier. Good morning, Mr. Chairman and members of the
committee. My name is Theresa Rosier, and I am Counselor to the
Assistant Secretary for Indian Affairs. I would like to submit
my full testimony for the record, but will abbreviate my
statement here today. In addition, I would like to recognize
Lee Fleming, who is the Director of the Office of Federal
Acknowledgment, who is here with me today.
I am pleased to be here on behalf of the Department of the
Interior to discuss the Federal acknowledgment process, recent
improvements to this process and proposed potential
improvements to provide a more transparent, clear, and
efficient acknowledgment process. I understand this issue is of
importance to this committee, as Vice Chairman Shays and others
who are here today cosponsored H.R. 4213, which is a bill that
codifies the criteria established at 25 C.F.R. Part 83, and
which also repeals certain exemptions for formal Federal
officials and employees representing Indian tribes.
Although the Department supports it's current Federal
acknowledgment process, we do recognize that improvements can
be made. The Department is generally supportive of legislation
that maintains the criteria at 25 C.F.R. Part 83, but that also
promotes increased transparency, integrity, and time
sensitivity to the process.
When the current administration came into office, Federal
acknowledgment quickly became a high priority. In November
2001, the General Accounting Office issued a report entitled
``Indian Issues: Improvements Needed in the Federal Recognition
Process.'' The two primary findings of this report was that the
process was not timely and that the decisionmaking was not
transparent to others.
In response to this GAO report, the Assistant Secretary
developed and implemented a strategic plan to provide
strategies to communicate more clearly the acknowledgment
decisionmaking process and also to improve the timeliness of
this process. Today I would like to discuss some of the
accomplishments the Department has made in implementing its
strategic plan.
First, to provide for more increased clarity and
transparency in the process, all technical assistance review
letters, proposed findings, final determinations, and
reconsider petitions have been put on a CD-ROM such as this.
The CD-ROM has been made available to the general public and to
interested parties. We are hopeful that this information will
be available on the Internet once the BIA is able to access the
Internet.
No. 2, to increase the ability of the Office of Federal
Acknowledgment in reviewing petitions and accompanying
documentation in a more time-sensitive manner, resources have
been provided to fill two professional staff vacancies. These
additional staff members have resulted in the formation of
three professional research teams. As you know, each team has a
member that represents who can talk about the history, the
genealogy, and the anthropology behind each petition.
Third, to increase the productivity of the office, we have
hired two sets of independent contractors. The first set of
contractors are two Freedom of Information Act specialists. As
you can tell from our two petitions I brought today, many of
our records are quite voluminous, and FOIA requests often tie
down our staff, so we have hired independent contractors to
help us with our FOIA requests. The second set of contractors
helps with our FAIR system, which I will discuss in a minute,
which is a computer data base system which scans and indexes
documents. Having the FAIR system has helped expedite the
process as petitioners and interested parties may access the
information on CD-ROM.
Let me talk a little bit more about our FAIR system. The
BIA has implemented the Federal Acknowledgment Information
Resource system. This is a computer data base system which
provides on-screen access to all documents in the
administrative record. The system allows researchers to have
immediate access to the records and also allows petitioning
groups, interested parties such as State and local governments,
to have the entire administrative record on CD-ROM. In
addition, all data entries made by our researchers are included
on the FAIR system.
Another significant improvement made to the Federal
acknowledgment process was in the realignment of the Bureau of
Indian Affairs. The former branch of Acknowledgment and
Research has been entitled now the Office of Federal
Acknowledgment, which now reports directly to the Principal
Deputy Assistant Secretary for Indian Affairs.
Due to the above-mentioned improvements to the Federal
recognition process, the Office of Federal Acknowledgment has
completed 14 major decisions since January 2001. We have
completed six proposed findings, six final determinations, and
two reconsidered final determinations.
On April 1, 2004, Secretary Norton requested Indian Affairs
to review our strategic plan and ensure that all appropriate
steps are being taken to implement the plan. As we have
discussed, the Department has completed many of these action
items; however, we have some more long-term action items which
are underway. We plan on completing most tasks by the fall of
this year; however, there are some items that may require
statutory or regulatory amendments or access to the Internet,
which may not be done or accomplished by this fall.
In addition, we are also planning to formalize an already
internal policy of the Assistant Secretary's office that
prohibits the Federal acknowledgment decisionmaker from having
contact or communications with a petitioner or interested party
within 60 days of an acknowledgment decision. Formalization of
this process will ensure that all parties are aware of the 60-
day period and protect the integrity of the process.
In conclusion, the Department believes that the
acknowledgment and existence of an Indian tribe is a serious
decision for the Federal Government. When the Government
acknowledges a tribe, it recognizes that an inherent sovereign
has continued to exist from historical times until present.
These decisions have significant impacts on the surrounding
community; therefore, these decisions should be made with a
thorough evaluation of the evidence in an open, transparent,
and timely manner.
I thank you for the opportunity to be here today. I will
answer any questions you have.
[The prepared statement of Ms. Rosier follows:]
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Chairman Tom Davis. Thank you.
Mr. Devaney, thanks for being with us.
Mr. Devaney. Mr. Chairman and members of the committee, I
want to thank you for the opportunity to address the committee
this morning on issues----
Chairman Tom Davis. Is your mic on?
Mr. Devaney [continuing]. On issues attendant to the tribal
recognition process. I have submitted my full statement for the
record and would now like to make some brief remarks and then
answer any questions the committee has for me today.
Mr. Chairman, I am here today to testify about my office's
oversight activities concerning the tribal recognition process
administered by the Department of the Interior. As you know,
tribal recognition, or the acknowledgment process of the
Department, has been severely criticized by GAO and others for
its lack of transparency. I don't disagree with that criticism,
and I am an advocate for more of it. However, relatively
speaking, it is actually one of the more transparent processes
at the Interior, especially after the recent changes noted
earlier. As a point of fact, the process generally follows the
due process requirements of the Administrative Procedures Act,
which includes giving notice, providing an opportunity to
comment, and an appeal mechanism.
When conducting an investigation of a program such as
tribal recognition, we naturally identify all the key players
and then interview them. This includes not only DOI personnel,
but individuals outside of the Department. In tribal
recognition matters, this may include individuals identified by
our own investigators, by the Office of Federal Acknowledgment,
or simply parties who have specifically signaled an interest in
the acknowledgment process, such as a State attorney general.
Accordingly, when we conduct interviews in a given tribal
recognition matter, we always begin with those OFA team members
who are charged with the petition review process. Based on our
experience, these are the most likely sources to provide
evidence of any inappropriate influence of the process.
In our 2001 investigation, which included the Eastern
Pequot Indian petition, we quickly heard from these folks about
some rather disturbing deviations from the established
processes that occurred at the end of the previous
administration. Several recognition decisions, including the
Eastern Pequot petition, had been made by the acting Assistant
Secretary for Indian Affairs which were contrary to the
recommendations of the acknowledgment review team. In fact, we
even found one of these decisions was signed and back-dated by
the former acting Assistant Secretary after he had left office.
Mr. Shays. Who was that?
Mr. Devaney. I believe that was Mr. Anderson.
We were only recently asked to investigate the Schaghticoke
tribal acknowledgment decision. Unfortunately, our
investigation of the Schaghticoke decision is not yet complete;
therefore, I can't comment on its outcome. I can, however,
assure you that we are conducting a thorough investigation to
determine whether there was any deviation from the established
process in the consideration of this petition. We are, of
course, interviewing OFA staff, acknowledgment review team
members, and senior Department officials to determine if any
undue pressure may have been exerted. We have also spoken to
Attorney General Blumenthal and members of his staff, as well
as tribal representatives and officials from the Town of Kent
to better understand their concerns. Their perspective is very
important to us, and several investigative leads were developed
out of those discussions.
Given the recent media reports of alleged improper lobbying
influences relating to Indian gaming, my office now routinely
includes in its scope of investigation inquiries into any
lobbying influences that might bear on a particular Indian
issue or program with a view toward targeting improper lobbying
influences on any employee of the Department. In the end, I am
confident that we will be able to present a thorough and
complete report regarding the way this petition was
acknowledged.
Finally, Mr. Chairman, I recently sent Congressman Wolf a
list of issues which we consider to be impediments to good
oversight and enforcement. One of those issues is the statute
which permits recently departed DOI employees to go out and
immediately represent recognized Indian tribes in connection
with matters pending before the Federal Government. This
exemption was created in part because Indian tribes, at the
time of its enactment in 1975, had little or no access to
persons with expertise in Indian matters. Today, that dynamic
has obviously changed. We simply believe that this statute has
outlived its original intent and that this exemption now
perpetuates the proverbial revolving door. Without this
exception to the normal cooling-off period that all other
departing executive branch employees must adhere to, this would
obviously be a violation of the criminal conflict of interest
laws.
Recently, in a prosecution stemming from one of our
investigations, the U.S. Attorney's Office in the Northern
District of New York secured a guilty plea by an individual who
had submitted fraudulent documents in an effort to obtain
Federal recognition for the Western Mohegan tribe and nation.
Evidence presented at trial demonstrated that this fraudulent
application was made in the hope of initiating gaming and
casino operations in upstate New York. We are hopeful that this
conviction will send a clear message to others who would
attempt to corrupt the tribal acknowledgment process.
Finally, Mr. Chairman, we have recently increased our
investigative efforts and have now joined forces with the FBI
in several matters to leverage our limited mutual resources. In
some cases we are operating in a task force setting where one
of our agents is always paired up with one of theirs. Coupled
with a strong commitment recently made to us by the 26 U.S.
attorneys who prosecute cases in Indian Country, I am confident
that you will begin to see the results of our labors in the
near future.
Mr. Chairman and members of the committee, this concludes
my remarks, and I would be happy to answer any questions.
[The prepared statement of Mr. Devaney follows:]
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Chairman Tom Davis. Thank you all very much.
Let me start with a question. This will not be our last
hearing on this, and we probably will issue some subpoenas,
particularly the unwillingness of one of the tribes to come
forward today, I think, raises some additional issues for us.
Do you know if legislatively or administratively there is a way
to decertify a tribe if something was amiss in the original
certification, if fraud could be proved and the like? Does
anybody have any thoughts on that?
Ms. Rosier. Congress has the authority to terminate Indian
tribes, and they did that during the termination era, so
Congress could do that.
Chairman Tom Davis. We could do it by act? Could you do it
administratively?
Ms. Rosier. Well, at this point, if they are at the IBIA,
once the decision is issued by the IBIA, then it becomes a
final agency action, and then it goes to Federal District
Court.
Mr. Blumenthal. If I may supplement and agree with the
statement that has just been made. Recognition, in effect, is
an act of Congress, and one of the points that I have made in
challenging a number of the decisions on recognition is that
right now that delegation is over-broad. And I have urged that
Congress, in effect, reassume or take back some of the
authority that it seems to have delegated, and I agree that
Congress could reverse a decision to recognize a tribe because,
ultimately, the authority stays with Congress.
Administratively, these decisions are irreversible, and
that is one of the very profoundly important facts here. And if
I may just again draw the analogy, you know, when the U.S.
Government makes a decision to issue a broadcast license or
approve a corporate merger or permit a stock offering, it goes
to an independent agency that has rules and standards. The same
is not true of recognition decisions whose consequences are
even more profoundly far-reaching and important to the Nation.
Chairman Tom Davis. One of the things that is most
disturbing to me as an outsider, somebody who represents the
Washington suburbs where this has not been an issue, is the
vast amounts of money that go into these things, money spread
across the political spectrum in a bipartisan way, huge money
to lobbyist insiders, very disturbing, and it raises just a
host of issues that I think somebody needs to pursue. This
committee has that authority; we are the major investigative
arm. We don't have the legislative authority of the Resources
Committee on some of these other Indian matters, but we do have
broad investigative authorities and subpoena power. Maybe that
is where it needs to begin, because everyone else has kind of
walked away from this gingerly, and yet Members come up to me
on the floor and express concerns about some of the money they
see changing hands on this and the like. So we intend to pursue
this. I just want to make that clear.
I appreciate everybody being here.
Mr. Blumenthal. And if I may just add, the financial stakes
here and the money involved is the elephant in the room that no
one wants to acknowledge. It is driving the process, and the
reason is quite simply that the stakes have become so enormous.
It is the reason that the financial backer of the
Schaghticokes, Fred DeLuca, has acknowledged he has already
spent $10 million. The amounts of money for other tribes, each
of them $10 million or more, acknowledged and on the record,
and they are not even nearly complete with the process. So I
think that the presence of gambling interests and the stakes
involved have enormously raised the stakes in the lobbying game
as well, Mr. Chairman.
Chairman Tom Davis. Well, when you take a look at the
membership of some of these tribes and the revenue, it doesn't
pass the smell test to a lot of us. I think we just need to
understand it a little better, and nobody has gone beyond the
first or second layer of questions to delve down. That is why
we are interested in what the IG comes forward with in terms of
some of the procedures, but we intend to ask more.
I appreciate your leadership, too, Mr. Blumenthal, on this.
Mr. Blumenthal. Thank you.
Chairman Tom Davis. Ms. Rosier, let me ask you. Most of the
improvements to the Federal acknowledgment process you
discussed are procedural, but major criticisms of the current
process concern lack of objectivity or susceptibility to undue
influence. What measures are being taken to overcome those
criticisms?
Ms. Rosier. Well, for example, in my testimony I stated
that we have imposed an informal 60-day period that when a
petition is either going for the proposed finding or a final
determination, that the decisionmaker does not speak to
interested parties or to the petitioning group. We are going to
formalize that policy. I can say that in every Federal
recognition decision that I have been involved in at the
Department, I have not seen the type of impropriety that has
been alleged here. I have seen a collaborative process where
the staff has come with recommendations, the solicitor's office
has talked to us about the law and the spirit and intent of the
law, we have made decisions that we found to be good public
policy.
Chairman Tom Davis. You know, if I were to write a letter
to the FCC on behalf of an application for somebody in my
district, every letter, every phone call from the
administration is all logged in at the FCC. Does that happen at
Interior? If somebody else in the administration calls over, if
somebody calls from the White House or somebody says this is
important, is that logged in? Is that transparent for the
public? And do your regulations and informal procedures take
that into account?
Ms. Rosier. That is not in our regulations at this time.
Chairman Tom Davis. I would submit that is where a lot of
this occurs. And it is not transparent. None of these procedure
touch that, and yet a lot of times, when you are doing
political influence, it usually doesn't go to the Deputy
Secretary level or sometimes even to the decisionmaker. It goes
above them, and the pressure comes down. If someone wants to
make a recommendation that a status be granted, that is fine.
People are free to do that; they are free to state their
opinion. But there ought to be a record of that and we ought to
know where it is coming from, because some of the decisions
that have come out here don't seem to meet the criteria, at
least the way the testimony before us today has shown and from
the information that this committee has.
Why were they granted? I think there were clearly
communications in this case that were not appropriately logged,
and any kind of procedure that you have ought to take those
into account. We have those in other Federal agencies, and I
hope you will consider this.
Let me ask this. How do you explain the Assistant
Secretary's reversal of the Branch of Acknowledgment's
recommendation to deny both of these tribes' recognition
applications consistent with BIA procedural requirements?
Ms. Rosier. We have actually in the past, I think, with the
Wampanoag Gay Head Band, and I think it was in the 1980's, we
had actually had a proposed finding that was a negative and the
final determination was a positive. Also, in the Mohegan
situation in Connecticut, the proposed finding was also a
negative and the final determination was a positive.
The proposed finding is simply like a draft environmental
impact statement, it is a chance to point out deficiencies and
the petitioners have an opportunity to cure those deficiencies.
And in both these situations the petitioners cured the
deficiencies?
Chairman Tom Davis. But my questions don't go to those two
tribes. My question goes in this case to the other tribes.
Ms. Rosier. Schaghticoke and Eastern Historical Pequot?
Chairman Tom Davis. Correct, the two Connecticut tribes.
Ms. Rosier. Although I can't talk about the specifics of
those situations, since they are both at IBIA appeal and
Schaghticoke is under an inspector general investigation, I can
talk to the generalities. We feel that our petitions speak for
themselves, and that the proposed finding gave them an
opportunity to cure their deficiencies, and they did that.
Chairman Tom Davis. So, in your opinion, they cured the
deficiencies.
Ms. Rosier. The staff's recommendation was that they cured
those deficiencies, and that was the decision that was made.
Chairman Tom Davis. And that was driven completely by the
staff?
Ms. Rosier. It was driven by the anthropological history
and genealogical research that was done by my staff.
Chairman Tom Davis. Mr. Blumenthal, you proposed several
specific proposals for reforming the recognition process,
including the creation of an independent agency adopting
recognition criteria, providing assistance for municipalities.
That is what you propose?
Let me just ask Mr. Devaney, do you have any reaction to
those proposals?
Mr. Devaney. Could I address one of the questions you asked
earlier about lobbyists registering?
Chairman Tom Davis. Yes, please.
Mr. Devaney. I think that is a terrific idea for a number
of reasons. First of all, it obviously adds to the
transparency. To have somebody that wants to come in and get
involved in this process to be in the administrative record of
having done so. It also protects people that work at the
Department from unfounded allegations later on. And, finally,
it is obviously a good starting point for us when we do one of
these investigations that comes our way, either by our own
volition or maybe a congressional request. So I think that
would have an enormous benefit.
Chairman Tom Davis. Mr. Devaney, you stated that you found
some rather disturbing deviation from the established process
of processing Indian recognition decisions that were made in
the previous administration. When the inspector general finds a
serious violation that was committed by a government official
who is no longer in his or her position, what authority do you
have at that point?
Mr. Devaney. Well, we have authority there, and we took
that to the U.S. Attorney's Office, and they declined
prosecution.
Chairman Tom Davis. All right. This committee has
authority, of course, too.
Mr. Devaney. Yes.
Chairman Tom Davis. We have subpoena power as well.
Mr. Devaney. Yes.
Chairman Tom Davis. OK. Thank you very much.
Mr. Shays.
Mr. Shays. Thank you, Mr. Chairman. With your indulgence, I
would like to defer and let Mr. Simmons ask questions, and I
will follow.
Chairman Tom Davis. Great. He has to get over to the floor
on an important bill, so, Mr. Simmons, you are recognized.
Mr. Simmons. I thank the distinguished gentleman from
Connecticut's Fourth District.
Two questions. First to Mr. Devaney. Pages 4 and 5 of your
testimony refer to the revolving door and the fact that the
revolving door at the Bureau of Indian Affairs derives from a
decision that was made in the mid-1970's. And I gather from
your testimony that you now feel that this exemption is no
longer a good exemption, it should be changed. You stated that
the statute has outlived its original intent and the exemption
now perpetuates a revolving door.
Am I to understand, then, that the official position of the
Department of the Interior is to support the elimination of the
revolving door provision for BIA officials?
Mr. Devaney. Congressman, I don't speak for the Department.
Inspector generals are independent entities. Yes, we work for
the administration. We also work for Congress. We also work for
you. That is my personal view, and I think it would be
enormously helpful to the process if that became enacted, but I
don't speak for the Department.
Mr. Simmons. Well, I guess earlier today the chairman swore
you and others have testimony here in your name as inspector
general of the Department of the Interior which states very
clearly that you believe this revolving door exemption has
outlived its original intent, and that without the exemption of
the normal cooling-off period that all other departing
executive branch employees must adhere to, this would be a
violation of the criminal conflict of interest laws that apply.
That is a pretty strong statement. And one of the problems that
we have had over the last several years, and I have to say it
is very frustrating, is we hear the nice words and we hear the
nice intentions, and then nothing is done.
We have had legislation over the last 3 years to try to
close the revolving door, which is such an obvious thing to do,
and yet that legislation goes nowhere. And as far as I can
tell, the administration, the Department of the Interior takes
no ownership of that sort of thing. It is such a simple thing.
And even the Secretary of Interior says that she has concerns
about it, it has troubled her, and yet we cannot seem to get a
concrete statement out of the Department of the Interior even
on something this simple.
You testify that it is your personal view.
That is not good enough, Mr. Chairman. We swear witnesses,
we ask for written testimony, we try to assess what they are
saying in the context of what other people are concerned about,
and it can't be personal anymore; it has to be the position of
the administration, it has to be the position of the
Department. So my question really I guess is going to go
unanswered. We are not getting a solid answer, a policy answer
from the Department of the Interior, and it is so frustrating.
But let me just stop and shift my focus.
Mr. Devaney. Can I try one more time?
Mr. Shays [presiding]. Let me just interrupt a second.
When it comes to the inspector general and the GAO, they
are going beyond, I think, their requirements to express an
opinion about a law. So we want you to do findings and then we
will evaluate. So I think the Chair cuts you a little slack on
that.
Mr. Devaney. Thank you.
Mr. Shays. Not so true of the Department of the Interior,
however.
Ms. Rosier. Would you like me to answer the question?
Mr. Simmons. Yes.
Ms. Rosier. I cannot give the official position on your
legislation here today, but I can say, as my testimony did,
that we would be supportive and would be willing to work with
you on this situation.
Mr. Simmons. I thank you for that.
Now I have a second question regarding the first page of
your testimony. You refer to the seven mandatory criteria.
Mandatory conveys to me that they are required, that they must
be done, they must be followed. There are seven. All seven must
be followed. And yet there is factual evidence and we have
received testimony even this morning that there is evidence
that they are not being followed in a mandatory way, that
people adjudicating these decisions can pick or choose. That is
why the Connecticut delegation has sponsored legislation to
place the seven mandatory criteria in statute.
What is your understanding of what these mandatory criteria
are? Must they all be followed? And, two, does the Department
of the Interior support placing them in statute?
Ms. Rosier. I will answer the latter half first. As my
testimony stated, although I cannot give an official position
on H.R. 4219, I believe, we would be supportive of legislation
that was consistent with 25 C.F.R. Part 83 and that kept our
seven mandatory criteria. In the Schaghticoke decision--and I
know we are going to disagree on this--we believe that the
seven mandatory criteria were fulfilled. That was our
recommendation.
Mr. Simmons. Is there any case that has come to the
attention of any of the witnesses, Mr. Blumenthal, where you
feel that the seven mandatory criteria were not met?
Mr. Blumenthal. With all due respect, I know you may have
to leave shortly. In the Schaghticoke decision, as well as the
Eastern Pequot decision, those seven criteria have not been
met, very clearly and unequivocally by the admission of the BIA
itself. And it uses evidence that is clearly improper about
State dealings to compensate for the acknowledged lack of
evidence on those seven criteria. For example, it admits a
seven decade gap, 1801 to 1875, on the existence of political
authority, which is one of the key criteria, a gap that simply
cannot be overcome by supposed State recognition that was not
begun until 1973, even if it were proper to use that fact,
which we contend it is not.
And I just want to say, in response to your point, which I
think is a very, very central one, where is the Department of
the Interior today? Why are they not here? Without any
disrespect to the two representatives, where is the Assistant
Secretary for Indian Affairs today? And why is he not speaking
for the Department of the Interior on the two core questions
that he was confirmed by the U.S. Congress to decide and
deliberate and, presumably in the public interest, speak to the
U.S. Congress and the American people? I don't mean any
disrespect to Ms. Rosier or Mr. Devaney; their roles are
limited. But this Congress deserves answers from the Assistant
Secretary for Indian Affairs on these central questions.
Mr. Simmons. Mr. Chairman, let me extend my apologies to
the two witnesses if I got a little hot. I am Irish. But I will
tell you, as the attorney general and others know, I have been
punching this pillow for a decade, and as the attorney general
has pointed out, whenever it comes time to get concrete answers
on the record, it just doesn't come to pass. So it is very
frustrating.
Mr. Shays. I thank the gentleman. We are going to have some
votes. I know that Mr. Wolf just wants to make a comment, and
then I am going to recognize Mr. Duncan.
Mr. Wolf. Thank you, Mr. Chairman. I am not going to have
any questions. I appreciate Attorney General Blumenthal's
comments. I want to thank Mr. Davis and you, Mr. Shays, and Mr.
Simmons.
To the Department, having worked there for 5 years under
Secretary Roger C.B. Morton, if he could see what you are
doing, all previous Secretaries, you would be held in disgrace.
I ask you as a Republican Member of the Congress who supports
this administration on most issues, go back and clean up your
house. As the attorney general said, it is the elephant in the
room. This whole town, and now the whole country, knows about
the corrupt process with regard to money. You have an
opportunity, and I ask you to one, have a 1-year moratorium and
two, follow--and I want to commend the IG, he has done nice
work, and I understand you can't be making policy, but follow
the recommendation of your IG. Listen to Attorney General
Blumenthal. Be for Mr. Shays' and Mr. Simmons' bill. Show us
over the next couple of months that you can--you know, maybe
you missed it. We all make mistakes. But now that the whole
world knows, this is your opportunity. And, at a minimum, you
really need a 1-year moratorium whereby this Congress and this
committee and others can come back and make a difference.
Otherwise, as the attorney general said, this is a key time. If
we fail now, the fault will lie at the steps of Secretary Gail
Norton and this administration.
With that, Mr. Speaker, I yield.
Mr. Shays. Mr. Duncan, you have time, and I am going to
hold the panel in recess afterwards, because I have about 15
minutes of questions.
Mr. Duncan. Well, just let me say I agree with Mr. Wolf.
You know, I will go back to Mr. Blumenthal's comment about
people not being willing to acknowledge the elephant in the
room. I can tell you it is obvious to everybody that this is
all about money. This is all about big money. And the most
interesting thing is in the briefing memorandum that we were
given, it says prior to the implementation of the current
recognition regulations in 1978, BIA had received 40 petitions
from groups seeking formal tribal recognition. Since 1978, BIA
has received an additional 254 petitions. I mean, it is
obvious.
So I ask when was the first Indian casino opened? And they
told me in 1979 the Seminole Tribe opened a high-stakes bingo
parlor. If this isn't all about gambling and big money, then
ask these tribes that are seeking recognition will they sign a
waiver of their right to open up a casino. I think it is also,
in addition, to some extent about all the benefits they receive
from the BIA and the Indian Health Service, because there are
billions involved in that too. But it is all about the
gambling, and I think everybody has been shocked by the huge,
huge, huge money that has been spent on the lobbying. And then
we have been given this book, ``Without Reservation'' by Jeff
Benedict, who is on the third panel, and it says in 1973 an old
American Indian woman dies with nothing left of her tribe but a
214 acre tract of abandoned forest. And it seems to be about
the end of the tribe, but it is just the beginning, and then it
exploded because of the gambling.
I mean, this is getting totally out of hand, it is getting
ridiculous. I am from Knoxville, TN. I even had a man who came
to see me in my office, a couple men who came to see me in my
office in 1990 in Knoxville because they wanted to get involved
in the casino business up in Connecticut with this tribe. I
mean, this is getting totally out of hand.
And I appreciate the interest of Mr. Shays in calling this
hearing, and I agree with the comment that was just made that
there needs to be a moratorium. And once again I will say if it
is not about gambling and it is not about big money, ask them
will they sign a waiver and give up their right to open up a
casino in return for recognition, and I think you will see how
fast this is all about big money and all about gambling.
Thank you, Mr. Chairman.
Mr. Shays. I thank the gentleman.
We will be in a brief recess, just, I think, one vote, and
then we will be right back. Thank you.
[Recess.]
Mr. Shays. We are back on the record.
I will start by asking Department of the Interior the
reason why Gail Norton's secretary, Gail Norton of Interior,
wrote on April 12th, ``As you requested I have completed the
attached order delegating authority for gaming-related matters
to Principal Deputy Assistant Secretary Aurene Martin. Thank
you for initiating this action to avoid any appearance of
conflict.'' And then there is the order.
I would like an explanation of this.
Ms. Rosier. The recusal of Mr. Anderson, Assistant
Secretary for Indian Affairs, off of gaming, Federal
recognition, and land into trust for gaming is very personal to
his background before he became Assistant Secretary for Indian
Affairs, and he wanted to avoid any appearances of impropriety
and just asked to recuse himself from those issues.
Mr. Shays. But he didn't ask to recuse himself from one
particular tribal application. He is basically asking for a
blanket exemption from ruling on any Indian gaming?
Ms. Rosier. It is a blanket recusal to avoid appearance of
impropriety.
Mr. Shays. And he is in charge of the Bureau of Indian
Affairs?
Ms. Rosier. Yes. He is Assistant Secretary.
Mr. Shays. So we have the Assistant Secretary for Indian
Affairs saying that he wants to have no responsibility for the
very job he was assigned to do. Doesn't that strike you as
being a little strange?
Ms. Rosier. Actually, we have a responsibility on a number
of matters, not just gaming and Federal recognition and land
into trust. We have land into trust that is non-gaming related.
Half of our employees and half of our budget is for our Bureau
of Indian Affairs school system.
Mr. Shays. So he can do part of his job; he just can't do
all of his job.
Ms. Rosier. He can do a vast majority of his job. He has
just recused himself from three issues.
Mr. Shays. That involve the recognition of Indian tribes,
which is a huge, essential part of the Department. Wouldn't you
agree this is an important element?
Ms. Rosier. It is a very serious responsibility.
Mr. Shays. Now, this delegation of power, was it delegated
to someone that has to come before Congress, the Senate?
Ms. Rosier. No. It was delegated to our Principal Deputy
Assistant Secretary. She is not Senate confirmed.
Mr. Shays. So you have taken a Senate confirmed person and
you have delegated that power to someone who is not Senate
confirmed. Does that seem appropriate to you?
Ms. Rosier. It has been reviewed within the Department, and
the Department, before the Secretary signed it, it has been
reviewed.
Mr. Shays. I would invite the inspector general to maybe
respond about this, and then I will ask the attorney general.
Mr. Devaney. Well, I really don't know the circumstances
under which the Assistant Secretary made his recusals. My
understanding is the same as just stated, that he needed to
recuse himself from three issues principally because he used to
be in the gaming business.
Mr. Shays. Which makes me question whether he should have
ever gotten the appointment, if you can't do a significant part
of your job. But that is obviously we will talk to the
Secretary about.
Mr. Blumenthal.
Mr. Blumenthal. Yes. Mr. Chairman, as I have stated, my
office discovered this fact when we were reviewing testimony
that the Principal Deputy, Aurene Martin, offered to one of the
congressional committees that was reported off-handedly, well
down in a story, on the substantive testimony. And we followed
up, we pursued it with the Secretary of the Interior's Office
and, in fact, I have with me and I have submitted to this
committee a copy of the order which is unprecedented, I
believe. It is the equivalent of appointing the administrator
of the Food and Drug Administration and then saying that
administrator will have nothing to do with drugs, period, and
instead will delegate those decisions to deputies who are not
confirmed by the U.S. Senate and are not accountable to the
U.S. Congress for powers that this body delegates to that
official.
The issue of accountability is front and center, and the
lack of accountability is certainly profoundly troubling, if
not illegal. In fact, I think there are very great legal
questions raised by this delegation and also by the testimony
that was offered by Assistant Secretary Dave Anderson during
his confirmation proceedings when he said that he would recuse
himself only on specific decisions, as I understand it.
So I think that there are lots of different analogies that
could be drawn, but fundamentally this subject matter is at the
core of the responsibility of the Assistant Secretary for
Indian Affairs and cannot ethically and legally be delegated in
this way.
Mr. Shays. We, the Connecticut delegation, Nancy Johnson,
Rob Simmons, and myself, as well as Frank Wolf, met with the
Secretary. We also then, as a full delegation from Connecticut,
met with the Secretary. I don't recall this issue coming up for
discussion. Do you have any information that this was provided
to us? Who was notified about this?
Ms. Rosier. I am sorry, I was not at the meeting.
Mr. Shays. Let me go through a number of different
questions, but I am unclear as to the Department's position on
moratorium.
Ms. Rosier. I can take that recommendation back to the
Department.
Mr. Shays. And our recommendation is, obviously, that there
be a 1-year moratorium, in part for this very fact here. You
basically have someone who has a responsibility dealing with
tribal recognition who basically can't fulfill his statutory
responsibility.
I am unclear as to the Department's position on the
legislation that Mr. Simmons and Mrs. Johnson and others are
promoting. As my daughter would say, one time when I agreed
with her position and she kept trying to convince me about it,
and I started to say, sweetie, you know, when you have made a
sale, you don't have to keep making the sale; and she said to
me, but, dad, you don't believe passionately enough.
And I don't feel your passion. And ``working with'' does
not describe to me the position of the administration on this.
Do you support this proposal or are you going to simply work
with us?
Ms. Rosier. Because this is not a legislative hearing and
this is an oversight hearing, I am unable to give the official
position of the Department on the legislation. I think our
written testimony and my oral testimony has alluded that we
would like to work with you on this.
Mr. Shays. Thank you.
I am going to go through a series of questions.
Mrs. Johnson, do you have a little bit of time to stay or
would you like to be recognized next?
I am going to go through a few and then turn to Mrs.
Johnson to ask some questions. And we have written these down
because I want to make sure we cover them. And these are to
you, Mr. Blumenthal.
With regard to both Pequot and Schaghticoke petitions, the
BIA staff issued proposed findings that the tribes had failed
to demonstrate they met one or more of the mandatory regulatory
criteria for recognition. Is this correct?
Mr. Blumenthal. Correct.
Mr. Shays. In the case of the Pequots, what new evidence
was submitted and reviewed by all interested parties that
justified the final determination of Federal tribal status?
Mr. Blumenthal. In our view, there was insufficient
evidence on two key criteria: continuous community existence
and continuous political authority. There were gaps during
critical periods of time that were admitted by the BIA. Instead
of the evidence that was required, the BIA submitted that
recognition should be granted because of State dealings with
the supposed tribe. The nature of the dealings was with
individuals, if any. They may have been individuals who were
decendents of tribal members. But the key question is whether a
tribe existed continuously as a community and with political
authority, and there was insufficient evidence, in fact, key
gaps of evidence, that was not corrected in the final
recognition either as to the Eastern Pequots or the Paucatuck
Easterns or the Schaghticokes.
In the case of the Schaghticokes, the Department did one
other thing that I think is unprecedented and ought to be
brought to the committee's attention. It combined two groups,
as it did with the Eastern Pequots and the Paucatuck Easterns,
but did not consider the petition of one of those groups. So
that if you go down this slope, and it is an extraordinarily
slippery slope, at some point the BIA could simply bring into a
petitioning group anyone that it wanted to do and say that
those individuals or that petitioning group, regardless of its
merits, should be made part of the petitioning group.
And so I think on that score and many others we have
appealed. The appeal is a very lengthy and voluminous one, and
I don't want to exhaust the time or the patience of this
committee.
Mr. Shays. In your testimony you say that the BIA has
changed its view on the significance of State recognition four
times in the past 2 years. Would you describe for the committee
how the BIA has assessed the evidentiary weight of tribal
designation and reservation lands under State law?
Mr. Blumenthal. The existence of reservations under State
law has been one of the factors that the BIA considered in
applying State recognition to overcome the gaps of evidence.
The fact is, as you well know, Mr. Chairman, State recognition
of a reservation and Federal recognition of a tribe are like
apples and oranges; all they have in common is the use of the
word recognition; and the meaning of definition for those two
purposes is completely different.
So the answer is that State recognition has been morphed in
the BIA's use of it over this period of years to overcome gaps
of evidence, in some cases to apply to the recognition of a
reservation, in other cases to benefits that are provided to
individuals who live on the reservation, in other cases to the
fact that overseers had dealings with members or decendents of
the tribe over some period of time. The State recognition
factor has been a moving target.
Mr. Shays. Let me say that a previous administrator of BIA
secretary, Mr. Gover, he had a close relationship with the
Golden Hill Paugussetts, who was a petitioning tribe in the
fourth congressional district. They also have huge land claims.
Those land claims become more valid if they are federally
recognized. That is a concern that we have. Maybe not valid
enough, but more valid. And he said he would not in any way
decide on the Golden Hill Paugussetts, but he made a decision
in another State that State recognition would be a factor in
Federal recognition.
Now, let me just tell you the impact of what that decision
had on the Golden Hill Paugussetts, and then I want a comment
from you. They are State recognized, but the State recognizes a
reservation. There may be a house on that reservation, there
may be some residents, or there may not be. They still
recognize that State tribe's reservation. And what Mr. Gover
basically did was give a huge benefit to a tribe that he was
recognizing, because, in fact, they could be State recognized,
have no political, social, or economic continuity pre-colonial
times, and then that is the back door in which they then get
Federal recognition.
Is there anything that I have said that you would disagree
with?
Mr. Blumenthal. I don't disagree at all with the point that
you are making, and I think it is a very, very important and
valid one, that the use of State recognition in a case that
seems to be unrelated may establish a precedent that then can
be expanded, and it has been vastly expanded, in other cases.
And I think that point is very well taken.
You know, part of the problem here, Mr. Chairman, is that
this agency is legally rudderless. And I respect the
suggestions that have been made or the changes that have been
made and enumerated for the committee in some of the
procedures, but they are a little bit like rearranging the
chairs on the deck when the ship needs to be reconstructed. And
Mr. Devaney makes a very important point which I think comes
back to the one you have just made, and that is that this
agency does not have the basic rules that the FCC or the FTC or
the SEC would have and would rigorously follow: the logging of
contacts, the transparency of correspondence, the registration
of lobbyists, the prohibition against revolving door
employment.
Those kinds of requirements are a first basic minimal tier
of requirements that are necessary for integrity in the
decisionmaking process. There is a second tier which deals with
the standards and the criteria that should be statutory. But
your point comes back to the sort of ad hoc, make it up as we
go along, let us make a deal, nature of many of the decisions
that are made without anticipating what the long-run precedent-
making consequences will be.
Mr. Shays. Thank you.
I have three more questions, Mrs. Johnson, and then I am
going to recognize you.
I would like, Ms. Rosier, to ask you the following
question. Do you believe that it is an absolute requirement
that a Indian tribe demonstrate social and economic and
political continuity pre-colonial times, in other words, they
never stopped? Do you believe that is a requirement in
recognition?
Ms. Rosier. I believe the requirement and recommendation as
outlined in 25 C.F.R. Part 83 is that all seven mandatory
criteria must be met, and the burden of proof is that it is the
reasonable likelihood of the validity of the facts. That is my
job and the staff's job, to ensure that of those seven
criteria, this burden of proof has been met.
Mr. Shays. So in this room, if I turned out the light
switch for a little bit of time and then turned it back on,
even though you saw the lights on, that wouldn't be good
enough, correct? The light has to be on the whole time.
Ms. Rosier. What we are recognizing at the Department of
the Interior is a continuous political entity as a tribe, and
we look at the community and we look at----
Mr. Shays. Without interruption, correct?
Ms. Rosier. We are looking at continuity.
Mr. Shays. Continuity means without interruption, correct?
Ms. Rosier. We are looking at a continuous relationship.
Mr. Shays. Continuous relationship means it never stopped.
Ms. Rosier. A continuous relationship that meets the seven
mandatory criteria.
Mr. Shays. Well, I don't want you to be evasive here. You
are here to testify before the committee, and the bottom line
is doesn't the tribe have to prove that they were always a
tribe, socially, politically, economically, and that they never
stopped being a tribe? Isn't that correct?
Ms. Rosier. Yes, that is correct.
Mr. Shays. OK. And do you understand that in the State of
Connecticut we can recognize a State tribe where they actually
had interruption? Are you aware of that?
Ms. Rosier. Not specifically, no.
Mr. Shays. Well, it is a fact. The fact is that State
tribes in Connecticut don't have to show continuity.
Ms. Rosier. Congress can do that also, too. Congress can
recognize a tribe too.
Mr. Shays. I understand that, but we are not talking about
Congress recognizing a tribe. I am just trying to have you
understand something, because I am under the impression you
want to do the right thing, and the right thing requires that
there be continuity. Mr. Gover made a huge decision that is
impacting improperly, and you heard the testimony from Mr.
Blumenthal. The bottom line is we are telling you in the State
of Connecticut we may recognize a State tribe that doesn't
exist except in land. They may not have political, social, or
economic continuity. There may just be one person living on
that reservation. That doesn't meet the Federal standard, but
it meets the State standard. And that is what is so outrageous
about Mr. Gover and this Department continuing with the process
of State recognition.
Just three more questions to you, Mr. Blumenthal.
Would you explain the legal and political significance of
Indian land claims in this process?
Mr. Blumenthal. Well, the legal significance is that
various of the tribal groups have made land claims. We are in
litigation right now with the Schaghticokes over 2,100 acres in
the Kent area. The first selectwoman of Kent is here today, and
her town is one of the defendants. So is the Kent School, one
of our major utilities, Northeast Utilities, and the State of
Connecticut. So we have litigated with the tribes against land
claims that we believe are unfounded, especially when they have
made them against individual property owners, as the Golden
Hill Paugussetts did some years ago, and we were successful in
dismissing them, the State was, in representing the interests
of the landowners when they were brought at that time.
Certainly, as you have said, those land claims have
additional force and credibility when they are accompanied by
recognition or when they are made by a federally recognized
tribe. And in Federal court, under Federal law, they can have
additional legal force because of the impact of the Non-
Intercourse Act on the litigation.
This area is enormously complex, and I apologize to the
committee that I am not able to summarize it in a couple of
sentences, but the answer is these land claims are a big deal,
and they become bigger when there is Federal recognition.
Mr. Shays. You could have a circumstance when a tribe is
federally recognized, that it gives more credence to the land
claims, and even though the State of Connecticut has passed
legislation no longer allowing charity gambling, if they are
then given Federal recognition and they have land claims that
are valid under the eyes of the court, then the only recourse
to the community is to settle; and the settlement is clear:
they will want land for an Indian gaming facility.
Why did the U.S. District Court in Connecticut enter an
order requiring notice of all interested parties before the
Schaghticokes or any other non-Federal party could contact the
Department of the Interior?
Mr. Blumenthal. Well, I am grateful for that question. The
reason is very simply that we sued the Department of the
Interior. The State of Connecticut sued the Department of the
Interior because we were denied documents--basic materials like
the petition itself--submitted by the Eastern Pequot and
Paucatuck Eastern petitioning groups, and we claimed that there
were ex parte contacts, secret meetings, and other
correspondence that was being kept out of the public realm.
Mr. Shays. By the Department of the Interior?
Mr. Blumenthal. Correct.
Mr. Shays. Why is that happening?
Ms. Rosier. Actually, in the Schaghticoke situation, we
worked quite well with Mr. Blumenthal, and the interested
parties in that situation were treated almost similar to the
petitioners; everybody had equal access, petitioners and
interested parties shared documents directly with one another.
I was not at the Department at that time, but I know right
now, and we continue, and the regulations have always had the
attorney general and the Governor as interested parties, so
that is how we operate.
Mr. Shays. Has the cooperation gotten better, Mr.
Blumenthal?
Mr. Blumenthal. In fairness to Ms. Rosier, the court orders
entered in the Schaghticoke and Eastern Pequot cases followed
our legal action. She may not have been there when we took that
action to compel the kinds of scheduling orders and other
cooperation, which has proceeded now; we are interested
parties.
Mr. Shays. So your bottom line is that has been corrected,
but it took a court order to do it, and it preceded your time,
I gather.
Mr. Blumenthal. And it goes back, I think, to the point
that Mr. Devaney was making about the APA process. We have been
obliged to go to court to enforce the APA process. We sought
these documents under the Freedom of Information Act. The
sovereign State of Connecticut had to go to court under the
Freedom of Information Act to obtain petitions so that we would
be adequately informed about what would happen within our own
boundaries.
Mr. Shays. Let me just take the last question, and that is
what would be the significance of putting the recognition
criteria into statute, as opposed to leaving them as purely
regulatory standards? I will ask both of you.
Ms. Rosier, what would be the significance of that?
Ms. Rosier. Without seeing language right in front of me, I
don't think that there would be much change in how we continue
to do Federal recognition.
Mr. Shays. Basically, what we are trying to do is codify.
And, Mr. Blumenthal, what would be the value of that?
Mr. Blumenthal. Well, let me state the obvious. It would
give those criterion standards the full force of congressional
support. It would define them clearly, unequivocally, and
irrevocably, so that, for example, the Department of the
Interior could not disregard them, as it does now in many
instances, skirt or subvert them; and it would also eliminate
any possibility of rulemaking changes in those regulations,
which emanate, by the way, from 30 years of precedent beginning
with U.S. Supreme Court cases that first articulated them.
So we would contend that right now they have the force of
law, but it would make sure that legal action brought based on
them would have even greater force than it does now when we are
obliged to do so. And so I think it would send a very strong
and important message.
Mr. Shays. Thank you.
Mrs. Johnson, thank you for your patience. And let me say
that the chairman welcomed you to this hearing and has asked
unanimous consent, so you are a full participant. Welcome. It
is wonderful to have you here.
Mrs. Johnson. Thank you very much, Mr. Chairman. And thank
you very much for the thoroughness of your questions and, to
Mr. Blumenthal, for the thoroughness of his testimony. And I
thank the Department for being with us today too. This is an
extremely important matter. If Mr. Blumenthal's comments about
being in litigation over 2,100 acres doesn't grab your
attention, let me tell you that many of the people who live on
those acres have tilled those acres for more than 150 years,
and they are being told now by your decision that they belong
to someone else, who may or may not have tilled them before or
after, where there is no continuity of existence. This is an
extremely serious matter in the part of the country that is far
older in its settlement roots than any other part of the
country. So the implications of recognition decisions in New
England, and particularly in Connecticut, are far different
from the implications of those decisions in the West, a younger
part of the country, a more open part of the country, and a
part of the country where reservations became part of the very
early history of those States.
So I want to ask you a couple of sets of questions. First
of all, the Department of the Interior is responsible for our
most important programs that encourage historic preservation,
are you not? The historic preservation tax credit and things
like that.
Ms. Rosier. We have historic preservation activities at the
Department.
Mrs. Johnson. Yes. And I have worked through your
Department and got many very important buildings and areas
preserved through working with your Department. The criteria
for historic preservation is that a building or a site must be
of historic significance. For instance, you have helped us
preserve the early iron mines out in this very part of the
State, one Beckley furnace right in Connecticut. So you have
been, as an agency, interested in the preservation of the
history of America through the homes of famous people and the
sites of historic importance economically and politically in
terms of wars and battlegrounds and so on.
The definition of historic preservation and the criteria
for what is worthy of historic preservation is entirely
different than the criteria for tribal recognition, would you
not agree with that?
Ms. Rosier. Yes, it is entirely different.
Mrs. Johnson. The State reservation criteria is a historic
preservation criteria, it is not a tribal recognition criteria.
Ms. Rosier. For tribal recognition, actually, for the first
element, 83.7(a), State recognition is explicitly stated for
evidence.
Mrs. Johnson. Right. But what I am saying is that the
existence of a reservation is a historic preservation type
decision, it is not a tribal recognition decision, and it
doesn't meet tribal recognition criteria, and that is why you
are using that now, when you can't demonstrate continuous
political continuity and you can't meet the other important
criteria that are associated with continuity of tribal
existence and continuity of influence, is a real travesty of
both the concept of historic preservation and of the underlying
demand of the recognition process.
I just wanted to point that out and put that clearly on the
record. The Department of the Interior knows the difference and
they are mixing that difference in the tribal recognition
process, and that mixing is going to have an extraordinary
impact on the lives of millions of citizens in the district
that I represent and other members of the congressional
delegation from both parties represent, and that is why our
attorney general is so extremely concerned with your actions.
The tribes are not allowed to take land once they have been
recognized, but they lien property. Are you familiar with that
process?
Ms. Rosier. I don't know what you mean by tribes are not
allowed to take land once they are recognized.
Mrs. Johnson. Well, I am told that they can't just take
land, they have to buy it. Then they can take it into their
reservation. That they can't just expand their reservation
arbitrarily.
Ms. Rosier. When a tribe acquires new land in a trust----
Mrs. Johnson. But they have to buy it, correct?
Ms. Rosier. Well, it is fee to trust, yes.
Mrs. Johnson. That is right. And so I was assured, don't
worry about this recognition; they would have to buy any land
they want to expand. You don't understand. They put a lien on
it because they claim it. You can't sell the property. The town
can't fund its schools, because our schools are funded through
local property taxes, primarily. Elderly people can't sell
their property and use the money to support themselves. Small
businesses can't sell their property and move to a larger site.
So it paralyzes the life of the community and the economic base
necessary to support public education, the repair of roads and
bridges, and all the other things that local governments do.
So this isn't just about the one decision. It is about the
fallout, it is about the power. The attorney general has talked
about the impact on the suits around the 2,100--was it 1,000
acres or 100 acres?
Mr. Blumenthal. 2,100.
Mrs. Johnson. So the Department needs to look at this
liening issue. And you need to begin to make some very clear
rules about that kind of activity. If we give recognition, we
have to be clear about what it is for and we have to be clear
about prohibiting practices that are the equivalent of forcing
purchase because they paralyze a community. And that is our
obligation if we are going to recognize. So there are some
additional issues that the Department of the Interior needs to
look at and needs to take a stand on, and if we need to clarify
the law, we will do that. I am told we don't need to clarify
the law, but I don't see exactly how that is true. I hope you
will begin to take into account the unique consequences of
recognition in the densely populated eastern States of the
country, and to understand how using a teeny tiny web to get to
that definition is not right.
Now, I understand that there are two petitioning groups,
and you responded to the petition of one but not the petition
of the other. Are you aware that now one group of Schaghticokes
is suing the other group of Schaghticokes?
Ms. Rosier. Well, they have appealed the decision to the
Interior Board of Indian Appeals.
Mrs. Johnson. No. This is in addition. They are suing the
other part of the tribe for not recognizing the tribe's
interest and for taking the interests of others, that is, the
big money-backers, to undermine the tribe's interest. Are you
aware of that?
Ms. Rosier. I was not aware of that.
Mrs. Johnson. Well, I will send you those materials, and I
want your experts to notice that. I want them to stop papering
over this disagreement amongst the ``members of the tribe,''
because it is by overwriting those disagreements, by ignoring
what people are saying about the tribe, or who are the tribal
members or its continuity, that you can override your own
criteria about continuity. So one subversion or distortion of a
piece of evidence is leading to a ladder of distortion that is
leading to a decision that is extremely destructive of the
public interest.
You will hear in the testimony of the panel that follows
the extremely negative consequences that will follow from this
recognition, because this isn't a recognition about tribal
history. This is about casinos; it is about big, big money; it
is about gambling. It is a David and Goliath battle, and David
is losing. Big money is winning. And you are not looking at
your system to see whether that is true.
And I appreciate the hard work of our attorney general and
of the local people. I am very glad that Lori Shishel is here,
I didn't realize she was going to be down here. Oh, there she
is. She has come down before to testify on this issue. It has
taken us a long time to get attention to it. Our Senators in
the Senate, where you have a little different set of rules,
have brought it to the floor to get more attention to it. We
will continue to do that, but you have a variety of first
selectmen and mayors and others today who for years at the
local level have studied this, and I hope you will listen to
the facts that they have and make sure that in the review, as
you respond to the appeal, that you have an open mind for what
your top people in Washington did not pay attention to,
because, in the end, the law is about all of us.
So I appreciate your being here, and I appreciate the time
of the attorney general and his leadership on this issue, and
the acumen with which he and his staff have pursued every
avenue, and I particularly appreciate the local first
selectmen, selectwomen, and mayors for the testimony they are
going to give; and I am not going to try to summarize it
because it will be very fresh from their mouths, but it is very
powerful. And I think the Department has to look at this issue
of liening, because it completely undermines and circumvents
aspects of our laws and of our concept of recognition in a
modern world. So thank you very much. I look forward to working
with you on this issue.
And thank you, Mr. Chairman, for your indulgence.
Mr. Shays. Thank you.
I am going to have two questions after you, Mr. Ose, to the
IG, and then we will get to the next panel. But you have the
floor.
Mr. Ose. Thank you, Mr. Chairman.
I want to followup on something that Congresswoman Johnson
brought up. I am not familiar with this and, Ms. Rosier, I
guess it would be directed at you. If a tribe is established,
they have trust lands, then they seek to add to their holdings,
they can go out and buy in fee property adjacent thereto and
then apply to have that property taken into trust status, is
that correct?
Ms. Rosier. Yes, they can apply to have that property taken
into trust status.
Mr. Ose. The aspect that Mrs. Johnson mentioned that
intrigues me is this issue of placing a lien on properties that
a tribe may wish to take into trust. Does that happen?
Ms. Rosier. I am a little unfamiliar with that, and I would
have to----
Mr. Ose. A little or completely?
Ms. Rosier. I am unfamiliar with that. I would have to get
back to you on that matter.
Mr. Ose. Mr. Blumenthal, do you know anything about that?
Mr. Blumenthal. Could you repeat the question, please?
Mr. Ose. The question relates to a tribe's interest in
taking land into trust prior to fee ownership. Mrs. Johnson
indicated that they were placing liens, perhaps, on adjacent
properties, thereby encumbering those properties in terms of
the interests of the adjacent landowner. Does that occur under
current BIA regulation or law?
Mr. Blumenthal. Well, it has occurred in the State of
Connecticut, I suspect elsewhere in the country too, done by
petitioning groups at various stages of the recognition
process. For example----
Mr. Ose. That is what I want to examine. Let us say I own a
piece of property in Sacramento, CA, and a tribe seeks to
establish aboriginal claim to a certain piece of property right
next door. They can establish their claim, perfect it through
the BIA, establish their reservation, then turn around and file
a petition saying that the property next door is also
aboriginal in nature and thereby encumber my property?
Mr. Blumenthal. I am not sure that they could simply take
the property. They would need to present evidence that it was
in fact aboriginal. Under some circumstances if they were
recognized as a tribe and could meet the criteria under a
Federal law called the Non-Intercourse Act, they could take
title to that property. The Non-Intercourse Act, as you may
know, says essentially that a federally recognized tribe can't
sell or divest itself or transfer property without the approval
of the Federal Government, and so if there were no Federal
approval and there had been a transfer at some point, and that
fact could be established, the answer to your question, I
believe, is yes, that it could take title to that property.
And, at the very least, what many of these groups have done is
to encumber, place liens on property, and thereby interfere
with the normal lives of landowners in the way that
Congresswoman Johnson has described.
Mr. Ose. This is what I want to come at, because a
fundamental piece of our history is respect for private
property rights. Are you telling me that the law, as written
today, allows a third party, in this case Indians, to waltz
down to the county recorder and put a lien on my property
without anything more than a claim, somebody's oral history?
Mr. Blumenthal. Well, if I may answer the question this
way, sir. Claims can be asserted in court by anyone. The
courthouse doors are open, and liens may be placed and
encumbrances by anyone with an interest. We went to court back
in the mid-1990's when those claims were placed on property and
succeeded in having them dismissed. So claims can be made, but
obviously they can be refuted and they can be dismissed,
whether they are made by petitioning tribes or a tradesman who
has a claim for work that he says he has done on your property,
which is typically how a lot of them result.
Mr. Ose. That one I understand. I can figure that part out.
But it is just the distant third-party waltzes down to the
county recorder and slaps a lien on my property, I have to tell
you I react very negatively to that, having come out of the
real estate business.
Mrs. Johnson. If the gentleman would yield.
Mr. Ose. I would be happy to yield.
Mrs. Johnson. The very first time this tribe came to see
me, which was many years ago, I can't quite remember how many,
but they showed a map. And it may be that the first selectwoman
of Kent can clarify this more than my memory over that many
years. They laid claim to all the land in five towns. Now, in
this part of the State these are rather large land-mass towns
because Connecticut eliminated our counties' government many
years ago and merged a lot of little towns into big towns, so
this is a lot of land mass. And they said that is really what
we are entitled to, but we aren't going to exert all those
claims.
Well, in another part of the State they did try to lien all
the properties in that area to put pressure on the recognition
process, and we had to go to court. Now they are starting to do
that, and it has had a very chilling effect on the real estate
market; values have already suffered an impact. And others know
more about that than I. I only know it from anecdotal evidence
of people walking up to me and say, you know, I was going to
sell my house for this, and as soon as the recognition process
took place, this happened, and now this is happening.
So whether they stand up in court isn't the whole issue. It
is true we have worked hard not to allow them to stand up.
Whether this group we would be able to step back on it or not,
I don't know; each one is a different case. But, in the
meantime, what it does to the ability of that town to raise the
resources they need to educate their children, which is the
biggest cost in these town budgets, or maintain their roads, or
do anything else--they are very interested in land
preservation, these towns--all those things, it cripples them;
and it is not fair from the point of view of individual
property rights.
So we need to clean up our act here in Washington. We need
to do all those things Attorney General Blumenthal mentioned
about transparency and cleaning up the process, but then we
need to have criteria everybody knows, understands, and agrees
to.
Mr. Shays. Let me make sure Mr. Ose gets his time back. We
need to move the panel.
Mr. Ose. We have individuals coming forward, seeking tribal
status. I understand that. I understand that same group coming
forward, saying this is our aboriginal territory, and we want
to establish trust lands here. But in that process, if the
group comes forward and says this is our aboriginal territory,
and we want to establish trust grounds somewhere in that, does
the existing law allow the filing of a recordable lien on every
single piece within that aboriginal range? I have to tell you,
if that is the case, if that is the law, we are going to have a
second revolution, because you are not coming to my house or my
property and taking it on the basis of some speculative
aboriginal claim. Now, you need to tell me whether or not that
is the way the law is written today.
Mr. Blumenthal, you are an AG, you tell me.
Mr. Blumenthal. Well, I will give you my answer as the
attorney general of the State of Connecticut. We have actively
opposed those claims. We believe they are unfounded. We have
successfully defeated them, and we believe that the law is on
our side and factually we have the merits. But the claims are
made, and the claims themselves can often be extraordinarily
damaging. I just want to emphasize here, to finish the answer,
the point that both Congressman Johnson and Congressman Shays
made. In many instances, innocent property owners have been
taken hostage to bring pressure to bear on you, on them, on
other elected officials, and the pressure simply hasn't worked;
the tactics have failed, but the law is there. And any of these
groups have rights, and those rights have to be respected. The
problem is the misuse of the process by certain groups.
Mr. Ose. So, Ms. Rosier, what does Interior or the
Assistant Secretary for Indian Affairs do to prevent the types
of situations that Mrs. Johnson has highlighted occurring in
her district and which I can tell you if ever occur in my
district will cause a problem?
Ms. Rosier. We try to work with entities, State and local
governments, with tribes and petitioners; we try to bring
parties together. Connecticut, for whatever reason, just has
been an example of where State and recognized tribes and
petitioners have not worked well together. We have other
situations where we have been able to bring groups together and
try to bring parties who don't normally see eye-to-eye, try to
bring them together and work together.
Mr. Shays. If the gentleman would yield, I can explain why
that happens.
Mr. Ose. Yes.
Mr. Shays. This is a real-life story for me. I live in
Bridgeport, CT. I represent that district. In the early 1990's,
the Golden Hill Paugussetts took a claim against all the
property in Ridgefield, in Fairfield, and so on. I live in a
house that is claimed by the Golden Hill Paugussetts, and I
think it is still a decision pending. Judge Dorsey wants to
know if you all are going to recognize them as a Federal tribe.
Is that correct, Mr. Blumenthal?
Mr. Blumenthal. That is correct, Congressman Shays.
Although we succeeded in State court in having those claims
dismissed, they are still pending in Federal court. The Federal
claims do involve, I think, 20 acres in Downtown Bridgeport. I
was unaware that it included your house. But certainly the
claim is a wise one because your house is a beautiful one and
they have obviously exercised sound judgment.
Mr. Shays. Well, it may have been it was just the State,
but what they did do, though, is they came to my office and
said we will have these claims disappear; all you have to do is
submit a bill before Congress giving us Federal recognition.
That is what they did. And then when that chief left, his
brother came and did the same thing; and then when he was done,
the financial backer came and said the claims--and at that time
I didn't own the property in Bridgeport, but I represented the
district. So it is one mess.
Mr. Blumenthal. Can I just interrupt? And I really
apologize, Mr. Chairman, but I want to make clear whom we are
talking about here, because we are not talking about the
Eastern Pequots and we are not talking about the Schaghticokes.
I believe that you are referring to the Golden Hill
Paugussetts.
Mr. Shays. Correct.
Mr. Blumenthal. And I want to just correct one point that
Ms. Rosier made, because she said there is a history of
hostility or conflict, whatever word you used; I apologize, I
don't remember exactly. We actually have very cooperative and
good relationships with the tribes, two of them, that have been
federally recognized. I want to emphasize--and this point may
be one of the most important that I make all morning--we never
opposed the Mohegan recognition in the way that we have the
Schaghticokes or the Eastern Pequots. We never appealed that
recognition decision, because it was right on the merits, on
the law and the facts. And there is not a necessity for this
kind of disagreement. I think it has to do with the way this
process has been broken and shows how it needs to be fixed. I
think it is a disservice to the relationship between States and
tribes because it aggravates those disagreements.
Mr. Shays. Let me just quickly ask two questions to the
inspector general.
On page 2 of your testimony you say you found pressure had
been exerted by political decisionmakers in the OFA--Office of
Federal Acknowledgment--team members responsible for making the
acknowledgment recommendations on the Connecticut Eastern
Pequot petition. What kind of pressure?
Mr. Blumenthal. Congressman, as I recall, there was an
awful lot of harassment going on at the end of the
administration. Some of these team members were being told they
had to do certain things they weren't comfortable doing. The
delegations were being rushed to judgment at the end of the
administration. This was perhaps a week before inauguration. So
there was an awful lot of pressure being put on these OFA team
members.
And I might say these are, for the most part, very
honorable people that work in this office. From my perspective,
they seem to be caught in this sort of perfect storm of
emotion, politics, and big money. And I think they do a good
job, but there is an awful lot swirling around them.
Mr. Shays. Well, it is important that be made part of the
record.
Would you describe the elements and operation of your
whistleblower protection program? Why didn't the Department of
the Interior have such a program before?
Mr. Blumenthal. That is my office's program. I don't know
why the inspector general before me didn't have it, but I
certainly believe that people who come forward and want to tell
the inspector general something should be free from reprisal.
And I do my very best in each and every case. If I hear that, I
step forward and address that with the Assistant Secretary or,
if I have to, go right to the Secretary about it.
Mr. Shays. Just two questions for you, Ms. Rosier. And I
apologize, I have been calling you Rossier, and it is Rosier,
correct?
Ms. Rosier. It's Rosier.
Mr. Shays. Rosier? OK.
How do you respond to the argument that the Department
faces an inherent conflict of interest and the BIA helps
petitioners meet recognition criteria through technical
assistance and other means, sits as the judge of what amounts
to its own work produce, then acts as a regulator of the
tribes?
Ms. Rosier. One example of how the Federal family has tried
to separate that conflict of interest is potential petitioners
who are seeking Federal funding for putting together petitions,
they go to the administration for Native Americans, which is
outside of the Department of the Interior. So we don't provide
any funding for the petitions; we give them research, technical
assistance.
Mr. Shays. But you are basically telling them how they can
become a tribe through helping them, and then you basically are
passing judgment on whether they meet the criteria. Isn't that
a bit of a conflict? It is nothing you established, but isn't
that process a conflict?
Ms. Rosier. I think our process is very rigorous and
thorough. Since we have had this process, we have acknowledged
15 groups.
Mr. Shays. That is not what I am really asking, though. If
you care not to respond to it, that is fine. But I am asking
whether this process, where you are actually helping them
become a tribe through assistance, and then you are passing
judgment on whether they meet the standard, is that not a
potential conflict of interest?
Ms. Rosier. We provide technical assistance to tribes every
single day on a number of matters.
Mr. Shays. But the difference is you are giving them
something that in Connecticut makes them a billion dollar
operation: you are giving them sovereignty, you are passing
judgment on whether they meet the test, and you are helping
them meet the test.
So, Mr. Blumenthal, how would you respond to that?
Mr. Blumenthal. Well, as I have said in my testimony, I do
believe there is an inherent conflict of interest. It is not
the result of some purposeful individual corruption, but it is
inherent in the assignment of two conflicting tasks to a single
agency, and then having that agency be beyond the normal rules
of accountability and transparency that would apply to an
independent agency.
Mr. Shays. We wrote the law. You didn't write the law, but
it strikes me as a tremendous conflict.
This is the last question, Ms. Rosier. How and when do you
find what financial interests are supporting recognition
petitioners? Would you like to know sooner? Would you like to
be able to compel disclosure of all financial interests behind
a petition?
Ms. Rosier. Currently, right now, financial disclosure is
not part of the Federal recognition process. As I have
discussed, it is an anthropological history and genealogical
look at the entity. So, as of right now we do not look at
financial information unless it has been voluntarily disclosed.
As for in the future, whether we would seek language or we
could be supportive of language that asks for financial
disclosure, I could not give official comment on that, but I
will take that back to the Department.
Mr. Shays. Thank you.
Is there anything that you all maybe spent last night
thinking about that we needed to ask that you want to put on
the record? Is there anything you don't want to put on the
record that we should have asked?
Mr. Blumenthal. If I may take that invitation, Mr.
Chairman. I didn't start thinking about this last night, I have
thought about it for a long time, as you have too. But it
follows the question that you just raised. If this committee
does nothing more than impose rules of disclosure, it will have
made a tremendous contribution. And those rules of disclosure
wouldn't be novel or unprecedented. They would simply require
the kinds of information that are absolutely mandatory when
dealing with other independent agencies showing the kinds of
financial details that are elemental and profoundly significant
to this process.
You will hear, later, testimony about numbers of dollars
that have been invested by individual financial backers. That
information comes from disclosures they have made themselves,
not required by any government agency. And it doesn't indicate
second and third and fourth levels of information about where
they obtained that money, including other financial investors,
and it doesn't relate to lobbyists. And so going back to Mr.
Devaney's point, I think there, at the very least, ought to be
clear, irrefutable consensus that this kind of information,
whether you call it registration or disclosure, clearly should
be required.
Mr. Shays. Mr. Delaney, anything we need to put on the
record that isn't put on the record? Anything you need to point
out before we go to our next panel?
Mr. Delaney. No, sir.
Mr. Shays. Ms. Rosier, any comments?
Ms. Rosier. No, sir.
Mr. Shays. We thank all three panelists for their
cooperation. It has been a longer morning, but I think we have
learned a lot. Thank you so much.
At this time, we will call Ms. Marcia Flowers, invite her
to come and testify. I would also invite Mark Sebastian to come
and be sworn in, as well, in case you want to respond to any
question, even though you don't have a statement. I think that
might make sense, if you would like to.
If you would both stand, we will swear you in. And welcome
to both of you.
[Witnesses sworn.]
Mr. Shays. I will note for the record that both of our
witnesses have responded in the affirmative.
We may not have as many questions. I want you to feel,
Chairman Flowers--and, Mr. Sebastian, you were former chairman,
is that correct? We are going to allow you to make your
testimony, and feel free to go over the 5-minute limit. I want
to make sure that you put on the record everything you want to
put on the record. And let us just see how that mic picks you
up. If you would lower it a little bit. Just tap it, I just
want to see if it is on. No, it is not on. OK.
Welcome. Thank you for being here. I want to say, again,
you are here, and we invited another tribe who decided not to
be here. I wish they followed your good example.
STATEMENT OF MARCIA FLOWERS, CHAIRWOMAN, TRIBAL COUNCIL,
HISTORICAL EASTERN PEQUOT TRIBAL NATION, ACCOMPANIED BY MARK
SEBASTIAN, FORMER CHAIRMAN
Ms. Flowers. Thank you. Thank you, Mr. Chairman, members of
the committee, and especially our Congressman from Connecticut,
Chris Shays, for inviting us to testify today on behalf of our
tribe, the Eastern Pequot Tribal Nation.
Before I begin, I would like to just, for the record, the
Eastern Pequot Tribal Nation has never filed a land claim.
Another issue that I have to bring up before I begin, the
attorney general for the State of Connecticut made a comment
that the State did not appeal the Mohegan decision. I have to
point out, and I and Chairman Brown speak of this often, the
Mohegan tribe was detribalized in the 1700's, and when the
tribes came back together in the 1970's under the Connecticut
Indian Affairs Commission, all the five tribes were in the five
State recognized tribes. And I have to make that point because
the Eastern Pequot tribe never was detribalized. And thank you
for that statement.
I am here today to tell you about one tribe's experience
with the recognition process. Our opponents try to keep the
focus on casinos and their impact, but my tribe is suffering a
different impact: the impact of unwarranted delays in the
process. I don't think anyone here will claim the recognition
process is working properly. When the regulations were
implemented in 1978, the process was to operate within 3 to 5
years. The Eastern Pequot Tribal Nation filed its original
letter of intent to seek recognition in 1978, 26 years ago. We
have traveled the path to recognition through five Presidential
administrations, seven Secretaries of the Interior, nine
Assistant Secretaries of the Interior for Indian Affairs, four
State Governors, and four State attorneys general. We have
followed every step prescribed by the regulations, and we are
still not done yet.
In your invitation to me to address this committee, you
asked about transparency. This process could not have been more
transparent. Just look at our procedural history. After 3 years
of active review by the Bureau of Acknowledgment and Research,
in March 2000, our petition received a positive preliminary
finding.
Mr. Chairman, I must note, to clear for the record, that on
the Web site the tribe noticed that it was noted that we
received a negative preliminary finding. This is incorrect. The
Eastern Pequots' petition received a preliminary positive and a
positive on final, and we would like that corrected. Thank you.
Mr. Shays. On the Web page of? I may have missed it. You
said on the Web page. On the committee's Web page?
Ms. Flowers. Noted for this hearing on the resource.
Mr. Shays. OK. Thank you.
Ms. Flowers. Yes.
And I brought a copy of the Federal Register of our final
determination. It does go over that. And I think Mark has a
copy.
In a detailed 152-page decision of over 500 pages of
exhibits, BAR provided its analysis of our petition strengths
and weaknesses. The regulations allow for a comment period for
tribes and all interested parties to respond to the preliminary
finding. In our case, the usual 6-month period was extended to
18 months. That was because of a request filed by the
Connecticut attorney general and his demands through a Freedom
of Information Act lawsuit. During the comment period, the
States and towns had open access to the BAR staff and
participated in a 2-day marathon technical assistance hearing.
They grilled the staff about the process, our evidence, the
BAR's view of the evidence, and the grounds for the preliminary
decision. Without exception, they received every document they
requested. Nothing has been hidden.
The tribe ultimately submitted 566 pages of additional
material and nine boxes of exhibits in response to BAR's
comments. The attorney general and towns submitted a total of
879 pages of material.
After months of analyzing this information, BAR issued a
positive final determination in 2002. We are the only tribe to
receive a positive preliminary and a positive final decision in
the State of Connecticut. As allowed by the regulations, the
Connecticut attorney general appealed to the Interior Board of
Indian Appeals. All briefs in the appeal were completed in
March 2003, and after 13 months we are still waiting for a
judge to be assigned to our case.
You asked about integrity. Our opponents claim we have used
inappropriate political influence in the recognition process.
The Eastern Pequot Tribal Nation employs one lobbying firm in
Washington, DC, whose principal role is to track legislation
that might affect us. We pay our lobbyist $120,000 per year. We
began our relationship with this firm during the Clinton
administration, and it continues today under the Bush
administration. At no time have we ever asked any lobbyist to
try to influence the outcome of any decision regarding
recognition, and at no time has any lobbyist represented to us
that they have any ability to do so.
We have met approximately once each year with the
Connecticut delegation and other leaders in Washington, such as
Senator Inouye and Campbell. These meetings have been arranged
well in advance and appear in public records. The only meeting
we have had with any Department of the Interior official in the
past 2 years was with then Assistant Secretary McCaleb, at his
invitation, not ours. At no time during any of these meetings
have we asked any elected or appointed official to influence
the outcome of any recognition decision.
Political influence is at work here, but it is not being
exercised by our tribe. Rather, incredible influence is being
brought to bear by a small group of people whose real goal is
to stop Indian gaming in Connecticut. Mr. Benedict, for
example, is representing a group called Connecticut Alliance
Against Casino Expansion. He has raised millions of dollars and
stages frequent public rallies against casinos. In fact, Mr.
Benedict himself, I believe, is a registered lobbyist. Elected
officials in our State, paid by taxpayers' dollars, have
appeared regularly at his rallies, claiming they oppose
recognition of our tribe, but really what they oppose is
gaming. Elected officials here in Washington have used their
political influence and taxpayers' dollars to introduce
legislation that would halt recognition decisions and stop us,
even though we have faithfully followed the regulations for 26
years. A recent example is the Connecticut attorney general's
unscheduled ex parte meeting with the Secretary of the Interior
on March 17th, where he specifically asked her to stop
recognizing tribes.
Our opponents have tried to delay us every step of the way.
They attack our recognition decision, most often using three
arguments: the so-called merger of two tribes, the claim that
the Assistant Secretary overruled his staff's recommendation,
and the supposed reliance on State recognition used by the BAR
in reaching our decision.
On the first issue, this is what the final determination
actually said, ``This determination does not merge two tribes,
but determines that a single tribe exists which is represented
by two petitioners.''
Regarding the second issue, the staff at the BAR simply has
no decisionmaking authority in this process. The Assistant
Secretary makes the decisions to issue a positive preliminary
decision. In our case, Mr. Gover's decision in the Clinton
administration was ultimately confirmed in the positive final
determination in the Bush administration. I am sure each of you
has on occasion disagreed with your staff.
Third, again quoting from the decision: ``The continuous
State recognition is not a substitute for direct evidence.
Instead, this longstanding State relationship and reservation
are additional evidence which, when added to the existing
evidence''--and I will stress that, the existing evidence,
which we submitted--``demonstrates that the criteria are met at
specific periods in time.''
You asked about accountability. We have had to account for
every day of our history since 1614, to the BIA and the
interested parties. We have provided tens of thousands of pages
of information documenting our petition. Many of these
documents came right out of the State archives and files. The
interested parties received each piece of our evidence and had
the right to comment on them. All that material, including the
comments, has been reviewed and analyzed by a team of highly
qualified professionals to reach a final decision of almost 200
pages detailing the evidence that demonstrates our tribe meets
the seven criteria. We have been accountable for every
professional we have hired and every source of information we
have used. The very nature of the recognition process mandates
accountability, especially for tribes whose first contact dates
back into the 1600's.
Unlike many of the western tribes, the eastern tribes never
entered into treaties with the United States, so they do not
have automatic access to Federal programs. Instead, they had
relationships with the colonies before this country was even
formed. The colony of Connecticut established the Eastern
Pequot Reservation in 1683, and it remains one of the oldest
continuously occupied reservations in the country. The State
took over the relationship with our tribe in 1784, and that
protected relationship continues to today. The recognition
process adopted in 1978 was designed to give tribes like ours
the opportunity to gain access to Federal, social, health, and
educational programs that were established for our benefit.
When we started this process in 1978, there was no Indian
gaming. The Indian Gaming Regulatory Act was not passed until
1988.
Mr. Shays. I am going to let you finish your statement,
even though we are going on. But I want you to read a little
faster.
Ms. Flowers. OK.
Mr. Shays. I don't usually do that; I usually tell people
to slow down. I want your entire statement. You want to deliver
it; I want it delivered. I want it quicker. Just read a little
more quickly.
Ms. Flowers. OK.
The Indian Gaming Regulatory Act was not passed until 1988,
10 years after we first applied for recognition. In 1978, our
tribe had no money, no expertise, and no access to the
professionals who could help us. We did the work ourselves,
holding bake sales, car washes, and selling our crafts to
scrape together the money to file our first petition. We
learned quickly that we needed substantial professional
assistance to get through the process.
With the introduction of Indian gaming in Connecticut, and
the opening of the first casino in 1993, the landscape changed
completely. IGRA allowed an investor to get a realistic return
on the very high-risk funds tribes need to hire a team of
professionals to help them with the recognition process.
Whether we wanted a casino or not, we had no other way to find
the funding to hire the best historians, genealogists,
anthropologists, and lawyers.
You asked about the cost. Beginning in 1993, our tribe
entered into a series of arrangements with investors who agreed
to finance our recognition efforts in return for future casino
management fees as provided by IGRA. Through 2000, this
financing totaled approximately $5 million. In 2000, we entered
into our current development agreement with Eastern Capital
Development of Southport, CT, a group of private investors,
none of whom have any ties to the gaming industry.
Mr. Shays. But just happen to live in my district.
Ms. Flowers. I confirm to you that they do not employ any
other lobbying firms.
To date, they have loaned our tribe about $11 million.
Approximately 70 percent went directly to our effort to meet
the recognition criteria. The professional team includes a set
of lawyers to coordinate the research on our petition and
ensure regulatory compliance, other lawyers to represent us in
court suits filed by the attorney general, and a third group of
lawyers to coordinate the attorney general's IBIA appeal. The
team that helped us compile our petition includes six senior
researchers in anthropology, history, and law--four Ph.D.s, two
LLDs--two research assistants, two genealogists, and an
archivist. This team has worked continually since 1997 to meet
the challenges, requirements, and scope of the recognition
process and accounts for most of the expense.
In all this time, with all their rhetoric, our opponents
have not submitted one shred of evidence that disproves our
right to recognition. Without such evidence to stop our
recognition, those who want to stop us from building a casino
have no tactics left other than delays, confusion, and
distortion. Years ago, our opponents received one piece of
advice from their lawyers that they have taken to heart: the
best way to stop a casino and land claims is to stop a tribe's
recognition; and the best way to stop recognition is to derail
the process. Recognition does not automatically create a
casino. There are many steps along the way where the State's
and towns' concerns about gaming will be properly addressed. We
have to go through a rigorous approval process before we can
even dream about a casino. We must take land into trust and
negotiate a gaming compact, which in our State requires the
ratification of the full legislature. Both of these also
mandate extensive public participation.
I don't think a wholesale restructuring of the process
needs to take place. The process is thorough, transparent, and
has provisions for adequate accountability. What must happen is
that the BIA must be given additional funding to increase its
staff so they can deal with the tremendous backlog of
recognition decisions. The IBIA needs similar resources to help
them deal with the many complicated cases they review.
This committee should not confuse opposition to gaming with
the need to improve the recognition process. Congress should
not take away any tribe's right to Federal programs to satisfy
a small group of people fundamentally opposed to gaming. After
all, the two casinos in Connecticut employ over 20,000 people
and pay the State over $400 million per year.
Many people have complained that this process is not fair.
Please focus on these statistics: since September 2002, when
the Connecticut attorney general filed the appeal against our
final determination, 154 decisions have been issued by the
Interior Board of Indian Appeals. Of those 154 cases, 95 were
filed after ours. Once again, 95 of the 154 decisions were for
cases filed after ours. And we are still waiting.
Again, thank you for giving me the opportunity to speak to
you today, and I would be happy to answer your questions.
[The prepared statement of Ms. Flowers follows:]
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Chairman Tom Davis. I want to thank you. Your statement is
pretty comprehensive. I think you make a very strong argument
for your case. I might disagree with a number of points. I do
want to say, though, that I think you have put on the record
what you wanted to put on the record. Is there anything else
before we go to the other panel that we have?
Is there anything, Mr. Sebastian, that you would like to
just say for the record? Not a statement, but any general
comments? A statement would be fine, but not a long statement.
Mr. Sebastian. We have some documents we would like to
submit for the record, a resolution from the National Congress
of American Indians in support of the Eastern Pequot Tribal
Nation and a State of Connecticut General Assembly report from
David Leff, a senior attorney to Honorable John Thompson in
regard to the dispute between the tribe and the ruling that the
State of Connecticut General Assembly that there was one tribe
in 1989.
Mr. Shays. Well, we will put those in the record, if you
would like. Any other document for the record?
Mr. Sebastian. And just a list of the cases that were
assigned after our IBIA appeal and that have been resolved.
[The information referred to follows:]
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Mr. Shays. Let me just suggest this to you so we are fair
to you as well. We are going to go to the next panel, but if
you would like to, after they have testified, if you would like
to come up and respond to something you have heard, then we can
question you about that particular issue. So I don't want you
to interpret our lack of questions as being a lack of respect.
We want you to participate in our process. You said you would
like to testify separately, and we respected that. So what I
will do is I will swear in the next panel. If there is
something, after they have made their statements and we have
asked questions, that you want to insert or respond to what you
have heard, then we will question you about that. Does that
seem to fit your need as well?
Ms. Flowers. That will be fine.
Mr. Shays. That will be our need, because we are going to
have a vote at 2, and we are going to really try to get to this
next panel.
Ms. Flowers. OK, thank you.
Mr. Shays. Thank you so much.
At this time, the Chair would recognize our next panel. It
is the Honorable Mark Boughton, mayor, city of Danbury, CT; the
Honorable Rudy Marconi, first selectman, town of Ridgefield,
CT; the Honorable Nicholas H. Mullane II, first selectman, town
of North Stonington, CT; and Mr. Jeffrey R. Benedict,
Connecticut Alliance Against Casino Expansion.
Gentleman, we will invite you to stay standing and I would
like to swear you in. Raise your right hands.
[Witnesses sworn.]
Mr. Shays. Note for the record our witnesses have responded
in the affirmative.
First Selectman, is it Mullane? I want to make sure I am
pronouncing your name correctly. Is it Mullane?
Mr. Mullane. Mullane.
Mr. Shays. Mullane. And I want to say to you that we have
had many contacts, and I introduced and spoke well of the two
elected officials closest to the Fourth Congressional District,
but I do need to put on the record you are probably the most
knowledgeable of anyone at the table about these issues; you
have been fighting them for so many years, as I think both Mark
and Rudy would agree. And so you do honor the committee as
well, and I should have certainly recognized your incredible
contribution over so many years. You have been fighting a long
and lonely battle, and I think our two mayors on your right are
hoping they don't have to go through the same process.
So, with that, Mayor Boughton, welcome.
I am going to ask that your testimonies be 5 minutes. If
you trip over a little bit, we can live with that, but it would
be nice if we could stay within the 5-minute area. Thank you.
STATEMENTS OF MARK D. BOUGHTON, MAYOR, CITY OF DANBURY, CT;
RUDY MARCONI, FIRST SELECTMAN, TOWN OF RIDGEFIELD, CT; NICHOLAS
H. MULLANE II, FIRST SELECTMAN, TOWN OF NORTH STONINGTON, CT;
AND JEFFREY R. BENEDICT, CONNECTICUT ALLIANCE AGAINST CASINO
EXPANSION
Mayor Boughton. Thank you, Mr. Chairman. Let me just thank
you for inviting us down here to testify today on a very
important issue, and, on a personal note, we have often talked
and I don't know if you remember that I was your intern, when I
was in high school, in the legislature. You did a great job
then; you are doing a great job down here.
Mr. Shays. Well, you did a great job then and you are doing
a great job now.
Mayor Boughton. I learned from the master.
Mr. Ose. Is this for the record?
Mr. Shays. This is definitely for the record. He is under
oath.
Mayor Boughton. That is right.
In addition, Congressman Simmons and I have worked together
closely when I was in the legislature as well in Connecticut,
and it is ironic that, today, the closing day of the
legislature, we are no longer having this debate regarding
Indian recognition in Hartford, we are now having it here in
Washington, DC.
I want to just address one quick comment that Ms. Rosier
made when she was here. It is unfortunate she couldn't stay,
but she made the comment about how, in other communities in
other States, the Native American tribes and the States and the
local municipalities are working together to address some of
those issues, and I think that really is the underlying
fundamental flaw of this process. It really underscores the
challenge that we face, because, in Connecticut, we are a
geographically small region, and because of that the
recognition of a tribe has a much greater impact when you have
more tribes in a small region. So we are not talking about the
west or the southwest, where there are literally hundreds of
thousands of acres in various States and it is not a big deal.
In Connecticut it is a big deal because this State, my State is
rapidly approaching the point where we will be four or five
sovereign nations in a very tight geographical area that will
ultimately run every aspect of our lives: our culture, our
politics, our industry, ultimately our sense of identity of who
we are as a community. And that is really the problem for us,
is how do we juxtapose the right of the Native American peoples
to right a wrong that they have had over history, along with
the huge forces that are engaged here in the gaming and
gambling industry, and, of course, that is your problem that
you have to deal with here.
Briefly, I want to mention just two issues. My testimony is
on the record and everybody has had an opportunity to read it,
but two issues that strike me as being somewhat challenging for
all of us. The first is the issue of curing the deficiencies
mentioned again by Ms. Rosier when she was here earlier in the
day. This, to me, is mind-boggling and baffling the way the
process works. And being an ex-history teacher and somebody who
taught high school, the only way I can really look at this is
that it is analogous to giving a test to a student, in this
case recognition. You get back the test with a failing grade,
you say you didn't make it, you failed. You then go give the
tribe the answers to the test. They turn the test back in and
they fail again. Then you go to your colleagues, your fellow
teachers and you say, hey, how do I give these people a passing
grade? Tell me how to get there from here.
And that is ultimately what happened within the BIA. And we
know that because of that internal memo that was circulated
throughout the State and ultimately down here. They admit, the
BIA admits this tribe does not meet the seven criteria. And in
other cases of recognition, not meeting those two standards has
been fatal to an application process. Those tribes were not
recognized. And so for us to now turn around and do a 180 and
say now you do become a tribe clearly is troubling for all of
us. So the process in itself is absurd, and this issue of being
able to cure the deficiencies, in my estimation, is absurd as
well.
I think the other issue that we have to look at is what
prompted the sudden change of heart by the BIA. Why would an
organization ignore the very rules that has promulgated to
arrive at a conclusion in its final determination that was
different than one that was articulated in the preliminary
determination? And for municipalities, we have to ask the
question what is the point of having rules if we are not going
to follow them? The rules become a moving target. We have
talked about transparency today. There is no transparency
because we have nothing to look at because the rules change
every time we try to address them. So for my municipality and
other municipalities dealing with this issue, the challenge for
us is that, amongst all the other things we have to deal with,
we now have to deal with a process that is undefined, open-
ended, and in some cases has been in unchartered territories.
The other issue I think that merits discussion a little bit
today is the post-recognition period. In the case of the
Eastern Pequots, we are in a twilight zone, as a previous
speaker has mentioned. We are not quite sure where we are
because nobody has ever appealed the recognition of a tribe
before. But the post-recognition of a tribe that proceeds to
open a casino is really where the dollars are generated. Once
the gaming operations have begun, as I mentioned in my opening
comments, that is when life changes as we know it. And, in
Connecticut, because, again, of our small geographic region,
there will be a totally different way of life throughout the
State of Connecticut if these tribes are allowed to go forward
and open casinos. So I think it is critical that discussion
happen.
I know it is important to talk about people like Fred
DeLuca of Subway Sandwich Shops, or Donald Trump of the recent
Apprentice fame, or Thomas Wilmot, a New York mall developer
who has bankrolled these tribes, but ultimately it is the
fallout of the tribes that we have to deal with in our
municipality; and what do we do with issues like annexation,
that we talked about earlier.
So those are some things that I think we should be
discussing today, and I ask that you consider legislation that
would gain control of this process. We mentioned some thoughts
already today.
Take the seven criteria, make them Federal law so that we don't
have a moving target any longer, and then certainly ask to help
us participate in the recognition process by making these
changes.
Thank you.
[The prepared statement of Mr. Boughton follows:]
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Mr. Shays. Thank you.
The Chair would now recognize the first selectman of
Ridgefield, Rudy Marconi, who happens to be one of my 600,000
bosses.
Mr. Marconi. And we represent a lot of people here today
collectively. And thank you, Mr. Chairman, for inviting me here
today to submit the following testimony on the Bureau of Indian
Affairs Federal recognition process.
As the first selectman of Ridgefield, CT, a town of 24,000
people, I sit here today to ask you to consider a reform to the
Federal recognition process. Over the past 2 years, our
municipality, along with many others in the State of
Connecticut, has spent considerable amounts of money in an
effort to be heard in an otherwise broken process. I ask all of
you why? Why isn't a city or a town notified and asked to
participate in what I thought was an open and honest process,
especially a decision that can have as serious and as long-term
consequences as the BIA's recognition of the Schaghticoke
Tribal Nation.
State and local governments work diligently to solve
problems such as traffic, housing, education, and other quality
of life issues that seriously impact our budgets. In one
unjustified, ill-advised decision, the BIA has laid the
foundation to destroy the quality of life that we have worked
every day to preserve, without even asking for our thoughts.
How can this system be permitted to continue without a serious
overhaul?
In Chairman Davis' cover letter, he asked that I focus my
comments on the integrity, transparency, and accountability of
the recognition determinations. On integrity, there is no
integrity in the system. Call it what you want, unimpaired,
sound, honest, moral, trustworthy. It just doesn't exist. When
the decision was made to recognize the Schaghticoke Tribal
Nation, even though, ``evidence of political influence and
authority is absent or insufficient,'' and even though a
substantial and important part of its present day social and
political community are not on the current membership list, the
decision lacks integrity.
On transparency, under no circumstances can anyone believe
the Schaghticoke decision to be clear, obvious, or easily
understood. At no time did the petitioner satisfy in total the
seven mandatory criteria for recognition that should be
enforced and relied on in the process. Instead, the decision
was made to be, ``consistent with the intent of the
acknowledgment regulations.'' However, the regulations provide
that a petitioner shall be denied if there is insufficient
evidence that it meets one or more of the criteria. As a
result, one must conclude that this decision is fraught with
confusion and contradictions.
Accountability, a word that has been used by all of us
during campaigns and promises to the people who elect us. The
BIA must be held accountable for their decisions. As it exists
now, they are accountable to no one. We now, as interested
parties, must spend precious taxpayer dollars to protect our
rights and to protect our quality of life. We must exhaust
every appeal and whatever other legal remedy may exist to
prevent the occurrence of another casino in Connecticut.
In previous testimony, an internal BIA memo has been cited,
``acknowledged the Schaghticoke under the regulations, despite
the two historical periods with little or no political
evidence.'' Ladies and gentlemen, this is exactly what has been
done, and I ask you who will be held accountable for this
decision, an action that is in direct violation of the
regulations and can set a precedent for future petitions. The
people who elect us expect and, in fact, demand that we, as
elected officials, place integrity foremost in our
responsibilities to them. They ask that we at all times be
honest and clear with our decisions and open to the public.
And, finally, we are required to be accountable to them, the
residents and the taxpayers, so why is it unusual to expect
this of any other government agency? Thank you.
[The prepared statement of Mr. Marconi follows:]
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Chairman Tom Davis. Thank you very much. You ask some very
important questions that we need answers for.
First Selectman Mullane, thank you.
Mr. Mullane. Thank you for having me here today. I really
appreciate this opportunity. Mr. Shays, I want to thank you,
Rob Simmons. Mr. Ose, I want to thank you. I made a few
comments in front of your hearing 2 years ago, and I appreciate
the effort you are making today to hear a subject that is very
important to all of us.
There is talk about casinos, there is talk about impacts.
My first issue with this subject is in regard to creating a
tribe and a sovereign nation and granting land claims. There is
nothing more important and significant to me and my town than
that.
I testify also today on behalf of Susan Mendenhall, mayor
of Ledyard, and Bob Congdon, first selectman of Preston.
I am going to try to jump around and not repeat some of the
things that have already been said, and I want to talk about
the tribal recognition that is under appeal, the Historic
Pequot Tribe. And of yesterday there was an appeal filed for
the Schaghticoke.
The historic eastern acknowledgment is a combination of
petitioners from two groups, both of whom are longstanding
rivals of each other. This is an unprecedented and unwarranted
acknowledgment. If I look at the decision, I have to go back to
comments that were made in the Department of the Interior
Office of Inspector General, and this is some comments by Mr.
Gover. The relationship between Gover and the BAR staff was
strained from the beginning. Shortly after being appointed,
Gover held a meeting with the BAR staff in which he said
acknowledgment decisions are political. Our staff considered
this an indication of how the Assistant Secretary would rule on
findings. BAR and the solicitor who advises them were convinced
that Gover did not like the regulatory process set forth and,
as a result, would base his acknowledgment decisions on his
personal interpretation of the regulations.
When Gover did issue his decisions regarding the Eastern
Pequot, the Paucatuck Eastern Pequot, the Little Shell Chinook,
contrary to the recommendations of BAR, the BAR staff issued a
memoranda of nonconcurrence for each of the four decisions. BAR
had never before documented its disagreement with an Assistant
Secretary.
His additional comments, I will skip those, but what I want
to do is go on and say how do we fix it. True reform must be
more meaningful than streamlining. This committee is
considering a series of measures, some of which have been
introduced by members of the Connecticut delegation to address
the shortcomings in the process. Few doubt the need for reform,
but the details of actual reform remain in doubt. As a result,
we offer five principles of reform to the acknowledgment
process.
First, it is our position that Congress alone has the power
to acknowledge tribes. It has never been delegated that power
to the executive branch, the BIA, nor has it set standards for
the BIA to apply in carrying out that power. If Congress must
decide who should make these decisions, they have to set
rigorous standards, ones that are strict, that cannot be
violated, manipulated, moved, or changed.
Second, the acknowledgment process has to be procedures
which have been invented by the BIA do not provide an adequate
role for interested parties, nor do they ensure objective
results.
Third, the acknowledgment criteria must be rigorously
applied.
Fourth, if Congress is to delegate the power of
acknowledgment to the executive branch, it should not delegate
that authority to BIA. The BIA process has evolved into a
result-oriented system, at the minimum, which is subject to
bias inherent by having the same agency charged with advocating
the interest of Indian tribes, also make acknowledgment
decisions. The process is also subject to political
manipulation. An independent commission created for this
purpose would have the same shortcomings unless checks and
balances are imposed to ensure objectivity, fairness, full
participation by all interested parties and the absence of all
political manipulation.
Fifth, because of the foregoing problems, it is clear that
a moratorium is needed to be able to establish a proper
process. There was a bill, S. 1392, which was a good start.
There was another one, 1393, which contains some essentials.
Still, I believe that there has to be an ongoing dialog between
the towns, the State, the Federal Government that ultimately
result in a fair and objective and, most important, a credible
system.
I want to comment on one aspect, which is the procedure
itself. I frequently hear the complaint, and I heard it today,
raised by the petitioners over how long it takes to achieve a
final decision and how much it costs. My town has spent
$545,000 over an 8-year period of time. The time and cost of
government procedures is a legitimate concern; however, I must
note that the time problem is less than that of the Federal
Government and more that of the petitioners themselves. These
petitioners groups take years to develop their argument. For
example, the Eastern Pequots spent 17 years developing for
their case of acknowledgment; the Schaghticokes took 19. To a
large extent, this appears to have been the result of millions
of dollars spent on researchers, attorneys, lobbying, media
consultants, and so forth, who are searching high and low for
every available means to make a deficient tribal acknowledgment
claim and establish the basis for positive results.
With the massive infusion of money and resources from
petitioners' side, voluminous records are produced that are
almost impossible for other parties to deal with or, for that
matter, BIA. The petitioners' comments are it's all there, you
just don't understand. Although I am not a defender of BIA and
its approach to tribal acknowledgment, we must all recognize
that a significant part of the problem comes from the
petitioners. And what is most frustrating is the supposedly
last piece of necessary evidence to complete an application is
submitted in the last petitioner's comment period, when no one
else can challenge the credibility of that evidence.
[The prepared statement of Mr. Mullane follows:]
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Chairman Tom Davis. Thank you very much. I know there is a
lot more you can say; you have such a wealth of experience and
knowledge. Thank you.
Mr. Benedict, you are the closer here. Then we will get to
questions, and we will start with Mr. Ose when you are done.
Mr. Benedict. Mr. Chairman, thank you. I appreciate the
opportunity to be here today, to be under oath, and to be part
of this panel. I want to say at the outset that I also have
submitted written testimony, and ask that it be added to the
record. And, Mr. Chairman, I also request the opportunity to
submit an addendum to that, which would be some source notes to
go along with it.
Mr. Shays. We welcome those.
Mr. Benedict. I have asked for some easels. Is it possible
to have those?
Mr. Shays. Sure.
Mr. Benedict. Thank you.
Let me just say at the outset that I am an author and a
lawyer, and I am the head of the Connecticut Alliance Against
Casino Expansion, which is a nonprofit that was created in
Connecticut less than 2 years ago. To clarify for the record,
we have not raised millions of dollars. I wish we had. We are
nowhere near that. It is public record that we have raised
about $250,000 in a little less than 2 years.
However, there are some people in this room that have
raised millions of dollars, and that is going to be largely the
subject of my testimony today.
I have a statement that I prepared last night to read
today, which I am going to set aside, having made some
observations in the room today that I think may be more
pertinent than the remarks that I prepared.
Mr. Shays. Your statement will be part of the record. And
it makes sense, you have been here, so why don't you comment on
what you have seen and heard?
Mr. Benedict. I appreciate that.
Observation No. 1 is who is not here today, which I think
is perhaps more profound than anything that has been said here
today, which is that, No. 1, there are no investors in tribal
recognition present. Some were invited; they declined. There
are many more that could have been invited and weren't.
No. 2, there are no lobbyists working on behalf of those
petitioning for tribal acknowledgment present. I was glad to
hear, at the outset of the hearing today by Chairman Davis,
that this is the beginning, and not the end, of this
committee's work, because I think the groundwork has been laid
here today, and really the answers that ultimately we need to
get to are in the hearts, minds, and wallets of those who are
not present today.
Observation No. 2 is that there has been little or no
mention today of the Indian Gaming Regulatory Act [IGRA]. There
has been a lot of discussion about tribal acknowledgment. IGRA
and tribal acknowledgment are joined at the hip, they are
inseparable at this point, and it is somewhat wasteful to
discuss reforming the acknowledgment process without also
discussing the need to reform the Indian Gaming Regulatory Act.
And I would like to sort of move in that direction rather
rapidly.
The Indian Gaming Regulatory Act was passed in 1988, as we
all know. At that time there were two States in the country
that had State-sanctioned casinos, they were Nevada and New
Jersey. The premise of the Indian Gaming Act was twofold: No.
1, it was designed to clarify and set standards for gambling on
Indian lands, simply put; and No. 2 was the premise that tribes
that existed in States that permit gambling should be provided
the same opportunity on their lands if they are in those
States. You could assume from that if you were a tribe that
lived in Nevada at that time, you would be able to have the
full gauntlet of gambling offered on your reservation under
IGRA. You could also presume from that, if you were a tribe in
Utah at that time, you would be allowed to do no gambling, from
bingo to lottery to casinos, because none is permitted under
State law.
IGRA has become a runaway train. It is the law of
unintended consequences. It arguably is the worst piece of
legislation to come out of this Congress in 20 years because
its drafting has been so vague and created such gaping holes
that have been left to the courts to interpret that we have
seen a country go from two States with legalized casinos in
1988 to a country with 31 States with over 300 casinos now in
operation. California alone, as Mr. Ose probably well knows,
has had over 50 casinos go up since IGRA was put into law. The
State of Connecticut has two casinos that draw over $3 billion
a year. There is no coincidence that California and Connecticut
lead the way in tribal recognition petitions per capita. Those
are the two most lucrative gambling markets in the United
States today; Wall Street says it and the evidence is therein
the outcome of those casinos. And now there are over 50
petitioners in California and a dozen in Connecticut seeking
the right for recognition, which now carries with it the right
to build a casino.
Let me just move to these charts very briefly. I see how
much time is left, and I don't want to use it up.
These charts point to four names. They are well known,
particularly in our State, but nationally. Donald Trump, who we
know is a casino mogul. In court papers he has confirmed that
he has invested $9 million in backing the Paucatuck Eastern
Pequots. The Subway Sandwich founder, Fred DeLuca, has admitted
publicly that he has invested $10 million in the Schaghticoke
petition. Developer Thomas Wilmot has said he has spent $10
million backing the Golden Hill Paugussetts; and now a new
person, Lyle Berman, who is the CEO of Lakes Gaming, Inc., a
publicly traded company on Wall Street, has said just in the
last couple years he has spent $4 million.
This is a grand sum of $33 million invested in the tribal
recognition process, just four cases. We have heard evidence
today that there are close to 300 petitions pending, two-thirds
of which are backed or bankrolled by gambling interests. This
is not designed to just say $33 million is a big deal. This is
to give you a snapshot of just four cases in our State.
The chairman asked at the outset what can be done, and let
me close with just a couple of suggestions on reform.
No. 1, and I don't mean to be glib when I say this, but it
is time for Congress to tell Donald Trump you are fired from
the Indian gaming process.
Mr. Shays. You are a writer, aren't you?
Mr. Benedict. I am a writer.
This guy has been busy in more than Connecticut influencing
this process, and let us recall what he told the U.S. Senate in
this town just a few years ago. He got up and testified and
said something about the Mashantucket Pequots not being true
Indians and operating a very profitable casino. There is one
thing he and I agree on in this world, and that is that the
Mashantuckets are not a legitimate tribe. But the rest of what
he has done since then is adopt an ``if we can't beat them,
join them'' approach. He pumps $9 million into the State of
Connecticut hoping to get a casino license that he can't get
any other way. His lawsuit filed in New London County makes
very clear there is a deal struck between him and the
Paucatucks that he would be the developer of this casino and he
would advance, front the money in hopes of getting that
opportunity.
Second, it is, I think, incumbent that we also look at IGRA
and the need to tighten up this legislation. It is time that we
look at what was the original intent of this law. Was it
designed to create a vacuum for guys like Donald Trump and Fred
DeLuca and Thomas Wilmot to jump into? No. It was designed to
create an equal footing for the existing Indian tribes that
were in America in 1988. What we have seen is a gold rush
literally of applicants and of investors getting behind them.
Third, it is essential that we know more. There are a lot
of bright lights here today, and I will tell you quite
seriously I am glad we are in the light right now. And I mean
that very candidly. We need lobbyists in the light. I would
like to know what justifies paying someone like Ronald Kaufman
$600,000-plus to lobby for the Pequots. I would like to know
what Mr. Paul Manafort has been doing. He has not registered a
lobbying report that I am aware of that shows what he has been
doing for the Schaghticokes. It is time that this committee ask
those questions. Why does it take $9 million? And don't tell me
that it takes $9 million to do research. The State of
Connecticut has been doing it on a dime for 10 years. It
doesn't take $10 million to hire researchers. But it does take
$10 million to hire real estate searchers and lawyers and
lobbyists, and those who work influence. And I think we will
not have real reform until those men are brought in here, raise
their arm to the square and under oath ask and answer some very
serious questions about what they have been doing with their
money, where it has come from, and what it has been used for.
Thank you very much.
[The prepared statement of Mr. Benedict follows:]
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Chairman Tom Davis. Thank you all very much.
And with that, I will recognize Mr. Ose for as much time as
he would like to consume.
Mr. Ose. Thank you, Mr. Chairman.
Mr. Marconi, your testimony on page--I don't remember what
page it is, but you have a couple comments in there. You say
the system is not sound, it is impaired, it lacks integrity.
Mr. Marconi. Yes.
Mr. Ose. What exactly do you mean?
Mr. Marconi. The way in which the decision was arrived at,
the fact that despite the fact that the seven criteria were not
met, that, in fact, a rationale was used to substitute for
these recognitions. That is what I mean.
Mr. Ose. And the examples you are citing related to the
approvals granted at the end of the previous administration or
have there been other examples you are referring to?
Mr. Marconi. What I am referring to is the internal memo
from the OFA that we received a copy of.
Mr. Ose. Dealing with the recognition process?
Mr. Marconi. Dealing with the recognition process of the
Schaghticoke Tribal Nation.
Mr. Ose. OK. So STN's application, is that one of those
that was approved in the waning days of the previous
administration?
Mr. Marconi. Can you repeat that, please, it was approved
when?
Mr. Ose. Is that one of the applications that was approved
in the waning days of the previous administration?
Mr. Marconi. No.
Mr. Ose. So this is a problem that is not----
Mr. Marconi. Today.
Mr. Ose [continuing]. Administration-based from past
history, this is something that did exist, it exists now,
according to your testimony.
Mr. Marconi. That is my testimony.
Mr. Ose. So something that is with us now.
Mr. Marconi. Yes.
Mr. Ose. All right.
Mr. Benedict, someone whispered in my ear in your testimony
you mentioned these four individuals and the legions of
lobbyists, registered and otherwise, that they use to implement
their plans. Are you a registered lobbyist?
Mr. Benedict. I sure am. I am registered under State law in
Connecticut. In our State, that filing is done with the State
Ethics Commission. I am the head of a 501(c)(4). We are
authorized to lobby in our State. And as the only full-time
paid employee of the organization, I am registered. I am also
registered here as of just recently.
Mr. Ose. I would be asking these questions of legions of
representatives of these people. The name of your 501(c)(4) is?
Mr. Benedict. The Connecticut Alliance Against Casino
Expansion, Inc.
Mr. Ose. The contributors to the Connecticut Alliance
Against----
Mr. Benedict. Casino Expansion.
Mr. Ose. Gaming Expansion?
Mr. Benedict. Casino Expansion.
Mr. Ose. Casino Expansion. The financial contributors to
that are whom?
Mr. Benedict. Excuse me?
Mr. Ose. Who are the financial contributors to your
501(c)(4)?
Mr. Benedict. Sure. It is fairly easy to distinguish who
they are. No. 1, we are funded by SAICA, the Southeast Area
Industry and Commerce Association, in Stanford, CT. We have
received funding from a large number of citizens of
Connecticut, in the hundreds. Those donations range from $5 to
the largest was $10,000. We have also received a limited number
of contributions from chambers of commerce and some other civic
organizations in the State of Connecticut, the largest being
$10,000.
Mr. Ose. Your annual budget for the 501(c)(4) is what, how
much?
Mr. Benedict. The annual budget? We have only been in
existence for 18 months, and we have raised a total of
$250,000, give or take a few, in that 18-month period. Our
opening year budget, we didn't hit it, not even close, but we
were hoping to raise and utilize roughly $250,000 in that first
year. We didn't raise that much and we didn't spend that much
because we didn't have it.
Mr. Ose. This organization you referred to as SOICIA.
Mr. Benedict. SAICIA, S-A-I-C-A.
Mr. Ose. S----
Mr. Benedict. A-I-C-I-A.
Mr. Ose. Southwest Area----
Mr. Benedict. Commerce and Industry Association.
Mr. Ose. Now, that is a Connecticut-based organization?
Mr. Benedict. It is.
Mr. Ose. OK. The $250,000 budget over the past 18 months,
how much of that has come from SAICIA?
Mr. Benedict. We received an initial installment, a total
of my memory is $60,000, and those were made in monthly
increments, I think 10,000 a month. We have recently received
an additional installment from SAICIA within the last 2 to 3
months, and I think that total, I would have to check, but I
think it was $25,000.
Mr. Ose. I want to compliment you on your willingness to
put that on the record in this environment. We have a serious
problem in getting people to disclose who their financial
backers are, and I can guarantee you, as we pursue this, I am
going to be asking the same questions of the other parties, and
it will be interesting to see, at that time, whether or not
they are as forthcoming as you have just been.
Mr. Benedict. Well, thank you. And I will go one step
further. I would be happy to supply this committee with our
budget and the documents that you want about our organization.
We would be happy to provide that.
Mr. Ose. I think, Mr. Chairman, that would be an
interesting standard to lay down on the table for everybody
else to comport with.
So with the chairman's concurrence, we will accept your
offer.
Mr. Benedict. Thank you.
Mr. Ose. Now, you mentioned two names. You mentioned a
Randall Kaufman and a Paul----
Mr. Benedict. Manafort.
Mr. Ose. How do you spell that?
Mr. Benedict. M-A-N-A-F-O-R-T.
Mr. Ose. Manafort. Is that Charles Manafort? Are Kaufman
and Manafort lobbyists?
Mr. Benedict. That is a word you could use, but----
Mr. Ose. Well, what word would you use?
Mr. Benedict. Power brokers.
Mr. Ose. Based here in Washington?
Mr. Benedict. Based here in Washington.
Mr. Ose. OK. Now, they are power brokers in what sense?
Mr. Benedict. Well, I guess in the crudest sense. There are
reasons that one individual can attract a fee of $600,000 to
monitor legislation. That is a lot of money to look at what is
in the pipeline. I do that for our organization, and I get paid
$75,000 a year, and have many other things. And I think what is
going on here, Representative Ose, and let us be clear, this is
not new to this administration.
Mr. Shays. Could the gentleman just suspend a second?
But we are really talking about something more than just
legislation. You are talking about lobbying the administration,
in other words, what do they do for that money.
Mr. Benedict. That is right. You know, there has been the
specter raised here today and prior to today that there is
influence being brought to bear to influence the outcome of
these decisions, and I don't dispute that; I am one of the ones
who has been saying that the most. But I also think in this
town there doesn't always have to be the overt arm-twisting and
influence-peddling to get a message across, and there are
times, and we saw this in the prior administration, in the
Clinton administration.
I wrote an entire book about this, which largely looked at
the Clinton administration and the massive sums of money that
were contributed to the Clinton administration by the
Mashantucket Pequot Tribe, the owners of Foxwoods. There was no
evidence that that tribe or the money that they contributed led
to a direct quid pro quo, yet it was very obvious that the
Bureau of Indian Affairs was churning out decisions on your
question: Can a tribe attempt to attach land to its
reservation? And the administration did it without any reason
to do it. And this tribe had given enormous sums of money to
the Clinton administration. There was a tradeoff.
I think when you are giving that much money, when you have
that name, you don't necessarily need to call somebody up and
tell them what to do; they get the message because the money is
big enough.
Mr. Ose. I want to continue my line of questioning, if I
might.
So is it your testimony, without sharing or presenting
empirical evidence, that decisions are being unduly influenced
in this process by virtue of activities of the lobbying corps
in this city?
Mr. Benedict. My testimony would be, Mr. Ose, that I don't
see how lobbyists like that could not have an influence in the
process. Do we have direct evidence that they have made
improper contacts? No. But I think that is one of the biggest
problems here, is we need to ask what are you doing as a
lobbyist. Or in Mr. Manafort's case, where he doesn't claim to
be a lobbyist, well, why was he retained? What is it that he is
doing specifically for the money he is being paid.
Mr. Ose. Refresh my memory. Who is it that retained Mr.
Kaufman?
Mr. Benedict. Mr. Kaufman works for, well it is not called
the Historic Pequot Tribe, but initially the Eastern Pequot
Tribe, which is a faction that Mr. Coke and Mr. Rossau are the
backers of.
Mr. Ose. Is that the----
Mr. Shays. Would the gentleman mind suspending one more
time?
Mr. Ose. Certainly.
Mr. Shays. What I would like, Ms. Flowers, I am not going
to have you come up here and have a debate. I think that is
very unfair. But when this panel is done, I would like to just
ask you, and so I thought I would give you time to think about
it, what does Mr. Kaufman do for the $500,000 to $600,000 that
you feel what is his deliverable. And that would be helpful to
put on the record, I think. So if you would just think about
that.
I thank the gentleman.
Mr. Ose. As usual, the chairman is way ahead of me; he
jumps right to my own question.
Mr. Shays. I am sorry.
Mr. Ose. I am going to have to yield back to the chairman
until I construct my next series of questions.
Mr. Shays. Well, I would be happy to take the floor, but
your line of questioning is very important, and it was a
question that we were going to ask Chairman Flowers, but I
thought we should get to this panel. And so I would like that
on the record, because it is an important thing.
You basically have Mr. Manafort and you have Mr. Kaufman,
and they are both very powerful political operatives. I know
Mr. Kaufman well, and I like him a lot, but he is doing his
job; I am going to do my job. So we need to get that on the
record.
I will say that I am a card-carrying member, I think, of
your organization. I think you got $50 from me.
Mr. Benedict. You did.
Mr. Shays. It may have been more if I was trying to impress
you.
Mr. Benedict. It was $50.
Mr. Shays. It was only $50.
Mr. Benedict. It was $50.
Mr. Shays. Well, I am a card-carrying member, and it is one
of the best investments I have made.
Mr. Benedict. I photocopied your check, Chris.
Mr. Shays. At any rate, one of the things I have no problem
accepting is if you are a petitioning State tribe, whatever,
seeking to be a Federal tribe, you need to document some pretty
significant stuff, so you are going to want financial help
there. I have no challenge at all give me a good financial
backer and help me document that we did have continuity and
that we do meet all the seven tests. Help me fund the people
that can do that. Where I have a big disconnect is why you
spend hundreds of thousands of dollars for someone who is not
doing that, but just trying to influence the decision.
Would you all agree that you could understand a tribe would
want to do that, or would you even take issue with that?
Mayor Boughton. Well, you know, obviously, coming from the
legislature and serving in all different types of government,
that is fairly common, where you would have somebody to
represent your interests, whether it was the oil interests,
whether it was commercial interests.
Mr. Shays. I am not talking about representing your
interests. I am asking about do you agree or disagree that
tribes will want to have financial backers who will want to
help them document, the historians that they have to hire, all
of that. It seems to me that we would be pretty hypocritical to
say prove that you are a tribe, but then not give them the
resource or allow them to have the resource to prove they are a
tribe. Isn't the dispute here not whether they should have a
right to prove they are a tribe, but what they do to influence
the decision? And there are good things they should do and
there are bad things. I mean, comment and let us go right down
the line.
Mayor Boughton. Well, getting back to my original point, I
don't have a problem with a financial backer helping a tribe
access information to help prove their validity. I think that
is fine. And I don't have a problem with a tribe engaging in a
lobbyist to represent their interests, be it here or in the
legislature. I think that is fine as well. Where it crosses the
line is when you have somebody who doesn't report the kind of
activities they engage in, who is not covered by any of the
State ethic laws or by the Federal ethics laws, and just sort
of out there in that twilight zone doing the little things that
they do to manipulate the situation to get the outcome they
want. That bothers me. And in this case, with Mr. Manafort,
that is extremely troubling in the case of the Schaghticoke
Tribe.
And so if you want to hire somebody to do the research, if
you want to get a financial backer to do the research,
perfectly acceptable. You want to hire a lobbyist to represent
your interests here? Perfectly acceptable. Do you want to take
that next leap to be able to engage somebody who knows somebody
to get the outcome that you want? Then it is completely
unacceptable. And I think that is really the distinction you
are trying to draw.
Mr. Shays. I think you need to take a look at the chart
again, and I concur entirely with Mr. Benedict's testimony.
When you look at the amount of money, $9 million, $10 million,
$10 million, $4, $33 million in total, it doesn't cost that
much to do the research, as he stated. We have been doing it,
the State of Connecticut, Attorney General Blumenthal has been
working on that with a much, much smaller budget. The fact is
the money is going somewhere, and as Mr. Ose has said, maybe we
should set a standard with this committee and ask everyone who
comes before you to divulge where have these millions of
dollars gone.
Mr. Mullane. Let us go back----
Mr. Shays. Let me just say to you, in triggering that, we
will write a letter to all of these parties and ask for a
complete breakdown, whether or not they testify before the
committee or not. We are not just going to do the one that had
the willingness to come forward, we will ask all of them. It is
a very important point.
Mr. Mullane. Let us go back to the basics. If the tribe has
maintained community, political continuity, and have their
genealogical records, I am at a loss as to why it would be that
difficult. OK? So I do not also deny that somebody needs help.
The problem has been that BIA is a lobbyist for the group.
Their scenario or routine is to deny them on the preliminary
determination, lay out a road map for what they have to
achieve, and then help them get there and, if they have to,
fabricate it along the way. But we also have to understand that
we do need professional people to package, to put it in some
sequence, in some order. That is one of the problems. BIA has
seven criteria but doesn't tell you how you have to respond.
They could very easily set standards that say provide your
genealogical in this format, provide your tribal community in
this manner, provide this political continuity and who has been
your leader.
So, yes, professional help is needed; yes, you have to
package it; but let us take a look at the problems that have
happened with the change of rules and how people have revised,
altered, or BIA has facilitated and broke their own rules. So
they need help, but there should be standards, and the
standards should be easily understandable and the data should
be readily available for everybody.
Mr. Shays. I was thinking, as you were talking, how much
you know about this issue. When you grew up as a kid, little
did you know that you would know so much about tribal
recognition.
Mr. Benedict. Mr. Chairman, I think to simplify what could
be done on a reform basis, I think there is no place in this
process for lobbyists, period. Very simply, this is a situation
where you have an agency with a fiduciary responsibility to
Indian tribes that has also been entrusted with the massive
responsibility of determining tribal status for groups that
have applied to the Bureau. They are not making legislation.
They are not deciding policy. They are deciding whether these
applicants have the merits to deserve sovereign status. There
is no role in that process for a lobbyist, none. It just simply
shouldn't be there.
And then you say, well, then what do you do, you tell
someone like the Eastern Pequots, who are here today, who say
their lobbyist is just employed to review pending legislation
that might impact us. Are you telling us they can't have a
lobbyist at all? I think that is what takes us back to IGRA,
and that is why IGRA becomes so important. If we merely try to
fix the acknowledgment process without addressing IGRA, we are
not going to get there. IGRA is the twin to acknowledgment, and
it is IGRA that has opened this door for us. It is Pandora's
box that makes acknowledgment. Whether any of us want to admit
it or not, acknowledgment has become contaminated by gambling,
and that is why I think, under IGRA, there is room to get the
lobbyists out of this process and the financiers, and the way
to do that is to reclarify what IGRA originally was intended to
be: a law that applied to tribes that existed when it was
passed in 1988. It has now become a law of exploitation by guys
like Donald Trump and the lobbyists who work for them.
Mr. Shays. Thank you.
Let me just say that Mr. Ose is going to be chairing a
committee hearing in this room starting sometime around 2 p.m.
Do you want the floor back with this panel before?
Mr. Ose. Mr. Chairman, given your courtesy so far, I think
I will submit my questions for the record.
Mr. Shays. OK.
I would conclude with this panel by saying it is pretty
clear, based on panel one and panel two and panel three, that
we have some very clear recommendations from all of you:
transparency, the whole issue of conflict of interest. The one
area that I am not as clear about, I don't want to spend a lot
of time, but I gather you accept the fact that if you are able
to prove that you are an Indian tribe and you meet all the
standards, then you get what Indian tribes get, sovereignty and
everything else that comes with it. It then strikes me that you
are also saying if that happened, you want the communities to
have some say in what happens then. Is that correct? I am
seeing some nodding of heads.
Mayor Boughton. Absolutely. I think that is really the
fundamental problem that we are wrestling with here. You know,
we don't deny the rights of Native Americans to seek
recognition if they so deserve. I will add an addendum to that,
that in Connecticut, as Jeff has mentioned, we have
reservations about these organizations that are calling
themselves tribes to begin with, in the sense of where exactly,
how they are cobbling their heritage together to make a tribe,
or that the BIA is doing it for them. And that is really the
challenge that we have locally.
Mr. Shays. Is there anything that any of you want to put on
the record before we just ask Chairman Flowers to just talk
about?
Yes, Mr. Mullane.
Mr. Mullane. I would like to answer that question also. And
I a little older than I look. Graduated from high school, went
in the Navy, worked for Defense Department for 37 years, been a
selectman for 19 years. And there are two things that have
always been bread into me: one nation under God and all men are
created equal. Yes, there is an issue with the Native
Americans, and I am not going to answer that question. But I
want you to look at where we are today, what has happened in
the last 12 years since the Gaming Act was passed, and where we
are going and how you can envision resolving the problems that
are being spread across the United States; not just
Connecticut, throughout the United States, and how business is
starting to have conflict. The latest one I saw was an Indian
group filed to be classified as an offshore bank. They are
already in telecommunications, they are in banking. So we have
to look at where we are going, and I beg you to have followup
on this and that we have some results. If you must have a
process, there must be reforms, it must be given to an
independent agency, and you cannot streamline it and fix it.
Mr. Shays. OK.
Mr. Mullane. Thank you.
Mr. Shays. I am getting a little nervous staff here who are
trying to get us to move here. What I am going to do is ask Ms.
Flowers to submit in writing sometime by next week what your
lobbyist does for the money he gets, how much he gets and what
your lobbyist does. We are going to be sending a letter to the
other organizations as well to do that. And we will make that
available to the press.
Would you be able to get that to us by Wednesday of next
week? Do you want to do it now? If you want to do it now, we
will do it now, or you can do it in writing. OK, come on up,
love.
Thank you all. Excuse me. Have you all put on the record
everything you want to put on the record?
Mr. Benedict. I just wanted to say thank you to this
committee for starting this. I appreciate the opportunity to be
here.
Mr. Shays. Good. Thank you both very much, all of you.
Mr. Mullane. I also want to thank you.
Mr. Shays. You have been a wonderful panel and you have
added a lot to the work of this committee.
Thank you. We are going to be pretty quick on this, but I
appreciate your wanting to do it now. That is great.
First on Ronald Kaufman.
Ms. Flowers. On Ron Kaufman, I had stated the tribe pays
$120,000 per year, but anything beyond what you need, what he
does for the tribe, we could submit that.
Mr. Shays. Well, he submitted information, I thought that
he made over----
Ms. Flowers. I believe he is registered lobbyist. But we
will send, to satisfy the committee, we will send that in.
Mr. Shays. Unfortunately, you have come in front of us now,
so I can't be as casual as we are being here. I want to know
specifically how much the tribe has paid him.
Ms. Flowers. We pay him $120,000 a year since 5 years.
Mr. Shays. OK, so it is over 5 years.
Ms. Flowers. Yes, 5 years.
Mr. Shays. So he has received about $600,000 plus over a 5-
year period.
Ms. Flowers. Yes.
Mr. Shays. OK. And what does he do for that?
Ms. Flowers. Monitors legislation down here in Washington;
monitors to make sure there are no riders on any appropriation
bills that could hurt the tribe; he advises the tribe on any
kind of political activity that we may not understand or not
see; he arranges, usually once a year, for us to come down and
hopefully get to visit the Connecticut delegation.
Mr. Shays. Does he also provide entre into the
administration?
Ms. Flowers. Never.
Mr. Shays. I want to be real clear, because you are under
oath.
Ms. Flowers. Never.
Mr. Shays. Listen to the question first.
Ms. Flowers. OK.
Mr. Shays. I want to make sure that you are comfortable
with your answer. You are saying that Ron Kaufman--and I know
him pretty well, and he knows how to make entre. You are saying
that he has never provided an entre, not just for you, but for
your tribe. So you are saying that he has never contacted the
White House, never contacted the Bureau of Indian Affairs,
never done those things?
Ms. Flowers. Not to my knowledge. He has never been
directed to do that under our tribe.
Mr. Shays. That is not what my question is. That is not
what I am asking, though. We are going to be a little--I don't
want to blind-side you here because I just know him too well.
To suggest that he has never contacted the administration would
be almost an impossibility for me to accept, and I want to
protect you from that question.
Ms. Flowers. I have never directed anyone, never.
Mr. Shays. We will leave it at that.
Mr. Ose. Mr. Chairman, if I might.
Mr. Shays. Yes.
Mr. Ose. Have any of Mr. Kaufman's colleagues contacted the
BIA on your behalf?
Ms. Flowers. Not to my knowledge. Never been directed by
our tribe.
Mr. Ose. Thank you.
Chairman Tom Davis. How many tribal members are there?
Ms. Flowers. We have, not including those that have died
within the last 2 years, 1,131. Almost half of those are
children.
Chairman Tom Davis. Are they scattered? They are not all in
Connecticut, they are scattered all over?
Ms. Flowers. For the most part in Connecticut. And we had
to document that in the petition by 10-year increments,
location of where members are.
Chairman Tom Davis. Let me just say I appreciate your
appearing here today voluntarily, and being able to sit here
and answer questions. The committee appreciates that very much.
Mr. Shays. Thank you, Mr. Chairman. Mr. Chairman, are we
all set?
We are all set. Is there anything else you want to put on
the record?
Ms. Flowers. My vice chair pointed out Ron Kaufman also
helps us write position papers and those kind of things that we
are not used to doing.
Mr. Sebastian. And also review press releases and positions
also. Mr. Chairman, may I just add one more comment?
Mr. Shays. Yes. And I would say that what I had always
assumed was that he had made $500,000 or $600,000 in a 1-year
period, and you are saying it has been over a 5-year period.
Ms. Flowers. It has been over 5 years.
Mr. Shays. Yes, sir.
Mr. Sebastian. We just want to make a brief comment in
regard to the rotating door, and it is twofold. It is a double-
edged sword because, as you know, it is alleged that the town
of North Stonington and their attorneys had hired Kay Davis,
who directly reviewed our petition, and Mr. Larson, the
anthropologist, who directly worked for the Paucatuck, former
Paucatuck Eastern Pequot Tribe. So that rotating door is a
double-edged sword, not just for tribes, but for towns.
Mr. Shays. Would you agree that a rotating door, whichever
direction it goes, is wrong? I am sorry, nodding of a head
doesn't do it. Would you agree, Mr. Sebastian?
Mr. Sebastian. Yes, absolutely.
Mr. Shays. Folks, I am sorry.
Madam Chairwoman, thank you very much. Thank you, Vice
Chair. I appreciate your taking the dais.
With that, we are going to adjourn this hearing.
[Whereupon, at 1:50 p.m., the committee was adjourned, to
reconvene at the call of the Chair.]
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