tv [untitled] June 28, 2012 11:00pm-11:30pm EDT
citizen of your sovereign tribe. you have three citizenships, so those are real citizenships. those aren't just fancy get well cards. they are in the constitution of the united states. says the congress shall have the power to regulate commerce with foreign nations in among the several states and with the indian tribes. they put you on the same level as france or germany. you're sovereign, and they recognize that congress has the power to regulate commerce with these three types of governments, sovereign governments, and also the constitution says this constitution and the laws of the united states shall be made in pursuance thereof and all treat esmade or which shall be made under the authority of the united states shall be the
supreme law of the land and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary, notwithstanding. so virginia could not use its power to set aside that federal power of recognizing your sovereignty, and it's extremely important. you have to keep fighting for it. john marshall upheld this. that famous decision with andrew jackson, unfortunately, didn't follow. john marshall says the indian nations had always been considered as distinct, independent, political communities retaining their original natural rights as the undisputed possessors of the soil from time immemorial. retaining. it's not a granted sovereignty. it's not something we gave you.
you had it before we ever landed it. it's a retained sovereignty, and that word retained is extremely important. you're not asking for something you don't already have and recognized by the constitution of the united states and john marshall's decision. so you have a moral obligation, a legal obligation to fight for your sovereignty, and sometime it's been an awful bitter fight, but it can be done, and the state legislature, people told me this could be done. i introduced a bill about 48 years ago when i was in the state legislature. i read it to the city of detroit, the treaty, sovereign land, you'll remember, that treaty, and it said that the indians who were deprived of their land would be given in turn education in perpetuity. i and jackie vaughn wrote
legislation following that, and that law is still the law of michigan. any michigan indian can attend a public college in michigan and the state pays the tuition because of that treaty. those treaties are real. so i just want to commend you for what you're doing. this is retained sovereignty, and you have an obligation to your people, to yourself, both morally and legally, to fight for that. and we -- if the supreme court does something we don't like, which is a terrible mistake they make, we should undo that. we can undo that. we ultimately have to uphold this constitution. i commend the member mr. lujan, the ranking member and my friend, mr. young, from alaska, for having recognized the justice and the obligation we
have to fight for that justice. and i'm going to leave congress this year after serving 36 years here, but i'm going to continue to fight for indian justice, and i just want to commend you for what you're doing. you really are on the right path and a path that you must continue to pursue, and i thank you very much. >> thank you, mr. kildee. mr. benishek. >> thank you, mr. chairman, and i certainly appreciate mr. kildee's comments as well. i want to thank the members that came forward to testify today. i represent michigan's first district. this is my first ternlgs and we have 15 federally recognized tribes in michigan, and it's been my pleasure to work with both the recognized tribes and with those tribes seeking recognition. i, along with mr. kildee, introduced a bill to reaffirm the status of the indians, and
i'm really interested to learn more about the issues. i'm really disappointed that the department of interior chose not to participate today, but i think it's important that we as a committee explore this issue. it seems difficult to me. you know, i remain committed to helping each group, but i like to do so in a transparent fashion, and i don't like to be in the position of picking winners and losers between the tribes. i think that we need to have an open transparent process, and i'm not sure exactly what that is, you know, being a freshman, but i think it's important that we explore these issues. so i would like to ask a few questions. mr. gabaldon, given your experience as a tribal leader, what recommendations do you have for us to improve the process? >> only one. i guess the only one would be
hurry up because we're having elders die, and it's sad to see a lot of these elders that are dying and waiting their whole life to be part of something they once were part of. i guess the bureau of indian affairs needs to really consider what they are doing when they drag their feet. they -- they think that by slowing down these tribes they will run out of money. this is, i'm assuming, i don't know, but it's happening around the country. tribes aren't rich. we don't -- we don't have endless amount of funds to pursue courts. it's expensive. >> let me ask you another question. what part do you think the -- the local community has in the decision like this? do you think that this is strictly a federal government issue along with the tribe, or do you think the local community
has any, you know, like the county government or the state government? do you think they have input to this? >> no, and i'm actually surprised the county officials at this table now. they had nothing to do with our termination. i don't understand why they'd have something to do with our restoration. >> well, let me ask miss dillon the question then. you know, thanks for your time coming here. what -- what is your position? to me it does seem to be sort of a federal issue if a tribe is recognized which the federal government like mr. kildee said and the state, you had some state issues there as well, but it seems to me that it does affect the local government. what are some of the issues that you are facing in your county, miss dillon, in relevance to this? >> thank you for the question. it is definitely a matter of local interest. it affects our local land use. we have in particular napa
county have a very strict land use regimen which everyone is required to comply with. we have an agricultural preserve like no other in the united states, and we're very concerned about the integrity of that agricultural preserve, so it is -- our deire is that everyone who acquires and anyone who acquires land in napa county plays by the same set of rules. >> okay. >> miss tucker, do you have the question i asked mr. gabaldon, what do you think that we should be doing here to make and improve the process of recognition? >> i think that there are some realizations that have to be made. the first one being indian people are not people who are like little -- little pegs that fit in square holes.
we have the same results of what happened to us, but it doesn't happen in the same way, and when you've got that kind of situation, what happened in the great lakes is not what happened with my people. what happened in california isn't what happened to my people, so when you're looking at indian people, you have to look at historically where they are, what has happened to create the situation that they are in. in 1947, when we had the first opportunity to voice, it was about a treaty that had taken the indians from where we live, the creek and confederacy and move them to oklahoma, and we had managed not to go. we thought we would be recognized because we had to fight. it took ten years to prove to the federal government that they haven't killed us all. i have letters from my great grandfather you're either dead or removed. when you're looking at a process
that is so rigid you have to meet every single criteria, and you have to meet it exactly, criteria "a" and criteria "b" and criteria c-1. you can't do that if you don't realize the differences that come in indian people, and that's the starting place. >> thank you. i guess i'm out of time. >> you can wait a round if you want to. the gentleman from american samoa. >> thank you, mr. chairman, and i want to commend you and the ranking member for calling this hearing this afternoon and especially i want to congratulate our colleague from new mexico now that he's being selected or elected as our ranking member of this important subcommittee, the gentleman from new mexico, mr. lujan. mr. chairman, thank you so much for calling this hearing. i ask unanimous consent that my opening statement be made part
of the record. >> without objection. >> mr. chairman, this is not a new issue, as you know. we've been through this quite a number of years, since of time of ben nighthorse campbell, when he was a member of this very committee before he went on to become a united states senator. i think with an understanding of the institutional history in terms of our treatment of native american peoples, mr. chairman, you probably, more than anybody in this committee and in this congress, understands and appreciates the problems that the native american communities have had to endure and to go through as part of the history of our country. it's interesting to know, mr. chairman, that our first national policy towards the native american indians was to kill the indians. the only good indian was a dead indian is my understanding of our history. and then the next phase of our history dealing with the indians is let's assimilate the indians and make them all like fellow americans, assimilation i think
was our policy then. then another phase of the change of our historical relationship with the native americans and that is terminate the indian tribes. so in a period of 150 years, this is what we've had to do in dealing with native american communities. so now the latest phase is to recognize the indians and indians, and i can't think of a -- of a tribe that has had to endure this gruesome and awful experience over 100 years now. the largest indian tribe east of the mississippi river, recognized by the state of north carolina, 50,000 lumpy indians are not federally recognized by the government because of bigotry, racism and all the problems that these people have had to endure, and by the way, they are still there in north carolina, over 50,000 lumby indians are not recognized
because the recognition process, in my humble opinion, mr. chairman, is broken. i think we all understand historically the current system or the process of recognizing native american tribes was never done by any statutory enactment of the congress. it was done administratively by the bureaucrats. with all due respect, i've got nothing against the bureaucracy. this was done since 1978 34 years now, and i remember distinctly years ago, mr. chairman, the very person who wrote the regulations in bringing out these seven criteria that the poor tribes have had to go through in order to be so-called recognized, he came right before this committee, mr. chairman, and said the system is so bad even he would not have been able to go through the process of being recognized as an indian if the process was to be carried. this is exactly where we are right now.
in terms of our treaty relationship i always want to thank the member from michigan in reminding members of the committee that we do have a very special relationship with native american indians. it's in the constitution. we even had treaties with the native american tribes. i think 389 treaties we had with the indian tribes, and the federal government broke every one of them. now, that's pretty good. mr. chairman, i -- i did introduce a bill. it's hr-3103 to establish a commission stat to recall by the will and mandate of the congress in how to make this system better than what it is. we've had tribes that had to go through 15 years, spend $300,000, some in the mill i don't understand and still could not be recognized simply because the system simply is not workable and functional. so i cannot express my own sense
of frustration, mr. chairman, and sincerely with your leadership and mr. lujan that our subcommittee will seriously look at possibility. let's mandate this by the congress, because here's the problem that we have here. when -- congress ultimately does have the authority under the constitution to recognize the indian tribe simply by introducing a bill, but here's the problem, when the will is introduced to give recognition to a tribe, there's objection by some of our colleagues here that say, well, they have to go through the recognition process, a process that is done administratively, not by the will of the congress, but the way the bureaucrats have written these regulations for the past 34 years. so what do we do if the process is broken? it comes right back to the congress. what do we do from here? so i -- i -- it would be my humble recommendation, mr. chairman, that we need to put this in the form of a statute because here's the problem when you have a
regulation that can be done by this administration. the next administration will change the regulation, and the poor indian tribes don't know where to turn, who to turn, to simply because of the inconsistencies that we've had in dealing with the recognition process, and i notice that my time is up, mr. chairman. i didn't even have a chance to ask a question. thank you, mr. chairman. i yield back. >> great speech. the gentlelady from wyoming, south dakota, excuse me. >> yes, thank you, mr. chairman. >> that's fine, that's fine. >> two lovely ladies. >> that's right, that's right, and congratulations to ranking member lujan. your leadership on this committee is very important and on a very important issue that we're dealing with today. miss tucker, i want to thank you for your testimony because i come from south dakota, and we have nine tribes that are already recognized by the federal government. they are treaty tribes, and your story is not one that i often get the chance to hear, so i want to thank you for that, and your testimony today was not in
vain. it gave an education to somebody who has a different experience with tribes that are recognized in a much different american, so i appreciate that. it's tribes that are located in my state, it's important to recognize that they are being recognized in different manner and that these longtime treaty tribes do have a different status than you do today, and we need to make sure that in all of this processes we have the discussion in going forward that whatever the decision is and action that congress takes that we do it with integrity and that we recognize that there are treaty rights and we also recognize that it is our job to review the standards for which we recognize tribes into the future. and i find it very interesting, as most everybody does here as well, that the department of interior was invited but declined to attend. my hope is that everyone in that agency believes that this is an important issue and that they should have been here today to talk to our tribes and to have a discussion on them and how they are recognized as they are located here in the united states. the department of interior and
secretary salazar should make this a priority. and i know that hearing from some of the tribes in south dakota that they feel that the department of interior and the buro of indian affairs are not making native americans a priority, and, ufrl, their lack of attendance here today tells me that that's yet another example of them not making this a prifrmt the federal government does need to fulfill its promises and its obligations to tribes, but too often they fall short, and that's not acceptable to me. i also wanted to -- supervisor dillon, at the bottom of your testimony on page 5 i just had a question for you. one of the footnotes talks about how you're cognizant of the special relationships that happen between the tribes and the federal government but that that special relationship should not diminish the intensity with which the government lit gates tribal claims. could you expound a little bit on that and what that means in your experience that you've had with seeing that they haven't litigate that had with intensity.
>> thank you. i'd be happy to. what we have found in the litigation that we had is that there were defenses, legal defenses that the government put forth but then did not use. they haven't asserted those defenses in a proactive way at all. it's as if one might say that the b.i.a. is a bit conflicted, and another reason why we advocate that this process of recognition for a terminated tribe, a tribe that was terminated by congress, should not occur in litigation with the b.i.a. the b.i.a. is obviously sympathetic to the tribe. they are not pursuing the remedies such as latches, meaning they were 50 years ago that they were terminated and now they have come forward. the government has not asked for the kind of discovery to --
that's required to establish that they are a tribe, and, in fact, when we, the counties, asked for that proof, the reaction from the tribe was to move the court to dismiss this from the case, and the government is silent on that request for dismissal. they have not taken a position. it's as if they think it's okay for the tribe to dismiss us from the case and for there not to be any proof put forward. so -- >> so in your experience you've seen them bring these forward, these defenses and draw attention to them, but yet you haven't seen them actually pursue them throughout the case as it's carried out? >> they put them on their initial response, but they have done nothing to take the move forward. >> are there cases that they don't identify or that you think they choose to ignore? >> yes, we believe that that's the case. >> okay. then i'd like to ask for your feedback, chairman gabaldon as well, on what your perspective would be, if you feel as though the government's relationship
with your tribe as they have worked through this process, if you feel as though there are defenses that they are working in cooperation with you on, or if you feel as though there's been clear separation. >> i'd almost have to defer to my attorney on this on the legal issues. this isn't really the place to discuss the case, but i can tell you it's not cakewalk dealing with the government. >> mm-hmm. >> okay. >> well, thank you. i appreciate you all being here today, and with that, mr. chairman, i yield back. >> i thank the lady. next the lady from hawaii. >> thank you, mr. chairman. congratulations, i saw congresswoman lujan on the way to work this morning. he was up early. let me first begin with miss tucker. miss tucker, i looked at your testimony, and it's not numbered but it's the page, about page 5,
i guess, where you have your chronology. >> the time line? >> yeah, your time line. >> yes. >> and it says 1976 to '77 is when the initial petition was filed, and, of course, in 2011 you're still basically -- >> we're still waiting. >> are you waiting from that initial petition? >> well, no. the initial petition was returned in a cardboard box with i guess some of the data. most of the data, and a letter that we would start again, so now we have roughly 144 banker boxes, and we're -- after sitting in ready for active consideration for a number of years, we finally got moved in december at christmas. >> so what did they do for you december in christmas? >> they moved us to active consideration. >> active consideration. >> at that point in time we had
probably in house written four petitions. any time a finding comes out on a tribe, or any time a court case is initiated by a petitioner, it changes something, and we are required to respond to the change because our petition will not be judged on their current regulation. >> did you file any legal action during 1976 to 2011? >> no. we -- we haven't filed any court cases. it's very expensive to go to court, and we are a very poor tribe. >> well, isn't this also very expensive? >> this was very expensive. in the case of moving us to active consideration we had been very fortunate that administration for native americans had a funding that was available for tribes in status clarification, and our tribe was
able to finally get funding that could help us defray some of this. >> have you been given any indication from the biaa as to when they may make a final determination on your case? >> my conversation, i've testified on the process before in the senate, and my conversation at christmas was they had a year to respond. i have heard from no one inside their organization assigned to us. i offered to come and meet with them, and they said that was not necessary, and that they would make a decision. i asked them at that time would they make an onsite visit because that's important, that you come and see this community and how we live, and they said that they would determine an onsite if they thought it was merited from our data. >> you know, i've, of course, read 23 cfr 83.7, and the seven
criterias have portions of it which are time sensitive it would appear. >> yes. >> for example, the 50% requirement of marriages within and the geographical locations. have any of those criteria begin to now affect your eligibility? in other words, over this period of time -- >> the period of time. >> -- i assume your population has changed. >> yes, it has, even though demographically our members are still located in a small area. as time has changed, if you look at the years between, let's say, 1860 to 1940, before defense installations got into our area, we were doing primarily second cousin exchange marriages, and it was holding us very tightly together in terms of one of those criteria they look for. at that point, as we're changing through time and becoming a more modern nation, people are coming and going and moving more, yes, it does affect do you have 50%
married to one another? >> i don't know if my colleagues realize that this is the criteria. >> yes. >> you know, that 50% of the marriages in the group are between marriages in the group. >> yes. >> so like you said, your second cousin -- >> exactly, we did second cousin exchange and another requirement, when you're looking at it is every ten years they would like an anthropologist report that someone came where i live in the remote swamps of florida where it wasn't allowed and we probably would not have treated them well if they had come there anyway, so it's hard to be tactful sometimes on how i say things, but, you know, when you're looking at a place that we could finally stand up and fight in 1940 and say here we are, you didn't get rid of all of us, and now they say, well, that's great, and in 1900 can you show me where the anthropologist said that you were here. well, no, i can't. so that's the kind of regulations you deal with. >> thank you. my time is up.
>> sorry, apologize for taking too much time. >> thank you, you clarified a lot. >> and we do have more time if you wish to stay. mr. thompson, we don't have anybody else on our side right now. >> thank you, mr. chairman, and thank you for allowing me to sit in on today's hearing, and mr. lujan, congratulations on your ascension to the ranking member position. i know you'll did a fantastic job, and thank you to all the witnesses who came today to testify on this very important issue. i want to begin by saying that i align myself with the chairman, and i believe the other members who have gone on record stating that they believe it's the role of congress to make these determinations, not the courts, not the department, and also i align myself with mr. denham. i'm quite honestly a little flabbergasted that the interior is not here. they -- most of my questions are
for them, number one, but they have been absent on my side of the discussion in regard to this issue, and i really think that they need to participate so we can figure out how to best make these determinations. they need to be part of that -- of that process. i just have a couple of questions, and chairwoman tucker. >> yes, sir. >> are you suing, or are you pursuing legislation? >> no, sir. we've been in the legislative process 34 years and now we've come to congress >> thank you. and in that case i also align myself with chairwoman tucker and the chairman of the committee in regard to the proper process for making these -- these determinations. miss dillon, what's the current status of the litigation? >> currently we are waiting for a determination from the court as to whether the tribal
council's motion to have us dismissed from the case will be granted or not. >> and is there also some other information that you're waiting on as party to this suit? >> well, we have -- we've never received any information from the tribe that we've asked for. our discovery demands have been ignored. >> mr. gabaldon, is there a reason why that you haven't been forthcoming with the information regarding the folks who are enrolled in your tribe and the status? >> yes, there is a reason. we don't feel it's the county's business as to do the job of the department of the interior. no county has ever asked for records, social security numbers, address and names of tribal members, so i want to correct miss dillon when she says it was after they asked for discovery we