Free Response to Motion [Dispositive] - District Court of Federal Claims - federal

Case 1:02-cv-01383-MMS

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FEDERALLY RECOGNIZED INDIAN TRIBE LIST ACT OF 1 9 4
P.L. 103454, see page 108 Stat. 4791

House: October 3. 1994 Senate: October 8, 1994 Cong. Record Vol. 140 (1994) House Report ( N a t e Resources Committee) No- 1 ~ 9 8 1Oct. 3,1994 . [To accompany H.R 41801

No Senate Report was submitted witb this legislation.

HOUSE REPORT NO. 103-781
[page 11

The Committee on Natural Resources, to whom was referred the bill (H.R. 4180) to prohibit the withdrawal of acknowledgement or recognition of an Indian tribe or Alaska Native group or of the leaders of an Indian tribe or Alaska Native group, absent an Act of Congress, having considered the same, report favorably thereon with amendments and recommend that the bill a s amended do pass.

PURPOSE

The purpose of H.R. 4180 is to require the Secretary of the Interior to publish an annual list of all Indian tribes eligible for the special programs and services provided by the United States to Indians because of their status as Indians.
BACKGROUND

The question of whether a Native American Group constitutes an Indian tribe is one of immense significance in federal Indian law. Because Congress' power to legislate for the benefit of Indians is limited by the Constitution to Indian tribes,' for most federal purposes i t is not enough that an individual simply be an Indian to receive the protections, services, and benefits offered to Indians; rather, the individual must also be a member of an Indian tribe.2 "Recognized" is more than a simple adjective; it is a legal term of art. It means that the government acknowledges as a matter of law

EXHIBIT 48
In Support of Plaintiff's Opposition to Motion to Dismiss on TPA & IHS Samish v. U.S., No. 02-1383L

Case 1:02-cv-01383-MMS

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RECOGMZED W I A N TRIBES
103454

that a particular Native American group is a tribe by confening a specific legal status on that group, thus bringing it within COPgress' legislative powers. This federal recognition is no minor step. A formal political act, it ermanently establishes a government-togovernment relationship etween the United States and the recognized tribe a s a "domestic dependent nation,"3 and imposes on the government a fiduciary trust relationship to the tribe and its members, Concomitantly, it institutionalizes the tribe's quasi-sovereign

K

ZSee. e g , Epps v Adrus. 611 F 2d 915.918 ( 1 s t C I ~ 1979Xper cunam). 3Cherokee Natron v. Ceorgca. 30 U S (5 Pet ) 1. 14 (1831) .

~US.CONST,artI,§8,cl.3.cf CONST.,artII,fj2,cl. US 2

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status,4 along with all the powers accompanying that status such as the power to tax? and to establish a separate judiciaryq6Finally, it imposes upon the Secretary of the Interior specific ohligatinn tn provide a panoply of benefits and services to the tribe and its members.' In other words, unequivocal federal recognition of tribal status is a prerequisite to receiving the services provided by the Department of the Interior's Bureau of Indian Affairs (BIA),* and establishes tribal status for all federal purposes. 25 C.F.R. $83.5 requires the Department to publish in the Federal Registec, not less thzin every three years, a list of all Indian tribes entitled to receive services from the BIA by virtue of their status of Indians.9 Appearing on that list is a functional precondition to receipt of' those services. In addition to the BIA, other federal agencies which provide services to the tribes use the list to determine eligibility. While the Department clearly has a roje in extending recognition tb previously unrecognized tribes,lO it does not' have the authority to " d e r e c o ~ i z e n a tribe. However, the Depaqtment has shown a disturbing tendency. in this direction. Twice this.Congress, the Bureau of Indian Affairs (BIA) has capriciously and improperly withdrawn federal recognition from a native group or leader. First, the BIA unilaterally withdrew recognition from the chosen leader of the Oneida Nation of New York last year without consulting, notifying or discussing the decision with the Oneida Nation or its leaders,-or with this Committee. After active intercession by members of the House, the Department reversed its decision. Then in October, the Bureau unilaterally removed the Central Council of the Tlingit and Haida tribes from its list of recognized tribes. The BIA undertqok this action precipitously, and with no more than a cursory post facto notification to the Council. This, despite the fact the Council was explicitly recognized as a tribal organization in 1975, and has appeared on the BINS list of recognized tribes every year since 1982. Congress was again required to intewene on behalf of the recognized group to restore federal recognition.'' Finally, in a recent letter to the Cornmitt%, Chairman, the BIA indicated that it intended to differentiate bemeen federally recognized tribes as being "created" or 4historic.7'The BIA had taken the position that "createdn bribes do not possess all the powers of a sovereign tribal government: they cannot zone, regulate law and order, or tax. It had applied the distinction to one group-that Pascua

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LEGISLiATIVE HISTORY
HOUSE REPORT NO. 103-78 1

Yaqui of Arizona-and was prepared to apply it to others. Because this dichotomy ran so clearly counter to the intent of Congress and
4

6

S e Warren Tmding.Post e

Worcester v . Georgia. 31 U.S. (6 Pet.) 515, 557-62 (1832). v. Arizona Tax Commission. 38Q U.S. 685. ( 1965); The Kansas Indi-

ans, 72 U.S. (5 Wa11.).737 (1866); B m e r v. Wright. 135 F.2d 947 (8th Cir. 1905). . "See Ex pa-rCrow Dog; 109 U.S.556(1883j: Imn Crow v . O g h h Storu %be. 231 F.2d 89.

( t Cir. 1956). 8h 7See.e.g.. 43 U.S.C. $ 1457 (1988);25 U.S:C.$ 2 (19881. 8%. e.g.. 25 CFR $20 (1990) (Financial Assistance and Social Services Program); 25 CFR tj 101 (1990) (Loans to Indians Program); 25 C.F.R. $256 (1990) (Housing Improvement Pmgram ). CFR $ 83.5 (1994). lo% 25 CFR $583 et seq. (1994). llSee S. 1784. 103d Cong.. 1st Sess. (1993). lpage 41

was outside the Department's authority, Congress quickly enacted legislation prohibiting the distinction.12 This growing and disturbing trend prompted the introduction of H.R. 4180.
THE FEDERALLY RECOGNIZED INDIAN TRIBE LIST ACT OF 1994

H.R. 4180, the Federally Recognized Indian Tribe List Act of 1994. As introduced, the bill prohibit the BLA from withdrawing recognition from an Indian tribe or Alaska Native group, or from the dulyelected leadership of such tribe or group, except by an Act of Congr.ess. I t made a n exception for changes in tribal leadership. that w-ithdraw occur a s a.result of tribal elections. If the BIA wished Federal recognition from a group, it was required to sqbmit .a petition to t h a t effect to the two congressional committees ~f jurisdiction and to each .of the. Senators and Members of Congress in whose districts the effected tribe may reside. It WAS then left to Congress to mafre the final determination. The Subcommittee held ~a hearing on H.R. 4180 on August 4, 1994, and a t t h a t time adopted an amendment in the nature of a substitute.
COMMITTEE AMENDMENT

On April 12, 1994, Congressman Thomas of Wyoming introduced

The Committee adopted an amendment in the nature of a substitute which made several modifications to H.R. 4180 as introduced. The Committee Amendment requires the Secretary to publish in the Federal Register an annual list of all federally recognized tribes. The findings section of the substitute notes that Congress has plenary power over Indian affairs; and that while a tribe may be recognized by the BIA pursuant to 25 C.F.R. $83, by Congress, or by the Federal courts, only Congress may terminate recognition. The Committee cannot stress enough its conclusion that the Department may not terminate the federally-recognized status of an Indian tribe absent an Act of Congress. Congress has never delegated that authority to the Department, or acquiesced in such a termination. Any, attempt to the contrary by the Department -will surely result in a more concrete and compelling assertion of Congressional primacy.

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