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                                                       Calendar No. 347
113th Congress   }                                       {       Report
 2d Session      }                                       {      113-208




                 July 14, 2014.--Ordered to be printed


           Mr. Tester, from the Committee on Indian Affairs, 
                        submitted the following

                              R E P O R T

                             together with

                            ADDITIONAL VIEWS

                         [To accompany S. 161]

    The Committee on Indian Affairs, to which was referred the 
bill (S. 161) to extend the Federal recognition to the Little 
Shell Tribe of Chippewa Indians of Montana, and for other 
purposes, having considered the same, reports favorably 
thereon, without amendment, and recommends that the bill do 


    The purposes of S. 161 are to extend federal recognition to 
the Little Shell Tribe of Chippewa Indians of Montana, making 
its members eligible for all services and benefits provided by 
the United States to other federally recognized Indian tribes, 
and to effect a transfer of 200 acres of land which the 
Secretary of the Interior shall acquire and place in trust for 
the benefit of the Tribe.


History of recognizing Indian tribes

    The recognition of an Indian group as a federally 
recognized Indian tribe is an important action. It is an 
affirmation by the United States of a tribe's right to self-
government and the existence of a formal government-to-
government relationship between the United States and the 
tribe. Once a tribe is federally recognized, it and its members 
have access to federal benefits and programs, and the tribal 
government incurs a formal responsibility to its members as the 
primary governing body of the community.
    Before Congress ended the practice of treaty-making with 
Indian tribes in 1871, treaties were the usual manner of 
recognizing a government-to-government relationship between the 
United States and an Indian tribe. Since the abolishment of 
treaty-making, the United States has recognized Indian tribes 
by executive order, legislation, and administrative decisions 
by the Executive Branch. Additionally, federal courts may 
clarify the status of an Indian group, though in many cases, 
the courts defer to the Bureau of Indian Affairs at the 
Department of the Interior.
    In order to provide a uniform and consistent process in 
which to recognize an Indian group, the Department of the 
Interior developed an administrative process in 1978 through 
which Indian groups could petition for acknowledgment of a 
government-to-government relationship with the United States. 
The standards for this process are set forth in Title 25 of the 
Code of Federal Regulations, Part 83, ``Procedures for 
Establishing That an American Indian Group Exists as an Indian 
    The regulations establish seven mandatory criteria, each of 
which must be met before a group can achieve status as a 
federally recognized Indian tribe. The criteria are as follows:
    (1) The petitioner has been identified as an American 
Indian entity on a substantially continuous basis since 1900;
    (2) A predominant portion of the petitioning group 
comprises a distinct community and has existed as a community 
from historical times until the present;
    (3) The petitioner has maintained political influence or 
authority over its members as an autonomous entity from 
historical times until the present;
    (4) The group must provide a copy of its present governing 
documents and membership criteria;
    (5) The petitioner's membership consists of individuals who 
descend from a historical Indian tribe or tribes, which 
combined and functioned as a single autonomous political 
    (6) The membership of the petitioning group is composed 
principally of persons who are not members of any acknowledged 
North American Indian tribe; and
    (7) Neither the petitioner nor its members are the subject 
of congressional legislation that has expressly terminated or 
forbidden the federal relationship.
    The regulations have remained essentially unchanged since 
1978, with the exception of revisions clarifying the evidence 
needed to support a recognition petition (1994), updated 
guidelines on the process (1997), a notice regarding BIA's 
internal processing of federal acknowledgment petitions (2000), 
and a notice to provide guidance and direction to make the 
process more streamlined and efficient (2008).\1\ The 
regulations are currently under review, and in June 2013, the 
Assistant Secretary of Indian Affairs release a Discussion 
Draft with proposed changes to the regulations that were 
developed by the Department of Interior Workgroup. [The comment 
period on the Discussion Draft closed in August 2013, and the 
Assistant Secretary of Indian Affairs issued a proposed rule in 
the Federal Register on May 22, 2014.]
    \1\73 Fed. Reg. 30146-48 (May 23, 2008).
    There have been numerous complaints about the process since 
1978, but the primary complaints have been about the high cost 
of gathering documentary evidence to meet the seven criteria 
and the length of time it takes the Department to review a 
petition. Since the Federal Acknowledgment Process regulations 
were established in 1978, the Department has issued 49 
decisions under the process. Of that number, 17 petitioners 
were acknowledged as Indian tribes, and 32 petitioners were 
denied acknowledgment.
    Due to the problems associated with the Federal 
acknowledgment process, an increasing number of tribal groups 
have asked Congress to recognize or restore their status as 
federally-recognized Indian tribes. Congress retains the 
authority to recognize tribal groups, as Congress did with the 
Loyal Shawnee Tribe of Oklahoma and the Graton Rancheria of 
California in 2000 as a part of the Omnibus Indian Advancement 
Act.\2\ Since 1982, Congress has restored or recognized 9 
Indian tribes.\3\
    \2\See Pub. L. 106-568 (2000).

History of the Little Shell Tribe

    The Little Shell Tribe of Chippewa Indians descends from 
the Pembina Band of Chippewa Indians in North Dakota.\4\ The 
Pembina Band was recognized by the United States in an 1863 
treaty that was ratified by the Senate (Treaty of October 2, 
1863, 13 Stat. 667).\5\ Many of the members of the Pembina Band 
settled on reservations in Minnesota, but the ancestors of the 
Little Shell Tribe moved westward, following the buffalo herds. 
By the late 1800s, the Little Shell Tribe had settled in 
Montana and in the Turtle Mountains of North Dakota. In 1892, a 
United States commission was formed to negotiate cession of 
land from the Turtle Mountain Chippewa and provide for their 
removal. Chief Little Shell and his followers refused to accept 
the terms of the agreement and walked out on the negotiations. 
He was followed by a group of supporters who would become known 
as the ``Little Shell Band''.
    \4\S. 546, Little Shell Tribe of Chippewa Indians Restoration Act 
of 2011, 112th Cong. Sec. 2(1) (2011).
    The Little Shell Band has had numerous dealings with the 
United States government. In order to establish a land base for 
the ``homeless Indians in the State of Montana,'' Congress 
appropriated funds in 1908 and then from 1914 through 1925. 
Unfortunately, a land base was never acquired for the Little 
Shell Band with the appropriated funds. In 1935, following the 
enactment of the Indian Reorganization Act (IRA), the Bureau of 
Indian Affairs (BIA) attempted to aid the Little Shell Tribe in 
forming a government and establishing a relationship with the 
federal government. However, the BIA required that tribes have 
a secured land base before reorganizing under the IRA. Still 
lacking a land base, the Little Shell Tribe was unable to gain 
federal recognition under the IRA.\6\
    \6\See S. 546, Little Shell Tribe of Chippewa Indians Restoration 
Act of 2011, 112th Cong. Sec. 2 (7) (2011).

Little Shell Tribe and the Federal acknowledgment process

    The Tribe continued their efforts to obtain federal 
recognition through the Department of Interior's Federal 
Acknowledgment Process (FAP). In 1978, the year FAP was 
created, the Tribe filed a letter of intent to petition for 
federal acknowledgment. After approximately 14 years of 
documenting their petition for acknowledgment, the Little Shell 
Tribe submitted their petition in 1992. In 1995, the BIA 
declared the Tribe's petition was ready for active 
consideration. In 2000, the BIA issued a positive proposed 
finding on the Tribe's petition, stating that the Tribe had met 
all seven mandatory criteria for federal acknowledgment. 
However, the decision was opened for a period of public comment 
and the OFA requested additional information from the Tribe. In 
response to this request, the Little Shell Tribe provided 
nearly 1000 pages of additional material and no letters or 
comments opposing the acknowledgement of the tribe were 
    After the Tribe had spent over thirty years in the process, 
the Department of Interior issued a final determination not to 
acknowledge the Little Shell Tribe in 2009.\7\ This negative 
finding was a reversal in the Department's proposed positive 
determination.\8\ Despite finding that 89 percent of their 
members descend from the Pembina Band of Chippewa Indians, the 
final determination stated that the Little Shell now met only 
four of the seven mandatory criteria for federal 
acknowledgment. The Little Shell Tribe appealed their negative 
final determination to the Interior Board of Indian Appeals.
    \7\Legislative Hearing on S. 636, A bill to provide the Quileute 
Indian Tribe Tsunami and Flood Protection, and for other purposes; S. 
703, the Helping Expedite and Advance Responsible Tribal Homeownership 
Act of 2011; and S. 546, the Little Shell Band of Chippewa Indians 
Restoration Act of 2011, Before the S. Comm. On Indian Affairs, 112th 
Cong. 1 20-24 (2011) (statement of Hon. John Sinclair, Little Shell 
Tribe of Chippewa Indians of Montana, President).
    In 2013, the Secretary of Interior directed the Assistant 
Secretary of Indian Affairs to reconsider the Little Shell's 
petition for federal acknowledgement. The Little Shell Tribe's 
petition is currently on hold, pending the upcoming rulemaking 
process for federal acknowledgement through the Department of 
    The State of Montana, local municipal governments, and all 
Montana tribes support the federal recognition of the Little 
Shell Tribe.
    Senators Jon Tester (D-MT) and Max Baucus (D-MT) introduced 
legislation to recognize the Little Shell Tribe in the 110th 
Congress (S. 724), the 111th Congress (S. 1936), and the 112th 
Congress (S. 546). During the 110th Congress, and again in the 
112th Congress, the Senate Committee on Indian Affairs held 
hearings on the Little Shell Tribe's legislation. At that time, 
the Little Shell Tribe's petition for recognition was on active 
consideration. The Administration testified in support of the 
federal acknowledgment process for tribes to obtain 

                          LEGISLATIVE HISTORY

    S. 161 was introduced on January 28, 2013, by Senators 
Tester and Baucus. A companion bill, H.R. 2991, was also 
introduced in the House of Representatives. S. 161 was referred 
to the Committee on Indian Affairs. On October 30, 2013, the 
Committee held a hearing on the bill. On April 2, 2014, the 
Committee met to consider the bill. No amendments were offered, 
and the bill was ordered reported favorably to the full Senate 
by voice vote.

                      SECTION-BY-SECTION ANALYSIS

Section 1--Short title

    This section states that the short title of the bill is the 
``Little Shell Tribe of Chippewa Indians Restoration Act of 

Section 2--Findings

    This section provides the Congressional findings, including 
that the Little Shell Tribe of Chippewa Indians is a political 
successor to signatories of the Pembina Treaty of 1863; that 
the Tribe had petitioned the federal government for 
reorganization under the Indian Reorganization Act (25 U.S.C. 
461 et seq.) throughout the 1930s and 1940s; and that in 1978 
the Tribe submitted to the BIA a petition for federal 

Section 3--Definitions

    This section sets forth definitions of ``member'' as an 
individual enrolled in the Tribe pursuant to its membership 
roll; ``Secretary'' as the Secretary of the Interior; and 
``Tribe'' as the Little Shell Tribe of Chippewa Indians of 

Section 4--Federal recognition

    This section formally extends federal recognition to the 
Tribe, making applicable to it all federal laws (including 
regulations) of general application to Indians and Indian 

Section 5--Federal services and benefits

    This section states that beginning on the date of enactment 
of this Act, the Tribe and each member shall be eligible for 
all services and benefits provided by the United States to 
Indians and federally recognized Indian tribes without regard 
to either the existence of a reservation for the tribe or the 
location of the residence of any member on or near an Indian 
reservation. This section also establishes the Tribe's service 
area as Blaine, Cascade, Glacier, and Hill Counties in the 
State of Montana.

Section 6--Reaffirmation of rights

    This section makes clear that nothing in this act 
diminishes any right or privilege of the Tribe or any member 
that existed before the date of enactment of this Act. The 
section further states that legal or equitable claims of the 
tribe to enforce any right or privilege reserved by, or granted 
to, the Tribe that was wrongfully denied to, or taken from the 
Tribe before the date of enactment of this Act is preserved.

Section 7--Membership roll

    This section mandates, as a condition of receiving 
recognition, services, and benefits pursuant to this Act, that 
the Tribe submit, within 18 months of the Act's enactment, a 
membership roll and maintain such a roll, and that Tribal 
membership be determined in accordance with sections 1 through 
3 of article 5 of the Tribe's constitution.

Section 8--Transfer of land

    This section directs the Secretary of the Interior to 
acquire trust title to 200 acres of land within the service 
area of the Tribe which will be used as a tribal land base. 
This section also states that the Secretary may also acquire 
additional land for the benefit of the Tribe pursuant to the 
Indian Reorganization Act.


    The following cost estimate, as provided by the 
Congressional Budget Office, dated May 30, 2014, was prepared 
for S. 161.

S. 161--Little Shell Tribe of Chippewa Indians Restoration Act of 2013

    Summary: S. 161 would provide federal recognition to the 
Little Shell Tribe of Chippewa Indians of Montana. Federal 
recognition would make the tribe eligible to receive benefits 
from various federal programs.
    CBO estimates that implementing this legislation would cost 
$38 million over the 2015-2019 period, assuming appropriation 
of the necessary funds. Enacting S. 161 would not affect direct 
spending or revenues; therefore, pay-as-you-go procedures do 
not apply.
    S. 161 would impose an intergovernmental mandate as defined 
in the Unfunded Mandates Reform Act (UMRA) by exempting some 
lands from taxation by state and local governments, but CBO 
expects the cost of that mandate would be small and well below 
the threshold established in that act ($76 million in 2014, 
adjusted annually for inflation).
    S. 161 contains no private-sector mandates as defined in 
    Estimated cost to the Federal Government: The estimated 
budgetary effect of S. 161 is shown in the following table. The 
costs of this legislation fall within budget functions 450 
(community and regional development) and 550 (health).
    Basis of estimate: For this estimate, CBO assumes that S. 
161 will be enacted near the end of 2014 and that the amounts 
necessary to implement the bill will be appropriated for each 
    The bill would provide federal recognition to the Little 
Shell Tribe of Chippewa Indians of Montana. Such recognition 
would allow about 2,400 tribal members to receive benefits from 
various programs administered by the Bureau of Indian Affairs 
(BIA) and the Indian Health Service (IHS). Based on the average 
per capita expenditures by those agencies for other Indian 
tribes, CBO estimates that implementing S. 161 would cost $36 
million over the 2015-2019 period, assuming appropriation of 
the necessary funds.

Bureau of Indian Affairs

    BIA provides funding to federally recognized tribes for 
various purposes, including child welfare services, adult care, 
community development, and general assistance. In total, CBO 
estimates that providing those services to the tribe would cost 
$14 million over the 2015-2019 period, assuming appropriation 
of the necessary funds and adjusting for anticipated inflation. 
This estimate is based on current per capita expenditures of 
around $1,200 for other federally recognized tribes located in 
the central states.

                                                                    By fiscal year, in millions of dollars--
                                                                2015    2016    2017    2018    2019   2015-2019
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Bureau of Indian Affairs:
    Estimated Authorization Level............................       3       3       3       3       3        15
    Estimated Outlays:.......................................       2       3       3       3       3        14
Indian Health Service:
    Estimated Authorization Level............................       5       5       5       5       5        25
    Estimated Outlays........................................       4       5       5       5       5        24
    Total Changes
        Estimated Authorization Level........................       8       8       8       8       8        40
        Estimated Outlays....................................       6       8       8       8       8        38

Indian Health Service

    S. 161 also would make members of the tribe eligible to 
receive health benefits from the IHS. Based on information from 
the IHS, CBO estimates that about 55 percent of tribal 
members--or about 1,330 people--would receive benefits each 
year. CBO assumes that the cost to serve those individuals 
would be similar to funding for current IHS beneficiaries--
about $3,050 per individual in 2013. Assuming appropriation of 
the necessary funds and adjusting for anticipated inflation, 
CBO estimates that IHS benefits for tribal members would cost 
$24 million over the 2015-2019 period.

Other Federal agencies

    In addition to BIA and IHS funding, certain Indian tribes 
also receive support from other federal programs within the 
Departments of Education, Housing and Urban Development, Labor, 
and Agriculture. Based on their status as a tribe recognized by 
the state of Montana, the tribe is already eligible to receive 
funding from those departments. Thus, CBO estimates that 
implementing S. 161 would not increase the costs of that 
    Pay-As-You-Go considerations: None.
    Estimated impact on state, local, and tribal governments: 
S. 161 contains an intergovernmental mandate as defined in UMRA 
because it would authorize the Secretary of the Interior to 
acquire and take into trust 200 acres of land for the tribe. 
Because that land would be exempt from state and local taxes, 
the provision would impose an intergovernmental mandate. Given 
the small amount of land to be taken into trust, CBO estimates 
that the forgone tax revenue to state and local governments 
would be small and well below the threshold established for 
intergovernmental mandates ($76 million in 2014, adjusted 
annually for inflation).
    Estimated impact on the private sector: S. 161 contains no 
private-sector mandates as defined in UMRA.
    Estimate prepared by: Federal Costs: Martin von Gnechten--
Bureau of Indian Affairs, Robert Stewart--Indian Health 
Service; Impact on State, Local, and Tribal Governments: 
Melissa Merrell; Impact on the Private Sector: Marin Burnett.
    Estimate approved by: Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.


    Paragraph 11(b) of rule XXVI of the Standing Rules of the 
Senate requires each report accompanying a bill to evaluate the 
regulatory and paperwork impact that would be incurred in 
carrying out the bill. The Committee believes that S. 161 will 
have a minimal impact on regulatory or paperwork requirements.

                        EXECUTIVE COMMUNICATIONS

    The Committee has received no communications from the 
Executive Branch regarding S. 161.


    I understand how important Federal recognition is for 
tribal groups and how difficult and challenging the 
administrative recognition process is for them. Nevertheless, 
it is my view that legislative recognition--legislation that 
deems a group or tribe to be federally recognized--is not the 
right way to decide which groups should be recognized and which 
groups should not be recognized. That is a function best 
performed by the Executive Branch of the Government following 
regulations that have been adopted for that purpose. Federal 
recognition of a group as an Indian tribe may have profound 
consequences for the group, its members, other Indian tribes, 
the general public, and the Federal Government.
    In terms of impact on the Federal Treasury, the 
Congressional Budget Office estimates that implementing S. 161 
will cost $36 million over a 5-year period, assuming 
appropriation of the necessary funds. Most of that cost would 
be in the form of programs and services available through the 
Bureau of Indian Affairs and Indian Health Service for which 
the tribe and its members will become eligible. Even if that 
additional money is never appropriated, recognition of the 
tribe will in and of itself place significant additional stress 
on the limited resources of these agencies, since tribal 
members will not be turned away from programs and services for 
which they are eligible. Tribal recognition is indeed a weighty 
decision, with real consequences.
    Testifying about several recognition bills at a hearing 
before this Committee during the 110th Congress, the Director 
of the Office of Federal Acknowledgment at the Department of 
the Interior stated--

          Legislation such as S. 514, S. 724, S. 1058, and H.R. 
        1294 would allow these groups to bypass this [the 
        Federal acknowledgement] process--allowing them to 
        avoid the scrutiny to which other groups have been 
        subjected. The Administration supports all groups going 
        through the Federal acknowledgment process under 25 CFR 
        Part 83.\9\
    \9\Hearing on S.514, S.724, S.1058, and H.R.1294 Before the S. 
Comm. on Indian Affairs, 110th Congress, 1, 35 (2008) (statement of R. 
Lee Fleming, Director, Office of Federal Acknowledgment, U.S. 
Department of the Interior).

    The Department's witness went on to point out that, in 
light of the importance and implications of recognition 
decisions, the Department adopted its Federal acknowledgment 
regulations at 25 CFR Part 83 in 1978 in recognition of ``the 
need to end ad hoc decision making and adopt uniform 
regulations for Federal acknowledgment.''\10\
    This bill represents a step away from a process that 
applies uniform, established acknowledgment criteria to the 
history of the group and in the direction of `ad hoc' 
recognition decisions. I do not think that Congress is in the 
best position to undertake the detailed historical, cultural, 
political and ethnographic analysis that should go into a 
recognition decision.
    If a particular group has some unique historical or other 
barriers so that it cannot fairly access the administrative 
process, then perhaps it would be appropriate for Congress to 
consider whether those barriers should be removed or modified 
so that the group can have fair access to that process. I do 
not feel it is appropriate for Congress to simply deem a group 
to be a recognized Indian tribe.

                                                     John Barrasso.

                        CHANGES IN EXISTING LAW

    In accordance with subsection 12 of rule XXVI of the 
Standing Rules of the Senate, the Committee finds that the 
enactment of S. 161 will not make any changes in existing law.