have affirmed this principle. The United States through its Executive Branch has further affirmed that federal recognition would not stand in the way of implementation of treaty fishing rights, and in fact the United States has taken steps to implement the right in situations where a tribe was not federally recognized. To maintain any other position is to nullify the recent Supreme Court decision which held that the treaties are self-executing without the necessity of implementing legislation thus overturn the decision in Lone Wolf v. Hitchcock. The present version of S. 2163 must be modified to delete the requirement of federal recognition in the definition of a tribe.

STATUS OF WESTERN WASHINGTON UNRECOGNIZED TRIBES

This is submitted to the Committee as a supplement to the testimony of Kenneth Hansen, Chairman of the Samish Tribe, on the Federal Acknowledgment Regulations. It discusses the history of the landless unrecognized Tribes' relationship with the United States government from treaty times to the present. The treatment of the non-Federally recognized Indian tribes in Western Washington by the United States has been arbitrary, uneven and subject to the whims of the changing Department of Interior administrators. The government first acknowledged the unrecognized tribes by signing treaties with them in the 1850's. During particular periods and for particular purposes, however, the government has denied that these tribes existed-often based on arbitrary and inconsistent unwritten standards. The tribes have been denied services that other similarly-situated tribes have taken for granted.

The history of these tribes' efforts to have their status affirmed has been intertwined with their efforts to have their treaty fishing rights affirmed in the case of United States v. Washington. There is no reason, of course, that "recognition" by BIA bureaucrats should have any affect upon the existence of treaty rights of the tribes in Western Washington. The federal court in United States v. Washington has ruled that a lack of such administrative recognition can have no affect on vested treaty rights.' As is true with all other tribes in this country treaty rights are vested property rights. Only Congress, if anyone, can change or affect those treaty rights.

In spite of this unrecognized tribes who signed treaties have found themselves in an incredible Catch-22 position. On the one hand the federal government has not ruled on the tribes' recognition petitions despite the fact that many of these petitions have been on file for as long as five to six years. On the other hand, the same government which has refused to act on these petitions raises its own inaction as a defense to the tribes' efforts to have their treaty rights affirmed by the federal courts. The remainder of my statement will outline to this Committee the details of the above treatment, why these tribes are in their present position and what can be done to remedy this problem.

HISTORY OF WESTERN WASHINGTON TRIBES

To understand the present problems of the unrecognized landless tribes in Western Washington it is necessary to understand the history of their relationship with the federal government. In 1855 Indian communities of the Pacific Northwest were not organized in ways then commonly thought typical of all Indian tribes. Indeed, it is inaccurate to use the term "tribe" in its technical or anthropological sense to describe any of the communities of Indian people then living in the Pacific Northwest.2 Dr. Barbara Lane, an anthropologist and expert witness for the United States in United States v. Washington, testified that, in contrast to the fairly formalized political organizations of tribes in other parts of the country which had head chiefs or governing councils, the bands and tribes in the Pacific Northwest had no such formal organization. The tribes had no village chiefs and no village governing councils.' According to Dr. Lane, leadership and authority tended to be task oriented according to the particular problem that had to be dealt with."

1 United States v. Washington, 520 F. 2d 676 at 692–693 (9th Cir. 1975).

2 See, Transcript in United States v. Washington, October 23, 1975 at 32-34.

3 As an expert witness for the United States throughout United States v. Washington, Dr. Lane prepared extensive reports on the identity and continuity of the appellant tribes as well as all other tribes who are parties to this case. Judge Boldt of the federal district court in Seattle recognized the credibility and thoroughness of her reports. United States v. Washington, supra 384 F. Supp. at 350.

•Transcript United States v. Washington, October 23, 1975 at 33. United States v. Washington, Ex. USA-20 at 8.

The treaties of the 1850's in Western Washington treaty were signed in this context. Of the presently "non-recognized" tribes in Western Washington the Duwamish, Samish, Snohomish and Snoqualmie are parties to the Treaty of Point Elliott. The Steilacoom Tribe is a party to the Treaty of Medicine Creek.' The Jamestown Clallam Tribe is a party to the Treaty of Point No Point.

The signed and ratified treaties contained provisions which appeared to require that the Indians move to reservation lands set aside for them. For several reasons, however, only a minority of Indians moved on to the reservations.' The United States assigned tribal groups to the same reservation that were hostile to each other. Insufficient lands were set aside and the reservations were often too small and there was not enough money to provide for the transportation and other expenses of moving the Indians there.10 Ultimately the United States chose not to enforce removal to reservation lands, so many tribes including the tribes here, remained off-reservation. The United States has conceded at trial in United States v. Washington that many Indians and tribal groups did not move to the reservations."

Indeed, the Solicitor's Office for the Department of Interior stated in 1956 that the purpose of these reservations in Western Washington was merely to provide an opportunity for individuals to move to these reservations if they chose to do 12 not to force removal.

so;

The six tribes listed above were among those that refused to move to the treaty reservations. They have since alternately been referred to by the government as "unrecognized," or "landless". They have also been considered offreservation tribal groups under the BIA's jurisdiction. When it has suited its purpose, the BIA has attempted to ignore their existence.

There is a long history of providing services to individual members of these tribes through the Indian Health Service and its predecessors and for education purposes. The BIA has provided assistance to the tribes in the preparation of ordinances and constitutions and has assisted them in obtaining identification cards for the purposes of exercising hunting and fishing rights before the case of United States v. Washington. The BIA has issued public domain trust allotments to some individual members of these tribes. It has approved and reviewed attorney contracts for these tribes to file suit against the United States in the Indian Claims Commission much as they did for other Indian tribes. The present policy began developing sometime after Indian Reorganization Act was passed. The BIA took the position that a tribe could not be "recognized" unless it had a land base. This represented one of the first times that tribes had been separated into "recognized" and "unrecognized” tribes. Before that there were merely Indians and Indian Tribes that existed independent of governmental labels. Even if a tribe had signed a treaty the BIA would thus not necessarily consider it a tribe for all purposes unless it had a land base.

13

During the years before promulgation of the present regulations, tribes were recognized under arbitrary and inconsistent standards that varied from tribe to tribe." Thus one tribe, the Nooksack Tribe of Washington, was recognized in 1971 pursuant to a Solicitor's opinion based in large part on the admission by the government that the tribe had voted on the Indian Reorganization Act some thirty-six years earlier. Similarly, the Sauk-Suiattle and Upper Skagit Tribes were recognized in 1972 based on the fact that in 1913 money had been appropriated by Congress to purchase a cemetary for the two tribes."

While we, of course, do not question the status of these tribes as recognized, we do question why the other unrecognized tribes in Western Washington cannot likewise be recognized. Like these recognized tribes we have continuously existed outside of the established reservation systems in Washington State. Merely

Treaty of Point Elliott, 12 Stat. 927.
Treaty of Medicine Creek. 10 Stat. 1132.

Treaty of Point No Point, 12 Stat. 933.

Transcript. United States v. Washington, Oct. 28, 1975 at 66.

10 Id. at 9. 61. 62.

11 United States v. Washington, Five Tribes proceeding, the Final Pretrial Order, part 2, at 8. Ownership of Unallotted Lands on the Tulalip Indian Reservation in the State of Washington, II Sol-Onin-1709 at 1712 (Feb. 12, 1956).

13 Act of June 18, 1934 (48 Stat. 984).

14 See letter to Hon. Henry M. Jackson, Chairman, Committee on Interior and Insular Affairs, US Senate from Acting Deputy Commissioner of Indian Affairs Lafollette Butler (June 7, 1974).

15 Organization of the Nooksack Indians Under the Reorganization Act, M-36833 (Aug. 13, 1971).

10 Butler letter, supra.

because these tribes did not yote on the IRA in the 1930's and did not have a Congressional Act providing land for a cemetary they should by itself not be determinative of recognition.

United States v. Washington

In this context the Western Washington tribes, both landless and reservationbased, entered the 1970's with great hope that their treaty fishing rights would be finally affirmed by Judge Boldt in the case of United States v. Washington. This hope was rewarded by the decisions of the district court, the Court of Appeals and finally, last year by the United States Supreme Court which affirmed the scope and existence of off-reservation treaty fishing rights."

Like a number of other tribes in Washington State, the landless tribes intervened in United States v. Washington to have their reserved treaty fishing rights affirmed and established. The tribes sought no additional relief other than to continue to exercise their treaty fishing rights pursuant to the standards set down by the court in United States v. Washington.

Twelve tribes petitioned after the final decision by Judge Boldt to have their treaty fishing rights approved.18 The tribes waited until then to intervene based on the advice of counsel.

Of these that intervened after the 1974 decision, the United States chose to support all except the Samish, Snohomish, Steilacoom, Snoqualmie, Duwamish, and the Aboriginal Swinomish tribes.

The review of the history of this continuing litigation will demonstrate the continuing opposition of the United States to these tribes and the basis for the court's final Order.

The position of the United States throughout was that even though the treaties were ratified by Congress the Tribes cannot exercise fishing rights under them unless the tribes have also been recognized by the Executive Branch of the government.

Pursuant to procedures created by the Court in 1974 the Duwamish, Samish, Snohomish. Snoqualmie and Steilacoom Tribes first presented evidence at a three day Magistrate's hearing in December 1974 on their status.

In its Post-Hearing Brief to the Magistrate the United States noted that treaty rights "are rights that exists today only for those whom the United States recognizes coming within the category of "Indian" or "Indian Tribe." 19 The United States carried the same position into its Post-Trial Brief following the hearing before the court. United States Post-Trial Memorandum-Treaty Status of the Duwamish, Samish, Snohomish, Snoqualmie and Steilacoom Tribes, February, 1976 at 3, 16. CR 1850.

Finally, the United States implied that treaty rights can only be retained by a tribe that has organized under the Indian Reorganization Act:

"Only by following the requirements of federal law [assumedly the Indian Reorganization Act] can the individual citizens who comprised these Intervenor entities gain the separate political status which they seek for themselves in this matter." Id. at U.S. Supp. Memo, Mar. 15, 1976 at 2, Cr. 1942.

On March 23, 1979 Judge Boldt signed without substantial change in March 1976. The District Court did not retype the order nor make any other substantial change. The order still had the lodged and filed stamps from its original filing with the District Court in 1976. On April 3, 1979 the court did correct a mistake which was originally made in the United States' proposed order confusing the Snoqualmie and Snohomish Tribes in the Finding of Facts. The ruling of the District Court is now on appeal to the Ninth Circuit Court of Appeals. The position of the United States as adopted by the Court in this order can be best seen by quoting from the decree itself.

17 See generally. United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974), aff'd 520 F. 2d 676 (9th Cir. 1975), cert. denied 423 U.S. 1086 (1976), enforced 459 F. Supp. 1021 (W.D. Wash. 1977), aff'd sub nom., Puget Sound Gillnetters v. U.S. District Court, 573 F. 2d 1123 (9th Cir. 1978). Substantially upheld sub nom. Washington v. Fishing Ves sel Ass'n, U.S., 99 S. Ct. 3055 (1979).

18 These tribes were: The Swinomish Indian Tribal Community, the Tulalip Tribes of Washington, the Suquamish Indian Tribe, the Port Gamble Band of Klallam Indians, the Lower Elwha Tribal Community of the Lower Elwha Reservation, the Samish Tribe of Indians, the Snohomish Tribe of Indians, the Snoqualmie Tribe of Indians, the Steilacoom Tribe of Indians, the Aboriginal Swinomish Tribe, the Duwamish Tribe, and the Nooksack Indian Tribe. See "Order referring Treaty Tribal Status Issues to Master for Hearing." United States v. Washington, Civil No. 9213 (Sept. 13, 1974).

19 Memorandum of the United States re: Treaty Status of Intervenor Duwamish, Samish, Snohomish, Snoqualmie and Steilacoom Tribal Entities, Feb. 4, 1975 at 4.

For each of the Duwamish, Samish, Snohomish, Steilacoom and Snoqualmie Indian Tribes the District Court entered the exact same specific finding:

"It is not recognized by the United States as an Indian government or political entity possessing any political powers of government over any individuals or territory. None of its organizational structure, governing documents, membership requirements nor membership roll has been approved or been recognized by the Congress or the Department of Interior for purposes of administration of Indian Affairs." "

These Findings of Fact, then, become the basis for the three key conclusions of law. Conclusion of Law No. 4 states:

"Only tribes recognized as Indian political bodies by the United States may possess and exercise the tribal fishing rights secured and protected by the treaties of the United States."

Two other conclusions of law were also issued by the court that similarly required executive recognition before these treaty rights could be exercised.

In contrast to this position of the Justice Department at trial is the clear ruling of the Ninth Circuit Court of Appeals that: "Non-recognition of the tribe by the federal government and the failure of the Secretary of Interior to approve a tribe's enrollment may result in loss of statutory benefits, but can have no impact on vested treaty rights." "

The Justice Department thus chose to not only attempt to undercut the authority conferred by Congress through its ratification of these treaties but also to ignore the decision of the federal appellate court.

The law that the Justice Department chose to ignore is clear. Treaty rights vested with the tribes when the treaties were signed and ratified. The Executive Branch cannot impose additional requirements such as recognition for the exercise for rights originally reserved by the tribes and this Congress.

The position of the government is especially unfair in light of the fact that all five tribes have had recognition petitions pending before the Department of Interior for in all cases four or five years. Yet the Department has not only failed to act upon any of these petitions but has, through the Justice Department in effect, attempted to use its own inaction as a bar to the tribes' treaty rights.

CONCLUSION

Since the treaties were signed in the 1850's the United States has dealt with the landless tribes of Western Washington in an arbitrary and inconsistent manner. The government's attitude in United States v. Washington is only the most recent example of this treatment. The tribes ask only that they be treated fairly.

Senator MELCHER. I would like to ask Theodore C. Krenzke, Acting Deputy Commissioner for the Bureau of Indian Affairs; Joe Maldonado, Acting Assistant Director for Community Action of the Community Services Administration; and A. David Lester, Commissioner of the Administration for Native Americans in the Department of Health and Human Services to all come up to the witness table together.

We will hear first from Mr. Krenzke.

See Findings of Fact, Conclusions of Law and Decree re: Treaty Status of Intervenor Duwamish, Samish, Snohomish, Steilacoom and Snoqualmie Tribes, Mar. 23, 1979, Finding of Fact 16 (Duwamish), Finding of Fact 25 (Samish), Finding of Fact 35 (Snohomish), Finding of Fact 45 (Snoqualmie) and Finding of Fact 54 (Steilacoom).

Decree, at p. 19, Conclusion of Law No. 4.

See Decree, Conclusions of Law No. 3 and 5 at p. 19-20.

United States v. Washington, supra, 520 F. 2d at 692–693.

STATEMENT OF THEODORE C. KRENZKE, ACTING DEPUTY COMMISSIONER, BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR; ACCOMPANIED BY: SCOTT KEEP, ASSISTANT SOLICITOR, TRIBAL GOVERNMENT, AND ALASKA SOLICITOR'S OFFICE, DEPARTMENT OF THE INTERIOR; AND BUD SHAPARD, PROJECT LEADER, FEDERAL ACKNOWLEDGMENT PROJECT, BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR Mr. KRENZKE. Mr. Chairman, I am pleased to present the views of the Department of the Interior on the Federal acknowledgment project.

With me I have Mr. Scott Keep, Assistant Solicitor in the Indian Affairs Division of the Department Solicitor's Office, and Mr. Bud Shapard, who heads up the Federal acknowledgment project in the Bureau's Division of Tribal Government Services.

Over the years, both Congress and the executive branch have acknowledged the existence of a government-to-government_relationship with certain previously unrecognized Indian groups. In the 25 years prior to the establishment of the acknowledgment project, 13 Indian tribes were recognized through legislative or administrative action.

Prior to 1972, petitions for Federal acknowledgment came to the Bureau at a relatively slow rate. These petitions were processed on a case-by-case basis using varying means and criteria.

During the early 1970's, as land claims and demands for protection of treaty rights emerged, interest in pursuing Federal acknowledgment were received at a rate beyond the Bureau's capability to process them, using the old procedures. As a result, regulations governing the procedures for acknowledgment were published in 1978.

This was the first time in its history that the Bureau of Indian Affairs had established a procedure to systematically locate and analyze unrecognized Indian groups throughout the country for the purpose of acknowledging a relationship with eligible tribes. By the effective date of the regulations, 40 groups had requested to be acknowledged.

After publication of the regulations, efforts focused on the administrative establishment of the office, employing and training the staff, and issuing guidelines for the preparation of petitions under the new regulations.

A great deal of time was necessary to locate and notify groups of the existence of the program. The location and notification of these groups is the fulfillment of a commitment made to this committee in 1978 and incorporated into the regulations.

Additionally, considerable effort was expended in providing direct technical assistance to a number of the groups in pulling together the necessary data for a correctly filed petition.