Samish Tribe from Anacortas, Wash. He is accompanied by Bill Matheson, chairman of the Snohomish Tribe of Snohomish, Wash.

Mr. HANSEN. Mr. Chairman, on my immediate left is Mr. Bill Matheson, chairman of the Snohomish Tribe, who is also from Washington State. On his left is Mr. Buddie Ammeter, a tribal council member of the Snohomish Tribe.

I would like Mr. Matheson to make his statement first and then I will follow up with mine.

Senator MELCHER. Please proceed, Mr. Matheson.

STATEMENT OF WILLIAM E. MATHESON, CHAIRMAN, SNOHOMISH TRIBE, WASH., ACCOMPANIED BY KENNETH C. HANSEN, CHAIRMAN, SAMISH TRIBE, ANACORTAS, WASH.; AND ALBERT "BUDDIE" AMMETER, SNOHOMISH TRIBAL COUNCIL

Mr. MATHESON. Mr. Chairman and members of the committee, my name is William E. Matheson. I am the chairman of the Snohomish Tribe of Indians which is located on the west coast in Washington State.

Our ancestors were signatories of the Treaty of Point Elliott in 1855. In that treaty we ceded hundreds of thousands of acres of land. Lands that were set aside for the tribes were insufficient or not suitable to survive upon, so the majority of Snohomish people never went to the reservation. Of the nearly 5,000 Indians who were assigned to the three Point Elliott treaty reservations, no more than 350 Indians were provided allotments. Only approximately 60 Snohomish received allotted lands. The majority of my tribe never received any allotments nor were they forced to move to the reservation.

Over the past generations, our ancestors have repeatedly attempted to secure the recognition, by the United States, of the Snohomish Tribe. Even without the recognition, we have continued to exercise our treaty fishing rights, and we have received intermittent Bureau services.

We submitted a petition for recognition in 1975, but it was returned to us without action. With the publication of the new regulations, we revised our petition to provide additional information pursuant to the criteria contained in the regulations, and again submitted it in November 1979. Our petition has over 1,500 pages and 210 exhibits. We are pleased with the openness and diligence of the Federal acknowledgment staff, and they appear to be dedicated to finding the facts and truth regarding our relationship with the United States. This we welcome.

We are not afraid of the facts or the truth, and we believe they provide the basis for our recognition.

There are, however, things that cause us concern. We fear that such a small staff will not be able to keep pace with the large volume of petitions that are coming in. Unreasonable delays in getting decisions will cause despair and disappointment for our membership, who have already waited too long. Now that the staff is organized, we believe that it should be greatly enlarged to at least twice its present size. We think that a group of that size would be manageable and not threaten the credibility of the ongoing effort.

We understand that when the proposed findings are completed by the project staff, a so-called surname process is undertaken wherein all the branches can review and make comments on the finding. Finally, the Solicitor of the Department of the Interior must pass it back to the Federal acknowledgment staff for publication.

It is obvious to us that the lawyers for the Bureau must be aware of actions to be taken by the Bureau. However, the reputation of the Solicitor's office seems to be one of delay and nonaction. Perhaps time limitations, strictly enforced, should be applied to that office.

As to the other offices in the BIA, they should be kept informed as to the progress of the various petitions so that program planning can be undertaken for the successful tribes far enough in advance so that they can be prepared when the findings are finally published. However, a review of the entire findings appears not only to cause an unnecessary delay in time, but such a process could provide an opportunity for those who have worked hard to ignore us in the past to use their influence within the Bureau to subvert the careful work of the project staff.

Our last concern is that the present attempts to balance the Federal budget not be allowed to destroy the Federal acknowledgment process. We are a small tribe and lack the resources to fight for budgets or projects. We need your continuing help and support.

We thank you for this opportunity and we express our sincere thanks for this committee's past and present efforts to assure us the place to seek fair and equitable treatment.

Mr. HANSEN. Mr. Chairman, you have my written statement before you as well as two other pieces of supplemental testimony. If you do not have the supplemental testimony, make sure that you get them. The Samish Tribe submitted a petition for Federal acknowledgment on October 12, 1979. As yet, we are not under active consideration.

As with our neighboring tribe, the Snohomish, we had initially submitted a petition in 1975. That wound up in the Solicitor's office for 312 years before it was finally returned to us.

The Federal acknowledgment process has been a frustrating one, only in the delays over the years. We are not new to this process. Therefore, at times we tend to be a bit cynical and concerned about the Bureau of Indian Affairs and how they are handling things.

However, in this particular case we have some trust that has developed between ourselves and the Federal acknowledgment project staff. We wish to commend them to the committee for the way they have conducted themselves and for their honesty and integrity.

However, we are concerned that this openness does not extend to the upper levels of the Bureau and that in fact there is not a true commitment to move the process in a legitimate manner. We are concerned that there may be a feeling-and we have nothing to substantiate this within the upper levels of the Bureau that now that there is a Federal acknowledgment process the Bureau is somehow relieved of its responsibility toward unrecognized tribes.

Again, I wish to cite the delays and advise the committee as to some of the problems it has caused us over the years. The Snohomish Tribe, the Samish Tribe, and three other landless tribes in western Washing

ton have been involved since 1974 in seeking fulfillment of our treaty rights under the Treaty of Point Elliott.

I think the committee is aware of the case, U.S. v. Washington which was a major treaty rights decision in the area. Within that decision, three nonrecognized tribes were supported by the Government, particularly by the solicitor, George Dysart.

When it came time for us to intervene in that case the rules were changed and the Government turned and became an adversary party to our tribes this, at a period of time when the Bureau was just beginning to formulate a positive policy toward dealing with nonrecognized tribes.

We, of course, contend that we are recognized because we are signatories to the Treaty of Point Elliott, but we are in the process of being pushed back by the Government of the United States on one hand in the treaty fishing rights case and having a legitimate process to go through for Federal acknowledgment. We see that Federal acknowledgment and treaty fishing rights, or the upholding of property rights which are a treaty right, are two separate and distinct issues. The courts have always held that you do not have to be recognized to have treaty rights.

Yet, you have a segment of the executive branch who are actively opposing us at this time. This, in spite of the fact that our factual situations are similar to the original three tribes who have been supported by the Government. For the life of us, we do not know what the distinction is, or what the turn in the political process was, that caused this change of Government policy.

We are in the process now of battling that case in the Ninth Circuit Court. We think that there is a serious question that should be asked of the executive branch, the Bureau, the solicitor's office, and the Justice Department-that is, at what level was that policy made to oppose those tribes? Why oppose the tribes? Was it a political decision or was it a legal consideration by the Department? Is it a formal policy?

We have the full weight of the United States going against us right now. We support our tribal governments right now on $18,000 a year plus four CETA positions. That money, by the way, comes from the Administration for Native Americans and is passed through the Small Tribes Organization of Western Washington. That is our only financial resource. If it were not for that money, we would not be here now. It keeps us alive.

We have members who are very close to losing their boats because they cannot exercise the treaty fishing rights. We are having a tough time.

Again, I wish to commend the Federal acknowledgment project staff. They have done a marvelous job of communicating with us. I think they can do the job.

We urge that the staffing be at least doubled, the budget be at least doubled, and that there be more support from the upper levels of the Bureau.

In fact, Mr. Blackwell's comment earlier about placing the Federal acknowledgment project under the Secretary's office makes a great deal of sense to us. We had not thought of that prior to this morning and we appreciate his comments on that.

That is all I have. If you have any questions, we will be glad to answer them, sir.

Senator MELCHER. Ken, I will, without objection, make these two supplemental preparations that you provided, as well as your statement, part of the record. I think they will be most helpful to us and I think you made your point.

Again you have commended the workers in the project. I am glad to hear that. I, too, noted what Mr. Blackwell said about putting the project right under the Secretary of the Interior. That would make

some sense to me too.

With respect to the fishing rights protection issue, I do not know whether we can help or not. However, we will take note of it and see whether there is any way we can help.

Mr. HANSEN. We very much appreciate the separation between the executive branch and involvement with a judicial process, but we see this as an obvious political situation within the executive branch. Frankly, that is what we have been doing the last couple of days, namely, treating it as such.

We think we can win on the merits of the case.
Senator MELCHER. Thank you all very much.

[The materials follow. Testimony resumes on p. 32.]

PREPARED Statement of KENNETH C. HANsen, Chairman of the SamISH INDIAN TRIBE FROM THE STATE OF WASHINGTON

Mr. Chairman, members of the Senate Select Committee on Indian Affairs, let me first thank the committee and your staff for the assistance and support which they have given the nonrecognized tribes in the development of the procedures for Federal Acknowledgment. Had it not been for interest expressed by this committee, we would still have no formal process today. I wish to further thank the committee for conducting this oversight hearing to determine whether or not the Federal acknowledgment process is working. I sincerely hope that the committee will continue such an important role in the years to come. As one of those who has spent many years attempting to formalize this process, I am fully aware of the importance of your committee's function in this effort.

I am very pleased to come before this committee and praise the efforts of the Federal acknowledgment project staff during these early months of the process. They have, I believe, conducted themselves with integrity and competence, within the staffing and budgetary constraints which have been placed upon them by the administration and the Bureau. Mr. John Shapard, and his staff should be complimented by this committee. The goodwill contained in this statement does not extend to the upper levels of the Bureau of Indian Affairs. While we have no facts to substantiate our feelings, we firmly believe that the Bureau is relieved to have the regulations in effect and now feels that only a token staff and budget is necessary to carry out the required procedures as contained in 25 CFR, part 54.

We are concerned, however, by the staffing and budgetary constraints which the Bureau has placed on the Federal acknowledgment project. Due to the existing caseloads and the anticipated numbers of petitions which are forthcoming in the months and years down the path, it is an unqualified but obvious assumption that the current staffing of seven and the working budget of $160,000, is grossly inadequate for the task. If the Bureau is truly committed to this process, then the existing staff and budget should be immediately doubled to at least 14 staff members and a budget of $400,000. We urge this increase, because there already exists a substantial backlog of perhaps 2 to 3 years. Unless an additional effort is made, this process could last for the next 25 years. Such a move is both economical and managable under the current procedures. In addition, this process has already removed a great burden from the solicitor's office and has saved that office considerable in both costs and solicitor's caseloads.

I would like to tell you briefly about the efforts of the Samish Tribe to gain Federal recognition or acknowledgment. The Samish Tribe was a signatory of the Treaty of Point Elliott in 1855.

No land was provided for a Samish reservation so our people acquired 2 Indian public domain trust homesteads and rebuilt our village. The trust periods on the homesteads expired around the turn of the century and the village was lost, in part due to taxes, around 1912.

Our people had formed a tribal council which has continued through current times. The Bureau approved attorneys contracts in the 1920's, 1930's, 1950's, and 1960's. Agents have always attended our tribal meetings. Our people have always exercised our treaty rights to harvest salmon. In the 1930's we supported the I.R.A.; in the 1950's we were told to prepare a tribal roll; in the 1960's and 1970's, other promises were made. In March 1975 we submitted a petition to the solicitor's office. After 32 years it was returned unprocessed.

After a very arduous process of research we submitted our petition pursuant to these guidelines on October 12, 1979. After 9 months of waiting we are still not under active consideration. We have now been advised that the tentative date for active consideration is October 1980. These delays have cost us dearly. About the same time that the BIA and this committee began to discuss the need for an orderly process in recognizing tribes, the Samish and Snohomish Tribes were beginning a long fight towards seeking protection of our treaty fishing rights.

In the original case of United States v. Washington the Government attorney supported the treaty rights of three nonrecognized tribes, (Sauk Suiattle, Stillaguamish, and Upper Skagit), as five other nonrecognized tribes later intervened in the case (after the original decision in 1974), George Dysart, the attorney representing the position of the United States actively began to oppose the Samish, Snohomish, Snoqualmie, Steilacoom, and Duwamish tribes. This despite the overwhelming similarities in the histories and factual considerations between the original three nonrecognized tribes and the later five nonrecognized tribes. I have further grave concerns over the detrimental effect this action may have in regard to all treaty tribes across the country. The arguments of the United States in this case appear to support political abrogation of treaty rights by the executive branch.

If the Bureau of some future time withdraws its recognition of a tribal government then the treaty right of that tribe would be abrogated. This would be contrary to the long-standing premise that only the Congress has the authority to abrogate treaties and treaty rights.

In closing, I hope I have given the committee some insight into our concerns over Federal acknowledgment and some of the problems we are currently experiencing.

Again, I thank you for granting me this opportunity.

FEDERAL RECOGNITION IS NOT A PREREQUISITE TO THE FULL EXERCISE OF TREATY FISHING RIGHTS, NOR DOES IT AFFECT THE TRUST RESPONSIBILITY TO PROTECT THOSE RIGHTS ONCE AFFIRMED BY FEDERAL COURT

Every court to consider the question of whether or not federal recognition is a necessary prerequisite to the full exercise of treaty fishing rights has held that such a requirement is not necessary. Menominee Tribe of Indians v. United States, 391 U.S. 404; Kimball v. Callahan, 493 F.2d 564 (9th Cir. 1974), cert. denied 419 U.S. 1019 (1974); Kimball v. Callahan, 590 F.2d 768 (9th Cir. 1979), cert. denied U.S. - 100 S. Ct. 49 (1979).

The Ninth Circuit's decision in Kimball is illustrative of these cases. In that case the Klamath Tribe by Act of Congress lost its reservation, its recognized government, and its exemption from state laws-except as preempted by its treaty. Despite these limitations the court held that the tribe retained its reserved right to fish.

Menominee is similar. There, despite express language terminating the Menominee Tribe, the Supreme Court held it retained its reserved treaty right to fish. United States v. Washington also dealt with the same question. The Ninth Circuit specifically held:

"Non-recognition of the tribe by the federal government and the failure of the Secretary of the Interior to approve a tribe's enrollment may result in loss of statutory benefits, but may have no impact on vested treaty rights."

United States v. Washington, 520 F.2d at 692–693. A requirement that the existence of fishing rights, or their implementation somehow hinges on federal recognition is inconsistent with federal law.

The issue of whether federal recognition is a prerequisite to the full exercise of treaty fishing rights is an issue in a pending appeal in United States v. Wash