THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY BISHOP, YOUNGBLOOD, THOMAS, McGEEHAN, MICOZZIE, MURT, MYERS, M. O'BRIEN AND CALTAGIRONE, MARCH 8, 2011

REFERRED TO COMMITTEE ON STATE GOVERNMENT, MARCH 8, 2011  

AN ACT

Providing for formal recognition by the Governor of Native

American bands or clans, nations and tribes indigenous to

Pennsylvania; providing for certification of Native American

organizations; establishing the Commission on Native American

Affairs; conferring powers and duties on the Department of

Community and Economic Development; and imposing a penalty.

TABLE OF CONTENTS

Section 1.  Short title.

Section 2.  Legislative intent.

Section 3.  Definitions.

Section 4.  Commission.

Section 5.  Eligibility to petition.

Section 6.  Recognition criteria.

Section 7.  Application process for recognition.

Section 8.  Certification criteria.

Section 9.  Application process for certification.

Section 10.  Notice of filing.

Section 11.  Recognition advisory committee.

Section 12.  Processing petitions.

Section 13.  Determination by commission.

Section 14.  Reconsideration of commission determination.

Section 15.  Governor's action on recognition recommendation.

Section 16.  Effects of recognition.

Section 17.  Fees.

Section 18.  Penalty.

Section 19.  Effective date.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Short title.

This act shall be known and may be cited as the Native

American Recognition Act.

Section 2.  Legislative intent.

The General Assembly finds and declares as follows:

(1)  This Commonwealth has been historically the homeland

of diverse groups.

(2)  The Commonwealth has a duty and responsibility to

foster awareness, understanding and appreciation of the many

and varied contributions to the quality of life made by its

diverse ethnic communities, including Native Americans.

(3)  It is in the public interest for the Commonwealth

and its citizens to identify, conserve and perpetuate the

diverse cultural and ethnic heritage of this Commonwealth and

to promote greater awareness and understanding for the

education, inspiration and the general public welfare of all

the people, including future generations.

(4)  It is in the shared interest of the Commonwealth and

groups in Pennsylvania to avoid misrepresentation of Native

American identity, culture and heritage.

(5)  It is in the shared interest of the Commonwealth and

groups in this Commonwealth to establish a formal procedure

to recognize groups indigenous to Pennsylvania and to certify

Native American organizations.

(6)  Recognition and certification will enable the

Commonwealth to provide access to Federal programs to

eligible groups.

Section 3.  Definitions.

The following words and phrases when used in this act shall

have the meanings given to them in this section unless the

context clearly indicates otherwise:

"Band."  A sociopolitical division of a tribe, separated from

the tribe by historical events or geographical, political or

similar causes.

"Certification."  The process by which the Indian status of a

Native American organization is approved by the commission for a

period of two years subject to biennial recertification.

"Clan."  A number of Native Americans related by bloodline

descent.

"Commission."  The Commission on Native American Affairs.

"Committee."  A recognition advisory committee established in

section 11.

"Delegate."  An individual who serves on a committee.

"Department."  The Department of Community and Economic

Development of the Commonwealth.

"Group."  A band, clan, tribe or nation.

"Indian organization."  An organization of members.

"Indigenous to Pennsylvania."  Having ancestors who inhabited

one or more specific areas within this Commonwealth before 1790.

"Members."  Those individuals who have been determined by a

group to be its members according to criteria established by the

group.

"Nation."  A distinct group of Native Americans, separated by

other groups by its own language, history, sacred places and

rituals, and rooted in and part of the land out of which it

grew.

"Native American."  Any individual or group that is, or has

its members descended from, a group which inhabited North

America before European contact in 1492.

"Recognition."  The process by which the Pennsylvania Indian

status of a Native American band, clan or tribe is granted by

the Governor.

"Tribe."  A separate and distinct community of Native

Americans generally related by blood, marriage or adoption, with

common cultural ties and interests which differentiate members

from nonmembers.

Section 4.  Commission.

(a)  Establishment.--The Commission on Native American

Affairs is established in the department.

(b)  Commissioners.--

(1)  The commission shall consist of seven commissioners,

appointed by the Governor, with the consent of a majority of

the members elected to the Senate.

(2)  Four commissioners must be Native Americans.

(3)  If a commissioner is sentenced for an offense graded

above a summary offense, the commissioner shall forfeit

office.

(4)  A commissioner shall serve a term of six years or

until a successor takes office. A commissioner may serve

unlimited terms.

(5)  If a commissioner leaves office, a replacement shall

be appointed and approved under paragraphs (1) and (2) for

the remainder of the term.

(c)  Quorum.--Four commissioners constitute a quorum.

(d)  Officers.--The commission shall elect a chairperson from

among the commissioners.

(e)  Compensation.--Commissioners shall serve without

compensation but shall be reimbursed for actual and necessary

expenses.

(f)  Support.--The department shall provide staff and support

services for the commission.

(g)  Powers and duties.--The commission has the following

powers and duties:

(1)  Administer this act.

(2)  Promulgate regulations to implement this act.

Section 5.  Eligibility to petition.

(a)  Recognition.--A group may apply to the commission for

recognition if the group believes itself to be:

(1)  a Native American band, clan, tribe or nation; and

(2)  indigenous to Pennsylvania.

(b)  Certification.--A group may apply to the commission for

certification.

Section 6.  Recognition criteria.

The commission may recommend that an eligible petitioning

group be recognized if the petitioning group establishes all of

the following:

(1)  The group:

(i)  has been identified as Native American from

before 1790 until the present; and

(ii)  has been part of a continuous Native American

community from before 1790 until the present.

(2)  The members of the group are descendants from a

tribe which:

(i)  existed before 1790;

(ii)  is indigenous to Pennsylvania;

(iii)  inhabited a specific area in Pennsylvania

before 1790; and

(iv)  is composed principally of individuals who do

not belong to any other acknowledged or recognized group

and is not a splinter faction which has separated from a

group currently recognized.

Section 7.  Application process for recognition.

(a)  Compliance with regulations.--A petition for recognition

must comply with regulations promulgated by the commission.

(b)  Documentation.--To document that the petitioning group

meets the established criteria, the petitioning group must

submit the following:

(1)  Historical documents showing from before 1790 until

the present, two or more of the following:

(i)  Long-standing relationships of the group with

the government of the Commonwealth or the United States

based on identification of the group or the group's

members as Native American.

(ii)  Repeated dealings of the group with a county or

other local government in a relationship based on the

identification of the group or group's members as Native

Americans.

(iii)  Repeated dealings of the group with other

federally or State recognized groups or national Native

American organizations in a relationship based on

identification of the group as Native American.

(iv)  Identification of the group as Native American

by anthropologists, historians, genealogists or other

scholars.

(v)  Repeated identification of the group or group's

members as Native American in official government

records, church or school records, medical records,

Bibles and other family records, newspapers, books,

photographs or oral histories.

(vi)  Documents identifying the name of the group or

other term recognizing the group as Native American with

an approximate location in this Commonwealth from before

1790 until the present.

(2)  Documentation of membership criteria of the group

which addresses all of the following:

(i)  A list of membership criteria established by the

group.

(ii)  A statement of the membership procedures

adopted by the group.

(iii)  A list of all individuals included on the

group's current and previous rolls and the county in

which each resides.

(c)  Other evidence.--The petitioner may submit any other

evidence recognizing individuals as members of the group,

including, but not limited to:

(1)  Affidavits from federally or State recognized tribal

elders, tribal leaders or tribal officials recognizing

individuals as members of the group.

(2)  Affidavits from individuals attesting to the fact

that individuals have lived as members of the group.

(3)  Documentation that individuals have participated in

programs available only to members of the group.

(d)  Personal information confidential.--To protect the

confidential nature of this documentation, the commission shall

deny inspection or copying of any part of the documentation that

contains personal information relating to an individual.

Section 8.  Certification criteria.

The commission shall certify an organization as a

Pennsylvania Native American organization if the applicant

demonstrates that:

(1)  The organization consists solely of members.

(2)  The organization is incorporated in this

Commonwealth.

(3)  Fifty-one percent or more of the organization's

board belong to federally or state recognized tribes.

(4)  Fifty-one percent or more of the organization's

membership are Native Americans.

(5)  The organization has existed as an incorporated

organization for a minimum of two years.

Section 9.  Application process for certification.

(a)  Compliance with regulations.--A petition for

certification must comply with regulations promulgated by the

commission.

(b)  Documentation.--To document that the petitioning

organization meets the established criteria, the petitioning

group must submit the following:

(1)  Evidence of incorporated status in this

Commonwealth.

(2)  A copy of the organization's bylaws.

(3)  Evidence that 51% or more of its board belong to

federally or State recognized tribes.

(4)  Evidence that 51% or more of the organization's

membership are Native Americans.

(c)  Duration of certification.--Certification of Native

American organization status shall be in effect for a period of

two years. Organizations may reapply to renew their

certification.

Section 10.  Notice of filing.

Upon receipt of a complete application for recognition or

certification, including payment of any required fees, the

commission shall publish a notice of filing of the petition in

the Pennsylvania Bulletin. Persons or groups wishing to support

or challenge a petition must provide written comments within 30

days of the filing of the notice in the Pennsylvania Bulletin.

Section 11.  Recognition advisory committee.

(a)  Convening of committee.--The commission shall convene a

separate recognition advisory committee for each petition

requesting recognition.

(b)  Role and responsibilities of committee.--The committee

has the following powers and duties:

(1)  Review the petition for recognition to determine if

any additional information is needed from the applicant

before determination of the petition can be finalized.

(2)  Make recommendations for or against recognition.

(c)  Role of Native American commissioner.--The Native

American commissioner shall:

(1)  Serve as the chairperson of the committee.

(2)  Call all meetings of the committee for petition

reviews to order.

(3)  Be a nonvoting delegate of the committee.

(4)  Transmit all recommendations of the committee to the

commission.

(d)  Composition of committee.--The committee shall consist

of five voting delegates who, appointed by the commission shall

appoint the following delegates:

(1)  Two Native Americans from different Federal or State

recognized groups, other than the petitioning group.

(2)  One individual with demonstrated expertise in

genealogy and if possible, in American Indian genealogy. If

possible, this delegate must be a Native American.

(3)  Two individuals qualified in anthropology,

ethnohistory or related fields. If possible, these delegates

must be Native Americans.

(e)  Conflict of interest.--A delegate or the Native American

Commissioner may not participate in any deliberations with

respect to a petition made by a petitioning group of which the

delegate or the commissioner is a member.

(f)  Compensation.--Delegates shall serve without salary or

compensation but shall be reimbursed for actual and necessary

expenses incurred while performing official functions required

by this act, in accordance with procedures established by the

Executive Board.

Section 12.  Processing petitions.

(a)  Acceptance by commission.--The commission shall accept

for review all complete petitions. A petition may not be

considered complete until the commission has received payment of

required fees and all information requested in the petition form

or required by this act.

(b)  Notice to group.--After a petition is received, the

commission shall notify the petitioning group in writing that:

(1)  the petition is complete; or

(2)  the petition is incomplete and which additional

information is required to complete the petition.

(c)  Failure to complete petition.--If the petitioning group

fails to complete the petition within one year after notice is

mailed to the petitioning group that the petition is not

complete, the petition shall be deemed withdrawn and the

commission shall notify the petitioning group.

(d)  Additional period to complete petition.--If the

petitioning group during the one-year period requires additional

time to complete the petition and provides reasonable

justification, the commission may grant one additional period of

up to one year for the petitioning group to complete the

petition.

(e)  Referral of petition to committee.--After the commission

determines the petition is complete, the commission shall refer

the petition to the committee.

(f)  Preliminary review.--Within 25 days after referral under

subsection (e), the committee shall review the documentation

submitted for the petition and may, through the commission,

request the petitioning group to submit any specific additional

documentation necessary to determine whether a petitioning group

meets the recognition criteria of this act.

(g)  Completion of review.--

(1)  After the commission notifies the petitioning group

that all documentation requested has been received, the

committee shall complete review of the petition and advise

the commission whether the petitioning group meets the

recognition criteria of this act.

(2)  In advising the commission whether a petition meets

the recognition criteria of this act, the committee shall do

all of the following:

(i)  Consider the petition, all factual or legal

submissions in support of or in opposition to the

petition, and the petitioning group's written response.

(ii)  Use to the maximum extent practicable the

information and sources available to it, including

individuals not on the committee who have knowledge or

expertise with Federal or other state Indian tribe

recognition procedures or an understanding of the history

of Native Americans in this Commonwealth.

Section 13.  Determination by commission.

(a)  Review of committee recommendation.--The commission

shall review the committee's recommendation and determine

whether the petition meets the criteria set forth in section 6.

(b)  Recognition criteria established.--If the commission

determines that the petitioning group meets the recognition

criteria of this act, the commission shall submit to the

Governor a determination of findings and request that the

petitioning group be recognized.

(c)  Inadequate information or documentation.--If the

commission determines that the information or documentation

submitted in support of the petition is not adequate to

establish that the petitioning group meets the recognition

criteria of this act, then the commission shall notify the

petitioning group of its determination. The petitioning group

may request reconsideration.

Section 14.  Reconsideration of commission determination.

(a)  Procedure for taking appeal.--Upon receipt of a

determination that the criteria for recognition have not been

met, the petitioning group may appeal for a reconsideration by

the commission. The petitioning group must file a letter of

intent within 30 days of receipt of the commission's

determination and must submit additional documentation within 90

days.

(b)  Appointment of review panel.--After receiving a request

for review, the commission shall appoint a three-individual

panel to review the commission's determinations and all the

evidence submitted in support of or in opposition to the

petition. The panel shall include at least one commissioner and

one delegate, who together shall nominate the third individual

to the commission for appointment.

(c)  Report of panel.--

(1)  The panel shall report its findings and

recommendations to the commission within 60 days after

expiration of the 90-day appeal period.

(2)  If the appeal panel concludes that the commission

failed to adequately consider any evidence submitted and that

the evidence if adequately considered may reverse the

commission's determination, the appeal panel shall notify the

commission to reconsider its previous determination.

(3)  Failure to act within the time specified in this

subsection shall be deemed a notification to reconsider.

(d)  Action by commission.--The commission may either:

(1)  affirm its original finding and promptly notify the

petitioning group; or

(2)  submit to the Governor its reconsidered

determination and recommendation for recognition.

(e)  Notice to petitioning group.--The commission shall

promptly notify the petitioning group of the commission's

recommendation and final determination. The commission's

determination under subsection (d) is subject to 2 Pa.C.S. Ch. 7

Subch. A (relating to judicial review of Commonwealth agency

action).

Section 15.  Governor's action on recognition recommendation.

(a)  Concurrence with request for recognition.--If the

Governor concurs with a request for recognition by the

commission, the Governor may issue an executive order to

recognize the Pennsylvania Indian status of the petitioning

group. The commission shall promptly notify appropriate

governmental agencies and national and State Native American

organizations of the executive order.

(b)  Nonconcurrence with request for recognition.--If the

Governor does not concur with a request for formal recognition

by the commission, the Governor shall notify the commission of

the reasons and the commission shall promptly notify the

petitioning group.

Section 16.  Effects of recognition.

An executive order issued by the Governor under section 15

shall not do any of the following:

(1)  Create rights to land.

(2)  Create rights or entitlements.

(3)  Impair valid or existing rights, benefits or

entitlements of any Native Americans residing in this

Commonwealth.

(4)  Impair existing judicial rulings of the Commonwealth

regarding Native Americans indigenous to this Commonwealth.

Section 17.  Fees.

(a)  Establishment.--Fees required under this act shall be

established and published by the commission as a notice in the

Pennsylvania Bulletin. Fees shall be established by the

commission in order to offset costs necessary to administer the

provisions of this act and shall be nonrefundable.

(b)  Time for payment.--Payment of the fee established by the

commission must be received at the time of filing the petition

for recognition, certification or recertification.

(c)  Waiver of fee.--The commission may upon request of a

petitioning group waive the petition fee, in full or in part, if

the commission determines that payment of the fee will create

financial hardship for the petitioning group.

Section 18.  Penalty.

(a)  Offense created.--In any matter relating to a petition

under this act, a person commits a misdemeanor if the person:

(1)  Knowingly and intentionally falsifies or conceals a

material fact.

(2)  Makes a false, fictitious, fraudulent statement or

representation.

(3)  Makes or uses a writing or document with knowledge

that the writing or document contains false, fictitious or

fraudulent statements or entries.

(b)  Penalty.--A person who violates subsection (a) commits a

summary offense.

Section 19.  Effective date.

This act shall take effect in 60 days.