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Tuesday, September 14, 2010

Draft No 3.2 of Bill S.222 April 29, 2010 Fred Wiseman and Don Stevens' Proposed Changes To S.222:

(written in pencil....BRACKETED TEXT APPEARS IN RED
- SG 06/20/2010

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[Fred Wiseman and Don Stevens proposed changes 4/29/10] (IN RED)

The Committee on General, Housing and Military Affairs to which was referred Senate Bill No. 222 entitled "An act relating to recognition of Abenaki tribes" respectfully reports that it has considered the same and recommends that the House propose to the Senate that the bill be amended by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1. 1 V.S.A. § 851 is amended to read:


The general assembly finds that:

(1) At least 1,700 Vermonters claim to be direct descendants of the several indigenous Native American peoples, now known as Western Abenaki tribes, who originally inhabited all of Vermont and New Hampshire, parts of western Maine, parts of southern Quebec, and parts of upstate New York for hundreds of years, beginning long before the arrival of Europeans.

(2) There is ample archaeological evidence that demonstrates that the Missisquoi Abenaki were indigenous to and farmed the river floodplains of Vermont at least as far back as the 1100s A.D.

VT LEG 257884.1
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(3) The Western Abenaki, including the Missisquoi, have a very definite and carefully maintained oral tradition that consistently references the Champlain valley in western Vermont.

(4) State recognition confers official acknowledgment of the longstanding existence in Vermont of Native American Indians who predated European settlement and enhances dignity and pride in their heritage and community.

4 (5) Many contemporary Abenaki families continue to produce traditional crafts and intend to continue to pass on these indigenous traditions to the younger generations. In order to create and sell Abenaki crafts that may be labeled as Indian- or Native American-produced, the Abenaki must be recognized by the state of Vermont [in order to gain approval by the Indian Arts and Crafts Board (IACB) of the Bureau of Indian Affairs] IN RED

(5) Federal programs may be available to assist with educational and cultural opportunities for Vermont Abenaki and other Native Americans who reside in Vermont

[(6) State recognition will also increase access to federal programs and resources to Vermont tribes that support culture and language preservation, social services, education, and other benefits.
(7) In May 2006, the general assembly passed S.117, Act No. 125, which created the Vermont Commission on Native American affairs and
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recognized the Abenaki and all other Native American people living in Vermont as a minority population. According to Indian case law, recognition as a racial minority population prevents the group from being recognized as a tribal political entity, a designation that would provide the group with access to federal resources.

(6) In May 2006, the general assembly passed S.117 Act No. 125, in an effort to recognize the Abenaki people and create a Vermont Commission on Native American Affairs. The act failed to comport with the recognition requirements of the IACB, and therefore prevented the Vermont Native Americans from marketing their arts and crafts as authentic Indian works.] (IN RED)
[(8) (7)] (IN RED) According to a public affairs specialist with the U.S. Bureau of Indian Affairs (BIA), state recognition of Indian tribes plays a very small role with regard to federal recognition. The only exception is when a state recognized a tribe before 1900.
[ (9) (8)] (IN RED) At least 15 other states have recognized their resident indigenous people as Native American Indian tribes without any of those tribes previously or subsequently acquiring  federal recognition.

[ (10) (9) (IN RED) State-recognized Native American Indian tribes and their members will continue to be subject to all laws of the state, and recognition shal not be construed to create any basis or authority for tribes to establish or
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promote any form of prohibited gambling activity or to claim any interest in land or real estate in Vermont.

[(10) The general assembly has not conferred vested authority to the Commission to recognize Native American tribes, bands, or organizations within the State of Vermont. The commission's role in the recognition process is to collect the applications for recognition, oversee the process, forward the findings of the three person panel of scholars to the general assembly for review, and to provide a recommendation to the legislative committee.] (IN RED)

Sec. 2. Chapter 23 of Title 1 is amended to read:

Chapter 23. Abenaki Native American Indian People

Sec. 3. 1 V.S.A. § 852 is amended to read:


(a) In order to recognize the historic and cultural contributions of Native Americans to Vermont, to protect and strengthen their heritage, and to address their needs in state policy, programs, and actions, there is hereby established the Vermont commission on Native American affairs (the "commission").

(b) The commission shall comprise seven be composed of nine members appointed by [the governor for staggered two year terms the general assembly or an entity designated by the general assembly with that authority] (IN RED) from a list of candidates compiled by the division for historic preservation. The governor
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shall appoint a chair from among the members of the commission [Four of these members will serve three year terms and five members will serve 2 year terms.] (IN RED) The [Governor][general assembly][or designatee] shall appoint members who reflect a diversity of [native] affiliations and geographic locations in Vermont. A member may serve for no more than two consecutive terms [unless there are not enough applicants to fill the vacant seats.] The division [of historic preservation] shall compile a list of [candidates from the following:] candidates' recommendations from the following:
(1) Recommendations from the Missisquoi Abenaki and other Abenaki and other Native American regional tribal councils and communities in Vermont.

[(1) Recommendations from Native American communities who reside in Vermont.

(2) Candidates who apply in response to solicitations and publications by the division of historic preservation. Candidates must have a legal residence in Vermont and must denote any Native American affiliation. There is no requirement of the applicant to be of Native American heritage or have any Native American affiliation to apply.]

(2) Applicants [candidates who apply in response to solicitations, publications, and website notification by [to the division..] of historical
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preservation [are residents of Vermont., and of documented Native American ancestry.]

(c) The commission shall have the authority to assist Native American tribal councils, organizations, and individuals to:

(1) Secure social services, education, employment opprotunities, health care, housing, and census information.

(2) Permit the creation, display, and sale of Native American arts and crafts and legally to label them as Indian or Native American produced as provided in 18 U.S.C. § 1159(c)(3)(B) and 25 U.S.C. § 305e(d)(3)(B).

(3) Receive assistance and support from the federal Indian Arts and Crafts Board, as provided in 25 U.S.C. § 305 et seq.

(4) Become eligible for federal assistance with educational, housing, and cultural opportunities.

(5) Establish and continue programs offered through the U.S. Department of Education Office on Indian Education pursuant to Title VII of the Elementary and Secondary Education Act established in 1972 to support educational and cultural efforts of tribal entities that have been either state or federally recognized.

(1) Elect a chair each year.
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[(2) Participate in protecting unmarked burial sits and to designate appropriate repatriation of remains in any case in which lineal descendants cannot be ascertained.

(2) Assist bands and groups of Native Americans who are unrecognized to organize and develop a representative tribal organization in order to petition for legal tribal recognition by the state.]

(3) Provide technical assistance and an explanation of the process to applicants for state recognition.

(4) Compile and maintain a list of [individuals][scholars] for appointment to a review panel.

(5) Appoint a three-member panel [acceptable to both the applicant and the commission] to review supporting documentation of an application for recognition to advise the commission of its accuracy and relevance. [If the applicant and commission cannot agree on the three-member panel for the legislative committee or designee will appoint the review panel. ]

(6) Review each applicant, supporting documentation, and findings of the review panel and make recommendations for or against state recognition to the legislative committee.]

(7) Assist Native American Indian tribes recognized by the state to:

(A) Secure assistance for social services, education, education, employment opportunities, health care, and housing.
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(B) Develop and market Vermont Native American fine and performing arts, craft work, and cultural events.

(8) Develop policies and programs to benefit Vermont's Native American Indian population [within the scope of the commission's authority listed in this section.]

(d) The commission shall meet at least three times a year and at any other times at the request of the chair. The division of historic preservation within the agency of commerce and community development and the department of education shall provide administrative support to the commission, including providing communication and contact resources.

(e) The commission may seek and receive funding from federal and other sources to assist with its work.

Sec. 4. 1 V.S.A. § 853 is amended to read:


(a) The state of Vermont recognizes the Abenaki people and recognizes all Native American people who reside in Vermont as a minority population.

(b) Recognition of the Native American or Abenaki people provided in subsection  (a) of this section shall be for the sole purposes specified in subsection 852(c) of this title and shall not be interpreted to provide any Native 1
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American or Abenaki person with any other special rights or privileges that the state does not confer on or grant to other state residents.

(c) This chapter shall not be construed to recognize, create, extend, or form the basis of any right or claim to land or real estate in Vermont for the Abenaki people or any Abenaki individual and shall be construed to confer only those rights specifically described in this chapter.

[(a) The state of Vermont recognizes all individuals of Native American heritage who reside in Vermont as an ethnic minority. This designation does not confer any status to any collective group of people.]

[(a b)]For the purposes of this section:

(1) "Applicants" means a [native] group or band seeking formal state recognition as a Native American Indian tribe.

(2) "Legislative committees" means the [Vermont general assembly committee assigned to review applicant petitions for recognition, the house committee on general, housing and military affairs and the senate committee on economic development, housing and general affairs.

(3) "Recognized" or "recognition" means acknowledged as a Native American Indian tribe by the Vermont general assembly, [or the commission].

(4) "Tribe" means an assembly of Native American Indian people who are related to each other by kinship and [who trace their ancestry to a kinship
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group which has historically has a tribal government that] maintain[sed], influence and authority over its members.

[(b c)] In order to be eligible for recognition, an applicant must file an application with the [commission] and demonstrate compliance with [five] subdivisions (1) through [(8 7)] of this subsection which may be supplemented by subdivision [(9 8)] of this subsection:

(1) A majority of the applicant's members currently reside in a specific geographic location within Vermont.

[ (2) A substantial number of the applicant's members are related to each other by kinship and trace their ancestry to a kinship group through genealogy.]

([3 2]) The applicant [has maintained][must show] a connection with Native American tribes and bands that have historically inhabited Vermont.

([3]) The applicant has a [collective political organization that][historically] maintain[sed] influence and authority over its members that is supported by documentation of their [structure][purpose], membership [criteria][process][the tribal roll that indicates the members' names and residential addresses,] and the methods by which the applicant [conducts its affairs][will certify non-member artists.]

 ([5][4]) The applicant has an enduring community presence within the boundaries of Vermont that is documented by archaeology, ethnography,
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physical anthropology, history, folklore, or any other applicable scholarly research and data.

([6][5]) The applicant is organized in part:

(A) To preserve, document, and promote its Native American Indian culture and history, and this purpose is reflected in its bylaws.

(B) To address the social, [political, diplomatic, sovereign,] economic, or cultural needs of the members with ongoing educational programs and activities.

([7][6]) The applicant can document traditions, customs, oral stories, and histories that signify the applicant's Native American heritage and connection to their historical homeland.

([8][7]) The applicant has not been recognized as a tribe in any other state, province, or nation.

(9][8]) Submission of letters, statements, and documents from:

(A) Municipal, state or federal authorities that document the applicant's history of tribe-related business and activities.

(B) Tribes in and outside Vermont that attest to the Native American Indian heritage of the applicant.

(c) The commission shall consider the application pursuant to the following process established by [the commission][this statute] which shall include at least the following requirements:
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(1) The commission shall:

(A) Provide public notice of receipt of the application and supporting documentation.

(B) Hold at least one public hearing on the application. (B) Provide written notice of completion of each step of the recognition process to the applicant [and legislative committee].

(2) Established appropriate time frames that include a requirement that the commission [and its review panel] complete review of the application and issue a determination regarding recognition within one year after an application and all the supporting documentation have been filed, and if a recommendation is not issued, the commission shall provide written explanation to the applicant and the legislative committees of the reasons for the delay and the expected date that a decision will be issued.

(3) A process for appointing a three-member review panel for each application to review the supporting documentation and determine its sufficiency, accuracy, and relevance. The review panel shall provide a detailed written report of its findings and conclusions to the commission, the applicant, and legislative committees. Members of each review panel shall be appointed cooperatively by the commission and the applicant from a list of professionals and academic scholars with expertise in cultural or physical anthropology, Indian law, archeology, Native American [Indian] genealogy,
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history, or another related Native American [Indian] subject area. No member
of the review panel may be a member of the commission or affiliated with or on the tribal rolls of the applicant.

(4) The commission shall review the application, the supporting documentation, the report from the review panel, and any other relevant information to determine compliance with the subsection (b) of this section and make a determination to recommend or deny recognition. The decision to recommend [or deny] recognition [to the legislative committee] shall require a majority vote of all eligible members of the commission. A member of the commission who is on the tribal roll of the applicant is ineligible to participate in any action regarding the application. If the commission denies recognition, the commission shall provide the applicant and the legislative committees with written notice of the reasons for the denial, including specifies of all insufficiencies of the application. [The legislative committee][will then review the application for recognition and determine if the application should move forward or if further documentation is in fact needed.]

(5) [If the legislative committee determines that the applicant needs additional documentation, the applicant has up to one year to provide the additional supporting documentation before a committee hearing is scheduled.
The applicant may file additional supporting documentation for reconsideration within one year after receipt of the notice of denial.]
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(6) An applicant may withdraw an applicationl [at] any time before the [commission] the [legislature committee] issues a decision, and may not file a new application for two years following withdrawal. A new application and supporting documentation shall be considered a de novo filing, and the [commission legislative committee] shall not consider the withdrawn application or its supporting documentation.

(7) If the commission recommends [or denies to the legislative committee] that the applicant be recognized as a Native American Indian tribe, the commission] that the applicant be recognized as a Native American Indian tribe, the commission shall provide a detailed written report of its findings and conclusions to the applicant and the legislative committees along with a reccommendation that that general assembly recognize [or deny] the applicant as a Native American Indian tribe. [Once the legislative committee hearing will be scheduled to take testimony from all interested parties.]

(8) All proceedings, applications, and supporting documentation shall be public except material exempt pursuant to subsection 317 of this title.

(d) An applicant for recognition shall be recognized as follows:

(1) By approval of the general assembly.

(2) Two years after a [recommendation][application for recognition][to recognize a tribe by the commission] is filed with the legislative committees, provided the general assembly too no action on the recommendation.
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(e) A decision by the [commission to recommend legislative committe] to deny denial of], recognition is final unless an applicant or a successor of interest to the applicant that has previously applied for and been denied recognition under this chapter provides new and substantial documentation and demonstrates that the new documentation was not reasonably available at the time of the filing of the original application.

(f) Vermont Native American Indian bands and tribes and individual members of those bands and tribes remain subject to all the laws of the state.

(g) Recognition of a Native American Indian tribe shall not be construed to create, extend, or form the basis of any right or claim to land or real estate in Vermont or right to conduct any gambling activities prohibited by law, but confers only those rights specifically described in this chapter.


This act shall take effect on passage.

and that the bill title be amended to read: "An act relating to state recognition of Native American Indian tribes in Vermont"

[Upon passage of this act, the existing terms of the commission members will be considered fulfilled. Any existing members will be required to go through the application process with the department of historic preservation as a new candidate to be considered for a seat on the commission.]
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(Committe vote:_______________)

Representative [surname]






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