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| THE GENERAL ASSEMBLY OF PENNSYLVANIA |
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| HOUSE BILL |
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| INTRODUCED BY BISHOP, YOUNGBLOOD, WALKO, THOMAS, SIPTROTH, RAPP, PRESTON, PALLONE, MANDERINO, KORTZ, FRANKEL, FLECK, FABRIZIO, DALEY, COHEN AND CALTAGIRONE, FEBRUARY 10, 2009 |
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| REFERRED TO COMMITTEE ON STATE GOVERNMENT, FEBRUARY 10, 2009 |
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| AN ACT |
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1 | Providing for formal recognition by the Governor of Native |
2 | American bands or clans, nations and tribes indigenous to |
3 | Pennsylvania; providing for certification of Native American |
4 | organizations; establishing the Commission on Native American |
5 | Affairs; conferring powers and duties on the Department of |
6 | Community and Economic Development; and imposing a penalty. |
7 | TABLE OF CONTENTS |
8 | Section 1. Short title. |
9 | Section 2. Legislative intent. |
10 | Section 3. Definitions. |
11 | Section 4. Commission. |
12 | Section 5. Eligibility to petition. |
13 | Section 6. Recognition criteria. |
14 | Section 7. Application process for recognition. |
15 | Section 8. Certification criteria. |
16 | Section 9. Application process for certification. |
17 | Section 10. Notice of filing. |
18 | Section 11. Recognition advisory committee. |
19 | Section 12. Processing petitions. |
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1 | Section 13. Determination by commission. |
2 | Section 14. Reconsideration of commission determination. |
3 | Section 15. Governor's action on recognition recommendation. |
4 | Section 16. Effects of recognition. |
5 | Section 17. Fees. |
6 | Section 18. Penalty. |
7 | Section 19. Effective date. |
8 | The General Assembly of the Commonwealth of Pennsylvania |
9 | hereby enacts as follows: |
10 | Section 1. Short title. |
11 | This act shall be known and may be cited as the Native |
12 | American Recognition Act. |
13 | Section 2. Legislative intent. |
14 | The General Assembly finds and declares as follows: |
15 | (1) This Commonwealth has been historically the homeland |
16 | of diverse groups. |
17 | (2) The Commonwealth has a duty and responsibility to |
18 | foster awareness, understanding and appreciation of the many |
19 | and varied contributions to the quality of life made by its |
20 | diverse ethnic communities, including Native Americans. |
21 | (3) It is in the public interest for the Commonwealth |
22 | and its citizens to identify, conserve and perpetuate the |
23 | diverse cultural and ethnic heritage of this Commonwealth and |
24 | to promote greater awareness and understanding for the |
25 | education, inspiration and the general public welfare of all |
26 | the people, including future generations. |
27 | (4) It is in the shared interest of the Commonwealth and |
28 | groups in Pennsylvania to avoid misrepresentation of Native |
29 | American identity, culture and heritage. |
30 | (5) It is in the shared interest of the Commonwealth and |
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1 | groups in this Commonwealth to establish a formal procedure |
2 | to recognize groups indigenous to Pennsylvania and to certify |
3 | Native American organizations. |
4 | (6) Recognition and certification will enable the |
5 | Commonwealth to provide access to Federal programs to |
6 | eligible groups. |
7 | Section 3. Definitions. |
8 | The following words and phrases when used in this act shall |
9 | have the meanings given to them in this section unless the |
10 | context clearly indicates otherwise: |
11 | "Band." A sociopolitical division of a tribe, separated from |
12 | the tribe by historical events or geographical, political or |
13 | similar causes. |
14 | "Certification." The process by which the Indian status of a |
15 | Native American organization is approved by the commission for a |
16 | period of two years subject to biennial recertification. |
17 | "Clan." A number of Native Americans related by bloodline |
18 | descent. |
19 | "Commission." The Commission on Native American Affairs. |
20 | "Committee." A recognition advisory committee established in |
21 | section 11. |
22 | "Delegate." An individual who serves on a committee. |
23 | "Department." The Department of Community and Economic |
24 | Development of the Commonwealth. |
25 | "Group." A band, clan, tribe or nation. |
26 | "Indian organization." An organization of members. |
27 | "Indigenous to Pennsylvania." Having ancestors who inhabited |
28 | one or more specific areas within this Commonwealth before 1790. |
29 | "Members." Those individuals who have been determined by a |
30 | group to be its members according to criteria established by the |
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1 | group. |
2 | "Nation." A distinct group of Native Americans, separated by |
3 | other groups by its own language, history, sacred places and |
4 | rituals, and rooted in and part of the land out of which it |
5 | grew. |
6 | "Native American." Any individual or group that is, or has |
7 | its members descended from, a group which inhabited North |
8 | America before European contact in 1492. |
9 | "Recognition." The process by which the Pennsylvania Indian |
10 | status of a Native American band, clan or tribe is granted by |
11 | the Governor. |
12 | "Tribe." A separate and distinct community of Native |
13 | Americans generally related by blood, marriage or adoption, with |
14 | common cultural ties and interests which differentiate members |
15 | from nonmembers. |
16 | Section 4. Commission. |
17 | (a) Establishment.--The Commission on Native American |
18 | Affairs is established in the department. |
19 | (b) Commissioners.-- |
20 | (1) The commission shall consist of seven commissioners, |
21 | appointed by the Governor, with the consent of a majority of |
22 | the members elected to the Senate. |
23 | (2) Four commissioners must be Native Americans. |
24 | (3) If a commissioner is sentenced for an offense graded |
25 | above a summary offense, the commissioner shall forfeit |
26 | office. |
27 | (4) A commissioner shall serve a term of six years or |
28 | until a successor takes office. A commissioner may serve |
29 | unlimited terms. |
30 | (5) If a commissioner leaves office, a replacement shall |
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1 | be appointed and approved under paragraphs (1) and (2) for |
2 | the remainder of the term. |
3 | (c) Quorum.--Four commissioners constitute a quorum. |
4 | (d) Officers.--The commission shall elect a chairperson from |
5 | among the commissioners. |
6 | (e) Compensation.--Commissioners shall serve without |
7 | compensation but shall be reimbursed for actual and necessary |
8 | expenses. |
9 | (f) Support.--The department shall provide staff and support |
10 | services for the commission. |
11 | (g) Powers and duties.--The commission has the following |
12 | powers and duties: |
13 | (1) Administer this act. |
14 | (2) Promulgate regulations to implement this act. |
15 | Section 5. Eligibility to petition. |
16 | (a) Recognition.--A group may apply to the commission for |
17 | recognition if the group believes itself to be: |
18 | (1) a Native American band, clan, tribe or nation; and |
19 | (2) indigenous to Pennsylvania. |
20 | (b) Certification.--A group may apply to the commission for |
21 | certification. |
22 | Section 6. Recognition criteria. |
23 | The commission may recommend that an eligible petitioning |
24 | group be recognized if the petitioning group establishes all of |
25 | the following: |
26 | (1) The group: |
27 | (i) has been identified as Native American from |
28 | before 1790 until the present; and |
29 | (ii) has been part of a continuous Native American |
30 | community from before 1790 until the present. |
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1 | (2) The members of the group are descendants from a |
2 | tribe which: |
3 | (i) existed before 1790; |
4 | (ii) is indigenous to Pennsylvania; |
5 | (iii) inhabited a specific area in Pennsylvania |
6 | before 1790; and |
7 | (iv) is composed principally of individuals who do |
8 | not belong to any other acknowledged or recognized group |
9 | and is not a splinter faction which has separated from a |
10 | group currently recognized. |
11 | Section 7. Application process for recognition. |
12 | (a) Compliance with regulations.--A petition for recognition |
13 | must comply with regulations promulgated by the commission. |
14 | (b) Documentation.--To document that the petitioning group |
15 | meets the established criteria, the petitioning group must |
16 | submit the following: |
17 | (1) Historical documents showing from before 1790 until |
18 | the present, two or more of the following: |
19 | (i) Long-standing relationships of the group with |
20 | the government of the Commonwealth or the United States |
21 | based on identification of the group or the group's |
22 | members as Native American. |
23 | (ii) Repeated dealings of the group with a county or |
24 | other local government in a relationship based on the |
25 | identification of the group or group's members as Native |
26 | Americans. |
27 | (iii) Repeated dealings of the group with other |
28 | federally or State recognized groups or national Native |
29 | American organizations in a relationship based on |
30 | identification of the group as Native American. |
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1 | (iv) Identification of the group as Native American |
2 | by anthropologists, historians, genealogists or other |
3 | scholars. |
4 | (v) Repeated identification of the group or group's |
5 | members as Native American in official government |
6 | records, church or school records, medical records, |
7 | Bibles and other family records, newspapers, books, |
8 | photographs or oral histories. |
9 | (vi) Documents identifying the name of the group or |
10 | other term recognizing the group as Native American with |
11 | an approximate location in this Commonwealth from before |
12 | 1790 until the present. |
13 | (2) Documentation of membership criteria of the group |
14 | which addresses all of the following: |
15 | (i) A list of membership criteria established by the |
16 | group. |
17 | (ii) A statement of the membership procedures |
18 | adopted by the group. |
19 | (iii) A list of all individuals included on the |
20 | group's current and previous rolls and the county in |
21 | which each resides. |
22 | (c) Other evidence.--The petitioner may submit any other |
23 | evidence recognizing individuals as members of the group, |
24 | including, but not limited to: |
25 | (1) Affidavits from federally or State recognized tribal |
26 | elders, tribal leaders or tribal officials recognizing |
27 | individuals as members of the group. |
28 | (2) Affidavits from individuals attesting to the fact |
29 | that individuals have lived as members of the group. |
30 | (3) Documentation that individuals have participated in |
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1 | programs available only to members of the group. |
2 | (d) Personal information confidential.--To protect the |
3 | confidential nature of this documentation, the commission shall |
4 | deny inspection or copying of any part of the documentation that |
5 | contains personal information relating to an individual. |
6 | Section 8. Certification criteria. |
7 | The commission shall certify an organization as a |
8 | Pennsylvania Native American organization if the applicant |
9 | demonstrates that: |
10 | (1) The organization consists solely of members. |
11 | (2) The organization is incorporated in this |
12 | Commonwealth. |
13 | (3) Fifty-one percent or more of the organization's |
14 | board belong to federally or state recognized tribes. |
15 | (4) Fifty-one percent or more of the organization's |
16 | membership are Native Americans. |
17 | (5) The organization has existed as an incorporated |
18 | organization for a minimum of two years. |
19 | Section 9. Application process for certification. |
20 | (a) Compliance with regulations.--A petition for |
21 | certification must comply with regulations promulgated by the |
22 | commission. |
23 | (b) Documentation.--To document that the petitioning |
24 | organization meets the established criteria, the petitioning |
25 | group must submit the following: |
26 | (1) Evidence of incorporated status in this |
27 | Commonwealth. |
28 | (2) A copy of the organization's bylaws. |
29 | (3) Evidence that 51% or more of its board belong to |
30 | federally or State recognized tribes. |
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1 | (4) Evidence that 51% or more of the organization's |
2 | membership are Native Americans. |
3 | (c) Duration of certification.--Certification of Native |
4 | American organization status shall be in effect for a period of |
5 | two years. Organizations may reapply to renew their |
6 | certification. |
7 | Section 10. Notice of filing. |
8 | Upon receipt of a complete application for recognition or |
9 | certification, including payment of any required fees, the |
10 | commission shall publish a notice of filing of the petition in |
11 | the Pennsylvania Bulletin. Persons or groups wishing to support |
12 | or challenge a petition must provide written comments within 30 |
13 | days of the filing of the notice in the Pennsylvania Bulletin. |
14 | Section 11. Recognition advisory committee. |
15 | (a) Convening of committee.--The commission shall convene a |
16 | separate recognition advisory committee for each petition |
17 | requesting recognition. |
18 | (b) Role and responsibilities of committee.--The committee |
19 | has the following powers and duties: |
20 | (1) Review the petition for recognition to determine if |
21 | any additional information is needed from the applicant |
22 | before determination of the petition can be finalized. |
23 | (2) Make recommendations for or against recognition. |
24 | (c) Role of Native American commissioner.--The Native |
25 | American commissioner shall: |
26 | (1) Serve as the chairperson of the committee. |
27 | (2) Call all meetings of the committee for petition |
28 | reviews to order. |
29 | (3) Be a nonvoting delegate of the committee. |
30 | (4) Transmit all recommendations of the committee to the |
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1 | commission. |
2 | (d) Composition of committee.--The committee shall consist |
3 | of five voting delegates who, appointed by the commission shall |
4 | appoint the following delegates: |
5 | (1) Two Native Americans from different Federal or State |
6 | recognized groups, other than the petitioning group. |
7 | (2) One individual with demonstrated expertise in |
8 | genealogy and if possible, in American Indian genealogy. If |
9 | possible, this delegate must be a Native American. |
10 | (3) Two individuals qualified in anthropology, |
11 | ethnohistory or related fields. If possible, these delegates |
12 | must be Native Americans. |
13 | (e) Conflict of interest.--A delegate or the Native American |
14 | Commissioner may not participate in any deliberations with |
15 | respect to a petition made by a petitioning group of which the |
16 | delegate or the commissioner is a member. |
17 | (f) Compensation.--Delegates shall serve without salary or |
18 | compensation but shall be reimbursed for actual and necessary |
19 | expenses incurred while performing official functions required |
20 | by this act, in accordance with procedures established by the |
21 | Executive Board. |
22 | Section 12. Processing petitions. |
23 | (a) Acceptance by commission.--The commission shall accept |
24 | for review all complete petitions. A petition may not be |
25 | considered complete until the commission has received payment of |
26 | required fees and all information requested in the petition form |
27 | or required by this act. |
28 | (b) Notice to group.--After a petition is received, the |
29 | commission shall notify the petitioning group in writing that: |
30 | (1) the petition is complete; or |
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1 | (2) the petition is incomplete and which additional |
2 | information is required to complete the petition. |
3 | (c) Failure to complete petition.--If the petitioning group |
4 | fails to complete the petition within one year after notice is |
5 | mailed to the petitioning group that the petition is not |
6 | complete, the petition shall be deemed withdrawn and the |
7 | commission shall notify the petitioning group. |
8 | (d) Additional period to complete petition.--If the |
9 | petitioning group during the one-year period requires additional |
10 | time to complete the petition and provides reasonable |
11 | justification, the commission may grant one additional period of |
12 | up to one year for the petitioning group to complete the |
13 | petition. |
14 | (e) Referral of petition to committee.--After the commission |
15 | determines the petition is complete, the commission shall refer |
16 | the petition to the committee. |
17 | (f) Preliminary review.--Within 25 days after referral under |
18 | subsection (e), the committee shall review the documentation |
19 | submitted for the petition and may, through the commission, |
20 | request the petitioning group to submit any specific additional |
21 | documentation necessary to determine whether a petitioning group |
22 | meets the recognition criteria of this act. |
23 | (g) Completion of review.-- |
24 | (1) After the commission notifies the petitioning group |
25 | that all documentation requested has been received, the |
26 | committee shall complete review of the petition and advise |
27 | the commission whether the petitioning group meets the |
28 | recognition criteria of this act. |
29 | (2) In advising the commission whether a petition meets |
30 | the recognition criteria of this act, the committee shall do |
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1 | all of the following: |
2 | (i) Consider the petition, all factual or legal |
3 | submissions in support of or in opposition to the |
4 | petition, and the petitioning group's written response. |
5 | (ii) Use to the maximum extent practicable the |
6 | information and sources available to it, including |
7 | individuals not on the committee who have knowledge or |
8 | expertise with Federal or other state Indian tribe |
9 | recognition procedures or an understanding of the history |
10 | of Native Americans in this Commonwealth. |
11 | Section 13. Determination by commission. |
12 | (a) Review of committee recommendation.--The commission |
13 | shall review the committee's recommendation and determine |
14 | whether the petition meets the criteria set forth in section 6. |
15 | (b) Recognition criteria established.--If the commission |
16 | determines that the petitioning group meets the recognition |
17 | criteria of this act, the commission shall submit to the |
18 | Governor a determination of findings and request that the |
19 | petitioning group be recognized. |
20 | (c) Inadequate information or documentation.--If the |
21 | commission determines that the information or documentation |
22 | submitted in support of the petition is not adequate to |
23 | establish that the petitioning group meets the recognition |
24 | criteria of this act, then the commission shall notify the |
25 | petitioning group of its determination. The petitioning group |
26 | may request reconsideration. |
27 | Section 14. Reconsideration of commission determination. |
28 | (a) Procedure for taking appeal.--Upon receipt of a |
29 | determination that the criteria for recognition have not been |
30 | met, the petitioning group may appeal for a reconsideration by |
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1 | the commission. The petitioning group must file a letter of |
2 | intent within 30 days of receipt of the commission's |
3 | determination and must submit additional documentation within 90 |
4 | days. |
5 | (b) Appointment of review panel.--After receiving a request |
6 | for review, the commission shall appoint a three-individual |
7 | panel to review the commission's determinations and all the |
8 | evidence submitted in support of or in opposition to the |
9 | petition. The panel shall include at least one commissioner and |
10 | one delegate, who together shall nominate the third individual |
11 | to the commission for appointment. |
12 | (c) Report of panel.-- |
13 | (1) The panel shall report its findings and |
14 | recommendations to the commission within 60 days after |
15 | expiration of the 90-day appeal period. |
16 | (2) If the appeal panel concludes that the commission |
17 | failed to adequately consider any evidence submitted and that |
18 | the evidence if adequately considered may reverse the |
19 | commission's determination, the appeal panel shall notify the |
20 | commission to reconsider its previous determination. |
21 | (3) Failure to act within the time specified in this |
22 | subsection shall be deemed a notification to reconsider. |
23 | (d) Action by commission.--The commission may either: |
24 | (1) affirm its original finding and promptly notify the |
25 | petitioning group; or |
26 | (2) submit to the Governor its reconsidered |
27 | determination and recommendation for recognition. |
28 | (e) Notice to petitioning group.--The commission shall |
29 | promptly notify the petitioning group of the commission's |
30 | recommendation and final determination. The commission's |
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1 | determination under subsection (d) is subject to 2 Pa.C.S. Ch. 7 |
2 | Subch. A (relating to judicial review of Commonwealth agency |
3 | action). |
4 | Section 15. Governor's action on recognition recommendation. |
5 | (a) Concurrence with request for recognition.--If the |
6 | Governor concurs with a request for recognition by the |
7 | commission, the Governor may issue an executive order to |
8 | recognize the Pennsylvania Indian status of the petitioning |
9 | group. The commission shall promptly notify appropriate |
10 | governmental agencies and national and State Native American |
11 | organizations of the executive order. |
12 | (b) Nonconcurrence with request for recognition.--If the |
13 | Governor does not concur with a request for formal recognition |
14 | by the commission, the Governor shall notify the commission of |
15 | the reasons and the commission shall promptly notify the |
16 | petitioning group. |
17 | Section 16. Effects of recognition. |
18 | An executive order issued by the Governor under section 15 |
19 | shall not do any of the following: |
20 | (1) Create rights to land. |
21 | (2) Create rights or entitlements. |
22 | (3) Impair valid or existing rights, benefits or |
23 | entitlements of any Native Americans residing in this |
24 | Commonwealth. |
25 | (4) Impair existing judicial rulings of the Commonwealth |
26 | regarding Native Americans indigenous to this Commonwealth. |
27 | Section 17. Fees. |
28 | (a) Establishment.--Fees required under this act shall be |
29 | established and published by the commission as a notice in the |
30 | Pennsylvania Bulletin. Fees shall be established by the |
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1 | commission in order to offset costs necessary to administer the |
2 | provisions of this act and shall be nonrefundable. |
3 | (b) Time for payment.--Payment of the fee established by the |
4 | commission must be received at the time of filing the petition |
5 | for recognition, certification or recertification. |
6 | (c) Waiver of fee.--The commission may upon request of a |
7 | petitioning group waive the petition fee, in full or in part, if |
8 | the commission determines that payment of the fee will create |
9 | financial hardship for the petitioning group. |
10 | Section 18. Penalty. |
11 | (a) Offense created.--In any matter relating to a petition |
12 | under this act, a person commits a misdemeanor if the person: |
13 | (1) Knowingly and intentionally falsifies or conceals a |
14 | material fact. |
15 | (2) Makes a false, fictitious, fraudulent statement or |
16 | representation. |
17 | (3) Makes or uses a writing or document with knowledge |
18 | that the writing or document contains false, fictitious or |
19 | fraudulent statements or entries. |
20 | (b) Penalty.--A person who violates subsection (a) commits a |
21 | summary offense. |
22 | Section 19. Effective date. |
23 | This act shall take effect in 60 days. |
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