PRIMER ON FEDERAL RECOGNITION
AND CURRENT ISSUES AFFECTING THE
PROCESS
Prepared For NCAI Winter Session
February
22, 2001
Jennifer P.
Hughes, Esq.
The Branch of the Acknowledgment and Research (BAR)
is a division of the Bureau of Indian Affairs (BIA) which implements
25 C.F.R. Part 83, Procedures for Establishing
that an American Indian Group Exists as an Indian
Tribe. These regulations,
known as the Federal Acknowledgment Process (FAP), set forth the administrative
process by which tribal groups are given federal recognition as an Indian tribe.
Federal recognition acknowledges the tribe's eligibility to receive federal
services provided to tribes and to enjoy other privileges of federally
recognized tribes.
The BAR consists of
approximately eleven (11) staff persons -- professional anthropologists,
genealogists and historians -- who evaluate petitions for federal recognition
and make recommendations to the Assistant Secretary for Indian Affairs on
whether to approve or deny each petition. If the Assistant Secretary approves
the petition, he acknowledges tribal existence and establishes a
government-to-government relationship between the tribe and the United
States.
As of February 6, 2001, the BAR has received
250 letters of intent and petitions from tribal groups seeking federal
recognition. Of these, 51 have been resolved: 34 by the Department of the
Interior (15 acknowledged, 15 denied, one whose status was clarified
by legislation, two whose statuses were clarified by other means and one whose
status is pending).
There are currently
12 petitioners on active status and 11 ready, waiting for active
status. There are 175 not yet ready for evaluation: 55 of which have submitted
partial documentation for their petitions; 105 of which have submitted only a
letter of intent to petition without any other documentation; and nine that are
no longer in touch with the Department of the Interior.
The FAP process is rigorous,
demanding and time-consuming. Exceptional anthropological, genealogical and
historical research is required. The cases on active consideration, including
those with proposed findings, have been in the process for anywhere from
2 to 9 years.(1) Many petitions have been in the process
much longer. The BAR processes, on average, two petitions each year.(2) The cry for more resources for the BAR,
however, has always been overshadowed by other priority needs in Indian
Country.(3)
Prior to 1978, federal acknowledgment of Indian
tribes was accomplished by Congressional action, various forms of administrative
decisions and the courts. It became clear, however, that a uniform process was
necessary to address the several acknowledgment claimants whose characters and
histories varied widely. The regulations were developed in response to the ad
hoc, inconsistent and sometimes arbitrary determinations of tribal
status.
Proposed recognition
regulations were released on June 16, 1977. The BIA had "approximately
400 meetings, discussions and conversations about federal recognition with
other federal agencies, state government officials, tribal groups, petitioners,
congressional staff members, and legal representatives of petitioning
groups."(4) The BIA also received over
60 comments on the proposed regulations, and 32 comments on the
revised regulations which were issued a year later.(5) The final acknowledgment regulations,
which were published in September 1978, represented a compromise of diverse
interests committed to establishing an equitable process for determining whether
a group warranted federal recognition as an Indian tribe.
The regulations established
the first detailed, systematic process for reviewing petitions from groups
seeking federal recognition. While some tribes still receive federal recognition
or restoration of previous federal recognition from Congress, the courts have
generally deferred to the Department of Interior for questions of tribal
status.(6)
The regulations were revised
in 1994 to clarify the criteria for acknowledgment and make more explicit the
kinds of evidence which could be used to meet the criteria. Other changes were
made to increase the speed at which petitions were processed. The 1994
regulations also gave a lesser burden to previously acknowledged tribes. The
general standards for interpreting the evidence and the standard of continuity
of tribal existence, however, remained unchanged.(7)
Under 25 C.F.R. Part 83, an Indian group
that believes it should be acknowledged by the federal government as an Indian
tribe and can satisfy the mandatory criteria for acknowledgment can submit a
letter of intent to the Assistant Secretary for Indian Affairs requesting such
acknowledgment.(8) The group must also submit a documented petition
containing detailed evidence in support of its request for acknowledgment and
thorough explanations of how it meets all of the criteria for tribal
existence.(9) The letter and the petition must be signed by the
group's governing body.(10)
Tribes, organized bands, pueblos, Alaska native
villages, and communities which are already recognized as such and receive
services from the BIA cannot be reviewed under the FAP
process.(11) Neither can associations, organizations,
corporations or groups of any character that have been formed in recent times
(the fact that a group that meets the mandatory criteria under the regulations
has recently incorporated or formalized its existing autonomous political
process does not affect the Assistant Secretary's final decision on its
petition).(12) Splinter groups, political factions or groups of
any nature that separate from the main body of a currently recognized tribe
cannot be acknowledged under the FAP process unless the group can establish that
it has functioned throughout history until the present as an autonomous tribal
entity.(13) Groups that are subject to federal legislation
terminating or forbidding federal recognition as a tribe cannot be acknowledged
under the FAP process.(14) Lastly, groups that have previously petitioned and
were denied cannot petition.(15)
The Assistant Secretary will acknowledge the receipt
of the letter of intent of the documented petition (if a letter has not
previously been received and noticed) and publish notice of such receipt in the
Federal Register.(16) This notice serves to announce the opportunity for
interested parties and informed parties to submit factual or legal arguments in
support of or in opposition to the petitioner's request for acknowledgment
and/or to request to be kept informed of general actions affecting the
petition.(17) The Assistant Secretary will also notify the
governor and the attorney general of the state in which a petitioner is located,
and any recognized tribe and other petitioner which appears to have a historical
or present relationship with the petitioner or may otherwise have a potential
interest in the acknowledgment determination.(18)
Under the regulations, an
"interested party" is any party that has a legal or property interest in the
outcome of the acknowledgment determination. The governor and attorney general
of the state in which a petitioner is located are automatically included in this
category. It may also include, but is not limited to, local governmental units
and any recognized Indian tribes and unrecognized groups that might be affected
by an acknowledgment determination.(19)
An informed party is any
person or organization, other than an interested party who requests an
opportunity to submit comments or evidence or to be kept informed of general
actions regarding a specific petitioner.(20)
The Assistant Secretary,
through the BAR, then begins the review of the documented petition. He may
consider any evidence submitted by interested parties and informed parties.(21) Prior to placing the petition on active
consideration, however, the BAR conducts a technical assistance review of the
petition to provide the petitioner with an opportunity to supplement or revise
the petition.(22) The Assistant Secretary will notify the
petitioner of any obvious deficiencies or significant omissions in the petition
and will allow the petitioner to supply additional information or clarification
on the petition.(23) Once the deficiencies have been
addressed, the petition is then placed on active consideration.
After reviewing the materials submitted, the
Assistant Secretary will publish a proposed finding on the petition in the
Federal Register.(24) The petitioner or any individual or organization
wishing to challenge or support the proposed finding has 180 days from this
publication to submit arguments and evidence to the Assistant Secretary to rebut
or support the proposed finding.(25) During this comment period, the petitioner or any
interested party can request a formal technical assistance meeting to discuss
the reasoning, analysis and factual bases for the proposed finding on the
record. This is an opportunity primarily for third parties to have their
questions and concerns be addressed by the BAR staff on the
record.(26) The petitioner has sixty (60) days after the
comment period ends to respond to the arguments and evidence that were
submitted.(27) The Assistant Secretary will then consult with the
petitioner and the interested parties to determine a schedule for consideration
of the comments and responses.(28)
60 days after the
Assistant Secretary begins the review of these materials, he shall publish a
final determination of the petitioner's status.(29) If the petitioner meets all of the
criteria under 25 C.F.R. '83.7, the Assistant Secretary must acknowledge it as
an Indian tribe.(30) Upon publication of the Assistant
Secretary's determination in the Federal Register, the petitioner or any
interested party may file a request for reconsideration with the Interior Board
of Indian Appeals.(31)
The Assistant Secretary must acknowledge the
existence of the petitioner as an Indian tribe if it satisfies all of the
following criteria:
a.
The petitioner has been identified as an American Indian entity
on a substantially continuous basis since 1900. ' 83.7(a)
b.
A predominant portion of the petitioning group comprises a
distinct community and has existed as a community from historical times until
the present. ' 83.7(b)
c.
The petitioner has maintained political influence or authority
over its members as an autonomous entity from historical times until the
present. ' 83.7(c)
d.
It submits to the BAR a copy of the group's present governing
document including its membership criteria. ' 83.7(d)
e.
The petitioner's membership consists of individuals who descend
from a historical Indian tribe or from historical Indian tribes which combined
and functioned as a single autonomous political entity.
' 83.7(e)
(The petitioner must provide an official
membership list certified by the group's governing body. It must also submit a
copy of each available former list of members based on the group's own
criterion).
f.
The membership of the petitioning group is composed principally
of persons who are not members of any acknowledged North American Indian tribe.
' 83.7(f)
(It can meet the criteria if: 1) the
petitioner can establish that it has functioned throughout history until the
present as a separately autonomous tribal entity; 2) that its members do not
maintain a bilateral political relationship with the acknowledged tribe; and 3)
that its members have provided written confirmation of their membership in the
petitioning group).
g.
Neither the petitioner nor its members are the subject of
congressional legislation that has expressly terminated or forbidden the federal
relationship. ' 83.7(g).
A criterion is met if the
available evidence establishes a reasonable likelihood of the validity of the
facts relating to that criterion.(32) Conclusive proof of the facts is not
required. While the regulations list specific types of evidence that can be used
to show that the petitioner has met the criterion, the specific forms of
evidence are not mandatory requirements. The criteria may be met alternatively
by any suitable evidence that demonstrates that the petitioner meets the
requirements of the criteria.(33)
If a petitioner can provide
substantial evidence of unambiguous previous federal acknowledgment, its
evidentiary burden of meeting the mandatory criteria is lessened.(34) Evidence to demonstrate a previously
acknowledged group must show that it meets criterion 83.7(a) only since the
point of last federal acknowledgment. It must show that it meets the
requirements of criterion 83.7(b) to demonstrate that it comprises a distinct
community at present and that it meets the requirements of '83.7(c) to
demonstrate that political influence is exercised within the group at present.
The petitioner must meet the rest of the criteria as set forth in
part 83.7.(35)
Senator Campbell (R-CO), Chairman of the Senate
Committee on Indian Affairs, introduced S. 611 on March 15, 1999, to
amend the process by which the federal government would recognize Indian tribes.
The Senate Committee held a hearing on the bill on May 24, 2000, and the
Committee reported the bill out favorably on September 6, 2000, with an
amendment in the nature of a substitute. We expect similar legislation to be
re-introduced in the 107th Congress.
S. 611 would have
transferred the federal acknowledgment process from the BIA to an independent
Commission on Indian Recognition (the "Commission"). The Commission would have
consisted of three members each appointed by the President.
Under S. 611, an Indian
group seeking federal recognition would submit a documented petition to the
Commission. Similar to the existing regulations, tribes that were already
receiving services from the BIA, splinter groups and political factions of
recognized tribes, groups who had previously petitioned and were denied, and
groups whose relationships with the federal government were expressly terminated
would not be allowed to petition.
S. 611 would have
required the Secretary of the Interior to transfer all petitions and letters of
intent pending before the Department of the Interior to the Commission. They
would have been deemed submitted to the Commission in the same order they were
submitted to Interior. The Secretary would continue to have the authority to
recognize tribes under 25 C.F.R. Part 83 until the Commission is
established.
The Commission would have a
sunset date twelve (12) years after its establishment. Groups seeking
recognition would be required to submit their documented petitions to the
Commission no later than eight years after the date of the first meeting of the
Commission. Letters of intent would only be received for one year after the date
of the first meeting of the Commission, and petitioners whose letters were
transferred from Interior would have only three years after the date of the
first meeting of the Commission to submit their documented petitions.
The mandatory criteria to
receive federal recognition under S. 611 were:
(1) a statement of facts establishing that the
petitioner has been identified as an American Indian entity on a substantially
continuous basis since 1900;
(2)
a statement of facts and an analysis of such facts establishing
that a predominant portion of the membership of the petitioner
(a) comprises a community distinct from those communities surrounding that
community and (b) has existed as a community from historical times to the
present;
(3)
a statement of facts and analysis of such facts establishing
that the petitioner has maintained political influence or authority over its
members as an autonomous entity from historical times until the time of the
documented petition;
(4)
a copy of the then present governing document of the petitioner
that includes the membership criteria; and
(5)
a list of all then current members of the petitioner, a copy of
each available former membership list and a statement of the methods used in
preparing the lists. Membership would have been required to consist of
established descendancy from an Indian group that existed historically, or from
historical Indian groups that combined and functioned as a single autonomous
entity.
S. 611 would have
provided a lesser burden for petitioners who could demonstrate previous federal
acknowledgment. Further, similar to the existing regulations, S. 611 set
forth forms of evidence that would have been acceptable for proving that a
criterion had been met.
S. 611 would allow other parties to submit
factual or legal arguments in support of or in opposition to the documented
petition. The petitioner would receive copies of all such submissions and have
90 days to respond to them. The Commission would conduct a review of the
petition, and, in so doing, could initiate other research relative to analyzing
the petition and consider evidence submitted by other
parties.
The Commission would have been required to hold a
preliminary hearing at which the petitioner and any other interested party could
provide evidence concerning the status of the petitioner. After this preliminary
hearing, the Commission would decide whether the petitioner warranted federal
acknowledgment or whether it should proceed to an adjudicatory hearing to
address the obvious deficiencies and omissions in the petitioner's materials.
During the adjudicatory hearing, testimony from the Commission's research staff
and others involved in the preliminary determination could be taken. This
testimony would be subject to cross-examination by the petitioner. The
petitioner could also provide additional evidence to the
Commission.
The Commission would then
make a determination concerning the extension or denial of federal recognition
and publish it in the Federal Register. The petitioner could appeal the decision
in the United States District Court for the District of Columbia.
S. 611 would also require the Commission to
publish an annual list of recognized Indian tribes and prepare and submit an
annual report describing its activities to the Senate Committee on Indian
Affairs and the House Resources Committee.
Finally, S. 611 would
have authorized the Secretary of Health and Human Services to award grants to
groups seeking federal recognition to help them conduct the necessary research
and prepare a documented petition. The bill would have also authorized
appropriations for this purpose.
H.R. 361 was introduced by Representative
Faleomavaega (D-AS) on January 19, 1999. The House Resources Committee held
a hearing on it on September 15, 1999. The bill also proposed to establish
the three-member Commission on Indian Recognition to assume the BIA's authority
to federally recognize tribes and set forth generally the same process and
procedures as S. 611 did.
H.R. 361, however, had different criteria for a
petitioner to meet in order to be federally recognized than its sister bill,
S. 611. These criteria were:
a.
the petitioner has been identified as an American Indian entity
on a substantially continuous basis since 1934.
b.
a predominant portion of the petitioning group comprises a
distinct community and has existed as a community from 1934 to the
present.
c.
the petitioner has maintained political influence or authority
over its members as an autonomous entity from 1934 until the
present.
d.
a governing document or description of membership criteria is
submitted.
e.
the petitioner's membership consists of individuals who descend
from an historical Indian tribe or from tribes which combined and functioned as
a single autonomous political entity.
f.
the membership of the petitioning group is composed principally
of persons who are not members of any acknowledged North American Indian
tribe.
Similar to S. 611, H.R. 361 would have
required the Commission to conduct preliminary hearings on the petitions. The
Commission would have had the option of conducting an adjudicatory hearing to
address deficiencies and omissions in a petition before it issued its final
determination. It also would have required the Commission to publish an annual
list of recognized tribes and prepare an annual report of Commission activities.
H.R. 361 would also have authorized the Secretary of Health and Human
Services to award petition assistance grants and authorized appropriations for
this purpose.
On January 18, 2001, the
State of Connecticut and three Connecticut towns (Ledyard, North Stonington, and
Preston) filed a Complaint against the Department of the Interior, the Bureau of
Indian Affairs, Bruce Babbitt, the Secretary of Interior (in his official
capacity), Kevin Gover, Assistant Secretary for Indian Affairs (in his official
capacity), and Sharon Blackwell, Deputy Commissioner for Indian Affairs (in her
official capacity). The Complaint claims that the defendants behaved in an
arbitrary and capricious manner that has unfairly prevented the state and the
towns from participating in the BAR process with respect to specific petitions.
The lawsuit is an open attack
on the BAR process and an effort to gain more state and local government
influence over a significant issue in Indian affairs. They allege that the BAR
process deprived the state and towns of their right to be heard. For their
relief they are requesting, among other things, that the proposed findings of
two petitioners that were recently released be withdrawn. They are also calling
for a moratorium on recognitions until the BAR process is fixed, claiming that
it is currently biased in favor of recognizing tribes.
The relief called for would
punish petitioners who have spent enormous time and effort following the letter
of the law and meeting the rigorous requirements of the recognition regulations.
The lawsuit is simply a way to delay the process, to derail the petitions, and
to win support for a moratorium.
The lawsuit has other
implications too. If the state and local governments are allowed to derail this
federal regulatory process because they fear sovereign powers of tribes, we fear
their sentiments and threats to tribal sovereignty will spillover into other
areas, such as land-into-trust and land claim issues.
To fulfill a campaign promise to address Indian
issues in Connecticut, newly elected Representative Simmons held a hearing on
February 9, 2001, in Hartford, Connecticut, to discuss land-into-trust
issues of the Mashantucket Pequot Tribe and federal recognition. The hearing
lasted seven (7) hours. Over 200 people attended and approximately
70 people testified. Those who testified included the State Attorney
General, the Secretary of State, Tribal Leaders of recognized tribes and of
those pursuing federal recognition, and the general public. The hearing
encouraged dialogue among the parties about the land-into-trust and federal
recognition processes. Such efforts, however, are overshadowed by the State's
lawsuits against the BAR process and the Mashantucket Pequot's effort to put
land into trust.
After the hearing,
Representative Simmons promised to introduce legislation to reform the BIA. One
provision would be to push for a revolving door law that would prevent any BIA
official from subsequently being employed by a tribe.
Senator Dodd has called for
moratorium on federal recognition until the BAR process can be fixed. He has
also asked Secretary Norton to re-examine the proposed findings on two
petitioners from Connecticut. Senator Dodd co-chaired the February 9, 2001,
hearing.
Senator Dodd stated that he
will introduce legislation to reform the BAR process. His initiative would
include: (a) doubling the BAR's appropriations so it can hire more staff
and have more resources available; (b) requiring BIA to notify a state when
a tribal entity within its borders applies for recognition; (c) requiring
BIA to accept and consider testimony and evidence from any person or entity,
including neighboring towns, that have information bearing on whether to
recognize the tribal entity; and (d) requiring that any decision conferring
recognition must be accompanied by a written set of findings as to how all the
criteria were met. (Provisions (b)-(d) of Senator Dodd's proposal are
already required under the current regulations).
Representative Shays (R-CT)
and Wolf (R-VA) have asked the General Accounting Office to investigate the
BIA's recognition functions.
The activity in Connecticut
on federal recognition has spilled over into other areas important to all tribes
-- specifically, land-into-trust issues and land claims. The new land-into-trust
regulations are being reviewed by the new Administration pursuant to the
President's order to delay the effective date of regulations published in the
final days of President Clinton's Administration. These regulations make it much
harder for tribes to take off-reservation land into trust than under the current
regulations. Impacts on local communities will be given more consideration.
Further, they treat contiguous land as off-reservation.
It is our understanding that
Representative Johnson (D-15th-IL) is planning to introduce legislation that
will require any land claim for Illinois land to be brought in the United States
Court of Claims where the relief is money damages, not the return of land to the
tribe. It would also seek to extinguish treaty rights and aboriginal title to
land in Illinois.
Senator Fitzgerald introduced
S. 2909 last year that would have allowed defendant landowners in a land
claim by an Indian tribe to assert any affirmative defense under state law,
regardless if Federal Indian law and policy has always held
otherwise.
Representative Tom Reynolds
(R-NY) has asked Attorney General Ashcroft to adopt a new policy to withdraw the
federal government from land claim lawsuits involving American
Indians.
We believe that as the 107th Congress unfolds we will see other issues affected by the current debate over the federal recognition process. We ask you to continue to monitor this issue and support the BAR process in the face of the litigation.
NOTES
1. S. Hrg. 106-569, p. 77, July 11, 2000, Letter from Assistant Secretary Gover to Senator Campbell, Chairman of the Senate Committee on Indian Affairs in response to written questions following the May 24, 2000, on S. 611, a bill to provide for the administrative procedures to extend federal recognition to certain Indian groups.
2. Id. at 76.
3. S. Hrg. 106-569, p. 54, Statement of Honorable Kevin Gover, Assistant Secretary , Indian Affairs.
4. 43 Fed. Reg. 39361 (1978).
5. Id.
6. See e.g. , Western Shoshone Business Council v. Babbitt, 1 F.3d 1052 (10th Cir. 1993) ("we conclude that the limited circumstances under which ad hoc judicial determinations of recognition were appropriate have been eclipsed by federal regulation."); Golden Hill Paugussett Tribe v. Weicker, 39 F.3d 51 (2nd Cir. 1994) ("The Department of the Interior's creation of a structured administrative process to acknowledge nonrecognized Indian tribes using uniform criteria, and its experience and expertise in applying these standards, has now made deference to the primary jurisdiction of the agency appropriate."); United States v. 43.47 Acres of Land, 855 F. Supp. 549 (D. Conn. 1994) (noting that after Mashpee, where a "jury decided the issue of tribal status somewhat confusedly," the "BIA, as authorized and directed by Congress, has established criteria and a procedure for determining [tribal status]").
7. 59 Fed. Reg. 9293 (February 25, 1994).
8. 25 C.F.R. ' 83.4(a)-(b).
9. 25 C.F.R. ' 83.6(a); 83.6(c).
10. 25 C.F.R. ' 83.4(c); 83.6(b).
11. 25 C.F.R. ' 83.3(b).
12. 25 C.F.R. ' 83.3(c).
13. 25 C.F.R. ' 83.3(d).
14. 25 C.F.R. ' 83.3(e).
15. 25 C.F.R. ' 83.3(f).
16. 25 C.F.R. ' 83.9(a).
17. 25 C.F.R. 83.9(a).
18. 25 C.F.R. 83.9(b).
19. 25 C.F.R. ' 83.1.
20. Id.
21. 25 C.F.R. ' 83.10(a).
22. 25 C.F.R. ' 83.10(b)(1).
23. 25 C.F.R. ' 83.10(b0(2).
24. 25 C.F.R. ' 83.10(h)(the regulation states that a proposed finding will be published within a year of the petition being placed on active consideration. It notes, however, that the Assistant Secretary may extend this period up to an additional 180 days The extension is usually invoked, and, in most instances, it takes even longer for a proposed finding to be published).
25. 25 C.F.R. ' 83.10(I) (the period for comments may be extended by the Assistant Secretary for an additional 180 days upon a finding of good cause).
26. 25 C.F.R. ' 83.10(j)(2).
27. 25 C.F.R. ' 83.10(k).
28. 25 C.F.R. ' 83.10(I).
29. 25 C.F.R. ' 83.10(l)(1)-(3) (this period may be extended if warranted by the extent and nature of the evidence and arguments received).
30. 25 C.F.R. ' 83.10(m).
31. 25 C.F.R. ' 83.11.
32. 25 C.F.R. ' 83.6(d)
33. 25 C.F.R. ' 83.6(g)
34. 25 C.F.R. ' 83.8(a) (Previous federal acknowledgment includes: (1) that the group had treaty relations with the United States; (2) that the group has been denominated a tribe by act of Congress or Executive Order; and (3) that the group has been treated by the federal government as having collective rights in tribal lands or funds.)
35.
25 C.F.R. ' 83.7
(d).