The Bureau of Indian Affairs has unwrapped its long-awaited package of reformed regulatory procedures and criteria for the federal acknowledgment of Indian tribes.
U.S. Secretary of the Interior Sally Jewell and Assistant Secretary-Indian Affairs Kevin K. Washburn released the new streamlined “final rule” June 29. It is the first major overhaul of the regulations for federal acknowledgment (or federal recognition) since they were established in 1978.
But the road ahead for the new rule is fraught with uncertainty. Some Indian law experts say a provision removed from the final rule that would have allowed previously denied tribes to re-petition under the new regulations will likely result in litigation. And the question of whether the new rule will even be implemented is up in the air: On June 16, the Republican-led House Committee on Appropriations voted 30-21 to approve a $30.17 billion spending plan for the Department of the Interior and various other related agencies that includes a rider prohibiting the implementation of the new tribal recognition rule. It’s not known yet who added the rider or why but it is the third assault in what some tribal leaders say is Congress’s new war on Indian country. The House Subcommittee on Indian, Insular and Alaska Native Affairs recently held heated oversight hearings in which the termination of federal recognition was discussed and the Interior Department’s authority to take land into trust was challenged by committee members who didn’t seem to know Congress gave Interior that authority.
Washburn and his team worked for three years on the revision project. They held dozens of consultations and public meetings all over the country and teleconferences that lasted for hours. They read thousands of opinions submitted during extended public comment periods and produced a discussion draft released in the spring of 2013 and a proposed rule in spring of 2014.
The goal was to repair a federal recognition system that has been universally criticized as broken, long, expensive, burdensome, less than transparent, unpredictable, and subject to undue political influence and manipulation. The new rule will foster what the department says will be a more transparent, fair, timely and consistent process. It will reduce the governmental red tape that has snarled some tribes seeking federal status in a process lasting more than three-decades, and it will be flexible enough to accommodate the unique histories of individual tribal nations. Some of the new regulations say:
— As a first step, reviewers will establish whether a petitioning group’s members can prove descent from an historic tribe; if not, the petition will be denied without further review;
— Petitions and the public documents submitted with them will be posted on the Interior Department’s website;
— Petitioners who receive a negative Proposed Finding (PF) will have the opportunity for a hearing, in which third parties may intervene, before an administrative law judge who will then provide a recommended decision to the Assistant Secretary;
— A positive Final Determination will be issued without further review when there are no objections to a positive Proposed Finding.
— Evidence or methodologies that satisfied any criterion in the past will satisfy that criterion in the present. So, for example, documentary gaps longer than 10 years may be justified in certain historical situations and contexts because previous final decisions have accepted them.
— The year 1900 will be used as the starting date to identify a tribe and its continuous community and political authority.
While the reformed timelines and procedures will make the process of reviewing petitions for federal acknowledgment more efficient, the final rule substantively maintains the demanding seven mandatory criteria that have been in place since the federal recognition regulations were established in 1978.
Evidence that the existing criteria and the process itself are tough on tribes is found in the BIA’s record of approvals: Of the 51 petitions for federal acknowledgment that have been resolved since 1978, only 17 petitions have been approved and 34 have been denied. Far more tribes have been recognized by Congress during this time period.
An overwhelming majority of tribal members, leaders and organizations enthusiastically supported the proposed rule, which was released June 2014. But Indian country’s most consistent adversaries – Sen. Richard Blumenthal (D-CT) and other Connecticut politicians who follow his lead – came out in force against it.
Blumenthal as the former state attorney general in Connecticut, successfully fought a decades-long battle against the Eastern Pequot Tribal Nation (EPTN), the Golden Hill Paugussett Indians (the Golden Hill Tribe of the Paugussett Indian Nation) and the Schaghticoke Tribal Nation in their bids for federal acknowledgment.
Blumenthal is most notoriously known for leading the state’s congressional delegation, state and local elected officials and a group of wealthy anti-Indian, casino-opposing landowners in a campaign of political pressure on Washington decision-makers that ended with BIA officials taking the unprecedented step in 2005 of revoking the federal recognition of the Eastern Pequot and Schaghticoke nations.
RELATED: A lack of Interior fortitude
All three Connecticut tribes have been state-recognized, with state-recognized reservations for more than 300 years, which prompted Blumenthal to oppose a provision in the proposed rule that would have expedited the recognition of tribes with state recognized reservations since 1934. And he vehemently opposed the provision that would have allowed tribes that have been denied recognition under the old regulations to re-petition under the new rule if they could demonstrate they would likely qualify.
Indian country leaders and advocates were disappointed to discover that the re-petition provision had been deleted in the final rule, but many of them seemed to assume that some kind of quid pro quo was in play that forced compromise. No one held Washburn and his team responsible for the change; on the contrary, they praised him for his hard work and intentions.
“[The dropped re-petition provision] leaves tribes that clearly should be recognized with the inability to have those erroneous decisions overcome or at least reexamined,” Pastor John Norwood, the co-chair of the National Congress of American Indians’ (NCAI) Task Force on Federal Acknowledgement, told ICTMN. Norwood said he was “grateful” to Washburn and his team for the work they did. “I know that they received some stiff and powerful opposition…It’s disappointing that the changes were not as much as we thought they would be and it seems to me that the Assistant Secretary appeared to share in that disappointment.”
NCAI President Brian Cladoosby said in a statement that the final rule fulfills a promise to reform a broken process.
“Although this is a compromise, NCAI greatly appreciates the effort and commitment from the Administration to get these regulations finalized and to improve the process,” Cladoosby said. The NCAI membership has supported the proposed changes through a resolution passed in 2013.
“The loss of the re-petition provision is not a happy thing,” said Judy Shapiro, an attorney who has practiced Indian law for almost three decades. “Denying those tribes that were ill-served by the prior non-improved application of the criteria the right to [review under] the new application is a denial of justice,” she said. She praised Washburn and his team for their “laudable work to improve a terrible process. I applaud them for what they were able to do and I’m sad they weren’t able to do better.”
Any tribe with a pending petition ought to be “ecstatic” about the changes included in the final rule, said Matthew Fletcher, Professor of Law & Director of the Indigenous Law & Policy Center at Michigan State University College of Law. “More transparency and standards that are more attuned to the histories of Indian nations will be beneficial,” Fletcher said. But previously denied tribes are out of luck. “No re-petitioning. That's a really big deal. I imagine there will be some significant litigation over that provision, with previously denied tribes reconstituting to seek another turn at bat,” he said. “Or they may be forced to go to Congress to seek authorization to be put back in the queue. I bet that there will be several previously denied tribes petitioning for a special bill, and I wouldn't be surprised if some get those special bills passed.”
It became clear soon after the final rule was released who had pushed to have the re-petition provision dropped. Top aides to Sen. Chris Murphy (D-Conn.) and a Connecticut business group (along with lobbyists representing a California tribe that doesn’t want competition from additional casinos if more tribes in the area are recognized) “huddled in the last month with officials tasked with reviewing BIA’s final rule,” The Hill reported. Those officials would be in the Office of Management and Budge in the White House where the final rule was lodged for review since April.
Following the release of the final rule, Blumenthal, Murphy and Gov. Dannel Malloy were all over the state media praising the BIA for dropping the re-petition provision and themselves for having asked for it to be dropped. "We are pleased that the Bureau of Indian Affairs heeded and heard our concerns and reversed deeply problematic language that would have eviscerated four decades of existing administrative procedures and principles. Most notably, the BIA has reversed course on its initial plan to allow a second bite at the apple for previously denied petitioners,” the three politicians said in a joint press release with Malloy.
The final rule is “a big victory for the State of Connecticut,” Malloy said, thanking his own office, the entire congressional delegation, towns and “interested third parties” for the changes in the final rule. "These changes ensure that previously denied tribal groups in Connecticut will not get another bite at the apple, and that any future petitioners will not be advantaged because the core criteria the federal government employs to recognize a tribe has not changed,” Malloy said.
Journalist Kevin Rennie wrote in a scathing column on the politicians’ triumphalist response in the July 2 Hartford Courant “The press release from the triumphant trio came with everything but whoops of satisfaction at vanquishing Native Americans. They are so proud of themselves.”
Noting Malloy’s statement a few days earlier that the Supreme Court ruling supporting same sex marriage "reaffirms everything that this nation stands for — equality, liberty and justice for all," Rennie continued. “They showed those Eastern Pequots, Golden Hill Paugussetts and Schaghticokes. They have no need to fall under the protection of ‘everything this nation stands for’. . . .What is unsettling is the unforgiving hostility of the state's three highest elected officials to a handful of state-recognized tribes seeking to win federal recognition. The sin of Native American aspiration, it seems, is unforgivable.”
The tribal leaders said they were not surprised that state officials had once again managed to exert pressure on federal decision makers, but they’re not giving up.
“As the State of Connecticut and its delegation continue the premeditated genocide of the remaining three state recognized Tribes, the Eastern Pequot Tribal Nation would like to give praise to the Creator for allowing us to fight another day and showing us the way,” Eastern Pequot Tribal Nation Chairman Dennis Jenkins said in a statement. “We would like to thank Assistant Secretary Washburn and his staff for their due diligence revising an antiquated, dysfunctional recognition process. We would also like to thank President Obama for being a steadfast friend to Native Americans. We will continue the fight.”
Golden Hill Paugussett Chief Quiet Hawk said the tribe was disappointed but not surprised by the latest rule change. “Even as the BIA worked to bring more transparency to the process of federal recognition, the [Gov. Dannel Malloy] administration and our congressional delegation have been working behind closed doors in Washington to produce the current outcome. The new rules smell of heavy-handed political influence, violation of due process and violation of the rights of certain Native American tribes,” Quiet Hawk said. He pointed to the millions of dollars in slot revenues that the Mashantucket Pequot Tribal Nation and the Mohegan Tribe contribute every year to the state and questioned “the agenda of politicians who have worked so hard against the three other Connecticut state-recognized tribes. Certainly they were not looking at the rights of Native Americans or even the economic growth in Connecticut. The state had the potential to settle problems in Connecticut's budget and give our state-recognized tribes the opportunity to feed, house and educate their children. It should have been a win-win.”
Schaghticoke Tribal Nation Chief Richard Velky said that while the tribe appreciates the Department’s efforts, it “won’t be deterred by the grave omissions and errors” in the final rule.
Citing the Final Determination supporting the tribe’s federal acknowledgment in January of 2004, Velky noted that the consensus among the BIA staff when the tribe was federally acknowledged was that its petition satisfied all the mandatory criteria required for federal recognition and was among the best and most thoroughly researched petitions ever reviewed.
Velky said the tribe has been continuously recognized by the State of Connecticut as a distinct tribe with a separate land base provided and maintained by the state since colonial times. “In 1736, the colony formally recognized the tribe’s traditional lands along the Housatonic River extending through Connecticut and New York. At statehood, 52 years later, Connecticut continued to affirm these claims and the tribe continues to maintain its 400-acre reservation near Kent, Connecticut to this day.”
Despite the obstacles, Velky said he’s “confident that the Schaghticoke status as a sovereign tribal nation will be rightfully restored and justice shall prevail.”
The tribes will have the support of the NCAI’s Taskforce on Tribal Recognition in their quest for justice, according to Norwood. “The taskforce supports the ability to reapply and we’re resolute about trying to do something about it,” Norwood said. “We’re not giving up. We’re still going to fight so that every historic tribe has the opportunity to a fair hearing – and not doing so is an injustice.”
What remains a major obstacle is the Interior Department appropriations bill with the rider blocking the implementation of the new federal acknowledgment rule. The full House is set to vote on the funding bill this week. The question now is will Congress allow the new rule to go into effect?