Congress considers new process for tribal recognition

WASHINGTON, D.C. - Congress is considering legislation to replace the process the federal government uses to recognize Indian tribes.

Senate Bill 611, the Indian Federal Recognition Administrative Procedures Act, seeks to replace criteria and standards for acknowledgment used by the Department of Interior with new procedures mandated through legislation.

Not only would the bill replace existing criteria, it would establish an independent commission to "review and act upon petitions submitted by Indian groups that apply for federal recognition." If this legislation becomes law, a new body, outside the BIA, would have authority to provide recommendations on acknowledgment.

Assistant Secretary for Indian Affairs, Kevin Gover told the committee he no longer wanted the BIA to grant federal recognition.

"I have reluctantly reached the conclusion that I will not be successful in reforming this program. The more contentious and nasty things become, the less we feel we are able to do it."

At present, the Branch of Acknowledgment and Research (BAR), established under regulations in 1978, is charged with reviewing and evaluating petitions for acknowledgment, and providing reports and recommendations to the assistant secretary for Indian affairs. The assistant secretary then provides recommendations to the Secretary of Interior for final determination.

This process has come under fire over the past several years by those applying for recognition, members of Congress, and tribes already recognized by the federal government.

Criticism ranged from problems with standards used in meeting the recognition criteria, to the ability of the BIA to make an objective determination regarding acknowledgment.

Under its regulations, the BIA bases its decisions on whether an applicant meets seven criteria: 1) the identification of the petitioner as Indian from historical times; 2) demonstration of a community from historical times; 3) demonstration of political influence; 4) evidence of a governing system; 5) a list of tribal members; 6) that current members are not members of any other tribe, and, 7) that the petitioner was not formally terminated by the government.

"There are a number of concerns with the department recognition practice under the acknowledgment regulations," said Mark Tilden, an attorney with the Native American Rights Fund. "Even before the present departmental process was established in 1978, there was doubt the department and the BIA could deal fairly with applicants for recognition. In addition, practices by the Department have shown a number of weaknesses in the procedures used to review and determine petitions."

The department admits it has failed to properly address current problems within the process and that legislation is needed, but feels it should retain the ability to provide recommendations for recognition.

"S. 611 establishes the criteria and standards for acknowledgment through legislation, rather than regulation and the administration supports this change as a means of giving clear congressional direction as to what the criteria for acknowledgment should be," Gover said.

"But we object to language contained in the bill that would remove the authority of the department to acknowledge tribes."

The issue of tribal recognition has been the focus of controversy all over the country from non-Indians and Indians alike. "It is noteworthy that the critics of the BAR tend to be representatives of petitioners that have not succeeded," said Leon Jones, principal chief of the Eastern Band of Cherokee. "Perhaps the committee should examine the establishment of an advisory committee or outside panel to oversee the BAR office before you throw the baby out with the bath water."

The controversy over the process reached into the mainstream media. In an episode of "60 Minutes" on CBS, one segment focused on a recently published book which accuses the Mashentucket Pequot Tribe in Connecticut of fraud in its quest for federal recognition. The book, "Without Reservation: The Making of America's Most Powerful Indian Tribe and Foxwoods, the World's Largest Casino," alleges that the tribe "duped" Congress into granting federal recognition. The tribe was recognized by Congress through special legislation in 1983.

In the segment, the book's author, Jeff Benedict, a graduate of Waterford (Conn.) High School, claims that he can prove the tribe is not descended from Pequots, and if anything, they are more likely Narraganset. The Mashentucket scoff at such allegations and point to the fact that they have been recognized as Pequot for hundreds of years by the state of Connecticut and even maintained a reservation prior to federal recognition.

"We are tired of people trying to label us or paint what they want an Indian to look like," said Kenny Reels, chairman of the Mashentucket Pequot in an interview with "60 Minutes."

Controversy is expected to continue no matter what process exists. However, all sides say clear guidelines and better coordination between the administration and Congress should help alleviate some of the problems.

The Senate Committee on Indian Affairs is expected to mark-up S. 611 in the next few weeks for final consideration on the Senate floor.