WASHINGTON - As the Congressional session winds down and representatives and senators gather for a lame duck session, tribal recognition and the way the federal government deems a tribe eligible for federal acknowledgment looms as an unresolved issue.
Tribal groups continue to file for recognition with the BIA and push for legislation, while Congress and the administration continue to languish over a new procedure for federal acknowledgment.
The Indian Federal Recognition Administrative Procedures Act (S. 611), awaits passage in the waning hours of the 106th Congress with many tribal groups waiting for recognition. The bill seeks to replace current 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 , but it would also establish an independent commission to "review and act upon petitions submitted by Indian groups that apply for federal recognition." If this legislation were to become law, a new body, outside the BIA would have the authority to recommend acknowledgment.
Currently the Branch of Acknowledgment and Research, 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 which are already recognized by the federal government.
Criticism of the current process ranged from problems with standards used in meeting the recognition criteria, to the ability of the BIA to objectively make a 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's 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 that 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 that it has failed to properly address current problems within the process and that legislation is needed, but feels that it should retain the ability to provide recommendations for recognition.
Sen. Ben Nighthorse Campbell, chairman of the Senate Committee on Indian Affairs and sponsor of the bill, feels that legislation must be passed to provide the federal government the proper guidelines and criteria for acknowledgment. Sen. Campbell also says too many tribes are attempting to bypass the process by seeking recognition through Congressional legislation.
From the Thomasina E. Jordan Indian Tribes of Virginia Federal Recognition Act, to the Lower Muscogee-Creek Indian Tribe of Georgia Recognition Act, to the Swan Creek Black River Confederated Ojibwa Tribes of Michigan Act, groups from all over the country are standing in line to be recognized by the federal government through individual legislative measures.
"We need to get a handle on this situation," Campbell said. "I think there is a serious problem with the current process which needs to be fixed. Doing it one tribe at a time is no way to go."