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Federal Recognition: Can the BIA's Acknowledgment Process Be Fixed?

A story about BIA Indian tribe acknowledgment.

Years after the Chickahominy Indian Tribe of Virginia filed a petition for federal acknowledgment with the Bureau of Indian Affairs (BIA) in 1996, the then-head of the agency told a group of tribal members that many of them wouldn’t live long enough to see their tribe officially recognized.

At a hearing last month, Chickahominy Chief Stephen Adkins told the members of the Senate Committee on Indian Affairs, “This proved to be prophetic of several of the tribal chiefs and other tribal members who attended that meeting in 1999 have been buried since then,” he said.

The Chickahominy Tribe, which has been seeking federal acknowledgment for 16 years, is still waiting for a decision, but long waits are the rule, said tribal leaders and Indian law experts representing unrecognized tribes at the Oversight Hearing on Federal Recognition: Political and Legal Relationship between Governments. The hearing’s stated goal was “to examine the process of recognizing tribes through the Administrative and Congressional Processes.” The panelists variously described the BIA’s Federal Acknowledgment Process (FAP) as broken, long, expensive, burdensome, intrusive, unfair, arbitrary and capricious, less than transparent, unpredictable, and subject to undue political influence and manipulation, and noted that Congress has done little to improve things.

The administrative process established in 1978 “was intended to streamline federal recognition and make it consistent,” said committee chairman Senator Daniel Akaka (D-Hawaii). “Unfortunately, that process…has failed to accomplish that goal.… Congress has not recognized a tribe through legislation—can you imagine?—in over a decade!” (Congress recognized the Loyal Shawnee Tribe of Oklahoma in 2000.)

Congress’s apparent reluctance to recognize tribes is baffling in view of the fact that Congress itself passed the Federally Recognized Indian Tribes List Act of 1994, which established that tribes can be federally recognized by an act of Congress, a court ruling or the BIA.

Bryan Newland, senior policy advisor in the Office of the Assistant Secretary for Indian Affairs, gave background on the FAP and an update on the BIA’s recent activities. Since 2009, the BIA has granted federal recognition to one tribe and denied recognition to five, he said. The tribe that was recognized—the Shinnecock Indian Nation—could be the poster child for everything wrong with the federal-recognition process. An Algonquian coastal people who have lived forever along the shores of eastern Long Island, the Shinnecock Indian Nation formally petitioned for federal recognition in 1978; it was recognized 32 years later, in 2010.

Pictured is the Confluence area where the Navajo Nation development is proposed.

The man with no card: Michael Anderson (Courtesy Senate Committee on Indian Affairs)

During the hearing, Senator Jon Tester (D-Montana) and K. Jerome Gottschalk, a staff attorney for the Native American Rights Fund, pushed for congressional enactment of Tester’s S. 546, a bill that would restore recognition of the Little Shell Tribe of Chippewa Indians of Montana, another victim of the wretched federal-recognition process. The tribe filed its letter of intent to petition in 1978 and 31 years later was told it would not get federal status. But before the tribe’s federal recognition was denied, it was approved by then-Assistant Secretary for Indian Affairs Kevin Gover in 2000. But the Bush administration ignored the decision for eight years, and Gover’s ruling is currently under appeal.

Newland said the Interior Department is “well aware of the critiques” of the existing process and noted that the department had “previously indicated that we have been reviewing our existing regulations to consider ways to improve the process.” That comment prompted Senator John Barrasso (R-Wyoming) to recall a committee hearing on federal recognition in 2009 in which then-Acting Principal Deputy Assistant Secretary for Indian Affairs George Skibine said the agency would review and revise the existing regulations and present proposed new ones in about a year’s time. “What progress has been made in implementing reforms on this issue?” Barrasso asked. “We didn’t get that done,” Newland said. “There’s no sugarcoating that, but that’s not to say we haven’t made progress.”

The need for more action by Congress can be gleaned from information on the Office of Federal Acknowledgment (OFA) website. The OFA, which processes petitions for federal recognition, is currently working on at least 13 petitions. Since the enactment of the FAP in 1978 to April 29, 2011, the Interior Department has resolved 71 petitions:

• 17 tribes have been acknowledged through the FAP;

• 32 tribes have been denied acknowledgment through the FAP;

• 1 tribe’s status was “clarified by legislation”;

• 2 tribes’ statuses were “clarified by other means”;

• 2 tribes’ federal acknowledgments were restored by Congress;

• 7 tribes received federal acknowledgment by Congress;

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• 10 tribes merged, dissolved, withdrew or were removed from the process.

According to the OFA’s List of Petitioners by State as of April 29, 2011, approximately 272 letters of petition for federal recognition remain unresolved. The oldest was filed by the Piro-Manso-Tiwa Indian Tribe of the Pueblo of San Juan de Guadalupe, on January 18, 1971—seven years before the FAP process was established.

The tribal leaders who testified—Adkins; Michael Anderson, of the Muscogee (Creek) Nation; Paul Brooks, chairman of the Lumbee Tribe of North Carolina; John Norwood, a councilman of the Nanticoke Lenni-Lenape Tribe of New Jersey and co-chair of the National Congress of American Indians Federal Recognition Task Force—all urged Congress to act “immediately and decisively in the name of justice” to use its power to federally acknowledge tribes, because of the failure of the BIA process to accommodate individual tribal histories.

Adkins spoke specifically on behalf of the six Virginia nations named in S. 379, the Indian Tribes of Virginia Federal Recognition Act of 2011—the Chickahominy, Chickahominy Eastern Division, Nansemond, Rappahannock, Upper Mattaponi and Monacan, and urged passage of the bill by Congress. He talked, among other things, about the obstacles his tribe faced, including Virginia’s former racially hostile laws, such as Virginia’s Racial Integrity Act of 1924, that was crafted with the help of white supremacist Walter Ashby Plecker, the registrar of the Virginia Bureau of Vital Statistics from 1912 to 1946. This Jim Crow law classified all people as “white” or “colored” and declared there were no Indians in the state, thereby denying Indian heritage and culture. Courthouses containing Indian records were burned during the Civil War. And yet the BIA requires the tribe to provide documentation proving its existence for decades back, despite the facts that “tribes had no written language, oral history was considered inadequate, [and] colonial leadership sought to annihilate Native people versus maintaining vital statistics on them,” Adkins said.

Brooks told the committee that “there is no administrative process” for the Lumbee Tribe of North Carolina. Congress passed the Lumbee Act in 1956, acknowledging the Indians of the area, but it was a faux recognition because it included a statement that “nothing in this act shall make Indians eligible for any services performed by the United States because of their status as Indians.”

In 1980, the Lumbee Tribe sent their letter of petition to the BIA asking for full federal recognition, including the tribe’s right to receive federal services. The Office of the Solicitor reviewed the Lumbee Act of 1956 and concluded in 1989 that the act actually terminated the Lumbee and forbade them from having a government-to-government relationship with the U.S. In an Alice in Wonderland–Mad Hatter argument that means the Lumbee cannot go through the BIA’s federal-recognition process because the mandatory criteria prohibit tribes that have been terminated by Congress from petitioning for acknowledgment. “For more than 100 years, my people have petitioned, applied and appealed for recognition of our God-given sovereignty,” Brooks said, noting that Lumbee have served in every major U.S. war. He said Congress has a responsibility to deal with the Lumbee as they do with other tribes across the country. “I implore you to make a way for the recognition of the Lumbee Tribe of North Carolina. The current system will not work for us,” he said.

Norwood, whose Nanticoke Lenni-Lenape Tribe has sought federal recognition since 1992, took the critique of the FAP process to a broader level, highlighting the

increasing marginalization of nonfederally recognized tribes by federal regulations that are beginning to conflate Indian with being a member of a federally recognized tribe. He cited, for example, the fact that many American Indian scholarships now require students to be members of federally recognized tribes. He also pointed to the Department of Justice’s narrowing of the definition of Indian with regard to the possession of eagle feathers—a position in conflict with the United Nations Declaration on the Rights of Indigenous Peoples, which applies to all Indigenous Peoples within the United States and is not limited by the bounds of the U.S. federal-recognition process. “Increasingly, indigenous and American Indian are being redefined as ‘federally recognized’ based upon a history and process that is known to be hostile, unreasonable, unfair, racially biased, and demeaning to nonfederally recognized historically documented tribes.… This increasing denial of identity equates to a process of administrative genocide, in which nonfederally recognized citizens are being systematically wiped from the political landscape,” Norwood said.

Norwood offered several “common sense” recommendations for a federal-recognition fix, including:

• Congress and the courts should assume responsibility for correcting the injustice done to historic nonfederally recognized tribes by utilizing their “authority and discretion to immediately acknowledge worthy tribes”;

• Listing in government reports, receiving government services, regional histories, state recognition should all be considered in the process;

• Tribes that are historically identified, but not included in the Indian Reorganization Act of 1934 should be immediately reviewed for acknowledgment “due to the impact of regional and racial bias in the application of the IRA”;

• Regional considerations should be taken into account. Congress should commission a study of “the regional realities that have impacted tribal histories, especially among coastal area tribes of the colonial era” and the study should be done in cooperation with the tribes to establish the assumptions that should be considered;

• Regulatory and legislative measures should be established immediately to ensure that the criteria for acknowledgment are applied as they were meant to be and used as they were prior to 1981. Congress can rectify the “onerous” FAP process, remove it from the BIA, or replace the OFA management and staff to get a fresh look at the evidence and issues.

• Being weak in only one of the seven mandatory criteria should not derail a petition especially if there is “overwhelming evidence” for the other criteria. “Objectively reviewing documentation of the tribe’s historic and continuing identity should not create the unreasonable evidentiary burden and bureaucratic backlog currently found in the FAP.”

• The process should not be detailed by the comments and political influences of third parties.

Reforming the system isn’t “rocket science or quantum physics,” Norwood said. “Congress can take action and has in the past.… The current degrading atmosphere of increasing denial of American Indian tribal identity and status for nonfederally recognized tribes must be eradicated,” he said.