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Recognition hearing takes on bureaucracy

WASHINGTON - A Feb. 10 congressional hearing further exposed the tyranny of
entrenched bureaucracies in Indian affairs as a witness on tribal
recognition tried to defend an Interior Department track record that
includes 15-year waits for petitioners seeking federal status as a tribe,
despite a law on the books "to compel agency action unlawfully withheld or
unreasonably delayed."

Michael Olsen, acting principal deputy assistant secretary for Indian
Affairs at Interior's BIA, offered staff reductions, funding shortfalls,
and the voluminous documentation and research requirements of the
acknowledgment process as reasons for the prolonged delays that currently
affect at least 10 petitioners.

His views find some justification in a Government Accountability Office
report, released the same day: "While Interior's Office of Federal
Acknowledgment has taken a number of important steps to improve the
responsiveness of the tribal recognition process it still could take four
or more years, at current staff levels, to work through the existing
backlog of petitions currently under review, as well as those that are
ready and waiting for consideration."

Rep. Richard Pombo, R-Calif., chairman of the Resources Committee in the
House of Representatives, has introduced a bill that would require the
Secretary of Interior (advised by the BIA on the basis of OFA findings) to
finally determine the status of tribes with longstanding petitions within a
year of the act's passage.

Olsen countered that the bill's timeframes are too short, given OFA's other
responsibilities and the nature of the recognition petitions, which have
been known to exceed 30,000 pages. The past of the petitioning group must
be researched by a cultural anthropologist and a historian, and a
genealogist must check the lineage of purported tribal members.

In addition, Olsen said, the bill would advance tribes that petitioned in
1988 ahead of other stalled petitioners on Interior's waiting lists.

According to Olsen, a longstanding petition doesn't necessarily indicate
foot-dragging at OFA (previously the Branch of Acknowledgment and
Research). "After a group files a letter of intent, and the Assistant
Secretary acknowledges the receipt of that letter (usually within 30 days),
it is often the case that the group does not come forward with a documented
petition for several years, some up to 20 years ... Rules of timeliness and
repose would provide a clear timeframe for petitioners' submissions of
final documented petitions with supporting evidence as well as help the
Department better manage and coordinate its available resources."

Olsen concluded by saying that Interior will not support the Pombo bill,
H.R. 512.

None of this sat well with Pombo or his colleagues on the committee. Of the
10 tribes that petitioned in 1988, "All of their documentation has been at
the department since then," he noted, "so I'm not sure what the concern is
with timelines ...

"I just think it's unconscionable ... that you hold someone out there for
20 years without an answer."

Committee member Grace Napolitano, D-Calif., pronounced herself
"flabbergasted" that 17 years wouldn't be enough to reach a determination
on a petition.

Another senior Democrat, Rep. Dale Kildee of Michigan, questioned
Interior's urgency. "Tribes' whole future depends on a decision that has
not been made [for many years] ... I would urge you to have that sense of
urgency."

Indeed, Olsen said a Congressional Budget Office study found that $12
million and more staff would be needed for OFA to meet the demands on it.
Pombo said appropriations would be forthcoming in future follow-up
legislation. "This is just the beginning of what we need to be doing."

Attorney Henry Sachse, testifying in favor of H.R. 512, went back to
inherent causes in criticizing the recognition process. "This bill
addresses one of the worst abuses inherent in the Department of the
Interior's handling of tribal recognition: unreasonable delay, and an
attitude that no one has a right to question it. There are other abuses
that need to be corrected - unreasonable standards for recognition, and an
entrenched bureaucracy that functions without any real supervision within
the department."

Sachse is hardly an impartial observer. His firm, Washingtonbased Sonosky,
Chambers, Sachse, Endreson and Perry LLP, went through the mill on
recognition with the Muwekma Ohlone in California before Interior ruled
against them following court intervention. As if anticipating the
appearance of bias, Sachse attached to his testimony a 2004 statement to
the Senate Committee on Indian Affairs of Kevin Gover, who headed the BIA
during President Clinton's second term. Gover described the recognition
program, then known as the Branch of Acknowledgment and Research, as
"deeply troubled" from the petitioners' point of view.

"It is a dense program, requiring an extraordinary amount of research,
paperwork and expense. It is an intrusive program, with its inquiry into,
quite literally, the parentage and family background of hundreds of
thousands of members of the petitioning tribes. And above all, it is a
very, very slow program. Too many tribes have had petitions pending for
more than 20 years ...

"By creating an avalanche of paper, the BAR effectively overwhelmed the
office of the assistant secretary, and in so doing assumed an inappropriate
degree of control over the program ... this phenomenon [is] 'staff
capture,' meaning that agency staff essentially defies supervision by
political appointees by overwhelming policymakers with information...

"I do not believe that the BAR staff were dishonest in their analysis. I do
believe that, in accordance with their training, they applied a burden of
proof far beyond what is appropriate and far beyond what is permitted by
the regulations."

Altogether it makes for a process that is "awful" for petitioners, Sachse
told Pombo, "Your bill is correct... Interior has had their shot at this
and they've made a terrible mess of it."

He said every petitioner can get a court order for a decision, courtesy of
the above-mentioned law "to compel agency action unlawfully withheld or
unreasonably delayed."

"But in doing that," he added, "you build up the animosity of the people
who will be making the decision" - for the courts at best simply order OFA
to expedite its decision.

"You shouldn't have to fight your agency to hear your case, and then go
back to the very same agency for a decision that already sees you as the
enemy."

The issue of agency accountability is much in the air in Washington
following a judge's decision to hold the Environment Protection Agency
accountable for "illegal delay and inaction" in failing to clean up air
quality in the District of Columbia and its suburbs. But things work a
little differently in Indian country; the group that brought the air
quality lawsuit is in no danger of being read out of any standing before
the court by the EPA.

A provision of H.R. 512 that would refer stalled decisions to federal
district court rallied Olsen to a many-faceted defense of Interior's
prerogatives - a defense that also denies petitioners any remedy that
doesn't lead back to Interior.

Pombo said he isn't keen on involving courts, but added that petitioners
must have a remedy when Interior can't deliver a decision in up to 20
years.