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Recognition: It's time for politics in the open and an end to turf games

Nothing in Washington is guarded more jealously than turf. The turf that the Bureau of Indian Affairs protects beyond reason is its self-declared right to say who the Indians are and who they are not.

A federal investigatory report surfaced last week, exposing a turf fight between Indian politicos in Interior and BIA lifers over six tribal recognitions that were decided in the eleventh hour of the Clinton administration.

It seems that one was a thirteenth-hour decision, involving a back-dated recognition document signed at the start of the Bush administration by a Clinton appointee who was no longer a federal employee.

The Bush politicos rescinded the recognitions and are reconsidering them. The top Indian in Interior says the BIA cannot serve the current tribes and questions whether more should be added.

This leaves the six tribes in the BIA netherworld, but with some pretty good arguments about arbitrary and capricious treatment. Those affected are two Eastern Pequot tribes in Connecticut, two Nipmuck tribes in Massachusetts and the Chinook and Duwamish of Washington.

The Boston Globe published a series on the recognition debacle in 2001 and Rep. Frank R. Wolf (R-VA) called for the Interior inspector general to investigate matters raised in the articles.

Wolf received the investigatory report on Feb. 27 and wrote to Attorney General John Ashcroft the next day. The report "confirmed my suspicions that the federal tribal recognition process has been compromised," he wrote, and "documented the serious misconduct of Clinton political appointees at BIA."

Wolf wants Justice to pursue prosecutions, maintaining there is "clear evidence of illegal activity." He also wants Interior to submit legislative proposals to Congress to address weaknesses in the recognition process.

Chair of the House subcommittee that funds the Justice, Commerce and State departments and the federal judiciary, he is the second highest majority member on appropriations panels on Transportation, Treasury, Postal Service and general government. All of that is to say his requests to Ashcroft and Norton will not be taken lightly.

Wolf started bird-dogging the recognition process in the late 1990s, reportedly after hearing an allegation that the Mashantucket Pequot Tribe was recognized without proving its connection to the historic Pequots. In 2000, he opposed a bill sponsored by members of his delegation to recognize eight tribes in Virginia: two Chickahominy and two Mattaponi tribes, along with the Monacans, Nansemonds, Pamunkeys and Rappahannocks.

At the same time, he and six other House members called for a moratorium on recognitions, an investigation of the Interior process and General Accounting Office data on recognition history, pending tribal petitions and current tribal gaming operations. He was joined in the request by Reps. Roy Blunt, R-Mo., Ernest Istook, Jr., R-Okla., Nancy L. Johnson, R-Conn., and Christopher Shays, R-Conn., and then-Reps. Tom Coburn, R-Okla., and Jack Metcalf, R-Wash..

Administrative recognitions are handled in Interior by a dozen anthropologists, genealogists, historians and researchers in the BIA's Branch of Acknowledgment and Research.

Technically, there are not supposed to be administrative recognitions, because only Congress can establish a relationship with an Indian nation. This is the backdrop to the legal fiction that the Executive Branch is not recognizing, but merely acknowledging that such a relationship exists or does not exist.

In the 1970s, Interior took fire from members of Congress from the Pacific Northwest and the Northeast for supporting Indian treaty fishing and eastern Indian land claims. Any federal assistance to "new" or "emerging" tribes, they argued, would open the floodgates to Indians claiming fish and lands all over the country.

Interior Secretaries Rogers C.B. Morton, Thomas S. Kleppe and Cecil Andrus all took the position that Interior could not determine tribal recognitions, absent a congressional authorization. Criteria and standards for acknowledgments shifted with the political winds.

Some tribes were denied acknowledgment because they were landless, while that standard was not applied uniformly. Others were denied because they lacked the requisite amount of blood or paper or tribal officials.

In the meantime, the courts were asserting their role in tribal recognitions.

In one instance, Interior turned down the Passamaquoddy Tribe's request to investigate their claim to lands in Maine on the excuse that there was no federal trust responsibility to tribes east of the Mississippi River. The tribe sued Morton and, in 1975, Judge Edward Gignoux ruled for the Passamaquoddy, acknowledging the trust and statutory relationship with the United States.

Judge George Boldt allowed the Stillaguamish Tribe, which was not federally recognized, to intervene in the fishing case, ruling that it had a treaty right to fish. The Stillaguamish sued Kleppe and, in 1976, Judge June L. Green gave Interior 30 days to act on the Tribe's petition, at which point Interior Solicitor Kent Frizzel acknowledged its federal status.

The Interior and BIA lawyers and other staffers who were accustomed to making recognition decisions predicted chaos if the courts continued to step into the acknowledgment arena. As the courts were removing federal agents from decisions regarding tribal citizenry, many of the bureaucrats redoubled their efforts to maintain control of determinations about tribes themselves.

It was common to hear their elaborate arguments about how different the "new" tribes were from the "real" tribes. "Are they Stillaguamish-ized or Passamaquoddy-ized," they would ask. Tribal and federal meetings would grind to a halt as the nuances of each decision were recited.

Their solution was to set uniform standards for acknowledgment that would take politics out of the decision-making process. But the standards that exist today never were applied uniformly and the process never was depoliticized, only hidden from view.

The acknowledgment decisions are now predominantly race-based, even though courts have consistently held that tribal citizenship or membership is political, not racial, and that the federal-tribal relationship is political, not racial. It is time for the process to line up with the law.

The recognition process is and should be political. Congress needs to reclaim it and deal with the politics openly. As things stand now, all the negative manifestations of politics are in full play, but the administrative process shields the political acts from Indian and public view.

Some time in the sunshine and off the artificial turf will be a healthy change for everyone affected by federal recognition.