"The procedures for obtaining federal recognition are broken.”
These are the words of Sen. Byron Dorgan (D-N.D.), chair of the Senate Committee on Indian Affairs, who presided over a listening session for tribal leaders and community members recently in Los Angeles. While many petitioners have complained about the federal recognition procedures of the Office of Federal Acknowledgement within the BIA, there is no clear plan for reform.
The main issues are that the process takes too long, puts great financial and time pressures on communities with few resources, and requires unexpectedly high standards of historical documentation to satisfy the main criteria. As many as 300 communities have sent letters of intent to the OFA. The financing and organization of researching, writing, and submitting a formal petition for federal recognition has inhibited most communities from moving further toward recognition.
Proving Indian identity is a different task from proving you are a member of a continuous tribal community for the purposes of federal recognition.
Generally, there are fewer than 20 full petitions submitted to OFA at any one time. However, the OFA has the staff, time and resources to evaluate about one or two petitions each year. Petitions are often under review by OFA historians, genealogists, lawyers and anthropologists for several years before OFA submits a comment or recommendation. The wait to review by any petitioner with a full submission can last 10 years or more. With such a slow process the leading elders of many tribal communities often cannot expect to see during their lifetimes a petition written, submitted, evaluated and approved.
Certainly, more resources would allow OFA to address more cases at a time. More staff, more research resources, and greater capability to work directly with petitioning tribal communities would all help move the process along. Currently, OFA provides limited direct assistance to petitioning communities. Tribal petitioners need to understand the expectations of documentation, the definitions of acceptable evidence for proving external recognition, the criteria and methods of demonstrating community distinctness and continuity, and political influence over time.
For example, a California Indian or a group of California Indians who qualified as individual Indians in the 1928 and 1972 land judgment payments, cannot use that information for proving tribal recognition, since the judgment roll recognized individual Indians but not specific tribal communities. Similarly, if a group of petitioning tribal people attended an Indian boarding school or participated in a pan-Indian organization like the California Mission Indian Federation, since participation is open to all Indians, participation is not proof of membership in a continuous, political tribal community. OFA requires documentary evidence for most criteria, and the petitioner must show community organization and political influence from the time of contact with Europeans.
While many petitioners have complained about the federal recognition procedures, there is no clear plan for reform.
These are high standards, especially when the community must provide documents in support ranging over the last 200 years or more. Oral history is given less attention than documentary evidence. Since tribal communities, especially in historic times, were oral communities, it places the petitioning tribal communities at a significant disadvantage. In the 1997 case, Delgamuukw v. British Columbia, the Supreme Court of Canada admitted oral testimony for establishing traditional boundaries and claims to territory for tribal communities in British Columbia. Proving Indian identity is a different task from proving you are a member of a continuous tribal community for the purposes of federal recognition.
The OFA needs to be more productive and more culturally sensitive. It needs more resources to complete its work and to collaborate with tribal communities in developing petitions. The office needs to visit and assist petitioning communities formulate petitions, and needs to rethink methodologies and criteria to make them more congruent with the histories, likely evidence and cultures of American Indians over the past two centuries. OFA policy should be directed to finding and approving all deserving non-recognized Indian communities, and to completing this task quickly, efficiently and with cultural sensitivity and respect.