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Report finds flaws in tribal recognition process

WASHINGTON ? A report from the U.S. General Accounting Office offers findings highly critical of the BIA process to determine whether a tribal group receives federal recognition and the pace at which that decision is made.

Officials at the BIA agreed with the GAO and said they intend to make changes to that process.

'We share the goal of improving this important federal function to serve Indian tribes,' said Assistant Secretary Neal McCaleb. 'It is important to be thorough and (that) deliberate evaluation occur before we acknowledge a group's tribal status, which carries with it certain immunities and privileges.'

In the report, the GAO said that because of weaknesses in the recognition process, the basis for the BIA decisions are not always clear. It also said the time taken by the BIA to make those decisions is 'substantial.'

'Although there are set criteria that petitioning tribes must meet to be granted recognition, there is no clear guidance that explains how to interpret key aspects of the criteria,' the report read. 'Also the regulatory process is not equipped to respond in a timely manner.'

The report concludes that poor guidelines are the source of most of the BIA recognition problems. It also points out that the staff assigned to handle recognition has decreased by 35 percent since 1993, even though the number of petitions filed has increased dramatically.

The result, it said, has been a process that does not impose effective timelines and incorporates procedures for providing information to interested parties that are ineffective.

Included in the report was a letter from McCaleb saying the BIA will streamline the current process and make it more accountable through better guidelines. However, he defended use of the seven criteria used by the BIA to evaluate a tribe's eligibility for acknowledgment, saying they would not be changed.

'The existing criteria should not be changed in an attempt to quicken the pace of the process,' McCaleb said.

Under existing regulations, the BIA bases decisions on whether an applicant for acknowledgment 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.

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The BIA process for recognition has come under fire over the past several years by tribes applying for recognition, local governments, members of Congress and tribes already recognized. Criticism has ranged from problems with standards used in meeting the recognition criteria to the ability of the BIA to objectively make a determination regarding acknowledgment.

The GAO began working on the report after members of Congress from Connecticut and Virginia accused former BIA officials of ignoring staff recommendations and granting federal acknowledgment to several tribes without proper evidence.

The Branch of Acknowledgment and Research, or BAR ? 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.

Former Assistant Secretary Kevin Gover and his deputy, Michael Anderson, were criticized about their motivations for recommending that certain tribes be recognized. These included the Paucatuck Eastern Pequots and Eastern Pequots of Connecticut, as well as the Nipmuc tribes in Massachusetts ? all highly controversial in New England and staunchly opposed by local communities and lawmakers. Adding to the controversy, BAR staff was accused of working with local communities in efforts to oppose tribal recognition.

While the GAO did not offer specific information or recommendations about these decisions, it did recommend that the BIA develop a plan to speed up the process.

In response, the BIA said it will adopt new guidelines on how to interpret the criteria, as well as update policy manuals and make more information available to interested parties.

The bureau said there is a backlog of 200 tribes awaiting recognition. It estimates it will take the current staff assigned to the process 15 years to complete these cases.

To address some of the ongoing criticism, a few in Congress are making their own suggestions. Sen. Ben Nighthorse Campbell, R-Colo., and vice chairman of the Senate Committee on Indian Affairs, has been pushing for legislation to replace the current criteria and standards used by the Department of Interior with new procedures mandated by Congress. However, his legislation would not only 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 then have authority to provide recommendations on acknowledgment.

With the debate over tribal recognition heating up in New England, Rep. Robert Simmions, R-Conn., is planning to introduce similar legislation that would require the BIA to only grant recognition to applicants that meet all seven criteria. His bill would also provide $1.8 million in funding for the BIA's recognition efforts and a $10 million grant program for towns monitoring or opposing a tribe's recognition application.

While Interior admits it has failed to properly address current problems within the process and that guidelines are needed, McCaleb says it should retain the ability to provide recommendations for recognition. The GAO report made no mention of removing BIA authority to handle tribal acknowledgment.