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Skibine promises new federal recognition regulations

WASHINGTON – A top BIA official has promised to reform the federal recognition process.

Acting Principal Deputy Assistant Secretary for Indian Affairs George Skibine told the Senate Committee on Indian Affairs it would take about two years to review existing regulations and develop new ones in consultation with tribal nations.

It was déjà vu all over again at SCIA’s hearing on fixing the federal acknowledgment process Nov. 4.

“The very title implies that the process is broken, so our title says this is about fixing it,” SCIA Chairman Sen. Byron Dorgan, D-N.D., said.

Dorgan and other members of the committee noted the “frustrating” fact that similar hearings have occurred on average every two years for the past several years.

But this time members seemed intent on making a breakthrough. Their renewed energy for reform may have been spurred by the BIA’s recent denial of federal acknowledgment to the Little Shell Tribe of Chippewa Indians of Montana – the poster child for the wrecked federal recognition process.

The tribe filed its letter of intent to petition in 1978, completed its petition in 1985 and had to wait 31 years to be denied federal status, Dorgan said.

But before it was denied, it was approved by former Assistant Secretary of Indian Affairs Kevin Gover in 2000. Then, the Bush administration neglected the decision for the next eight years.

“People will be born and people will die in the middle of that process without getting answers,” Dorgan said.

He raised a number of questions about the process: Were the mandatory criteria being inconsistently interpreted? What do “on a substantially continuous basis” and “reasonable likelihood” mean? Who decides the fate of a petition – the Office of Federal Acknowledgment or the assistant secretary for Indian Affairs? What exactly is the burden of proof a tribe needs to meet the seven criteria? Should the process be turned over to an independent commission as proposed in a pending bill? Should administrative law judges be involved to provide more transparency and a clear legal standard for evidentiary review?

“Petitioners say the OFA keeps moving the goal post back, requiring more and more documentation. It’s an open ended process and some would say it’s a never ending process.”

Skibine and Lee Fleming, OFA director, were the first witnesses. The two career employees have around six decades of combined federal government experience and have both testified before the committee on numerous occasions.

Skibine said Larry EchoHawk, the new assistant secretary for Indian Affairs, agreed at his confirmation hearing that the acknowledgment process needs to be improved.

“So he has asked me to be the chief architect of trying to fix what is broken, and as a result, I have committed to him that this is going to be one of the priorities of his administration and we are going to get that done before he leaves office, for sure.”

Skibine said he plans to develop new regulations, and Dorgan asked for a timeline.

“I think it will take about a year to develop proposed regulations and then they have to be finalized. We still have to do consultation with the Indian tribes, so that will take another year,” Skibine said.

In one of the humorous moments at the hearing, Dorgan asked Skibine if he thought he would still be working for the federal government when the new regulations go into effect.

“I’m eligible to retire right now,” Skibine said, laughing.

Although he disagreed that the process is entirely broken, Skibine outlined a number of potential improvements, such as establishing clear time frames; eliminating unneeded steps; clarifying language ambiguities; and reviewing the standards.

“We’re probably going to take a hard look at the standards. ... to see if there’s some redundancy or whether it’s all needed.”

He cited as unacceptable the different interpretations of “substantially continuous basis” in Gover’s positive finding and the recent negative determination in Little Shell.

“How can you have this kind of disagreement? I think it’s important to have standards where you can articulate, either they meet (the criteria) or they don’t,” Skibine said.

“Little Shell was an excruciating decision for me.”

Sen. Jon Tester, D-Mont., a supporter of Little Shell, asked about the tribe’s options now.

The tribe can ask Congress for recognition, ask the BIA to reconsider its decision or appeal to a federal court, Skibine said. The last two options have slim chances of success, however.

Justice must be done for Little Shell, the tribe’s President John Sinclair said.

The BIA’s treatment of Little Shell “undermines sovereignty for all tribes. We ask Congress to do what the BIA should have done,” Sinclair said, urging Congress to support Tester’s bill to recognize the tribe.

Fleming outlined the BIA process and the changes that have been made since a 2001 Government Accountability Office recommendation for wide sweeping reforms. Perpetually understaffed, the OFA is nowhere near reviewing a petition in the desired 25-month timeline.

“How much money do you need to do the job effectively and are you asking for this money? Otherwise, maybe we should all give up and say this process doesn’t work,” Dorgan said.

Other witnesses included Frank Ettawageshik, chairman of the National Congress of American Indians’ Task Force on Federal Recognition, Muscogee Nation of Florida Chairwoman Anne D. Tucker, and Patty Ferguson-Bohnee, the director of the Indian Legal Clinic in Tempe, Ariz.

Their testimony and a video of the hearing are available online.