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'Tribal Sovereignty is Not for Sale'

Like a canary in a mine, an article which appeared March 29, on the front
page of The New York Times signals ominous developments for Indian country.
The article "Would-Be Tribes Entice Investors" ostensibly focuses on
investors who provide financial backing for unrecognized tribes in exchange
for a percentage of future tribal casino profits. However, the tone,
factual omissions and inaccuracies of the piece render it an attack on
tribal sovereignty, all the more insidious because the jabs are embedded in
a news article, not in a columnist's opinion piece. That this has occurred
at The New York Times which has world-wide distribution, not to mention
credibility, should serve as a wake-up call for tribes regarding the
pressing need to address the false and irresponsible characterizations of
tribal sovereignty which appear in mainstream media.

The Times article begins tongue-in-cheek regarding how tribes are formed:
"It has become a ritual in every part of the nation: a group of people of
American Indian heritage, eyeing potential gambling profits, band together
and seek federal recognition as a tribe." Yet the author, seasoned
journalist Iver Peterson, offers no factual corrective for his fictitious
"ritual." He never explains that a petitioner must demonstrate historical
continuity as an Indian group in order to be recognized by the BIA. In
fact, recently-formed groups simply do not have the extensive historical
documentation needed to prove their social, political and genealogical
continuity as tribes. Nor can any infusion of investor money manufacture
this evidence. Groups which suddenly decide to form a "tribe,"
self-destruct rather quickly, as well they should.

Peterson goes on to use "tribe" as a figure of speech, calling the
"genealogists, historians, treaty experts, lobbyists and lawyers" who work
for petitioners, "another tribe in search of wealth." This is no innocent
metaphor; instead, it serves to reinforce the view that "tribes" are
voluntary associations without sovereignty and historical depth.
Interestingly, Peterson does not refer to the opponents of tribal gaming as
a "tribe seeking to preserve its own non-gaming territory," despite the
fact that they too benefit financially from their actions.

What is not included in the article is often more important than what is.
Significantly, there is no discussion why unrecognized tribes seek
investors to begin with. The truth is, having the money to hire
professional researchers and attorneys has always been important in the
petitioning process as indeed it is in any legal action. Prior to the
1990s, groups cobbled together petitions using tribal volunteers, students,
pro bono law firms and miniscule grants because they had no choice. Funding
was never adequate and always handicapped a group's ability to counter the
claims of wealthy landowners and powerful government officials with
full-time legal staff.

Beginning in the 1990s, the success of tribal gaming encouraged some
investors to take on the substantial cost and risk of a tribe's petitioning
effort. Investor money enables unrecognized tribes to hire the experts they
need to prepare and defend a well-documented petition, thereby leveling the
playing field legally and politically. Indeed, under the scrutiny of
petitioners' experts, serious evidentiary and procedural errors on the part
of BAR have been uncovered. Are unrecognized tribes to be criticized for
wanting the best consultants on their team? Does the fact that petitioners
hire experts make them any less a "tribe?" Does a petitioner's economic
development plans automatically undermine the reliability of its historical
evidence as a tribe?

In addition to omitting critical information about tribes and the
recognition process, the article inaccurately states that "All but a
handful of the nearly 300 groups now seeking tribal recognition have come
forward since Indian gambling was legalized in 1988." The American Indian
Policy Review Commission in fact identified about 150 unrecognized tribes
before the BIA process was codified in 1978 and most of these submitted
letters of intent to petition under the old acknowledgment regulations,
years before gaming became an option. Several of the petitioners who now
have petitions under active review by the BIA began the petitioning process
way before the passage of the Indian Gaming Regulatory Act (IGRA) in 1988
but were handicapped by inadequate finances. Investor money has enabled
these groups to complete and submit a documented petition to the BIA.

It should also be pointed out that while "hundreds" of tribes may have
signaled their intent to petition the BIA, only a small number have
actually submitted a well-documented petition. Moreover, most will never
have the historical documentation necessary to do so; there are no records
for "wannabe" and recently-formed groups and most others have thin or
spotty records which will prove inadequate for satisfying the BIA's onerous
regulations.

The timing of petitions - before or after gaming was legalized - is itself
a red herring. It is not when a petitioning group applied for federal
recognition which is relevant, but rather the merits of its evidence.
Documents, records, and data will determine whether a group succeeds, not
the date of its intent letter.

Finally, the article liberally quotes opponents of tribal gaming in
Connecticut who apparently think that politically-driven interpretations of
historical evidence should guide BIA decision-making. Ironically, this is
the very same position that they criticize investors for taking - i.e.,
seeking to acknowledge tribes not based on the merits of the evidence, but
based on political factors beyond the scope of the codified regulations.

Yet a petitioner's economic development plans, be they gaming or
non-gaming, should play no role in federal acknowledgment decisions.
Peterson's myopic focus on investor money trivializes the historical
continuity of tribes by shoving the issue of evidence completely off the
table. In doing so, he fails to address how bona fide tribes are
distinguished from recently-formed voluntary associations. As a result,
they aren't, and readers are left to conclude that "tribes" rest on the
shifting sands of investor money rather than on a solid foundation of
social, political and genealogical continuity. The message is unfortunately
all too clear: tribal sovereignty is for sale. Indian country needs to tell
Peterson he is wrong.