The Interior Department’s proposed new rules for granting recognition to tribes are likely to be controversial, with some congressional leaders fearing that they will lead to more Indian casinos, hundreds of new recognized tribes and rekindle battles over what constitutes historic homelands for tribes.
Supporters say the current rules are “broken and unfair,” according to Indian Country Today.
The lawmakers are not just concerned about new casinos; they also worry about states and municipalities losing tax dollars, which happens when land is placed into trust for a tribe.
The proposed changes, proposed by Secretary Sally Jewell and Assistant Secretary for Indian Affairs Kevin Washburn, would be the first since the department adopted the process for recognizing tribes 35 years ago. Under that process 17 tribes have been recognized, out of the total of 566 tribes. The new rules are designed to speed up the process and open it up to more tribes.
The key change would give recognition to tribes that can show, “community and political influence/authority from 1934 to the present,” rather than from 1789, when the U.S. Constitution was ratified. Other requirements would also be dropped.
According to Jewell, “President Obama believes that reforming the federal acknowledgment process will strengthen our important trust relationship with Indian tribes.”
In an interview with Indian Country Today, Washburn explained why the 1789 requirement was dropped. “Petitioning groups didn’t like that because during times in our nation’s history we were either seeking to exterminate or terminate of assimilate Indians so often they went underground during those periods and the problem is if we demand that they show evidence from those time periods they could very justifiably say, ‘We don’t have any evidence because we were trying not to be noticed.’ “
The year 1934 is important, he said, because that is when Congress adopted the Indian Reorganization Act. “There was a period in the 1950s when tribes were terminated, but 1934 was the first time when the federal government said, ‘Look, we think tribes should continue and we should help them draft constitutions and that sort of thing so that they can be ongoing political entities.’ “
Critics of the new rule are blunt that it will lead to hundreds of new recognized tribes that have so far failed to achieve it, and give them sovereignty in dealing with states and counties.
Connecticut, which currently has two Indian casinos, and would like to leave it that way, responded to the proposed regulations with a joint statement by Governor Dannel Malloy, Attorney General George Jepsen, U.S. Sens. Richard Blumenthal and Chris Murphy and various congressmen by saying, “We believe additional changes and clarifications are necessary to ensure that Connecticut’s interests are protected, and we will continue to work for their inclusion.”
Several months ago Malloy wrote to President Obama opposing the rules changes. “For Connecticut, the consequences would be devastating,” the governor wrote. “The petitioning groups have filed or threatened land claims to vast areas of fully developed land in Connecticut. Such claims can cloud the title to real property in the claimed area, causing significant economic hardship to Connecticut residents.”
Several tribes in that state, including the Eastern Pequot of North Stonington, the Golden Hill Paugussett of Colchester and Trumbull, and the Schaghticoke of Kent have sought federal recognition for years and all three have said they want to build casinos.
U.S. Senator Richard Blumenthal, who represents Connecticut, and has been on the front lines against recognition of the three tribes, first as attorney general, says he isn’t giving up. Recognition will inevitably lead to more casinos in the state, he said.
He told the Hartford Courant, “There could be months and even years before any new regulations become final, so there is nothing imminent. A new casino is far from imminent. Frankly, I am determined to continue to fight against any provisions” to change the rules. He added, “I’m mystified why they have engaged in this massive rewriting of rules and criteria which may give some of the tribal groups a second chance to seek formal federal recognition – a second bite at the apple.”
One provision in the proposed rules gives hope to Blumenthal and others, a provision that requires that tribes that have previously sought recognition and been denied, would have to get consent from the state that originally opposed them.
“We haven’t been completely rebuffed, which seems maybe we can push the administration even more toward clarifying these provisions,” Blumenthal told the Courant.
Eastern Pequot leader James Benny Jones Jr., called the proposed rules, “clearly a slap at the Connecticut tribes.” Jones said obviously the BIA changed the “discussion” draft, which did not include the provision about getting permission to reapply, under pressure from Connecticut officials. He called it an example of “influence peddling.”
In his interview with Indian Country Today, Washburn addressed the issue of tribes getting a second chance to petition the federal government: “If we’re slightly adjusting the criteria in such a way that a group that was ultimately denied recognition can say, ‘Look, you changed the criteria and under this new criteria we are entitled to be recognized,’ we’re going to give them a chance to make their case – with some exceptions. The idea here is basically they’re going to have to go before and administrative judge and say, ‘Reconsideration is appropriate in our case because you’ve changed the criteria in a way that benefits our case and if we’d had this updated criteria we might not have been denied.’ ”
This does give the political entity that opposed the first recognition attempt a chance to kill a second one, Washburn conceded, but added, “The bottom line is in many cases it’s a political entity that’s doing that and political entities change and if a new governor comes in or new legislature it can change the dynamic. So it sort of leaves the door open to some degree and presumably those challengers are people who prevailed in court. So it’s kind of not fair for them to have challenged a petitioner and taken it to court and prevailed for us to come back and say, ‘We’ve changed the rules, you’re back to square one’—they rightfully can say that’s not fair. We want everybody to think this process is fair—that’s one of the most important things we’re trying to do through our reform.”
The announcement of the proposed rules changes will now be followed by a public comment period through the end of July. The Bureau of Indian Affairs plans to meet with recognized and non-recognized tribes six times during July to discuss the proposed rules. However, it is asking the non-recognized tribes to attend public sessions, while it will hold private sessions with recognized tribes.
The proposed rules are subject to change, but permanent rules will be published at a later date.
