The Department of the Interior has released the final form of new rules that streamline the process for recognizing Indian tribes. This is the first time the rules have been revised in the forty years they have existed. The department has been working on the rules since President Obama first took office.
They make it likely that more tribes, perhaps as many as 100, will be recognized, although in Connecticut officials are sighing with relief because tribes that have been denied recognition previously won’t be able to petition again.
However, some members of Congress want to inject the legislative branch into the process. A proviso preventing the rules from going into effect has been attached to a bill funding the Interior Department.
According to Interior Secretary Sally Jewell and Assistant Secretary-Indian Affairs Kevin K. Washburn, head of the Bureau of Indian Affairs, the rules are more transparent, timely and consistent than the old rules.
In a statement Jewell said, “Since the beginning of President Obama’s administration, the department has worked with tribal and government leaders on improving the federal acknowledgment process, which has been criticized as inconsistent, slow and expensive.” She added, “This administration takes very seriously its important trust and treaty responsibilities to Native Americans and Alaska Natives. This updated process for important tribal recognition makes good on a promise to clarify, expedite and honor a meaningful process for federal acknowledgement to our First Americans.”
The old rules had been criticized as being “broken” by many tribal critics. Recognition often has taken decades. Arlinda Locklear, a Washington attorney who has helped a dozen tribes with recognition petitions, told the Oneida Daily Dispatch, “You have a whole generation of people who just die while they’re waiting for it to happen.”
Tribes were consulted extensively in the rewriting process, as were state officials.
Washburn added, “We have a responsibility to recognize those tribes that have maintained their identity and self-governance despite previous federal policies expressly aimed at destroying tribes.” The new rules will be “rigorous,” but will be transparent by posting all petition materials online. They also establish a procedure by which an administrative law judge will hold hearings and make recommendations.
The reactions of state officials and tribes in Connecticut to the new rules demonstrate just how far apart those groups are on the issue of recognition.
Two Connecticut tribes called the new rules a “violation of the rights of certain Native American tribes,” and said they will continue to fight for recognition. On the other hand, Governor Dannel Malloy and the state’s congressional delegation hailed the rules as “a big victory.” Both have fought more recognition, which they feared would bring more Indian casinos.
U.S. Senator Richard Blumenthal added, “This means the state is not for sale,” alluding to the fact that some gaming interests were rooting for an easing of federal recognition in order to facilitate more tribal casinos.
The tribes that are fighting for recognition are the Golden Hill Paugussett Indian Nation in Trumbull, the Eastern Pequots in Stonington and the Schaghticoke tribe in Kent. Golden Hill Chief Quiet Hawk declared, “Even as the BIA worked to bring more transparency to the process of federal recognition, the Malloy administration and our congressional delegation have been working behind closed doors in Washington to produce the current outcome. The new rules smell of heavy-handed political influence, violation of due process and violation of the rights of certain Native American tribes.”
The state and the tribe have been battling over recognition in the courts for about ten years. The state opposes more federally recognized tribes because it would probably mean three more Indian casinos and force the state to renegotiate the tribal state gaming compacts with its existing gaming tribes, the Pequots and the Mohegans.
Schaghticoke Tribal Nation Chief Richard Velky added, “The Schaghticoke Tribal Nation will not be deterred by the grave omissions and errors” in the revised rules.
The three tribes are recognized by the state, but that does not allow them to offer Indian gaming under federal rules. The Schaghticoke Indians have in the past proposed a casino in Bridgeport and Danbury and the Paugussetts have looked at a casino plan in Bridgeport.
While acknowledging that some tribes would not like the new rules, Pastor John Norwood, co-chairman of the National Congress of American Indians (NCAI), supported them. “There were some unfortunate compromises, but in order to get any positive changes — they were seen as necessary,” he said in answer to an inquiry by the Hill.
NCAI says it will continue to fight for the right of tribes denied recognition to reapply. “We will continue to fight on this so that tribes mistreated under the previous process still have access to justice,” said Norwood.
The rules have been out there for public review for two years, and some input, particularly from state officials such as U.S. Senators Richard Blumenthal and Chris Murphy of Connecticut, had an effect on the final result. Almost 3,000 written comments were considered. Murphy said he considers the new rules “largely benign and harmless” as they relate to his state. Blumenthal added, “We were unusually united as a delegation. The BIA remarked on how unusual it was for a congressional delegation to be so united.”
The new rules retained the current standards of proof, as well as seven criteria that a tribe must achieve to show tribal identification, community and political authority. Other factors that are considered are anthropology, genealogy and history.
Since 1978, when the rules were first implemented, 17 tribes have been recognized and added, for a total currently of 566 recognized tribes. Thirty-four groups that petitioned for recognition were denied. Many more tribes have been recognized by acts of Congress and by executive action.
When a tribe is “recognized” the federal government accepts trusteeship of its tribal lands. The tribe and members become eligible for health, education, housing and other benefits.
Lobbying for changes to the new rules continued right up until the end, with advocates trying to pressure both the White House and the Interior Department.
Some tribes, as the Morongo Band of Mission Indians in California, opposed provisions that they felt would have made it too easy to achieve recognition. Chairman Robert Martin had testified before Congress that the proposal would “dramatically weaken the federal acknowledgement process” and encourage “reservation shopping,” a pejorative term employed for the rare practice of putting land into trust for a reservation a long distance from a tribe’s original reservation or homeland.
This led to the exclusion from the final rules of two of the most controversial sections, one that would have required tribes to prove a history back to 1934, instead of 1900, and one that would have allowed tribes that were previously denied recognition to petition again. The Eastern Pequots achieved federal recognition in 2002, and the Schaghticokes received federal recognition in 2004. Both were revoked three years later.
Another elimination that strikes at the Connecticut tribes is that of a provision that would have given more weight to the fact that a tribe had been recognized by the state. As the governor put it, “Previously, state recognition would have resulted in an expedited ruling in favor of a tribe. Now, it’s just a factor.”
Some critics of the old rules noted that they required the BIA to evaluate an entire petition, even if it identified one criterion that clearly disqualified the petitioner. The revised rules eliminate this problem.
The BIA explained its logic for not allowing a tribe to repetition once it was denied: “After reviewing the comments both in support of and in opposition to allowing for any opportunity for re-petitioning, limiting re-petitioning by providing for third-party input, and other suggested approaches for re-petitioning, the department has determined that allowing re-petitioning is not appropriate.”
Connecticut State Senator Michael McLachlan praised the final rules. He told the Hartford Courant, “Western Connecticut property owners can breathe a sigh of relief today. Imagine a casino in Danbury or Kent. That would have been our reality. … A disaster has been averted.”
The battle over the rules doesn’t appear to be over. In addition to the possible intervention by Congress, U.S. Senator Blumenthal acknowledged that legal challenges are possible, even probable.
Governor Malloy added, “We’re going to have to wait and watch. The battle lines have been drawn and aren’t going away.”
