Feds debate tribal recognition process–again

It is widely acknowledged that the federal process for recognizing Indian tribes is rife with delays and other problems. But disagreements over how to fix this situation have made change difficult. This is particularly true when the issue of tribal gaming is thrown into the mix, especially since only federally recognized tribes are eligible for casinos.

The House Natural Resources Committee held a hearing on Wednesday to look at legislation to create an independent commission on federal acknowledgement. HR 2837 would move this responsibility from the Bureau of Indian Affairs to a new independent commission, and would also demand a review of tribes who have been rejected by the BIA. It was introduced by Eni Faleomavaega, a non-voting delegate to Congress from American Samoa.

If passed, the bill would help clear a huge backlog of petitions from tribes seeking federal acknowledgement. Of 334 petitions received by the BIA since 1978, Faleomavaega said, only 62 have been resolved. Nine of these never actually made it out of the BIA, but were instead pushed through by Congress. Along the way, Faleomavaega said, tribal members have been subjected to indignities, such as having their teeth examined to see if they’re really Indians.

“We have a process that operates on the under the preconception that many Indian tribes are not legitimate,” Faleomavaega said.

BIA Assistant Secretary for Indian Affairs Carl Artman told a different story. The BIA’s Office of Federal Acknowledgement has an annual budget of $1.9 million. This is enough to fund four teams of researchers. They are currently looking at seven petitions, with another 10 completed petitions waiting.
Recent applications have taken over eight years on average to complete, Artman said, but the BIA’s goal is to get this under five years. In order to do so, they are hoping to increase OFA’s budget from $15 million to $20 million a year in order to increase the number of research teams to 15. The BIA is looking at drafting legislation in order to get this money, he said.

The BIA is currently trying to modernize their operations and improve relationships with tribes. They held eleven meetings with tribes around the country last month. However, efforts to add new staff could be made more difficult by an aging BIA staff. According to an August report from the agency, half of their staff will be eligible to retire by 2016.

Meanwhile, Artman said, much of the delay in the process rests with tribes. OFA currently has 79 incomplete petitions, while another 147 potential tribes have only sent letters of intent. It’s not unheard of for OFA to send a letter back to a tribe requesting more information, then wait five years for a response.
“Timelines have to go both ways,” Artman said.

He found support in the testimony of Representative Christopher Shays, R-Conn. Shays is not a member of the Natural Resources Committee, but testified as a representative from a state with several large tribal casinos. Shays said it was “an absurdity” to blame a chronically underfunded Recognition Office for not keeping on top of applications.

“Don’t blame the Bureau, blame ourselves,” Shays said. “Just appropriate the dollars needed for the Bureau to do its work.”

Shays also said that he feared an independent commission would “take the professionals out” and subject the recognition process to greater political pressure. Artman echoed these comments, and also said that the bill “lowered the bar” for recognition by loosening requirements for tribal recognition.

The tribal-recognition process has been debated for years. In 2002, the federal General Accounting Office put out a much-quoted report, stating the BIA recognition process was overly slow and lacked “clear guidelines.” A former seven-term California congressman from Tracy, Richard Pombo, put forward several bills. The most recent of these was 2005’s HR 512, which would have given the BIA a one-year deadline to rule on most petitions. It was intended to specifically help 10 tribes who had petitions with the BIA prior to the 1988 passage of the Indian Gaming Regulatory Act–and who are still waiting due to an increase in petitions since then.

Not surprisingly, gaming was one of the most contentious issues at the hearing. Chairman Nick Rahall, D-WV, questioned those who said the Bureau has been flooded by applicants who really just want casinos.

“I find that charge demeaning beyond words,” Rahall said.

Shays took issue with this, saying, “We have had far more applicants since Indian tribes have had that source of revenue.”

California representative Jim Costa, D-Fresno, said “there’s nothing wrong” with petitioning tribes seeking a casino. But, he added, “it ought to be put up there under the elements of consideration.”

California is currently home to 108 federally recognized tribes. But there are 74 more California tribes with petitions with the BIA–many of them also seeking casinos.

In California, activists and tribal officials are split on the wisdom of the legislation. Most say they don’t expect Faleomavaega’s legislation to get any further than earlier attempts. One factor could be due to opposition from several large, long-acknowledged tribes around the country, who oppose the idea and have strong relationships with leading Democrats. Petitioning tribes, on the other hand, are generally for any change that would make the process faster; a contentious history between some tribes and the BIA has also played a role in this debate.

Activist Cheryl Schmit of Stand Up for California, who is currently working for a referendum campaign to recall four new tribal-gaming compacts, said that she feared a new office would be more prone to political influence. She favors keeping the process inside the BIA.

“They just need more staff,” she said.

Laura Wass of the American Indian Movement had a slightly different take. She took issue with BIA claims that tribes were at fault for delays. The process is complex, she said, especially for tribal representatives who lack college or even high school educations. Whether the process ends up with the BIA or elsewhere, she said more outreach needs to be done to help tribes through the process.

“There’s not a dime for that,” Wass said. “They call up asking for guidance and are just shown the door and told ‘go find out.'”

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