Indian Issues
More Consistent and Timely Tribal Recognition Process Needed Gao ID: GAO-02-415T February 7, 2002In 1978, the Bureau of Indian Affairs (BIA) established a regulatory process for recognizing tribes. The process requires tribes that are petitioning for recognition to submit evidence that they have continuously existed as an Indian tribe since historic times. Recognition establishes a formal government-to-government relationship between the United States and a tribe. The quasi-sovereign status created by this relationship exempts some tribal lands from most state and local laws and regulations, including those that regulate gambling. GAO found that the basis for BIA's tribal recognition decisions is not always clear. Although petitioning tribes must meet set criteria to be granted recognition, no guidance exists to clearly explain how to interpret key aspects of the criteria. This lack of guidance creates controversy and uncertainty for all parties about the basis for decisions. The recognition process is also hampered by limited resources; a lack of time; and ineffective procedures for providing information to interested third parties, such as local municipalities and other Indian tribes. As a result, the number of completed petitions waiting to be considered is growing. BIA estimates that it may take up to 15 years before all currently completed petitions are resolved; the process for evaluating a petition was supposed to take about two years. This testimony summarizes a November report (GAO-02-49).
GAO-02-415T, Indian Issues: More Consistent and Timely Tribal Recognition Process Needed
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United States General Accounting Office:
GAO:
Testimony:
Before the Subcommittee on Energy Policy, Natural Resources and
Regulatory Affairs, Committee on Government Reform, House of
Representatives:
For Release on Delivery:
Expected at 10:00 a.m.
Thursday, February 7, 2002:
Indian Issues:
More Consistent and Timely Tribal Recognition Process Needed:
Statement of Barry T. Hill, Director:
Natural Resources and Environment:
GAO-02-415T:
Mr. Chairman and Members of the Subcommittee:
Thank you for the opportunity to discuss our work on the Bureau of
Indian Affairs' (BIA) regulatory process for federally recognizing
Indian tribes.[Footnote 1] As you know, federal recognition of an
Indian tribe can have a tremendous effect on the tribe, surrounding
communities, and the nation as a whole. There are currently 562
recognized tribes[Footnote 2] with a total membership of about 1.7
million. In addition, several hundred groups are currently seeking
recognition. Federally recognized tribes are eligible to participate
in federal assistance programs. In fiscal year 2000, about $4 billion
was appropriated for programs and funding almost exclusively for
recognized tribes. Additionally, recognition establishes a formal
government-to-government relationship between the United States and a
tribe. The quasi-sovereign status created by this relationship exempts
certain tribal lands from most state and local laws and regulations.
Such exemptions generally apply to lands that the federal government
has taken in trust for a tribe or its members. Currently, about 54
million acres of land are being held in trust.[Footnote 3] The
exemptions also include, where applicable, laws regulating gambling.
The Indian Gaming Regulatory Act of 1988,[Footnote 4] which regulates
Indian gambling operations, permits a tribe to operate casinos on land
in trust if the state in which it lies allows casino-like gambling and
the tribe has entered into a compact with the state regulating its
gambling businesses. In 1999, federally recognized tribes reported an
estimated $10 billion in gambling revenue, surpassing the amounts that
the Nevada casinos collected that year.
In 1978, the BIA, an agency within the Department of the Interior,
established a regulatory process for recognizing tribes. The process
requires tribes that are petitioning for recognition to submit
evidence that they meet certain criteria”basically that the petitioner
has continuously existed as an Indian tribe since historic times.
Owing to the rights and benefits that accrue with recognition and the
controversy surrounding Indian gambling, BIA's regulatory process has
been subjected to intense scrutiny. Critics of the process claim that
it produces inconsistent decisions and takes too long. In light of the
controversies surrounding the federal recognition process, we issued a
report last November[Footnote 5] evaluating the BIA's regulatory
recognition process and recommending ways to improve the process.
In summary, we reported the following:
* First, the basis for BIA's tribal recognition decisions is not
always clear. While there are set criteria that petitioning tribes
must meet to be granted recognition, there is no guidance that clearly
explains how to interpret key aspects of the criteria For example, it
is not always clear what level of evidence is sufficient to
demonstrate that a tribe has continued to exist over a period of time”
a key aspect of the criteria. The lack of guidance in this area
creates controversy and uncertainty for all parties about the basis
for decisions reached. To correct this, we recommend that the BIA
develop and use transparent guidelines for interpreting key aspects of
its recognition decisions.
* Second, the recognition process is hampered by limited resources, a
lack of time frames, and ineffective procedures for providing
information to interested third parties, such as local municipalities
and other Indian tribes. As a result, there is a growing number of
completed petitions waiting to be considered. BIA officials estimate
that it may take up to 15 years before all currently completed
petitions are resolved; BIA's regulations outline a process for
evaluating a petition that was designed to take about 2 years. To
correct these problems, we recommend that the BIA develop a strategy
for improving the responsiveness of the recognition process, including
an assessment of needed resources.
Background:
Historically, tribes have been granted federal recognition through
treaties, by the Congress, or through administrative decisions within
the executive branch” principally by the Department of the Interior.
In a 1977 report to the Congress, the American Indian Policy Review
Commission criticized the criteria used by the department to assess
whether a group should be recognized as a tribe. Specifically, the
report stated that the criteria were not very clear and concluded that
a large part of the department's tribal recognition policy depended on
which official responded to the group's inquiries. Until the 1960s,
the limited number of requests by groups to be federally recognized
gave the department the flexibility to assess a group's status on a
case-by-case basis without formal guidelines. However, in response to
an increase in the number of requests for federal recognition, the
department determined that it needed a uniform and objective approach
to evaluate these requests. In 1978, it established a regulatory
process for recognizing tribes whose relationship with the United
States had either lapsed or never been established”although tribes may
seek recognition through other avenues, such as legislation or
Department of the Interior administrative decisions unconnected to the
regulatory process. In addition, not all tribes are eligible for the
regulatory process. For example, tribes whose political relationship
with the United States has been terminated by Congress, or tribes
whose members are officially part of an already recognized tribe, are
ineligible to be recognized through the regulatory process and must
seek recognition through other avenues.
The regulations lay out seven criteria that a group must meet before
it can become a federally recognized tribe. Essentially, these
criteria require the petitioner to show that it is a distinct
community that has continuously existed as a political entity since a
time when the federal government broadly acknowledged a political
relationship with all Indian tribes. The burden of proof is on
petitioners to provide documentation to satisfy the seven criteria. A
technical staff within BIA, consisting of historians, anthropologists,
and genealogists, reviews the submitted documentation and makes its
recommendations on a proposed finding either for or against
recognition. Staff recommendations are subject to review by the
department's Office of the Solicitor and senior officials within BIA.
The Assistant Secretary-Indian Affairs makes the final decision
regarding the proposed finding, which is then published in the Federal
Register and a period of public comment, document submission, and
response is allowed. The technical staff reviews the comments,
documentation, and responses and makes recommendations on a final
determination that are subject to the same levels of review as a
proposed finding. The process culminates in a final determination by
the Assistant Secretary who, depending on the nature of further
evidence submitted, may or may not rule the same as the proposed
finding. Petitioners and others may file requests for reconsideration
with the Interior Board of Indian Appeals.
Clearer Guidance Needed on Evidence Required for Recognition Decisions:
While we found general agreement on the seven criteria that groups
must meet to be granted recognition, there is great potential for
disagreement when the question before the BIA is whether the level of
available evidence is high enough to demonstrate that a petitioner
meets the criteria. The need for clearer guidance on criteria and
evidence used in recognition decisions became evident in a number of
recent cases when the previous Assistant Secretary approved either
proposed or final decisions to recognize tribes when the staff had
recommended against recognition. Much of the current controversy
surrounding the regulatory process stems from these cases.
For example, concerns over what constitutes continuous existence have
centered on the allowable gap in time during which there is limited or
no evidence that a petitioner has met one or more of the criteria. In
one case, the technical staff recommended that a petitioner not be
recognized because there was a 70-year period for which there was no
evidence that the petitioner satisfied the criteria for continuous
existence as a distinct community exhibiting political authority. The
technical staff concluded that a 70-year evidentiary gap was too long
to support a finding of continuous existence. The staff based its
conclusion on precedent established through previous decisions in
which the absence of evidence for shorter periods of time had served
as grounds for finding that petitioners did not meet these criteria
However, in this case, the previous Assistant Secretary determined
that the gap was not critical and issued a proposed finding to
recognize the petitioner, concluding that continuous existence could
be presumed despite the lack of specific evidence for a 70-year period.
The regulations state that lack of evidence is cause for denial but
note that historical situations and inherent limitations in the
availability of evidence must be considered. The regulations
specifically decline to define a permissible interval during which a
group could be presumed to have continued to exist if the group could
demonstrate its existence before and after the interval. They further
state that establishing a specific interval would be inappropriate
because the significance of the interval must be considered in light
of the character of the group, its history, and the nature of the
available evidence. Finally, the regulations also note that experience
has shown that historical evidence of tribal existence is often not
available in clear, unambiguous packets relating to particular points
in time.
The department grappled with the issue of how much evidence is enough
when it updated the regulations in 1994 and intentionally left key
aspects of the criteria open to interpretation to accommodate the
unique characteristics of individual petitions. Leaving key aspects
open to interpretation increases the risk that the criteria may be
applied inconsistently to different petitioners. To mitigate this
risk, BIA uses precedents established in past decisions to provide
guidance in interpreting key aspects in the criteria. However, the
regulations and accompanying guidelines are silent regarding the role
of precedent in making decisions or the circumstances that may cause
deviation from precedent. Thus, petitioners, third parties, and future
decisionmakers, who may want to consider precedents in past decisions,
have difficulty understanding the basis for some decisions.
Ultimately, BIA and the Assistant Secretary will still have to make
difficult decisions about petitions when it is unclear whether a
precedent applies or even exists. Because these circumstances require
judgment on the part of the decisionmaker, public confidence in the
BIA and the Assistant Secretary as key decisionmakers is extremely
important. A lack of clear and transparent explanations for their
decisions could cast doubt on the objectivity of the decisionmakers,
making it difficult for parties on all sides to understand and accept
decisions, regardless of the merit or direction of the decisions
reached. Accordingly, in our November report, we recommend that the
Secretary of the Interior direct the BIA to provide a clearer
understanding of the basis used in recognition decisions by developing
and using transparent guidelines that help interpret key aspects of
the criteria and supporting evidence used in federal recognition
decisions. The department, in commenting on a draft of this report,
generally agreed with this recommendation.
Recognition Process Ill-Equipped to Provide Timely Response:
Because of limited resources, a lack of time frames, and ineffective
procedures for providing information to interested third parties, the
length of time needed to rule on petitions is substantial. The
workload of the BIA staff assigned to evaluate recognition decisions
has increased while resources have declined. There was a large influx
of completed petitions ready to be reviewed in the mid-1990s. Of the
55 completed petitions that BIA has received since the inception of
the regulatory process in 1978, 23 (or 42 percent) were submitted
between 1993 and 1997 (see figure 1).
Figure 1: Number of Petitioning Groups in Regulatory Process:
[Refer to PDF for image: line graph]
The graph depicts the Number of Petitioning Groups in Regulatory
Process for the years 1980 through 2000.
Note: Status as of the last day of each calendar year.
Source: BIA.
[End of figure]
The chief of the branch responsible for evaluating petitions told us
that, based solely on the historic rate at which BIA has issued final
determinations, it could take 15 years to resolve all the currently
completed petitions. In contrast, the regulations outline a process
for evaluating a completed petition that should take about 2 years.
Compounding the backlog of petitions awaiting evaluation is the
increased burden of related administrative responsibilities that
reduce the time available for BIA's technical staff to evaluate
petitions. Although they could not provide precise data, members of
the staff told us that this burden has increased substantially over
the years and estimate that they now spend up to 40 percent of their
time fulfilling administrative responsibilities. In particular, there
are substantial numbers of Freedom of Information Act (FOIA) requests
related to petitions. Also, petitioners and third parties frequently
file requests for reconsideration of recognition decisions that need
to be reviewed by the Interior Board of Indian Appeals, requiring the
staff to prepare the record and response to issues referred to the
Board. Finally, the regulatory process has been subject to an
increasing number of lawsuits from dissatisfied parties, filed by
petitioners who have completed the process and been denied
recognition, as well as current petitioners who are dissatisfied with
the amount of time it is taking to process their petitions.
Staff represents the vast majority of resources used by BIA to
evaluate petitions and perform related administrative duties. Despite
the increased workload faced by the BIA's technical staff, the
available staff resources to complete the workload have decreased. The
number of BIA staff members assigned to evaluate petitions peaked in
1993 at 17. However, in the last 5 years, the number of staff members
has averaged less than 11, a decrease of more than 35 percent.
In addition to the resources not keeping pace with workload, the
recognition process also lacks effective procedures for addressing the
workload in a timely manner. Although the regulations establish
timelines for processing petitions that, if met, would result in a
final decision in approximately 2 years, these timelines are routinely
extended, either because of BIA resource constraints or at the request
of petitioners and third parties (upon showing good cause). As a
result, only 12 of the 32 petitions that BIA has finished reviewing
were completed within 2 years or less, and all but 2 of the 13
petitions currently under review have already been under review for
more than 2 years.
While BIA may extend timelines for many reasons, it has no mechanism
that balances the need for a thorough review of a petition with the
need to complete the decision process. The decision process lacks
effective time frames that create a sense of urgency to offset the
desire to consider all information from all interested parties in the
process. BIA recently dropped one mechanism for creating a sense of
urgency. In fiscal year 2000, BIA dropped its long-term goal of
reducing the number of petitions actively being considered from its
annual performance plan because the addition of new petitions would
make this goal impossible to achieve. The BIA has not replaced it with
another more realistic goal, such as reducing the number of petitions
on ready status or reducing the average time needed to process a
petition once it is placed on active status.
As third parties become more active in the recognition process”for
example, initiating inquiries and providing information”the procedures
for responding to their increased interest have not kept pace. Third
parties told us that they wanted more detailed information earlier in
the process so they could fully understand a petition and effectively
comment on its merits. However, there are no procedures for regularly
providing third parties with more detailed information. For example,
while third parties are allowed to comment on the merits of a petition
prior to a proposed finding, there is no mechanism to provide any
information to third parties prior to the proposed finding. In
contrast, petitioners are provided an opportunity to respond to any
substantive comment received prior to the proposed finding. As a
result, third parties are making FOIA requests for information on
petitions much earlier in the process and often more than once in an
attempt to obtain the latest documentation submitted. Since BIA has no
procedures for efficiently responding to FOIA requests, staff members
hired as historians, genealogists, and anthropologists are pressed
into service to copy the voluminous records needed to respond to FOIA
requests.
In light of these problems, we recommended in our November report that
the Secretary of the Interior direct the BIA to develop a strategy
that identifies how to improve the responsiveness of the process for
federal recognition. Such a strategy should include a systematic
assessment of the resources available and needed that leads to
development of a budget commensurate with workload. The department
also generally agreed with this recommendation.
In conclusion, the BIA's recognition process was never intended to be
the only way groups could receive federal recognition. Nevertheless,
it was intended to provide the Department of the Interior with an
objective and uniform approach by establishing specific criteria and a
process for evaluating groups seeking federal recognition. It is also
the only avenue to federal recognition that has established criteria
and a public process for determining whether groups meet the criteria.
However, weaknesses in the process have created uncertainty about the
basis for recognition decisions, calling into question the objectivity
of the process. Additionally, the amount of time it takes to make
those decisions continues to frustrate petitioners and third parties,
who have a great deal at stake in resolving tribal recognition cases.
Without improvements that focus on fixing these problems, parties
involved in tribal recognition may look outside of the regulatory
process to the Congress or courts to resolve recognition issues,
preventing the process from achieving its potential to provide a more
uniform approach to tribal recognition. The result could be that the
resolution of tribal recognition cases will have less to do with the
attributes and qualities of a group as an independent political entity
deserving a government-to-government relationship with the United
States, and more to do with the resources that petitioners and third
parties can marshal to develop successful political and legal
strategies.
Mr. Chairman, this completes my prepared statement. I would be happy
to respond to any questions you or other Members of the Committee may
have at this time.
Contact And Acknowledgments:
For further information, please contact Barry Hill on (202) 512-3841.
Individuals making key contributions to this testimony and the report
on which it was based are Robert Crystal, Charles Egan, Mark Gaffigan,
Jeffery Malcolm, and John Yakaitis.
[End of section]
Footnotes:
[1] The term "Indian tribe" encompasses all Indian tribes, bands,
villages, groups and pueblos as well as Eskimos and Aleuts.
[2] This number includes three tribes that were notified by the
Assistant Secretary-Indian Affairs on December 29, 2000, of the
"reaffirmation" of their federal recognition.
[3] Tribal lands not in trust may also be exempt from state and local
jurisdiction for certain purposes in some instances.
[4] 25 U.S.C. 2701.
[5] Indian Issues: Improvements Needed in Tribal Recognition Process
[hyperlink, http://www.gao.gov/products/GAO-02-49], Nov. 2, 2001.
[End of section]
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