Indian Issues
Basis for BIA's Tribal Recognition Decisions Is Not Always Clear Gao ID: GAO-02-936T September 17, 2002Federal recognition of an Indian tribe can dramatically affect economic and social conditions for the tribe and the surrounding communities because these tribes are eligible to participate in federal assistance programs. There are currently 562 recognized tribes with a total membership of 1.7 million, and several hundred groups are currently seeking recognition. In fiscal year 2002, Congress appropriated $5 billion for programs and funding, almost exclusively for recognized tribes. Recognition also establishes a formal government-to-government relationship between the United States and a tribe. The Indian Gaming Regulatory Act of 1988, which regulated Indian gaming operations, permits a tribe to operate casinos on land in trust if the state in which it lies allows casino-like gaming and if the tribe has entered into a compact with the state regulating its gaming businesses. In 1999, federally recognized tribes reported $10 billion in gaming revenue, surpassing the amounts that the Nevada casinos collected that year. Owing to the rights and benefits that accrue with recognition and the controversy surrounding Indian gaming, the Bureau of Indian Affairs' (BIA) regulatory process has been subject to intense scrutiny by groups seeking recognition and other interested parties--including already recognized tribes and affected state and local governments. BIA's regulatory process for recognizing tribes was established in 1978 and requires that groups that are petitioning for recognition submit evidence that they meet certain criteria--basically that the petitioner has continuously existed as an Indian tribe since historic times. Critics of the process claim that it produces inconsistent decisions and takes too long. The basis for BIA's tribal recognition decisions is not always clear. Although 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. The lack of guidance over what level of evidence is sufficient to demonstrate that a tribe has continued to exist over time creates controversy and uncertainty for all parties about the basis for decisions reached.
GAO-02-936T, Indian Issues: Basis for BIA's Tribal Recognition Decisions Is Not Always Clear
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Testimony:
Before the Committee on Indian Affairs, U.S. Senate:
United States General Accounting Office:
GAO:
For Release on Delivery Expected at 10:00 a.m. Tuesday, September 17,
2002:
INDIAN ISSUES:
Basis for BIA‘s Tribal Recognition Decisions Is Not Always Clear:
Indian Issues:
Statement of Barry T. Hill, Director,
Natural Resources and Environment:
GAO-02-936T:
Mr. Chairman and Members of the Committee:
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 dramatically affect economic and social conditions for
the tribe and the surrounding communities. There are currently 562
recognized tribes 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 2002, the Congress appropriated
about $5 billion for programs and funding almost exclusively for
recognized tribes. Recognition also 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 held in trust.[Footnote 2] The exemptions also
include, where applicable, laws regulating gaming. The Indian Gaming
Regulatory Act of 1988, which regulates Indian gaming operations,
permits a tribe to operate casinos on land in trust if the state in
which it lies allows casino-like gaming and the tribe has entered into
a compact with the state regulating its gaming businesses.[Footnote 3]
In 1999, federally recognized tribes reported an estimated $10 billion
in gaming revenue, surpassing the amounts that the Nevada casinos
collected that year. In fiscal year 2001, Indian gaming revenues
increased to $12.7 billion.
Owing to the rights and benefits that accrue with recognition and the
controversy surrounding Indian gaming, BIA‘s regulatory process has
been subject to intense scrutiny by groups seeking recognition and
other interested parties--including already recognized tribes and
affected state and local governments. The controversies surrounding the
regulatory process for recognizing tribes continue with two highly
anticipated decisions issued in July 2002. In the first decision, the
Assistant Secretary-Indian Affairs determined that two petitioners, the
Eastern Pequot Indians of Connecticut and the Paucatuck Eastern Pequot
Indians of Connecticut, are derived from a single historical tribe and
are therefore recognized as a single tribe.[Footnote 4] In the second
decision, the previous Assistant Secretary‘s January 2001 decision to
recognize the Chinook Indian Tribe/Chinook Nation was reversed by the
current Assistant Secretary after the decision was reconsidered at
request of the Quinault Indian Nation.[Footnote 5]
BIA‘s regulatory process for recognizing tribes was established in
1978. The process requires groups 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. Critics of the process claim that it produces inconsistent
decisions and takes too long. In November 2001, we reported on BIA‘s
regulatory recognition process, including the criteria for recognizing
tribes, and recommended ways to improve it.[Footnote 6] In particular,
we recommended that BIA develop transparent guidelines to provide a
clearer understanding of the basis for recognition decisions. We
testified on this report in February 2002 before the House Committee on
Government Reform, Subcommittee on Energy Policy, Natural Resources and
Regulatory Affairs.[Footnote 7] Our testimony today is based on that
report and focuses on the application of the criteria that Indian
groups must meet under the regulatory process to be granted
recognition.
In summary, as we reported in November 2001, 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 recommended that BIA
develop and use transparent guidelines for interpreting key aspects of
its recognition decisions. The BIA is completing a strategic plan to
implement this recommendation.
Background:
Historically, the U.S. government has granted federal recognition
through treaties, congressional acts, or 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 department‘s tribal recognition
policy. Specifically, the report stated that the department‘s criteria
to assess whether a group should be recognized as a tribe were not
clear and concluded that a large part of the department‘s policy
depended on which official responded to the group‘s inquiries.
Nevertheless, until the 1960s, the limited number of requests for
federal recognition 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 descended from a historic
tribe and 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
following are the seven criteria for recognition under the regulatory
process:
(a) The petitioner has been identified as an American Indian entity on
a substantially continuous basis since 1900,
(b) A predominant portion of the petitioning group comprises a distinct
community and has existed as a community from historical times until
the present,
(c) The petitioner has maintained political influence or authority over
its members as an autonomous entity from historical times until the
present,
(d) The group must provide a copy of its present governing documents
and membership criteria,
(e) The petitioner‘s membership consists of individuals who descend
from a historical Indian tribe or tribes, which combined and functioned
as a single autonomous political entity,
(f) The membership of the petitioning group is composed principally of
persons who are not members of any acknowledged North American Indian
tribe, and:
(g) Neither the petitioner nor its members are the subject of
congressional legislation that has expressly terminated or forbidden
recognition.
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 BIA
officials. 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 was as was ruled for
the proposed finding. Petitioners and others may file requests for
reconsideration with the Interior Board of Indian Appeals.
Clearer Guidance Needed on Criteria and Evidence Used in 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 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 technical
staff had recommended against recognition. Most recently, the current
Assistant Secretary has reversed a decision made by the previous
Assistant Secretary. Much of the current controversy surrounding the
regulatory process stems from these cases. At the heart of the
uncertainties are different positions on what a petitioner must present
to support two key aspects of the criteria. In particular, there are
differences over (1) what is needed to demonstrate continuous existence
and (2) what proportion of members of the petitioning group must
demonstrate descent from a historic tribe.
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 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:
Controversy and uncertainty also surround the proportion of a
petitioner‘s membership that must demonstrate that it meets the
criterion of descent from a historic Indian tribe. In one case, the
technical staff recommended that a petitioner not be recognized because
the petitioner could only demonstrate that 48 percent of its members
were descendants. The technical staff concluded that finding that the
petitioner had satisfied this criterion would have been a departure
from precedent established through previous decisions in which
petitioners found to meet this criterion had demonstrated a higher
percentage of membership descent from a historic tribe. However, in the
proposed finding, the Assistant Secretary found that the petitioner
satisfied the criterion. The Assistant Secretary told us that although
this decision was not consistent with previous decisions by other
Assistant Secretaries, he believed the decision to be fair because the
standard used for previous decisions was unfairly high.
Again, the regulations intentionally left open key aspects of the
criteria to interpretation. In this case they avoid establishing a
specific percentage of members required to demonstrate descent because
the significance of the percentage varies with the history and nature
of the petitioner and the particular reasons why a portion of the
membership may not meet the requirements of the criterion. The
regulations state only that a petitioner‘s membership must consist of
individuals who descend from historic tribes--no minimum percentage or
quantifying term such as ’most“ or ’some“ is used. The only additional
direction is found in 1997 guidelines, which note that petitioners need
not demonstrate that 100 percent of their membership satisfies the
criterion:
In updating its regulations in 1994, the department grappled with both
these issues and ultimately determined that key aspects of the criteria
should be left 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 of 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 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
2001 report, we recommended that the Secretary of the Interior direct
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. In commenting on a draft of this report,
the department generally agreed with this recommendation. To implement
the recommendation, the department pledged to formulate a strategic
action plan by May 2002. To date, this plan is still in draft form.
Officials told us that they anticipate completing the plan soon.
In conclusion, 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. Without improvements that focus on fixing these and
other problems on which we have reported, parties involved in tribal
recognition may increasingly 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 T. 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.
FOOTNOTES
[1] In this statement the term ’Indian tribe“ encompasses all Indian
tribes, bands, villages, groups and pueblos as well as Eskimos and
Aleuts.
[2] Tribal lands not in trust may also be exempt from state and local
jurisdiction for certain purposes in some instances.
[3] 25 U.S.C. 2701.
[4] 67 Fed. Reg. 44234 (July 1, 2002).
[5] 67 Fed. Reg. 46204 (July 12, 2002).
[6] U.S. General Accounting Office, Indian Issues: Improvements Needed
in Tribal Recognition Process, GAO-02-49 (Washington, D.C.: Nov. 2,
2001).
[7] U.S. General Accounting Office, Indian Issues: More Consistent and
Timely Tribal Recognition Process Needed, GAO-02-415T (Washington,
D.C.: Feb. 7, 2002).
