Indian Issues
Timeliness of the Tribal Recognition Process Has Improved, but It Will Take Years to Clear the Existing Backlog of Petitions Gao ID: GAO-05-347T February 10, 2005The Bureau of Indian Affairs' (BIA) 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. Congressional policymakers have struggled with the tribal recognition issue for over 27 years. H.R. 4933 and H.R. 5134, introduced in the 108th Congress, and H.R. 512, which was introduced last week, have focused on the timeliness of the recognition process. This testimony is based in part on GAO's report, Indian Issues: Improvements Needed in Tribal Recognition Process (GAO-02-49, November 2, 2001). Specifically, this testimony addresses (1) the timeliness of the recognition process as GAO reported in November 2001 and (2) the actions the Department of the Interior's Office of Federal Acknowledgment has taken since 2001 to improve the timeliness of the recognition process.
In November 2001, GAO reported that BIA's tribal recognition process was ill equipped to provide timely responses to tribal petitions for federal recognition. BIA's regulations outline a process for evaluating a petition that was designed to take about 2 years. However, the process was being 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 were a growing number of completed petitions waiting to be considered. In 2001, BIA officials estimated that it could take up to 15 years for all the completed petitions to be resolved. To correct these problems, we recommended that BIA develop a strategy that identified how to improve the responsiveness of the process for federal recognition. Such a strategy was to include a systematic assessment of the resources available and needed that could lead to the development of a budget commensurate with the workload. While Interior's Office of Federal Acknowledgment has taken a number of important steps to improve the responsiveness of the tribal recognition process, it still could take 4 or more years, at current staff levels, to work through the existing backlog of petitions currently under review, as well as those that are ready and waiting for consideration. In response to GAO's 2001 report, two vacancies within the Office of Federal Acknowledgment were filled, resulting in a professional staff of three research teams, each consisting of a cultural anthropologist, historian, and genealogist. In addition, the September 2002 Strategic Plan, issued by the Assistant Secretary for Indian Affairs in response to GAO's report, has been almost completely implemented by the Office of Federal Acknowledgment. The main impediment to completely implementing the Strategic Plan and to making all of the information that has been compiled more accessible to the public is the fact that BIA continues to be disconnected from the Internet because of ongoing computer security concerns involving Indian trust funds.
GAO-05-347T, Indian Issues: Timeliness of the Tribal Recognition Process Has Improved, but It Will Take Years to Clear the Existing Backlog of Petitions
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Testimony:
Before the Committee on Resources, House of Representatives:
United States Government Accountability Office:
GAO:
For Release on Delivery Expected at 10:00 a.m. EST:
Thursday, February 10, 2005:
Indian Issues:
Timeliness of the Tribal Recognition Process Has Improved, but It Will
Take Years to Clear the Existing Backlog of Petitions:
Statement of Robin M. Nazzaro, Director, Natural Resources and
Environment:
GAO-05-347T:
GAO Highlights:
Highlights of GAO-05-347T, a testimony before the Committee on
Resources, House of Representatives:
Why GAO Did This Study:
The Bureau of Indian Affairs‘ (BIA) 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.
Congressional policymakers have struggled with the tribal recognition
issue for over 27 years. H.R. 4933 and H.R. 5134, introduced in the
108th Congress, and H.R. 512, which was introduced last week, have
focused on the timeliness of the recognition process.
This testimony is based in part on GAO‘s report, Indian Issues:
Improvements Needed in Tribal Recognition Process (GAO-02-49, November
2, 2001). Specifically, this testimony addresses (1) the timeliness of
the recognition process as GAO reported in November 2001 and (2) the
actions the Department of the Interior‘s Office of Federal
Acknowledgment has taken since 2001 to improve the timeliness of the
recognition process.
What GAO Found:
In November 2001, GAO reported that BIA's tribal recognition process
was ill equipped to provide timely responses to tribal petitions for
federal recognition. BIA‘s regulations outline a process for evaluating
a petition that was designed to take about 2 years. However, the
process was being 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 were a growing number of completed petitions waiting to
be considered. In 2001, BIA officials estimated that it could take up
to 15 years for all the completed petitions to be resolved. To correct
these problems, we recommended that BIA develop a strategy that
identified how to improve the responsiveness of the process for federal
recognition. Such a strategy was to include a systematic assessment of
the resources available and needed that could lead to the development
of a budget commensurate with the workload.
While Interior‘s Office of Federal Acknowledgment has taken a number of
important steps to improve the responsiveness of the tribal recognition
process, it still could take 4 or more years, at current staff levels,
to work through the existing backlog of petitions currently under
review, as well as those that are ready and waiting for consideration.
In response to GAO‘s 2001 report, two vacancies within the Office of
Federal Acknowledgment were filled, resulting in a professional staff
of three research teams, each consisting of a cultural anthropologist,
historian, and genealogist. In addition, the September 2002 Strategic
Plan, issued by the Assistant Secretary for Indian Affairs in response
to GAO‘s report, has been almost completely implemented by the Office
of Federal Acknowledgment. The main impediment to completely
implementing the Strategic Plan and to making all of the information
that has been compiled more accessible to the public is the fact that
BIA continues to be disconnected from the Internet because of ongoing
computer security concerns involving Indian trust funds.
What GAO Recommends:
GAO‘s November 2001 report recommended that BIA develop a strategy that
identified how to improve the responsiveness of the process for federal
recognition.
www.gao.gov/cgi-bin/getrpt?GAO-05-347T.
To view the full product, including the scope and methodology, click on
the link above. For more information, contact Robin M. Nazzaro at (202)
512-3841 or nazzaror@gao.gov.
[End of section]
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] There are currently 562 recognized tribes in
the Unites States with a total membership of about 1.8 million. In
addition, several hundred groups are currently seeking recognition.
Congressional policymakers have struggled with the tribal recognition
issue for over 27 years. Since 1977, 28 bills have been introduced to
add a statutory framework for the tribal recognition process.
Additional bills have also been introduced to recognize specific
tribes; provide grants to local communities or Indian groups involved
in the tribal recognition process; or, more recently, address the
timeliness of the recognition process. H.R. 4933 and H.R. 5134,
introduced in the 108th Congress, and H.R. 512, which was introduced
last week, have focused on the timeliness of the recognition process.
As you know, federal recognition of an Indian tribe can dramatically
affect economic and social conditions for the tribe and the surrounding
communities. Federally recognized tribes are eligible to participate in
federal assistance programs. In fiscal year 2004, the Congress
appropriated about $6 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 fiscal year 2003, federally recognized
tribes reported an estimated $16.7 billion in gaming revenue.
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
group 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 timeliness of the process, and
recommended ways to improve it.[Footnote 4] We testified on this issue
in February 2002 before the House Committee on Government Reform,
Subcommittee on Energy Policy, Natural Resources and Regulatory
Affairs,[Footnote 5] and again in September 2002 before the Senate
Committee on Indian Affairs.[Footnote 6] Our testimony today is based
on our November 2001 report and the actions the Department of the
Interior's Office of Federal Acknowledgment has taken to improve the
timeliness of the recognition process.[Footnote 7]
In summary,
* In November 2001, we reported that BIA's tribal recognition process
was ill equipped to provide timely responses to tribal petitions for
federal recognition. BIA's regulations outline a process for evaluating
a petition that was designed to take about 2 years. However, the
process was 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 were a growing number of completed petitions waiting to
be considered. In 2001, BIA officials estimated that it could take up
to 15 years for all the completed petitions to be resolved. To correct
these problems, we recommended that BIA develop a strategy that
identified how to improve the responsiveness of the process for federal
recognition. Such a strategy was to include a systematic assessment of
the resources available and needed that could lead to the development
of a budget commensurate with the workload.
* While Interior's Office of Federal Acknowledgment has taken a number
of important steps to improve the responsiveness of the tribal
recognition process it still could take 4 or more years, at current
staff levels, to work through the existing backlog of petitions
currently under review, as well as those that are ready and waiting for
consideration. In response to our 2001 report, two vacancies within the
Office of Federal Acknowledgment were filled, resulting in a
professional staff of three research teams, each consisting of a
cultural anthropologist, historian, and genealogist. In addition, the
September 2002 Strategic Plan, issued by the Assistant Secretary for
Indian Affairs in response to our report, has been almost completely
implemented by the Office of Federal Acknowledgment. The main
impediment to completely implementing the Strategic Plan and to making
all of the information that has been compiled more accessible to the
public is the fact that BIA continues to be disconnected from the
Internet because of ongoing computer security concerns involving Indian
trust funds.
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
for assessing 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 also seek recognition through other
avenues, such as legislation or Department of the Interior
administrative decisions, which are 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 the 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 1978 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 burden of proof is on petitioners to provide documentation to
satisfy the seven criteria. The technical staff within Interior's
Office of Federal Acknowledgment, consisting of historians,
anthropologists, and genealogists, reviews the submitted documentation
and makes recommendations on a proposed finding either for or against
recognition. Staff recommendations are subject to review by Interior's
Office of the Solicitor and senior officials within the Office of the
Assistant Secretary for Indian Affairs. The Assistant Secretary for
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 way
as the proposed finding. Petitioners and others may file requests for
reconsideration with the Interior Board of Indian Appeals.
Congressional policymakers have struggled with the tribal recognition
issue for decades. Since 1977, 28 bills have been introduced to add a
statutory framework for the tribal recognition process (see table 1).
Table 1: Bills Introduced to Provide a Specific Statutory Framework for
Interior's Tribal Recognition Process, as of December 31, 2004:
Session of Congress: 95;
Bills introduced in the House of Representatives: H.R. 11630; H.R.
12691; H.R. 12830; H.R. 12996; H.R. 13773;
Bills introduced in the Senate: S. 2375;
Total number of bills: 6.
Session of Congress: 96;
Bills introduced in the House of Representatives: H.R. 2701;
Bills introduced in the Senate: [A];
Total number of bills: 1.
Session of Congress: 97;
Bills introduced in the House of Representatives: [A];
Bills introduced in the Senate: [A];
Total number of bills: 0.
Session of Congress: 98;
Bills introduced in the House of Representatives: [A];
Bills introduced in the Senate: [A];
Total number of bills: 0.
Session of Congress: 99;
Bills introduced in the House of Representatives: [A];
Bills introduced in the Senate: [A];
Total number of bills: 0.
Session of Congress: 100;
Bills introduced in the House of Representatives: [A];
Bills introduced in the Senate: [A];
Total number of bills: 0.
Session of Congress: 101;
Bills introduced in the House of Representatives: [A];
Bills introduced in the Senate: S. 611; S. 912;
Total number of bills: 2.
Session of Congress: 102;
Bills introduced in the House of Representatives: H.R. 3430;
Bills introduced in the Senate: S. 1315;
Total number of bills: 2.
Session of Congress: 103;
Bills introduced in the House of Representatives: H.R. 2549; H.R. 4462;
Bills introduced in the Senate: S. 1844;
Total number of bills: 3.
Session of Congress: 104;
Bills introduced in the House of Representatives: H.R. 671; H.R. 2591;
H.R. 2997;
Bills introduced in the Senate: S. 479;
Total number of bills: 4.
Session of Congress: 105;
Bills introduced in the House of Representatives: H.R. 115;
Bills introduced in the Senate: [A];
Total number of bills: 1.
Session of Congress: 106;
Bills introduced in the House of Representatives: H.R. 361;
Bills introduced in the Senate: S. 611;
Total number of bills: 2.
Session of Congress: 107;
Bills introduced in the House of Representatives: H.R. 1175; H.R. 3548;
Bills introduced in the Senate: S. 504; S. 1392;
Total number of bills: 4.
Session of Congress: 108;
Bills introduced in the House of Representatives: H.R. 4213;
Bills introduced in the Senate: S. 297; S. 462;
Total number of bills: 3.
Session of Congress: Total;
Bills introduced in the House of Representatives: 17 House bills;
Bills introduced in the Senate: 11 Senate bills;
Total number of bills: 28.
Source: GAO analysis.
[A] No bills introduced.
[End of table]
Of the House bills, only H.R. 4462 from the 103rd Congress was passed
by the full House (on October 3, 1994). None of the Senate bills have
been passed by the full Senate. Additional bills have also been
introduced to recognize specific tribes; provide grants to local
communities or Indian groups involved in the tribal recognition
process; or, more recently, address the timeliness of the recognition
process. For example, H.R. 4933 and H.R. 5134, introduced in the 108th
Congress, and H.R. 512, which was introduced last week, have focused on
the timeliness of the recognition process.
In 2001 the Recognition Process Was Ill Equipped to Provide a Timely
Response:
BIA's regulations outline a process for active consideration of a
completed petition that should take about 2 years. However, because of
limited resources, a lack of time frames, and ineffective procedures
for providing information to interested third parties, we reported in
2001 that the length of time needed to rule on tribal petitions for
federal recognition was substantial. At that time, the workload of the
BIA staff assigned to evaluate recognition decisions had increased
while resources had declined. There was a large influx of completed
petitions ready to be reviewed in the mid-1990s. The chief of the
branch responsible for evaluating petitions told us that based solely
on the historic rate at which BIA had issued final determinations, it
could take 15 years to resolve all the completed petitions then
awaiting active consideration.
Compounding the backlog of petitions awaiting evaluation in 2001 was
the increased burden of related administrative responsibilities that
reduced the proportion of time available to BIA's technical staff to
evaluate petitions. Although they could not provide precise data,
members of the staff told us that this burden had increased
substantially over the years and estimated that they spent up to 40
percent of their time fulfilling administrative responsibilities. In
particular, there were substantial numbers of Freedom of Information
Act (FOIA) requests related to petitions. Also, petitioners and third
parties frequently filed requests for reconsideration of recognition
decisions that needed to be reviewed by the Interior Board of Indian
Appeals, requiring the staff to prepare the record and respond to
issues referred to the Board. Finally, the regulatory process had been
subject to an increasing number of lawsuits from dissatisfied parties-
-those petitioners who had completed the process and had been denied
recognition, as well as by petitioners who were dissatisfied with the
amount of time it was taking to process their petitions.
Technical staff represented the vast majority of resources used by BIA
to evaluate petitions and perform related administrative duties.
Despite the increased workload faced by BIA's technical staff, the
available staff resources to complete the workload had decreased. The
number of BIA staff assigned to evaluate petitions peaked in 1993 at
17. However, from 1996 through 2000, the number of staff averaged less
than 11, a decrease of more than 35 percent.
While resources were not keeping pace with workload, the recognition
process also lacked effective procedures for addressing the workload in
a timely manner. Although the regulations established timelines for
processing petitions that, if met, would result in a final decision in
approximately 2 years, these timelines were 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 had finished reviewing by 2001 were completed
within 2 years or less, and all but 2 of the 13 petitions under review
in 2001 had already been under review for more than 2 years.
While BIA could extend the timelines, it had no mechanism to balance
the need for a thorough review of a petition with the need to complete
the decision process. As a result, the decision process lacked
effective timelines that would have created a sense of urgency to
offset the desire to consider all information from all interested
parties in the process. 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
have made this goal impossible to achieve.
We also found that as third parties, such as local municipalities and
other Indian tribes, became more active in the recognition process--for
example, initiating inquiries and providing information--the
procedures for responding to their increased interest had not kept
pace. Third parties told us they wanted more detailed information
earlier in the process so that they could fully understand a petition
and effectively comment on its merits. However, in 2001 there were no
procedures for regularly providing third parties more detailed
information. For example, while third parties were allowed to comment
on the merits of a petition before a proposed finding, there was no
mechanism to provide any information to third parties before the
proposed finding. As a result, third parties were 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 had no procedures for efficiently responding to FOIA
requests, staff members hired as historians, genealogists, and
anthropologists were pressed into service to copy the voluminous
records of petitions to respond to FOIA requests.
In light of these problems, we recommended in our November 2001 report
that the Secretary of the Interior direct BIA to develop a strategy to
improve the responsiveness of the process for federal recognition. Such
a strategy was to include a systematic assessment of the resources
available and needed that could lead to the development of a budget
commensurate with the workload. The department generally agreed with
this recommendation.
Timeliness Has Improved, but It Will Still Take Years to Clear the
Existing Backlog of Petitions:
In response to our report, Interior's Office of Federal Acknowledgment
has hired additional staff and taken a number of other important steps
to improve the responsiveness of the tribal recognition process.
However, it still could take 4 or more years, at current staff levels,
to work through the existing backlog of petitions currently under
review, as well as those ready and waiting for consideration. In
response to our report, two vacancies within Interior's Office of
Federal Acknowledgment were filled, resulting in a professional staff
of three research teams, each consisting of a cultural anthropologist,
historian, and genealogist. In September 2002, the Assistant Secretary
for Indian Affairs estimated that three research teams could issue
three proposed findings and three final determinations per year and
eliminate the backlog of petitions in approximately 6 years, or by
September 2008.
Through additional appropriations in fiscal years 2003 and 2004, the
Office of Federal Acknowledgment was also able to utilize two sets of
contractors to assist with the tribal recognition process. The first
set of contractors included two FOIA specialists/record managers. The
second set of contractors included three research assistants who worked
with a computer database system scanning and indexing documents to help
expedite the professional research staff evaluation of a petition. Both
sets of contractors helped make the process more accessible to
petitioners and interested parties, while increasing the productivity
of the professional staff by freeing them of administrative duties.
In addition, the September 2002 Strategic Plan, issued by the Assistant
Secretary for Indian Affairs in response to our report, has been almost
completely implemented by the Office of Federal Acknowledgment. Among
other things, the Office of Federal Acknowledgment has developed a CD-
ROM compilation of prior acknowledgment decisions and related documents
that is a valuable tool for petitions and practitioners involved in the
tribal recognition process. The main impediment to completely
implementing the Strategic Plan and to making all of the information
that has been compiled more accessible to the public is the fact that
BIA continues to be disconnected from the Internet because of ongoing
computer security concerns involving Indian trust funds.
Even though Interior's Office of Federal Acknowledgment has increased
staff resources for processing petitions and taken other actions that
we recommended, as of February 4, 2005, there were 7 petitions in
active status and 12 petitions in ready and waiting for active
consideration status. Eight of the 12 petitions have been waiting for 7
years or more, while the 4 other petitions have been ready and waiting
for active consideration since 2003.
In conclusion, although Interior's recognition process is only one way
by which groups can receive federal recognition, it is the only avenue
to federal recognition that has established criteria and a public
process for determining whether groups meet the criteria. However, in
the past, limited resources, a lack of time frames, and ineffective
procedures for providing information to interested third parties
resulted in substantial wait times for Indian groups seeking federal
recognition. While Interior's Office of Federal Acknowledgment has
taken a number of actions during the past 3 years to improve the
timeliness of the process, it will still take years to work through the
existing backlog of tribal recognition petitions.
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 Robin M. Nazzaro on (202) 512-
3841. Individuals making key contributions to this testimony and the
report on which it was based are Charles Egan, Mark Gaffigan, and
Jeffery Malcolm.
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] GAO, Indian Issues: Improvements Needed in Tribal Recognition
Process, GAO-02-49 (Washington, D.C.: Nov. 2, 2001).
[5] GAO, Indian Issues: More Consistent and Timely Tribal Recognition
Process Needed, GAO-02-415T (Washington, D.C.: Feb. 7, 2002).
[6] GAO, Indian Issues: Basis for BIA's Tribal Recognition Decisions Is
Not Always Clear, GAO-02-936T (Washington, D.C.: Sept. 17, 2002).
[7] In 2001, the tribal recognition process was administered by BIA's
Branch of Acknowledgment and Research. In a reorganization, effective
July 27, 2003, the Branch of Acknowledgment and Research was elevated
and moved into Interior's Office of the Assistant Secretary for Indian
Affairs and renamed the Office of Federal Acknowledgment. In this
statement, when referring to our work from 2001, we will refer to the
tribal recognition process as a BIA process; in all other cases, we
will refer to it as a process within Interior's Office of Federal
Acknowledgment.
