WASHINGTON – The federal process for acknowledging tribes has come under heavy criticism in both chambers of Congress within recent weeks, with assorted tribes urging legislative recognition for themselves and others trapped in a labyrinth of red tape and delay at the Interior Department.
Meanwhile, at a Sept. 19 hearing of the Senate Committee on Indian Affairs, Carlyle Consulting began to distribute a combined list of recognition reform bills that have been introduced in Congress – 32 of them over the course of 20 years.
”Slow justice is slow death,” said Tom Rodgers of Carlyle, adding that tribes deserve a decision before more years and decades go by and more elders die. He urged passage of a Senate bill to recognize the Muscogee of Florida.
Legislative recognition by act of Congress is the only practical alternative to acknowledgment through Interior, a process that begins with a letter of intent to the Office of Federal Acknowledgment, a branch of the BIA which is, in turn, an agency of Interior. On the evidence heard Sept. 19, years may pass before applicants can turn a letter of intent into a petition that addresses the seven OFA criteria; and years after that before a petition is classifiable as ”ready, waiting for active consideration”; and still years more after that before it is accepted for active consideration. The General Accountability Office estimates that OFA has a work backlog that pushes timelines back by 15 years, according to OFA Director Lee Fleming.
Additional Senate recognition bills have been introduced on behalf of the Little Shell Chippewa of Montana, the Grand River Ottawa of Michigan and the Lumbee of North Carolina.
The committee heard testimony from the leaders of all four. With the exception of Lumbee Chairman Jimmy Goins (the Lumbee have been excluded by a court ruling from seeking recognition through the Interior process established in 1978), each leader concurred with Dorgan that they have submitted complete petitions and are waiting only for Interior to make a decision. Again, with the exception of the Lumbee, all have been engaged in the Interior recognition process for decades.
Muscogee Nation Chairman Ann Denson Tucker said further prolonged delay threatens the survival of her tribe. Florida land value has driven up property taxes, which in turn has tended to price tribal members out of their homelands, she told the committee. Among other benefits of federal recognition is the exemption of tribal lands from taxation.
Sen. Byron Dorgan, D-N.D., chairman of the SCIA, said that in almost 30 years, OFA has delivered decisions on 40 petitioning groups, 16 in favor of federal recognition as a tribe and 24 against. ”Congress in that same time has recognized, restored, or otherwise changed the status of 28 tribal groups by an act of Congress.”
Several times he emphasized that the necessity of establishing the historical record of would-be sovereign tribes must not be minimized. ”I understand that. But I also understand that establishing a process that in some cases takes 15 years, 25 years, or 30 years is untenable and unfair. … We’ve got to find a way to fix this. We can’t say there’s a process if the process doesn’t work.”
In the House of Representatives, before the Natural Resources Committee, the fix offered on Oct. 3 was a bill to liberate federal recognition from Interior by creating an independent review commission, immune from political pressures applied by congressional members, the competitiveness of recognized tribes and the so-called ”staff capture” of a paperwork burden that defeats informed executive decision-making.
Fleming’s responses to Dorgan Sept. 19 convinced one lobbyist (speaking on condition of anonymity because of client interests before OFA) that OFA doesn’t have enough to do despite more than 243 pending letters of intent to petition – that is, letters of intent only, leaving the burden of research and documentation in the petitioners’ court until a petition is filed, years later in some cases and in many cases, never. But two weeks later, Patricia Zell of Zell and Cox Law said OFA’s time is consumed by Freedom of Information Act requests, technical assistance to applicant groups, responses to ”unregulated interventions” from ”interested parties” that often occur late in the recognition process, and court-ordered timelines that require OFA to set aside work on some petitions in order to comply with court orders on others.
Rodgers said that H.R. 2837, sponsored in the House by Rep. Eni Faleomavaega, D-American Samoa, has become a valuable focus of discussion for driving reform of a broken process that Interior and the White House are unwilling or unable to fix. But Rodgers maintained that the best ”fix” rests with Congress, a deliberative body that should answer the call of enacting recognition for deserving tribes stalled in the OFA process.
Rep. Nick Rahall, D-W.Va., chairman of Natural Resources, said Oct. 3 that he favors fair and manageable reform but won’t hesitate to bring legislation recognizing tribes before his committee. ”I am tired of the defamatory attacks claiming that Indian tribes who have submitted applications only want recognition in order to try and open up a casino. I find that demeaning beyond words.”
Fleming and Carl Artman, Interior’s assistant secretary at the BIA, outlined proposed reforms they said their sections are ”considering.”