On Thursday, Assistant Secretary-Indian Affairs Kevin Washburn announced the publication in the Federal Register of proposed new regulations that will reform the 35-year-old process by which the federal government acknowledges Indian tribes and enters into a nation-to-nation relationship with them – a much-needed upgrade of a process that’s been described by both tribes and their opponents as broken and unfair. The publication of the proposed new rules follows the release last June of a draft of the proposed changes and, after another period of consultations and comments, will lead to final regulations being published and implemented. Washburn talked about the substance and process of the proposed new rules in an exclusive interview with ICTMN.
Congratulations on getting the proposed regulations out.
We’re real happy about it. It’s taken us longer than we thought, but these things are always difficult and we’re using a lot of process and that always takes a lot of time.
We did the discussion draft and got lots of comments back. I think we had 350 comments though several organizations signed on to some of the comments so it’s 350 comments representing over 2800 commentators so we had to go carefully through those.
That’s an amazing lot.
Yeah, it really is. It’s good that people were engaged in it. It improves the product ultimately
Were most of the comments positive?
Yes, we had a lot of very positive comments. I think everybody’s happy that we’re taking this up and we’ve gotten a lot of kudos for taking it.
Did you basically keep the provisions that were in the draft proposal?
No, it’s been modified quite a bit in response to comments so we’ll be interested to see what the comments are on that. We’re going into a 60-day comment period where we expect to get more comments on the way we changed things primarily.
Does the proposed rule maintain the change requiring proof of community and political authority from1934 instead of 1789?
We have maintained that and we’ve also maintained that if a petitioner has maintained a state recognized reservation since 1934 or if we’ve held land in trust for a petitioner since 1934 that that would satisfy the political authority and community criteria.
What was the rationale for the earlier date of 1789?
Well, obviously, that’s the founding of the United States. Here’s the problem: Petitioning groups didn’t like that because during times in our nation’s history we were either seeking to exterminate or terminate of assimilate Indians so often they went underground during those periods and the problem is if we demand that they show evidence from those time periods they could very justifiably say, ‘We don’t have any evidence because we were trying not to be noticed.’ The 1934 date is important because that’s when the Indian Reorganization Act was passed. There was a period in the 1950s when tribes were terminated, but 1934 was the first time when [the federal government] said “Look, we think tribes should continue and we should help them draft constitutions and that sort of thing so that they can be ongoing political entities.”
If they didn’t exist in 1934 that’s a serious problem, but it’s 1934 coming forward that’s the period we’re looking for political authority within their own community.
Will tribes that had their federal recognition denied in a final determination or overturned because of political influence have a second go at it? For example, here in Connecticut the Eastern Pequot Tribal Nation and Schaghticoke Tribal Nation’s federal recognitions were overturn based in part on the opposition claiming that their long established state recognized reservations were irrelevant.
I don’t really feel comfortable addressing specific groups. But here’s the deal on re-petitioning: If we’re slightly adjusting the criteria in such a way that [a group that] was ultimately denied recognition can say, ‘Look, you changed the criteria and under this new criteria we are entitled to be recognized,’ we’re going to give them a chance to make their case – with some exceptions. The idea here is basically they’re going to have to go before and administrative judge and say, ‘Reconsideration is appropriate in our case because you’ve changed the criteria in a way that benefits our case and if we’d had this updated criteria we might not have been denied.’
We do recognize, though, that outside parties who’ve been involved in litigation against these petitioning groups have developed some equities because they’ve spent tens of thousands or hundreds of thousands of dollars and numerous man-hours analyzing the petitions and challenging them and that sort of thing and where we have that situation we have to recognize that third party interest. So in these cases we’re going to require the consent of any third party that participated in that process. In other words, the petitioning group would have to go to the third party and get their consent before re-petitioning.
Ouch! Well, what if they say no?
Well, they might say no. The bottom line is in many cases it’s a political entity that’s doing that and political entities change and if a new governor comes in or new legislature it can change the dynamic. So it sort of leaves the door open to some degree and presumably those [challengers] are people who prevailed in court. So it’s kind of not fair for them to have challenged [a petitioner] and taken it to court and prevailed for us to come back and say, “We’ve changed the rules, you’re back to square one” – they rightfully can say that’s not fair. We want everybody to think this process is fair – that’s one of the most important things we’re trying to do through our reform.
That’s a bit sticky…The obvious example is Connecticut where it’s changed administrations but not its position, which is based on economic concerns [because if other Indian casinos open, the Mashantuckets’ Foxwoods Resort Casino and the Mohegan Sun would be relieved of their compact obligations to fork over 25% off the top of their slot revenues to the state – a windfall of almost $7 billion into the state coffers since the 1990’s]. So if they say no the three state recognized tribes wouldn’t have a chance,
Well, you know, we’re not doing this for any particular group — we’re doing it for overall what makes sense and how do we achieve fairness for as many groups as we can, and transparency and efficiency.
So you now have a 60-day comment period – then what happens?
We may have another 350 comments to go through! And then we’ll integrate those comments into a final rule eventually and that will take us a while. We thought we were going to get this out sooner than we did.
We need to be very diligent and look at those comments very rigorously and thoroughly and so the challenge is when you produce a final rule you need to address all the substantive comments that you got and make sure that you fully thought through the rule but also that you’ve done so in a transparent way. We’ll have to explain significant substantive comments and why we rejected them or accepted them in the preamble to the final rule.
Is there a way of challenging the rule?
Sure, yes. The Administrative Procedures Act does allow people to file an action challenging our rule but they have to meet certain requirements.
Are the requirements fairly rigorous?
Well, they have to have standing. They have to be someone who’s potentially affected by the rule.
Can a state challenge it?
Potentially. I don’t know for sure and you’re starting to ask me legal questions and I’m glad you’re thinking three or four steps ahead, but we haven’t gotten to that point yet!
In a perfect world we come up with a rule that everybody sees as not only substantively good but also substantively fair so they don’t want to challenge it. We’ll see if that happens.
More information and a schedule of consultations and public meetings on the proposed regulations are available at http://www.bia.gov/WhoWeAre/AS-IA/ORM/83revise/index.htm