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Federal Recognition
Judge blasts BIA for delays in recognition case


A federal judge accused the Bureau of Indian Affairs on Monday of mismanaging the federal recognition process but said his options for bringing the agency in line were limited.

At a lengthy hearing in Washington, D.C., U.S. District Judge James Robertson questioned why the BIA's Office of Federal Acknowledgment is taking so long to rule on the Mashpee Wampanoag Tribe's petition for recognition. The Massachusetts tribe has been on the "ready" list for consideration for nine years, having filed its initial application in 1975.

"The people involved in making the decisions at the BIA have completely lost track of the whole concept of deadlines," Robertson said.

Silvia Sepulveda-Hambor, a Department of Justice lawyer who is representing the BIA, tried to show that progress has been made. She said the agency is implementing a strategic plan to streamline the process and that the Mashpees are now second in line for review.

"That's exciting," Robertson responded. "Stand back."

Robert E. Jordan, an attorney for the tribe, painted a picture of indifference at the BIA that has caused harm to the health and well-being of tribal members, more than two dozen of whom attended yesterday's hearing. "A lot of the people in the tribe are no longer with us," he told the court.

"A lot of the people here," he added, "are old and sick." He said the BIA's failure to make a decision has hurt the tribe's attempts to repatriate ancestors and artifacts, develop affordable housing and ensure children stay within the tribe in adoption and child welfare cases.

Jordan said the "mindset" of the OFA staff leads them to ignore the BIA's regulations that call for decisions to be made in a timely fashion. "They don't even think of it as a deadline," he said. "They see it as a minimum."

Throughout the proceeding, Robertson was sympathetic to the tribe's cause. When Sepulveda-Hambor said the harms posed to tribal members were "speculative" he suggested the court hold an evidentiary hearing.

"Are you really going to dispute that?" he asked. "If we have that hearing, we are going to let it all hang out," he added.

But Robertson discarded the notion of blowing the case into the open in light of a ruling from the D.C. Circuit Court of Appeals on the matter. In a unanimous August 2003 decision, the court blocked Robertson from imposing a timeline on the BIA that would require the agency to finalize the Mashpee petition ahead of others in the "ready" list.

Sepulveda-Hambor repeatedly hammered on this point, saying the regulations provide no strict deadlines on the process. "There is no statutory for this court to interpret," she argued. "There is no statutory framework. That is extremely, extremely important."

But when she suggested that the court must defer to the BIA's expertise, Robertson was not pleased. "I don't think I have to defer to the management expertise of the BIA," he said. "As far as I can tell, there is no management expertise there."

Sepulveda-Hambor said the already bogged-down process would become even more unwieldy if the court intervenes. "It would be replaced by a very ad-hoc system," she told the judge. "It would be the petitioner that has financing that gets moved."

Robertson agreed the D.C. Circuit's decision made it clear that any decision "that vaulted the Mashpee over any other tribe [in the list] would be quite difficult to sustain." "But the court of appeals did not foreclose unreasonable delay," he added, "and what we do about it."

Robertson speculated that he could order the BIA to finalize a decision on the Mashpee by a certain date without upsetting the others ahead in the list. "If it means the cases ahead of it move faster, then that's what it means," he said.

Robertson ordered the BIA to provide an update on the federal recognition workload within 10 days. He didn't know when he would make a decision but said, "I don't think it will take me nine years" to do it.

The Mashpee Tribe would benefit under H.R.512, a bill to force the BIA to decide on a handful of pending recognition petitions. Rep. Richard Pombo (R-California), the chairman of the House Resources Committee, sponsored the bill, and held a hearing on it last week.

"I don't care how busy the [Interior] Department is," he said after a BIA official objected to the bill. "At some point over the last 20 or 30 years, there should have been enough time to move forward on these."

Massachusetts currently has just one federally-recognized tribe, the Aquinnah of Gay Head. The Mashpees are recognized by the state.

Court Decision:
Mashpee Wampanoag Tribe v. Norton (August 1, 2003)

Relevant Links:
Mashpee Wampanoag Tribe - http://mashpeewampanoagtribe.com