In one of his final actions as head of the Bureau of Indian Affairs
, former assistant secretary Carl Artman approved changes to the controversial federal recognition process.
But rather than consult tribes or put the issue up for public comment, Artman described the changes as "internal" guidance. It's the second time this year he took such an approach -- the first was a land-into-trust policy in January that has enraged Indian Country.
According to a notice published in the Federal Register
last Friday, the changes will speed up the slow-moving recognition process. Some petitioning groups have waited nearly 30 years for an answer on their federal status.
"This guidance and direction does not change the acknowledgment regulations, but will assist in making the process more streamlined and efficient, and improve the timeliness and transparency of the process," Artman stated in the notice.
But the BIA will now be allowed to suspend its review of petitioning groups that have split into rival factions. One change requires the groups to resolve their differences internally before action is taken on their petition.
"Some petitioning groups attempt to resolve their disputes by splitting into two or more groups, not realizing that, by doing so, neither group may be able to meet the criteria," the guidance states. "The [Interior] Department does not acknowledge parts of an Indian tribe."
The change reflects a shift in thinking at the BIA. During the Clinton administration, former assistant secretary Kevin Gover recognized
two factions of a Connecticut tribe as a single entity, a decision that was upheld
, then reversed
, by the Bush administration.
Currently, at least two groups -- both from California -- are embroiled in leadership disputes as their petitions reach the final review stages at the BIA. The petition at the top of the "ready" list, in fact, is the Juaneno Band of Mission Indians, whose factions have hired rival lobbying and legal teams to press their cases in Washington, D.C.
Two factions of the tribe received a negative decision
last November, long before the guidance was issued. The factions are now engaging in technical assistance sessions with the BIA, Artman said in testimony to the Senate Indian Affairs Committee
Another change allows the BIA to declare groups as "inactive," and therefore claim some success in resolving a backlog that now stands at over 300 petitions. At the current work rate, it would take the agency decades to resolve every single group.
According to the notice, the BIA will inform petitioners that they have to respond to technical assistance requests in a "timely" manner or risk being put on the back burner. However, "timely" is not defined anywhere in the new guidance.
A third change could help some groups resolve their petitions more quickly -- at the expense of other groups. The BIA can now move certain groups to the top of its "ready" list even though the agency, in at least two court cases, argued that it was unlawful to do so.
To get around the list, the Federal Register notices states that the BIA can issue a "waiver" to certain petitioners that meet the following requirements:
(1) any group that can show residence and association on a state Indian reservation continuously for the past 100 years, or,
(2) any group that voted in a special election called by the Secretary of the Interior under section 18 of the Indian Reorganization Act (IRA) between 1934 and 1936, provided that the voting Indian group did not organize under the IRA.
The first requirement would appear to help the Shinnecock Nation
of New York, whose petition has been on the "ready" list since 2003. The tribe has occupied a state reservation since the 1700s.
The second requirement could help some Midwest and California petitioners that sought to organize under the IRA but were never put on the list of federally recognized tribes due to administrative oversight or other reasons.
Another change seeks to reduce the time period for which a petitioner must submit evidence of its existence as an Indian tribe. The guidance puts the earliest date at March 4, 1789, when the U.S. Constitution was ratified.
This change doesn't appear to have a major impact on the process, since the tribes with early dates of contact are mostly in the East and have already gone through the recognition process. The Shinnecocks could benefit but they completed their petition years ago.
The BIA began its formal recognition process in 1978. Prior to that, tribes were recognized on an ad-hoc basis. Since 1978, the BIA has made decisions on more than 30 petitions, denying recognition more often than acknowledging it.
The last tribe to win a favorable decision was the Mashpee Wampanaog Tribe
of Massachusetts, whose leaders applied for federal status in 1975. The final determination became effective last May.
As part of a reorganization, the Bush administration created the Office of Federal Acknowledgment (OFA), formerly known as the Branch of Acknowledgment and Research. The office is now overseen directly by the assistant secretary.
Federal Register Notice:
Office of Federal Acknowledgment; Guidance and Direction Regarding Internal Procedures
(May 23, 2008)
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