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BIA faces fire over latest reforms to federal recognition process

Thursday, April 23, 2015

Assistant Secretary Kevin Washburn, the head of the Bureau of Indian Affairs. Photo from Twitter

Nearly everyone agrees that the federal recognition process at the Bureau of Indian Affairs is broken but solutions remain elusive.

Assistant Secretary Kevin Washburn, the head of the BIA, ran into that conundrum at a hearing before the House Subcommittee on Indian, Insular and Alaska Native Affairs on Wednesday. Although witness after witness said the existing process takes too long, costs too much money and requires significant resources, they criticized the Part 83 reforms that have been in development for more than two years as going too far.

"I will be one of the first in line heading to the courthouse door," Sen. Richard Blumenthal (D-Connecticut), whose federal recognition battles earned him a reputation as an Indian fighter, told the subcommittee. "I'm sure there will be litigation resulting from it."

The problem with the criticism was that no one -- except for Washburn and a few others -- has seen the rule that has been sent to the White House Office of Management and Budget for final review. Lawmakers and tribal leaders based their opposition on a proposal that appears to have been scaled back considerably in response to their concerns.

Indianz.Com SoundCloud: House Subcommittee April 22 2015

"Our final rule will yet again be more conservative," Washburn told the subcommittee.

Washburn invited lawmakers to step into the "hot seat" and come up with their own reforms to the process. Some have tried to do that over the years but their colleagues have not been interested in advancing any proposals despite media attention to the subject.

Even Blumenthal -- who is seeking re-election to a second term -- has never introduced a federal recognition reform bill.

Washburn also tried to deflect concerns that the BIA lacks the authority to recognize tribes. Another witness -- an attorney from Alaska whose opposition to Native sovereignty has earned him comparisons to the Ku Klux Klan -- and some lawmakers appear to be questioning the executive branch's powers.

"I've heard some really troubling things at this hearing," Washburn said as the proceeding drew to a close.

The BIA has recognized 17 tribes since the start of its federal recognition process in 1978. "We treat them just like any other Indian tribe," Washburn said of the newly recognized groups.

"The Constitution just says 'Indian tribes' -- it doesn't name any Indian tribes," Washburn added, referring to the Commerce Clause that mentions tribes, states and foreign nations.

"So the question then is, 'Who is that?'" Washburn said. "The executive branch has a responsibility to figure that out sometimes because we've got a trust responsibility to Indian tribes."

The hearing lasted about an hour and 50 minutes. Audio can be found on the Indianz.Com SoundCloud.

Get the Story:
Lawmaker tells administration: Pull back Indian tribe rules (AP 4/23)
BIA takes heat from CT lawmakers, others on Indian recognition (The Connecticut Mirror 4/22)

Committee Notice:
Oversight Hearing on "The Obama Administration’s Part 83 Revisions and How They May Allow the Interior Department to Create Tribes, not Recognize Them.” (April 22, 2015)

Federal Register Notices:
Federal Acknowledgment of American Indian Tribes (July 30, 2014)
Federal Acknowledgment of American Indian Tribes (May 29, 2014)

Relevant Documents:
Proposed Rule | Press Release | Comparison Chart (comparing current rule to proposed rule) | Response to Comments on June 2013 Discussion Draft | Frequently Asked Questions