Chairman Harvey Godwin, Jr. of the Lumbee Tribe, left, with Lieutenant Governor Jefferson Keel of the Chickasaw Nation. Photo: Lumbee Tribe

Key Republican revives bill to strip Bureau of Indian Affairs of recognition powers

A key Republican lawmaker is once again pushing a bill that requires all tribes seeking federal recognition to go through Congress.

Rep. Rob Bishop (R-Utah), the chairman of the House Natural Resources Committee, introduced H.R. 3744, the Tribal Recognition Act, last week. While the bill establishes standards for the Bureau of Indian Affairs to research petitions submitted by tribes seeking recognition, it bars the executive branch from making decisions on those petitions.

"The Secretary may not grant federal acknowledgment (or reacknowledgment) to any Indian group," the bill states, referring to the Secretary of the Interior.

Instead, the measure asserts that Congress -- through its "plenary and exclusive" authority over Indian affairs -- shall be responsible for recognizing a government-to-government relationship between the United States and a particular tribe. So, even after going through the BIA's process, a petitioning group must clear more hurdles before its status can be resolved.

Those additional hurdles would include finding a friendly lawmaker to introduce a recognition bill, securing a hearing on the bill and finding votes in the House and the Senate on said bill. Judging by the past record of the legislative branch -- Congress hasn't passed a stand-alone recognition bill since the mid-1990s -- hopeful tribes might never see an end to the already lengthy process.

That's one of the reasons why Indian Country opposed a prior version of Bishop's bill. Tribal advocates said putting power solely in the hands of Congress would further complicate an already controversial issue.

"Too much is at stake for the federal recognition process to be politicized," said Brian Patterson, a citizen of the Oneida Nation who was serving as president of United South and Eastern Tribes when Bishop's committee held one of two hearings on a prior version of the bill back in December 2015.

H.R. 3744, the new bill, is now up for a hearing next week. And two other items on the agenda illustrate why tribal advocates have been concerned about the role of Congress in federal recognition matters.

Chief Kimolly was a leader of the Shasta people in the late 1880s. According to the book, Shasta Nation, he was imprisoned at Alcatraz before being allowed to return to his homelands. The Ruffey Rancheria claims ties to the Shasta Nation. Photo: Etna Band of Indians

H.R. 3535, the Ruffey Rancheria Restoration Act, would restore federal recognition to the Ruffey Rancheria. The tribe, based in California, was among the dozens whose status was terminated by Congress in the 1950s.

But the bill doesn't merely reaffirm the tribe's status. It also imposes limits on the tribe's ability to join the Indian gaming industry by requiring the tribe to submit land-into-trust applications within five years, instead of the 25 years required by the BIA's so-called Section 20 regulations.

H.R.3535 also limits the tribe to seeking lands within a 25-mile radius of its former reservation or within 25 miles of "culturally significant sites." While the Section 20 regulations offer the same mileage standard, they also recognize situations in which a strict limit might not be applicable. A tribe, for example, can seek land in areas where its citizens live or in areas that are a "commutable distance" from its headquarters.

At least the Ruffey Rancheria, also known as the Etna Band of Indians, would be able to engage in gaming if the bill became law. That can't be said for the Lumbee Tribe, whose federal status has been in limbo for more than a century.

H.R.3650, the Lumbee Recognition Act, includes a complete ban on gaming. Although tribal leaders have accepted the restriction, it hasn't helped them secure passage of prior bills in Congress.

"The Lumbee Tribe will be entitled to the same rights, benefits, and privileges as any other American Indian tribe, including the right to have lands taken into trust," Chairman Harvey Godwin, Jr., who recently met with White House staff to discuss federal recognition, said in a post on Facebook.

The Eastern Band of Cherokee Indians, which operates two casinos in the state, also remains strongly opposed to the bill. Eastern Cherokee leaders have been making repeated trips to Washington, D.C,. in the past month to counter Godwin's lobbying efforts, which have closely followed in the North Carolina media.

"The Lumbee recognition bill has some staggering implications for our tribe," Eastern Cherokee Chief Richard G. Sneed said in a report published in The One Feather, the tribe's newspaper. "The increase in competition for federal funding will grow exponentially if the Lumbee and their estimated 50,000 members gain recognition. This will impact our housing and roads money among other federal funds which are dwindling with the proposed budget."

Rep. Rob Bishop (R-Utah), second from right, is seen with Secretary of the Interior Ryan Zinke, left. Photo: U.S. Department of the Interior

In contrast, groups that gain recognition through the BIA aren't subject to limits on the land-into-trust process. They are also free to engage in gaming so long as they satisfy the Section 20 criteria.

Still, there are situations in which tribes cannot seek recognition from the executive branch. The Ruffey Rancheria needs an act of Congress because its status was previously revoked by Congress. Some terminated tribes have gone to federal court to regain their recognition although litigation doesn't always result in success.

For decades, the Lumbees were barred from going through the BIA due to an interpretation of a termination-era law that describes their people as "Indians" but denies them the services and benefits associated with full federal recognition.

A legal opinion issued in the final full month of the Obama administration, however, opened the door for the tribe to seek federal acknowledgment through the so-called Part 83 process. The Trump team has left the December 2016 opinion in place even as it has reconsidered and rescinded other opinions.

The BIA's formal acknowledgment process began in 1978. Since then, 18 tribes have secured federal recognition while a much larger number, 33, have been denied, according to the agency's list of decided cases.

Congress, on the other hand, hasn't passed a stand-alone recognition bill since 1994, according to a 2001 report from the Government Accountability Office. Two tribes gained recognition in 2000 when they were included an "omnibus" Indian bill that became law during the last full month of the Clinton administration.

During more recent debates on recognition bills, Republican lawmakers have boasted of their opposition to legislative recognition. Ironically, Republicans are now the sponsors of the only recognition bills that are advancing in the 115th session of Congress.

Next week's hearing takes place next Tuesday, September 26, before the House Subcommittee on Indian, Insular and Alaska Native Affairs, which is part of the larger House Natural Resources Committee. A witness list hasn't been posted online.

“This is the next step in bringing Lumbee recognition up for a vote,” Rep. Robert Pittenger (R-North Carolina), the sponsor of H.R.3650, said in a press release. “The Lumbee Tribe has sought full federal recognition since 1888. We are working closely with the Lumbee Tribe and other leaders to ensure a strong showing next Tuesday.”

House Subcommittee on Indian, Insular and Alaska Native Affairs Notice:
Legislative Hearing on 3 Tribal Recognition Bills (September 26, 2017)

Department of the Interior Solicitor Opinion:
Reconsideration of the Lumbee Act of 1956 (December 22, 2016)

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