Trump administration willing to defer to Congress in federal recognition matters

Tuesday, September 26, 2017  

Change is in the air as the Trump administration opens the door to a controversial bill that would strip the Bureau of Indian Affairs of its federal recognition powers.

In his first appearance on Capitol Hill, a senior BIA official did not fully endorse H.R.3744, the Tribal Recognition Act. But John Tahsuda, a citizen of the Kiowa Tribe who joined the Trump team barely four weeks ago, said the agency was willing to defer to Congress when it comes to tribal recognition matters.

While Tahsuda, whose official title is Principal Deputy Assistant Secretary for Indian Affairs, asserted that the BIA has "statutory authority" to recognize tribes, he outlined a shift in thinking at the Department of the Interior that is at odds with prior Democratic and even Republican policies. He said the new administration won't object if the legislative branch, rather than the executive, decides whether a particular group is worthy of a government-to-government relationship with the United States.

"It is the department’s current position that affirmative Congressional recognition more directly aligns the formal recognition of tribes with the assignment of rights derived by the recognition decision," Tahusda told the House Subcommittee on Indian, Insular and Alaska Native Affairs on Tuesday afternoon.

The somewhat muddied statement -- it was neither an endorsement nor a repudiation of the premise of H.R.3744 -- was followed by equally ambiguous positions on two other bills that were also brought up during the hearing. Tahusda refused to say outright whether the Trump administration supports legislative recognition for the Lumbee Tribe and the Ruffey Rancheria, sometimes referred to as the Etna Band of Indians.

"We support Congress's efforts to change that ... if that's what Congress chooses to do," Tahsuda said when asked about H.R.3650, the Lumbee Recognition Act. He offered the same lukewarm response to H.R. 3535, the Ruffey Rancheria Restoration Act.

The lack of clarity brought a rebuke from a lawmaker whose territory lies thousands and thousands of miles from Indian Country. Rep. Gregorio Sablan (D-Northern Mariana Islands), who noted that he was the only Democrat who supported a prior version of the Tribal Recognition Act, accused Tahsuda of providing misleading and unhelpful testimony.

"You can't even give us a yes or no answer," Sablan said in an incredulous tone.

"You're here to testify on behalf of the executive branch and you won't -- it's not that you can't -- you won't give us a yes or no answer," Sablan added.

But a key Republican thought Tahsuda's responses were music to his ears. With H.R.3744, Rep. Rob Bishop (R-Utah), the chairman of the House Natural Resources Committee, is asserting the "plenary and exclusive" powers of Congress when it comes to Indian affairs.

"It is nice to have an administration that is willing to come to Congress and work with us," said Bishop, who introduced the bill on September 12.

Despite the Trump team's stance, Bishop's bill faces considerable obstacles. Democrats and tribal leaders -- none of whom were invited to testify about H.R.3744 -- believe the federal recognition process will become even more politicized if left in the hands of Congress.

"It's reckless to remove the administrative authority altogether," said Rep. Norma Torres (D-California), the top Democrat on the House Subcommittee on Indian, Insular and Alaska Native Affairs. "Doing so will only consolidate power in the hands of a few members of Congress, resulting in even [more] delays and difficulties for tribes in leaving these important decisions to politics."

When it comes to tribal recognition, the legislative branch indeed has a paltry record. Congress 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.

In comparison, the BIA has recognized 18 tribes since 1978, when the administrative acknowledgment process officially began. The agency has denied recognition to another 33 groups, according to a list of decided cases.

The process is extremely time-consuming and costly, both for the government and petitioning groups. It took the Pamunkey Tribe, the most recent to win acknowledgement through the BIA, seven years to secure a decision. Others have waited longer, even decades.

Republican and Democratic administrations have attempted to streamline the process, with little success. The most recent reforms to the so-called Part 83 process came during the Obama era -- Bishop's bill would nullify them and replace them with a different set of standards.

Tahsuda acknowledged complaints about those changes, which were open to extensive tribal consultation and public comment. But he said they aren't on the Trump administration's agenda.

"At this point in time, we have no plans to revisit those," Tahsuda told Bishop. "Certainly they went through a full review process."

There are situations in which tribes cannot go through the BIA's process. Tribes whose federal relationship was terminated by Congress must ask Congress to restore it. The Ruffey Rancheria falls in that category.

"For us, restoration is not a political issue," said Tahj Gomes, an attorney who serves as chairman of the California-based tribe. "It's not a partisan issue. It is a question of necessity and of justice."

The Lumbee Tribe is in a similar yet unique situation. During the termination era, Congress identified the Lumbees in North Carolina as "Indians" yet denied them the benefits associated with federal status.

For decades, the BIA believed the law barred the tribe from seeking recognition through the executive branch. Near the end of the Obama administration, the top legal official at Interior reversed course on that issue but Chairman Harvey Godwin, Jr., said the process would take too long.

"From this day going forward, it would take 20 years," Godwin testified. Two other tribes, both located in Texas, that were in similar situations as his people have had their federal status clarified by Congress, he noted.

Despite Congress's lack of action on recognition in the last two decades, there has been a shift on Capitol Hill. Republicans who once boasted of blocking prior recognition vehicles are now the proud and eager champions of such bills. Secretary Ryan Zinke, Interior's new leader, was once the sponsor of a recognition bill when he represented Montana in Congress.

"Now as the Secretary, I have to make sure that process is fair, transparent and not unduly influenced," Zinke said in March after he joined the Trump administration.

Legislative Hearing on 3 Tribal Recognition Bills (September 26, 2017)

Reconsideration of the Lumbee Act of 1956 (December 22, 2016)

Trump hire at Bureau of Indian Affairs to make first appearance on Capitol Hill (September 25, 2017)
Key Republican revives bill to strip Bureau of Indian Affairs of recognition powers (September 21, 2017)
Federal recognition bill for six tribes in Virginia inches another step forward (September 13, 2017)
Senate Committee on Indian Affairs set to advance three bills at business meeting (September 11, 2017)
Lumbee Tribe secures White House meeting in bid for federal recognition (August 2, 2017)