Another tribal recognition bill advances with Republican support

Thursday, July 12, 2018  

With little fanfare, another tribal recognition bill is advancing on Capitol Hill as a top Republican asserts authority over the politically-complex process.

But while establishing a government-to-government relationship between the United States and an Indian nation has often been controversial, lawmakers from both parties described H.R.3764, the Little Shell Tribe of Chippewa Indians Restoration Act, as anything but. They easily advanced the bill at a markup session in the House Committee on Natural Resources on Wednesday morning.

"This bill is non-controversial," Rep. Greg Gianforte (R-Montana), the sponsor of H.R.3764, asserted at the session.

"The Little Shell people have suffered a long time at the hands of the bureaucracy in Washington and it's time for Congress to restore the tribe's federal recognition," Gianforte said of the Little Shell Tribe of Chippewa Indians, whose relationship with the U.S. has been in limbo for more than 100 years.

To underscore the point, a key Democrat chimed in. Rep. Ruben Gallego (D-Arizona), the ranking member on the House Subcommittee on Indian and Alaska Native Affairs, said extending federal recognition to the tribe was "non-controversial" and "long overdue."

But Gallego pointed out that other Indian bills await action. For example, H.R.3650, a Republican-sponsored measure to recognize the Lumbee Tribe, was aired at a hearing last September but hasn't been scheduled for a markup.

"I'm encouraged to see our committee taking this important step forward today and urge us to continue considering similar tribal legislation awaiting committee action in the coming days and weeks," Gallego said.

Comments by a Republican were illuminating as well. Rep. Doug LaMalfa (R-California), who chairs the Subcommittee on Indian and Alaska Native Affairs, expressed support for Little Shell but he could have been talking about his own recognition measure -- H.R.3535, which would restore the government's relationship with the Ruffey Rancheria, a relationship that had been terminated by Congress more than 50 years ago.

"It's consistent with much of the policy we've done around here and serves right those Native communities," LaMalfa said of H.R.3764.

Unlike the Lumbee bill, the Ruffey Rancheria Restoration Act has seen some movement. The committee advanced H.R.3535 at a markup in May despite grumbling by tribes from LaMalfa's home state of California.

But the September 2017 hearing where both the Lumbee and the Ruffey measures were considered marked a turning point for another recognition bill that was on the agenda. H.R.3744, the Tribal Recognition Act, would strip the Bureau of Indian Affairs of its ability to recognize tribal groups.

The bill happens to be sponsored by Rep. Rob Bishop (R-Utah), the powerful chairman of the committee. He has been trying to secure passage of what he deems to be a "policy reform" amid heated opposition in Indian Country.

Tribes and organizations like the National Congress of American Indians and the United South and Eastern Tribes have long criticized Bishop's efforts. They say he is trying to further politicize an already complex process by barring the BIA from making decisions on federal recognition petitions.

"The Supreme Court and Congress have always recognized that the power of the executive branch to engage in diplomatic relations and recognize the existence of a foreign state or an Indian tribe," NCAI told Bishop in a letter after he started pushing the Tribal Recognition Act.

Democrats also objected when the committee took testimony on H.R.3744 last September and when the committee advanced the bill at a markup last month. Requiring every tribal group to go through Congress for recognition is unfair, said Rep. Raúl Grijalva (D-Arizona).

“Tribes have been through this so many times with Republicans in charge that déjà vu doesn’t cover it any more," Grijalva, who is the top Democrat on the committee, said in June. "Indian Country is not a petri dish for Republicans to test their pet theories of government or impose their debunked notions of how our Constitution works."

Yet little by little, Bishop has been advancing his theories. Though H.R.3764, the Little Shell bill, was deemed non-controversial on Wednesday, its markup memo was filled with questionable stances on Indian policy that have drawn scorn in the past. One of the biggest is that that Department of the Interior, has been making decisions on federal recognition petitions without a basis in law..

"Under Article I, Section 3, Clause 3 of the Constitution, Congress has what the Supreme Court characterizes as plenary and exclusive authority over federal Indian affairs," the document, which was written by GOP staff on the committee, reads. "Nonetheless, the Department of the Interior, without authorization from Congress, implemented its own rules for the recognition of tribes not previously recognized by Congress."

The markup memo also serves as a boost for Bishop's contested bill. If the Little Shell Chippewa Tribe can petition the BIA for recognition, endure a decades-long process, work through conflicting decisions and then ask Congress to step in, so can other groups, the thinking goes.

"The Little Shell Tribe’s petition for recognition has undergone a substantially complete review by the department, notwithstanding a negative final determination (under appeal), and the results of this review (published in the Federal Register) largely mirror one the group would have to undertake if H.R.3744 were enacted into law," the document states.

And with a Republican president in charge of the executive branch, no one from Interior appears willing to challenge Bishop's ideas for Indian Country. At the September hearing on the Tribal Recognition Act, a top political appointee essentially gave in to the chairman's view of the recognition process.

"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," John Tahsuda, the Principal Deputy Assistant Secretary for Indian Affairs at Interior, told Bishop.

Going beyond theories, Bishop has been putting his Indian policy views into action, especially when it can benefit his party. In January, the Republican-controlled Congress gave final passage to H.R.984, the Thomasina E. Jordan Indian Tribes of Virginia Federal Recognition Act, which was the first stand-alone tribal recognition bill to clear both the House and the Senate in decades.

H.R.984 was championed by a Republican who of course mentioned the Tribal Recognition Act when the House passed the bill in May 2017. The Senate took it up in January and it was signed into law by a Republican president -- Donald Trump, that is.

“This is an issue of respect; federal recognition acknowledges and protects the historical and cultural identities of these tribes," Rep. Rob Wittman (R-Virginia), said in a press release after the six Indian nations based in Virginia gained federal recognition through Congress.

Bishop's bill has not yet been scheduled for action on the floor of the House. Though it would easily pass in the GOP-controlled chamber, it would likely face opposition and delays in the Senate, which is more closely divided between Republicans and Democrats.

H.R.3764, the Little Shell Tribe of Chippewa Indians Restoration Act, also faces a long road ahead. It still must pass the House while a companion version has not yet advanced beyond the committee level in the Senate.

Still, the tribe is welcoming progress. A post on the tribe's Facebook page noted that the action on Wednesday marked "first time it has moved out of this committee as a stand alone bill."

"So still more work to do, BUT we are making steps in the right direction!!" the tribe said.

Another supporter is also promising to keep pushing. Only this one is a Democrat who has not always been seen in a favorable light by the controlling party in Washington.

“The Little Shell have waited far too long to gain access to the same resources as other tribes," Sen. Jon Tester (D-Montana) said in a statement on Wednesday. "We are another step toward righting this injustice, and I am relentlessly fighting to get the Little Shell Recognition bill on the President’s desk and signed into law.”

House Committee on Natural Resources Notice:
Full Committee Markup (July 11, 2018)

Native News 2018:
Being Little Shell: Finding Tribal Identity While Miles Apart (University of Montana School of Journalism)

Little Shell Chippewa Tribe sees progress on federal recognition bill (July 9, 2018)
Federal recognition bill for six tribes in Virginia inches another step forward (September 13, 2017)
Little Shell Chippewa Tribe sees brighter future with Ryan Zinke at Interior Department (March 9, 2017)
Little Shell Chippewa Tribe continues long journey for federal status (02/09)
Clara Caufield: Ryan Zinke brings tribal record to table at Interior (01/04)
Gabriel Furshong: Little Shell Chippewa Tribe still waiting for federal recognition (12/20)
Republican lawmaker with a better tribal record tapped for Interior Secretary (12/15)
Montana and Virginia tribes 'duped' with federal recognition bill (09/16)
House committee advances controversial federal recognition bill (09/09)