Winter 2000

Bureau of Indian Affairs revises procedures to reduce delays in the federal acknowledgement process; Bureau will no longer provide additional research once a Tribe is on the active consideration list

On February 7, 2000, the Assistant Secretary for Indian Affairs announced a change in some of the internal procedures used by the Bureau of Indian Affairs in reviewing petitions for federal acknowledgement of Indian Tribes. The changes took effect on February 11. The stated reason for the changes was to reduce the delays now facing Tribes that have petitioned for acknowledgement. In making the changes, the Bureau will substantially cut back on the amount of help that it had previously offered to Tribes seeking recognition.

The Bureau recognized that there is a large backlog of petitions asking for recognition. This has meant that there have been delays of several years before the Bureau will even begin to review a petition that is ready for active consideration. In Connecticut, two tribes, the Eastern Pequots and the Paucatuck Eastern Pequots, were placed on the active consideration list in early 1998. They have been waiting for a decision ever since. The Schaghticoke Indian Tribe has been ready to be placed on the active list since 1997.

The announced changes do not change the regulations governing the acknowledgement procedure. They are simply a different way to review petitions under the existing regulations.

In order to be get federal recognition, a Tribe asking for recognition has the burden to provide evidence that the Tribe meets what are known as the seven mandatory criteria. These criteria are:

1. The Tribe has been identified as an American Indian entity on a continuous basis since 1900. The type of evidence that can be used to meet this requirement includes showing that the Tribe has been identified by the federal government as an Indian entity; showing that a state government has treated the Tribe as an Indian Tribe; or identification of the Tribe by anthropologists, historians or other scholars.

2. Most of a petitioning Tribe is a community that has existed from historical times until the present. The type of evidence that meets this requirement includes showing significant social relationships between members; a significant degree of shared labor among members; or shared rituals.

3. The Tribe has had political influence or authority over its members since historical times. This requires showing that the Tribe can mobilize its members or its resources for group purposes; showing that most members consider that actions taken by the group leaders are important; or showing that there is widespread knowledge, communication and involvement in political processes.

4. The Tribe must provide a statement describing its membership criteria and governing procedures.

5. The Tribe’s membership must be made up of descendants from a historical Indian Tribe.

6. The Tribe’s membership does not include a significant number of individuals who are members of an already acknowledged Tribe.

7. There has never been any congressional legislation that terminates or forbids a federal relationship with the Tribe or its members.

There are several steps that must be taken in the acknowledgement process by BIA and the petitioning Tribe. First, the Tribe asking for recognition must file a "documented petition." This is a detailed description of why the Tribe claims that it has had continuing existence as an Indian Tribe. It includes both a detailed explanation of how the Tribe meets the mandatory criteria and all the written evidence that will be used to show that the mandatory criteria have been met.

Next, BIA will review the petition. That review involves two steps. First, BIA will conduct a "technical assistance review." At the end of this review, BIA will tell the Tribe what additional information, if any, the Tribe should provide to BIA so that the petition can be "actively considered." Once the technical review has been completed and the Tribe has sent in the additional information asked for by BIA, the petition is ready for "active consideration" review. After active consideration, BIA will issue proposed findings. The Tribe and any interested third parties then have a chance to submit arguments and additional evidence to either support or disagree with the proposed findings. Once any additional arguments and evidence have been submitted, BIA will eventually issue a final determination. Under the changed procedures, these steps will still take place. However, the internal procedures used by the Bureau of Indian Affairs to handle its review of a documented petition will change.

The regulations governing the recognition process give BIA broad authority to research a Tribe’s petition "for any purpose." BIA has noted that that authority is optional, however. In the past, the staff of the BIA often conducted additional research, even after active consideration had started, to add to the research done by a petitioning Tribe. This meant that Tribes with very limited resources could rely on BIA to do a lot of the work in putting together a case for recognition.

Under the new procedures, the BIA "is not expected or required to locate new data in any substantial way." Staff research is to be limited to what is needed to "verify and evaluate" the materials presented by the petitioning Tribe or any third parties involved in the process. In the past, materials submitted by a petitioning Tribe or third party were sometimes poorly organized and did not identify sources or even the nature of the documents provided. Now, BIA researchers "shall no longer expend more than a reasonable amount of time attempting to identify the source or sources of documentary materials."

In addition, BIA staff in the past has done its own extensive analyses of data submitted by a Tribe. For the future, the Staff has been directed not to perform its own analysis of unanalyzed information presented by a petitioning Tribe.

Once active consideration has started on a case, a petitioning Tribe will no longer be able to submit additional evidence to be considered. Also, staff members may not ask for additional information. If a Tribe submits data that has not been analyzed, BIA staff may not analyze the data itself. It must tell the Tribe to analyze the data and give the analysis to BIA after the proposed findings have been issued. Once active consideration has begun, therefore, a petitioning Tribe will only be allowed to present additional evidence or analysis after proposed findings have been issued.

There has always been a comment period allowed after proposed findings. Now, the comment period will be the only time for Tribes to submit additional evidence once active consideration has started. As in the past, a Tribe can submit new evidence during the comment period. That evidence can include any evidence that the proposed findings have identified as missing from the petition and necessary to support a finding that federal recognition should be granted. It will become very important for Tribes to provide that information.

The changed procedures also note that the acknowledgement decision itself will no longer be as detailed as it has been in the past. The decision is "not intended to be a definitive scholarly study of the petitioning group." Rather, the decision will only address whether the Petitioning Tribe has met its burden "to establish by a reasonable likelihood of the validity of the facts that it meets all seven [mandatory] criteria."

Finally, petitioning Tribes are reminded that the responsibility for preparing their case for federal recognition rests ultimately on their shoulders. The changed procedures conclude with the statement that "a petition can and will be turned down for lack of evidence."

The changed procedures were published in the February 11, 2000 edition of the Federal Register (Volume 65, Number 29,pages 7052-7053). You may also view these procedures on the internet.