Summer 1998

Two Tribes Put on "Active" Status For Federal Acknowledgment

Two tribes in Connecticut may have their petitions requesting federal acknowledgement acted upon during 1998. On January 1, 1998 the Eastern Pequots were put on the "active consideration" list as part of the process for being considered to be a federally acknowledged tribe. On April 2, 1998, the Paucatuck Eastern Pequots were put on the active list. In addition, the petitions for each tribe will be reviewed simultaneously. They will not be treated as the same tribe, however.

Being put on active consideration means that, within one year of the date of being put on the list, the Assistant Secretary for Indian Affairs must make proposed findings about whether those tribes should be acknowledged. Even this time line is not exact, however. If more time is needed, the Assistant Secretary may take up to an extra 180 days to issue its proposed findings.

The federal acknowledgement procedure is a lengthy and time consuming process. The purpose of this article is to explain briefly how the process works.

Over the last twenty years, a number of American Indian tribes in Connecticut have formally asked for federal acknowledgment of their existence. The purpose of the acknowledgement procedure, as stated in the federal regulations, is to recognize that a government-to-government relationship exists between the United States and tribes which have existed since the days of first contact with non-Indians. Acknowledged tribes are eligible for certain protections and benefits from the Federal Government. Once a Connecticut Tribe is federally acknowledged, it would be allowed to operate casinos.

To date, two Connecticut tribes have received federal acknowledgment--the Western Mashantucket Pequots in 1983 and the Mohegan Tribe of Indians of the State of Connecticut in 1994. The Golden Hill Paugussetts were refused acknowledgment in the fall of 1996. They petitioned for reconsideration on December 26, 1996. Other tribes are still in the process of trying to get acknowledgment. The Eastern Pequots, the Paucatuck Eastern Pequots, the Schaghticoke Indian Tribe, the Mohegan Tribe and Nation, and the Nehantic Tribe and Nation have all filed Letters of Intent to Petition. Of that group, only the Eastern Pequots and the Paucatucks have been put on Active Status to date.

There are several ways for tribes to get federal acknowledgement. By far the most common is to apply to the Bureau of Indian Affairs and go through the lengthy Federal Acknowledgement Process. This process was started in response to the increase in requests for acknowledgement that occurred in the 1970's. Regulations governing the process became effective in 1978.

Congress also has the power to recognize tribes through legislation. This was the method used by the Mashantucket Pequots. In addition, the President can acknowledge tribes by Executive Order. Since the development of the Federal Acknowledgement Process, however, this method has not been used. Finally, tribes may be acknowledged through litigation in federal court. Since the development of the Federal Acknowledgement Process, however, courts have required parties to try the Federal Process before asking for a remedy from the courts.

The Federal Acknowledgement Process begins when a group of Indian descendants decides to petition for acknowledgement. This is done by writing a "letter of intent." Typically, the letter will be written by the governing body of the group. It does not need to be formal or elaborate.

Once a letter is received, the Branch of Acknowledgement and Research (BAR) in the Bureau of Indian Affairs is called in. BAR will publish a notice in both a local newspaper and the Federal Register that a letter of intent was filed. BAR will also notify the state Governor and Attorney General. Finally, BAR will open a file and send the group a "petition packet" with information about what the group needs to do to complete its formal petition.

After the letter has been filed, the tribe must prepare and submit a formal petition. There is no deadline for filing this petition. The petition should include the evidence and arguments to prove that the tribe meets the requirements for acknowledgement.

Once the formal petition has been received, it will be evaluated by BAR. That evaluation involves an analysis of the petition and a short research trip to the tribe's home area. Sometimes BAR will conduct its own limited research to answer questions which it has about the petition. Finally, BAR will make a technical report which discusses the evidence and will make a recommended decision on whether the tribe has met the criteria for acknowledgement.

There are seven mandatory criteria for acknowledgement set out in the federal regulations. Each tribe asking for acknowledgement must prove that those criteria have been met. The criteria are:

blue arrow bullet 1. The tribe has been identified as an American Indian entity on a continuous basis since 1900. The type of evidence which 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.

blue arrow bullet 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 the members; or shared rituals.

blue arrow bullet 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.

blue arrow bullet 4. The tribe must provide a statement describing its membership criteria and governing procedures.

blue arrow bullet 5. The tribe's membership must be made up of descendants from a historical Indian tribe.

blue arrow bullet 6. The tribe's membership does not include a significant number of individuals who are members of an already acknowledged tribe.

blue arrow bullet 7. There has never been any congressional legislation which terminates or forbids a Federal relationship with the tribe or its members.

Basically, a petitioning tribe should try to show that it is a group of people of American Indian descent who have moved along together through time and, where applicable, along migration routes. The tribe should first look at itself today and describe itself. It should define who its members are and describe where the members live and what they do together as a tribe. Then the tribe must move backwards in time to show how the group developed and what its origins are. It is important to avoid leaving gaps in time when trying to trace the tribe's development.

When BAR issues its technical report and recommendations they are then reviewed by the Office of the Solicitor, Division of Indian Affairs, the Office of Tribal Services, the Office of the Deputy Commissioner of Indian Affairs; and the Office of the Assistant Secretary - Indian Affairs. Copies of the Report must be given to the petitioning tribe and any interested parties. Once the recommendations have been reviewed and approved by the Assistant Secretary, they are published as proposed findings in the Federal Register.

After publication, the tribe or interested parties have 180 days in which to file comments challenging or supporting the proposed findings. If asked, the Assistant Secretary must hold a formal meeting to ask about the reasoning, analysis and factual bases for the proposed findings.

After considering the proposed findings and any comments, the Assistant Secretary will make a final determination. Once that determination has been made and published in the Federal Register, the tribe or any interested party may ask for reconsideration. In fact, the Golden Hill Paugussetts requested reconsideration of the decision declining to give them federal acknowledgement.