Indian Issues: Timeliness of the Tribal Recognition Process Has Improved, but It Will Take Years to Clear the Existing Backlog of Petitions
Published: 2005-02-10T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: The Bureau of Indian Affairs' (BIA) regulatory process for recognizing tribes was established in 1978. The process requires groups that are petitioning for recognition to submit evidence that they meet certain criteria--basically that the petitioner has continuously existed as an Indian tribe since historic times. Critics of the process claim that it produces inconsistent decisions and takes too long. Congressional policymakers have struggled with the tribal recognition issue for over 27 years. H.R. 4933 and H.R. 5134, introduced in the 108th Congress, and H.R. 512, which was introduced last week, have focused on the timeliness of the recognition process. This testimony is based in part on GAO's report, Indian Issues: Improvements Needed in Tribal Recognition Process ( GAO-02-49 , November 2, 2001). Specifically, this testimony addresses (1) the timeliness of the recognition process as GAO reported in November 2001 and (2) the actions the Department of the Interior's Office of Federal Acknowledgment has taken since 2001 to improve the timeliness of the recognition process.
section_title: What GAO Found
paragraphs: In November 2001, GAO reported that BIA's tribal recognition process was ill equipped to provide timely responses to tribal petitions for federal recognition. BIA's regulations outline a process for evaluating a petition that was designed to take about 2 years. However, the process was being hampered by limited resources, a lack of time frames, and ineffective procedures for providing information to interested third parties, such as local municipalities and other Indian tribes. As a result, there were a growing number of completed petitions waiting to be considered. In 2001, BIA officials estimated that it could take up to 15 years for all the completed petitions to be resolved. To correct these problems, we recommended that BIA develop a strategy that identified how to improve the responsiveness of the process for federal recognition. Such a strategy was to include a systematic assessment of the resources available and needed that could lead to the development of a budget commensurate with the workload. While Interior's Office of Federal Acknowledgment has taken a number of important steps to improve the responsiveness of the tribal recognition process, it still could take 4 or more years, at current staff levels, to work through the existing backlog of petitions currently under review, as well as those that are ready and waiting for consideration. In response to GAO's 2001 report, two vacancies within the Office of Federal Acknowledgment were filled, resulting in a professional staff of three research teams, each consisting of a cultural anthropologist, historian, and genealogist. In addition, the September 2002 Strategic Plan, issued by the Assistant Secretary for Indian Affairs in response to GAO's report, has been almost completely implemented by the Office of Federal Acknowledgment. The main impediment to completely implementing the Strategic Plan and to making all of the information that has been compiled more accessible to the public is the fact that BIA continues to be disconnected from the Internet because of ongoing computer security concerns involving Indian trust funds.

section_title: Letter
paragraphs: Thank you for the opportunity to discuss our work on the Bureau of Indian  Affairs’ (BIA) regulatory process for federally recognizing Indian tribes.  There are currently 562 recognized tribes in the Unites States with a total  membership of about 1.8 million. In addition, several hundred groups are  currently seeking recognition. Congressional policymakers have struggled  with the tribal recognition issue for over 27 years. Since 1977, 28 bills have  been introduced to add a statutory framework for the tribal recognition  process. Additional bills have also been introduced to recognize specific  tribes; provide grants to local communities or Indian groups involved in  the tribal recognition process; or, more recently, address the timeliness of  the recognition process. H.R. 4933 and H.R. 5134, introduced in the 108th  Congress, and H.R. 512, which was introduced last week, have focused on  the timeliness of the recognition process.
As you know, federal recognition of an Indian tribe can dramatically affect  economic and social conditions for the tribe and the surrounding  communities. Federally recognized tribes are eligible to participate in  federal assistance programs. In fiscal year 2004, the Congress appropriated  about $6 billion for programs and funding almost exclusively for  recognized tribes. Recognition also establishes a formal government-to- government relationship between the United States and a tribe. The quasi- sovereign status created by this relationship exempts certain tribal lands  from most state and local laws and regulations. Such exemptions generally  apply to lands that the federal government has taken in trust for a tribe or  its members. Currently, about 54 million acres of land are held in trust.  The exemptions also include, where applicable, laws regulating gaming.  The Indian Gaming Regulatory Act of 1988, which regulates Indian gaming  operations, permits a tribe to operate casinos on land in trust if the state in  which it lies allows casino-like gaming and the tribe has entered into a  compact with the state regulating its gaming businesses. In fiscal year  2003, federally recognized tribes reported an estimated $16.7 billion in  gaming revenue.
BIA’s regulatory process for recognizing tribes was established in 1978.  The process requires groups that are petitioning for recognition to submit  evidence that they meet certain criteria—basically that the group has  continuously existed as an Indian tribe since historic times. Critics of the  process claim that it produces inconsistent decisions and takes too long.  In November 2001, we reported on BIA’s regulatory recognition process,  including the timeliness of the process, and recommended ways to  improve it. We testified on this issue in February 2002 before the House  Committee on Government Reform, Subcommittee on Energy Policy,  Natural Resources and Regulatory Affairs, and again in September 2002  before the Senate Committee on Indian Affairs. Our testimony today is  based on our November 2001 report and the actions the Department of the  Interior’s Office of Federal Acknowledgment has taken to improve the  timeliness of the recognition process.
In November 2001, we reported that BIA’s tribal recognition process was  ill equipped to provide timely responses to tribal petitions for federal  recognition. BIA’s regulations outline a process for evaluating a petition  that was designed to take about 2 years. However, the process was  hampered by limited resources, a lack of time frames, and ineffective  procedures for providing information to interested third parties, such as  local municipalities and other Indian tribes. As a result, there were a  growing number of completed petitions waiting to be considered. In 2001,  BIA officials estimated that it could take up to 15 years for all the  completed petitions to be resolved. To correct these problems, we  recommended that BIA develop a strategy that identified how to improve  the responsiveness of the process for federal recognition. Such a strategy  was to include a systematic assessment of the resources available and  needed that could lead to the development of a budget commensurate with  the workload.
While Interior’s Office of Federal Acknowledgment has taken a number of  important steps to improve the responsiveness of the tribal recognition  process it still could take 4 or more years, at current staff levels, to work  through the existing backlog of petitions currently under review, as well as  those that are ready and waiting for consideration. In response to our 2001  report, two vacancies within the Office of Federal Acknowledgment were  filled, resulting in a professional staff of three research teams, each  consisting of a cultural anthropologist, historian, and genealogist. In  addition, the September 2002 Strategic Plan, issued by the Assistant  Secretary for Indian Affairs in response to our report, has been almost  completely implemented by the Office of Federal Acknowledgment. The  main impediment to completely implementing the Strategic Plan and to  making all of the information that has been compiled more accessible to  the public is the fact that BIA continues to be disconnected from the  Internet because of ongoing computer security concerns involving Indian  trust funds.
subsections: section_title: Background
paragraphs: Historically, the U.S. government has granted federal recognition through  treaties, congressional acts, or administrative decisions within the  executive branch—principally by the Department of the Interior. In a 1977  report to the Congress, the American Indian Policy Review Commission  criticized the department’s tribal recognition policy. Specifically, the  report stated that the department’s criteria for assessing whether a group  should be recognized as a tribe were not clear and concluded that a large  part of the department’s policy depended on which official responded to  the group’s inquiries. Nevertheless, until the 1960s, the limited number of  requests for federal recognition gave the department the flexibility to  assess a group’s status on a case-by-case basis without formal guidelines.  However, in response to an increase in the number of requests for federal  recognition, the department determined that it needed a uniform and  objective approach to evaluate these requests. In 1978, it established a  regulatory process for recognizing tribes whose relationship with the  United States had either lapsed or never been established—although tribes  may also seek recognition through other avenues, such as legislation or  Department of the Interior administrative decisions, which are  unconnected to the regulatory process. In addition, not all tribes are  eligible for the regulatory process. For example, tribes whose political  relationship with the United States has been terminated by the Congress,  or tribes whose members are officially part of an already recognized tribe,  are ineligible to be recognized through the regulatory process and must  seek recognition through other avenues.
The 1978 regulations lay out seven criteria that a group must meet before  it can become a federally recognized tribe. Essentially, these criteria  require the petitioner to show that it is descended from a historic tribe and  is a distinct community that has continuously existed as a political entity  since a time when the federal government broadly acknowledged a  political relationship with all Indian tribes. The burden of proof is on  petitioners to provide documentation to satisfy the seven criteria. The  technical staff within Interior’s Office of Federal Acknowledgment,  consisting of historians, anthropologists, and genealogists, reviews the  submitted documentation and makes recommendations on a proposed  finding either for or against recognition. Staff recommendations are  subject to review by Interior’s Office of the Solicitor and senior officials  within the Office of the Assistant Secretary for Indian Affairs. The  Assistant Secretary for Indian Affairs makes the final decision regarding  the proposed finding, which is then published in the Federal Register, and  a period of public comment, document submission, and response is  allowed. The technical staff reviews the comments, documentation, and  responses and makes recommendations on a final determination that are  subject to the same levels of review as a proposed finding. The process  culminates in a final determination by the Assistant Secretary who,  depending on the nature of further evidence submitted, may or may not  rule the same way as the proposed finding. Petitioners and others may file  requests for reconsideration with the Interior Board of Indian Appeals.
Congressional policymakers have struggled with the tribal recognition  issue for decades. Since 1977, 28 bills have been introduced to add a  statutory framework for the tribal recognition process (see table 1).
Of the House bills, only H.R. 4462 from the 103rd Congress was passed by  the full House (on October 3, 1994). None of the Senate bills have been  passed by the full Senate. Additional bills have also been introduced to  recognize specific tribes; provide grants to local communities or Indian  groups involved in the tribal recognition process; or, more recently,  address the timeliness of the recognition process. For example, H.R. 4933  and H.R. 5134, introduced in the 108th Congress, and H.R. 512, which was  introduced last week, have focused on the timeliness of the recognition  process.
section_title: In 2001 the Recognition Process Was Ill Equipped to Provide a Timely Response
paragraphs: BIA’s regulations outline a process for active consideration of a completed  petition that should take about 2 years. However, because of limited  resources, a lack of time frames, and ineffective procedures for providing  information to interested third parties, we reported in 2001 that the length  of time needed to rule on tribal petitions for federal recognition was  substantial. At that time, the workload of the BIA staff assigned to evaluate  recognition decisions had increased while resources had declined. There  was a large influx of completed petitions ready to be reviewed in the mid- 1990s. The chief of the branch responsible for evaluating petitions told us  that based solely on the historic rate at which BIA had issued final  determinations, it could take 15 years to resolve all the completed  petitions then awaiting active consideration.
Compounding the backlog of petitions awaiting evaluation in 2001 was the  increased burden of related administrative responsibilities that reduced  the proportion of time available to BIA’s technical staff to evaluate  petitions. Although they could not provide precise data, members of the  staff told us that this burden had increased substantially over the years  and estimated that they spent up to 40 percent of their time fulfilling  administrative responsibilities. In particular, there were substantial  numbers of Freedom of Information Act (FOIA) requests related to  petitions. Also, petitioners and third parties frequently filed requests for  reconsideration of recognition decisions that needed to be reviewed by the  Interior Board of Indian Appeals, requiring the staff to prepare the record  and respond to issues referred to the Board. Finally, the regulatory  process had been subject to an increasing number of lawsuits from  dissatisfied parties—those petitioners who had completed the process and  had been denied recognition, as well as by petitioners who were  dissatisfied with the amount of time it was taking to process their  petitions.
Technical staff represented the vast majority of resources used by BIA to  evaluate petitions and perform related administrative duties. Despite the  increased workload faced by BIA’s technical staff, the available staff  resources to complete the workload had decreased. The number of BIA  staff assigned to evaluate petitions peaked in 1993 at 17. However, from  1996 through 2000, the number of staff averaged less than 11, a decrease of  more than 35 percent.
While resources were not keeping pace with workload, the recognition  process also lacked effective procedures for addressing the workload in a  timely manner. Although the regulations established timelines for  processing petitions that, if met, would result in a final decision in  approximately 2 years, these timelines were routinely extended, either  because of BIA resource constraints or at the request of petitioners and  third parties (upon showing good cause). As a result, only 12 of the 32  petitions that BIA had finished reviewing by 2001 were completed within 2  years or less, and all but 2 of the 13 petitions under review in 2001 had  already been under review for more than 2 years.
While BIA could extend the timelines, it had no mechanism to balance the  need for a thorough review of a petition with the need to complete the  decision process. As a result, the decision process lacked effective  timelines that would have created a sense of urgency to offset the desire to  consider all information from all interested parties in the process. In fiscal  year 2000, BIA dropped its long-term goal of reducing the number of  petitions actively being considered from its annual performance plan  because the addition of new petitions would have made this goal  impossible to achieve.
We also found that as third parties, such as local municipalities and other  Indian tribes, became more active in the recognition process—for  example, initiating inquiries and providing information—the procedures  for responding to their increased interest had not kept pace. Third parties  told us they wanted more detailed information earlier in the process so  that they could fully understand a petition and effectively comment on its  merits. However, in 2001 there were no procedures for regularly providing  third parties more detailed information. For example, while third parties  were allowed to comment on the merits of a petition before a proposed  finding, there was no mechanism to provide any information to third  parties before the proposed finding. As a result, third parties were making  FOIA requests for information on petitions much earlier in the process and  often more than once in an attempt to obtain the latest documentation  submitted. Since BIA had no procedures for efficiently responding to FOIA  requests, staff members hired as historians, genealogists, and  anthropologists were pressed into service to copy the voluminous records  of petitions to respond to FOIA requests.
In light of these problems, we recommended in our November 2001 report  that the Secretary of the Interior direct BIA to develop a strategy to  improve the responsiveness of the process for federal recognition. Such a  strategy was to include a systematic assessment of the resources available  and needed that could lead to the development of a budget commensurate  with the workload. The department generally agreed with this  recommendation.
section_title: Timeliness Has Improved, but It Will Still Take Years to Clear the Existing Backlog of Petitions
paragraphs: In response to our report, Interior’s Office of Federal Acknowledgment  has hired additional staff and taken a number of other important steps to  improve the responsiveness of the tribal recognition process. However, it  still could take 4 or more years, at current staff levels, to work through the  existing backlog of petitions currently under review, as well as those ready  and waiting for consideration. In response to our report, two vacancies  within Interior’s Office of Federal Acknowledgment were filled, resulting  in a professional staff of three research teams, each consisting of a  cultural anthropologist, historian, and genealogist. In September 2002, the  Assistant Secretary for Indian Affairs estimated that three research teams  could issue three proposed findings and three final determinations per  year and eliminate the backlog of petitions in approximately 6 years, or by  September 2008.
Through additional appropriations in fiscal years 2003 and 2004, the Office  of Federal Acknowledgment was also able to utilize two sets of  contractors to assist with the tribal recognition process. The first set of  contractors included two FOIA specialists/record managers. The second  set of contractors included three research assistants who worked with a  computer database system scanning and indexing documents to help  expedite the professional research staff evaluation of a petition. Both sets  of contractors helped make the process more accessible to petitioners and  interested parties, while increasing the productivity of the professional  staff by freeing them of administrative duties.
In addition, the September 2002 Strategic Plan, issued by the Assistant  Secretary for Indian Affairs in response to our report, has been almost  completely implemented by the Office of Federal Acknowledgment.  Among other things, the Office of Federal Acknowledgment has developed  a CD-ROM compilation of prior acknowledgment decisions and related  documents that is a valuable tool for petitions and practitioners involved  in the tribal recognition process. The main impediment to completely  implementing the Strategic Plan and to making all of the information that  has been compiled more accessible to the public is the fact that BIA  continues to be disconnected from the Internet because of ongoing  computer security concerns involving Indian trust funds.
Even though Interior’s Office of Federal Acknowledgment has increased  staff resources for processing petitions and taken other actions that we  recommended, as of February 4, 2005, there were 7 petitions in active  status and 12 petitions in ready and waiting for active consideration status.  Eight of the 12 petitions have been waiting for 7 years or more, while the 4  other petitions have been ready and waiting for active consideration since  2003.
In conclusion, although Interior’s recognition process is only one way by  which groups can receive federal recognition, it is the only avenue to  federal recognition that has established criteria and a public process for  determining whether groups meet the criteria. However, in the past,  limited resources, a lack of time frames, and ineffective procedures for  providing information to interested third parties resulted in substantial  wait times for Indian groups seeking federal recognition. While Interior’s  Office of Federal Acknowledgment has taken a number of actions during  the past 3 years to improve the timeliness of the process, it will still take  years to work through the existing backlog of tribal recognition petitions.
Mr. Chairman, this completes my prepared statement. I would be happy to  respond to any questions you or other Members of the Committee may  have at this time.
section_title: Contact and Acknowledgments
paragraphs: For further information, please contact Robin M. Nazzaro on (202) 512- 3841. Individuals making key contributions to this testimony and the  report on which it was based are Charles Egan, Mark Gaffigan, and Jeffery  Malcolm.
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