Indian Issues: More Consistent and Timely Tribal Recognition Process Needed
Published: 2002-02-07T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: In 1978, the Bureau of Indian Affairs (BIA) established a regulatory process for recognizing tribes. The process requires tribes that are petitioning for recognition to submit evidence that they have continuously existed as an Indian tribe since historic times. Recognition establishes a formal government-to-government relationship between the United States and a tribe. The quasi-sovereign status created by this relationship exempts some tribal lands from most state and local laws and regulations, including those that regulate gambling.
section_title: What GAO Found
paragraphs: GAO found that the basis for BIA's tribal recognition decisions is not always clear. Although petitioning tribes must meet set criteria to be granted recognition, no guidance exists to clearly explain how to interpret key aspects of the criteria. This lack of guidance creates controversy and uncertainty for all parties about the basis for decisions. The recognition process is also hampered by limited resources; a lack of time; and ineffective procedures for providing information to interested third parties, such as local municipalities and other Indian tribes. As a result, the number of completed petitions waiting to be considered is growing. BIA estimates that it may take up to 15 years before all currently completed petitions are resolved; the process for evaluating a petition was supposed to take about two years. This testimony summarizes a November report (GAO-02-49).

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. As you know, federal recognition of an Indian tribe can have a tremendous  effect on the tribe, surrounding communities, and the nation as a whole.  There are currently 562 recognized tribes with a total membership of  about 1.7 million. In addition, several hundred groups are currently  seeking recognition. Federally recognized tribes are eligible to participate  in federal assistance programs. In fiscal year 2000, about $4 billion was  appropriated for programs and funding almost exclusively for recognized  tribes. Additionally, recognition 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 being held in  trust. The exemptions also include, where applicable, laws regulating  gambling. The Indian Gaming Regulatory Act of 1988, which regulates  Indian gambling operations, permits a tribe to operate casinos on land in  trust if the state in which it lies allows casino-like gambling and the tribe  has entered into a compact with the state regulating its gambling  businesses. In 1999, federally recognized tribes reported an estimated $10  billion in gambling revenue, surpassing the amounts that the Nevada  casinos collected that year.
In 1978, the BIA, an agency within the Department of the Interior,  established a regulatory process for recognizing tribes. The process  requires tribes 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. Owing to the rights and  benefits that accrue with recognition and the controversy surrounding  Indian gambling, BIA’s regulatory process has been subjected to intense  scrutiny. Critics of the process claim that it produces inconsistent  decisions and takes too long. In light of the controversies surrounding the  federal recognition process, we issued a report last November evaluating  the BIA’s regulatory recognition process and recommending ways to  improve the process.
In summary, we reported the following:
First, the basis for BIA’s tribal recognition decisions is not always  clear. While there are set criteria that petitioning tribes must meet to be  granted recognition, there is no guidance that clearly explains how to  interpret key aspects of the criteria. For example, it is not always clear  what level of evidence is sufficient to demonstrate that a tribe has  continued to exist over a period of time—a key aspect of the criteria.  The lack of guidance in this area creates controversy and uncertainty  for all parties about the basis for decisions reached. To correct this, we  recommend that the BIA develop and use transparent guidelines for  interpreting key aspects of its recognition decisions.
Second, the recognition process is 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 is a growing number of completed  petitions waiting to be considered. BIA officials estimate that it may  take up to 15 years before all currently completed petitions are  resolved; BIA’s regulations outline a process for evaluating a petition  that was designed to take about 2 years. To correct these problems, we  recommend that the BIA develop a strategy for improving the  responsiveness of the recognition process, including an assessment of  needed resources.
subsections: section_title: Background
paragraphs: Historically, tribes have been granted federal recognition through treaties,  by the Congress, or through 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 criteria used by the department to assess whether a group should be  recognized as a tribe. Specifically, the report stated that the criteria were  not very clear and concluded that a large part of the department’s tribal  recognition policy depended on which official responded to the group’s  inquiries. Until the 1960s, the limited number of requests by groups to be  federally recognized 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 seek  recognition through other avenues, such as legislation or Department of  the Interior administrative decisions 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 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 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 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. A technical staff within BIA, consisting of historians,  anthropologists, and genealogists, reviews the submitted documentation  and makes its recommendations on a proposed finding either for or  against recognition. Staff recommendations are subject to review by the  department’s Office of the Solicitor and senior officials within BIA. The  Assistant Secretary-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 as the  proposed finding. Petitioners and others may file requests for  reconsideration with the Interior Board of Indian Appeals.
section_title: Clearer Guidance Needed on Evidence Required for Recognition Decisions
paragraphs: While we found general agreement on the seven criteria that groups must  meet to be granted recognition, there is great potential for disagreement  when the question before the BIA is whether the level of available  evidence is high enough to demonstrate that a petitioner meets the  criteria. The need for clearer guidance on criteria and evidence used in  recognition decisions became evident in a number of recent cases when  the previous Assistant Secretary approved either proposed or final  decisions to recognize tribes when the staff had recommended against  recognition. Much of the current controversy surrounding the regulatory  process stems from these cases.
For example, concerns over what constitutes continuous existence have  centered on the allowable gap in time during which there is limited or no  evidence that a petitioner has met one or more of the criteria. In one case,  the technical staff recommended that a petitioner not be recognized  because there was a 70-year period for which there was no evidence that  the petitioner satisfied the criteria for continuous existence as a distinct  community exhibiting political authority. The technical staff concluded  that a 70-year evidentiary gap was too long to support a finding of  continuous existence. The staff based its conclusion on precedent  established through previous decisions in which the absence of evidence  for shorter periods of time had served as grounds for finding that  petitioners did not meet these criteria. However, in this case, the previous  Assistant Secretary determined that the gap was not critical and issued a  proposed finding to recognize the petitioner, concluding that continuous  existence could be presumed despite the lack of specific evidence for a 70- year period.
The regulations state that lack of evidence is cause for denial but note that  historical situations and inherent limitations in the availability of evidence  must be considered. The regulations specifically decline to define a  permissible interval during which a group could be presumed to have  continued to exist if the group could demonstrate its existence before and  after the interval. They further state that establishing a specific interval  would be inappropriate because the significance of the interval must be  considered in light of the character of the group, its history, and the nature  of the available evidence. Finally, the regulations also note that experience  has shown that historical evidence of tribal existence is often not available  in clear, unambiguous packets relating to particular points in time.
The department grappled with the issue of how much evidence is enough  when it updated the regulations in 1994 and intentionally left key aspects  of the criteria open to interpretation to accommodate the unique  characteristics of individual petitions. Leaving key aspects open to  interpretation increases the risk that the criteria may be applied  inconsistently to different petitioners. To mitigate this risk, BIA uses  precedents established in past decisions to provide guidance in  interpreting key aspects in the criteria. However, the regulations and  accompanying guidelines are silent regarding the role of precedent in  making decisions or the circumstances that may cause deviation from  precedent. Thus, petitioners, third parties, and future decisionmakers, who  may want to consider precedents in past decisions, have difficulty  understanding the basis for some decisions. Ultimately, BIA and the  Assistant Secretary will still have to make difficult decisions about  petitions when it is unclear whether a precedent applies or even exists.  Because these circumstances require judgment on the part of the  decisionmaker, public confidence in the BIA and the Assistant Secretary  as key decisionmakers is extremely important. A lack of clear and  transparent explanations for their decisions could cast doubt on the  objectivity of the decisionmakers, making it difficult for parties on all sides  to understand and accept decisions, regardless of the merit or direction of  the decisions reached. Accordingly, in our November report, we  recommend that the Secretary of the Interior direct the BIA to provide a  clearer understanding of the basis used in recognition decisions by  developing and using transparent guidelines that help interpret key  aspects of the criteria and supporting evidence used in federal recognition  decisions. The department, in commenting on a draft of this report,  generally agreed with this recommendation.
section_title: Recognition Process Ill-Equipped to Provide Timely Response
paragraphs: Because of limited resources, a lack of time frames, and ineffective  procedures for providing information to interested third parties, the length  of time needed to rule on petitions is substantial. The workload of the BIA  staff assigned to evaluate recognition decisions has increased while  resources have declined. There was a large influx of completed petitions  ready to be reviewed in the mid-1990s. Of the 55 completed petitions that  BIA has received since the inception of the regulatory process in 1978, 23  (or 42 percent) were submitted between 1993 and 1997 (see fig. 1).
The chief of the branch responsible for evaluating petitions told us that,  based solely on the historic rate at which BIA has issued final  determinations, it could take 15 years to resolve all the currently  completed petitions. In contrast, the regulations outline a process for  evaluating a completed petition that should take about 2 years.
Compounding the backlog of petitions awaiting evaluation is the increased  burden of related administrative responsibilities that reduce the time  available for BIA’s technical staff to evaluate petitions. Although they  could not provide precise data, members of the staff told us that this  burden has increased substantially over the years and estimate that they  now spend up to 40 percent of their time fulfilling administrative  responsibilities. In particular, there are substantial numbers of Freedom of  Information Act (FOIA) requests related to petitions. Also, petitioners and  third parties frequently file requests for reconsideration of recognition  decisions that need to be reviewed by the Interior Board of Indian  Appeals, requiring the staff to prepare the record and response to issues  referred to the Board. Finally, the regulatory process has been subject to  an increasing number of lawsuits from dissatisfied parties, filed by  petitioners who have completed the process and been denied recognition,  as well as current petitioners who are dissatisfied with the amount of time  it is taking to process their petitions.
Staff represents the vast majority of resources used by BIA to evaluate  petitions and perform related administrative duties. Despite the increased  workload faced by the BIA’s technical staff, the available staff resources to  complete the workload have decreased. The number of BIA staff members  assigned to evaluate petitions peaked in 1993 at 17. However, in the last 5  years, the number of staff members has averaged less than 11, a decrease  of more than 35 percent.
In addition to the resources not keeping pace with workload, the  recognition process also lacks effective procedures for addressing the  workload in a timely manner. Although the regulations establish timelines  for processing petitions that, if met, would result in a final decision in  approximately 2 years, these timelines are 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 has finished reviewing were completed within 2 years or  less, and all but 2 of the 13 petitions currently under review have already  been under review for more than 2 years.
While BIA may extend timelines for many reasons, it has no mechanism  that balances the need for a thorough review of a petition with the need to  complete the decision process. The decision process lacks effective time  frames that create a sense of urgency to offset the desire to consider all  information from all interested parties in the process. BIA recently  dropped one mechanism for creating a sense of urgency. 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 make this goal impossible to achieve. The  BIA has not replaced it with another more realistic goal, such as reducing  the number of petitions on ready status or reducing the average time  needed to process a petition once it is placed on active status.
As third parties become more active in the recognition process—for  example, initiating inquiries and providing information—the procedures  for responding to their increased interest have not kept pace. Third parties  told us that they wanted more detailed information earlier in the process  so they could fully understand a petition and effectively comment on its  merits. However, there are no procedures for regularly providing third  parties with more detailed information. For example, while third parties  are allowed to comment on the merits of a petition prior to a proposed  finding, there is no mechanism to provide any information to third parties  prior to the proposed finding. In contrast, petitioners are provided an  opportunity to respond to any substantive comment received prior to the  proposed finding. As a result, third parties are 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 has no procedures for efficiently responding to FOIA requests, staff  members hired as historians, genealogists, and anthropologists are pressed  into service to copy the voluminous records needed to respond to FOIA  requests.
In light of these problems, we recommended in our November report that  the Secretary of the Interior direct the BIA to develop a strategy that  identifies how to improve the responsiveness of the process for federal  recognition. Such a strategy should include a systematic assessment of the  resources available and needed that leads to development of a budget  commensurate with workload. The department also generally agreed with  this recommendation.
In conclusion, the BIA’s recognition process was never intended to be the  only way groups could receive federal recognition. Nevertheless, it was  intended to provide the Department of the Interior with an objective and  uniform approach by establishing specific criteria and a process for  evaluating groups seeking federal recognition. It is also the only avenue to  federal recognition that has established criteria and a public process for  determining whether groups meet the criteria. However, weaknesses in  the process have created uncertainty about the basis for recognition  decisions, calling into question the objectivity of the process. Additionally,  the amount of time it takes to make those decisions continues to frustrate  petitioners and third parties, who have a great deal at stake in resolving  tribal recognition cases. Without improvements that focus on fixing these  problems, parties involved in tribal recognition may look outside of the  regulatory process to the Congress or courts to resolve recognition issues,  preventing the process from achieving its potential to provide a more  uniform approach to tribal recognition. The result could be that the  resolution of tribal recognition cases will have less to do with the  attributes and qualities of a group as an independent political entity  deserving a government-to-government relationship with the United  States, and more to do with the resources that petitioners and third parties  can marshal to develop successful political and legal strategies.
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 Barry Hill on (202) 512-3841.  Individuals making key contributions to this testimony and the report on  which it was based are Robert Crystal, Charles Egan, Mark Gaffigan,  Jeffery Malcolm, and John Yakaitis.