Kevin K. Washburn, Assistant Secretary - Indian Affairs

Door Still Open for Fed Rec Public Comment, Obstacles May Exist

Gale Courey Toensing
8/29/14

There’s still time to submit comments on proposed regulations to reform the process for federal acknowledgment of Indian tribes.

The Bureau of Indian Affairs (BIA) has extended the deadline to submit written comments on the proposed regulations until September 30.

In addition, two more public meetings will be held by teleconference on September 3 and 5. (Two additional teleconference meetings were held for federally recognized tribes earlier in August.) The conference calls will take place from 1:30 p.m. to 4:30 p.m. EDT at the following number: 1-888-323-4307; passcode 4823348. Public meetings are open to everyone. Transcripts of all tribal consultations and public meetings will be posted on the Indian Affairs website.

The deadline was extended and extra meetings scheduled because of the large number of comments already submitted and the high level of interest in the issue, Assistant Secretary – Indian Affairs Kevin K. Washburn said in a media release.

"With this extended comment period, the Department is providing more opportunities for comment and suggestions from tribes and the public than any other rule issued by Indian Affairs during this Administration,” Washburn said. “Input from tribes, including the 17 that have been recognized under the regulations, states, local governments, the public and non-federally recognized tribes will result in a better final rule.”

The proposed rule was released for public comment in May. With the exception of one provision – a third party veto that could prevent tribes that have been denied recognition the opportunity to apply for reconsideration – the proposed regulations have been almost universally praised by both recognized and non-recognized indigenous nations. The new rules would make the procedure more transparent, efficient, timely, and flexible, while maintaining the seven mandatory criteria and the integrity of the process. Some key upgrades include: doing away with filing a letter of intent to petition and instead having tribes simply file their petitions; requiring a tribe to show community and political influence/authority from 1934 to the present rather than from as early as 1789; giving weight to tribes with state-recognized reservations or tribes for which the federal government has held land since 1934; and eliminating the need for third parties to identify the petitioner as a tribe from 1900 to the present.

The original federal recognition regulations were adopted in 1978 and updated in 1994. Before 1978 the Interior Department considered requests for acknowledgment on a case-by-case basis. While the regulations established a structured procedure for evaluating federal acknowledgment, the system has been widely criticized as being too time-consuming, sometimes arbitrary and generally “broken,” Washburn said.

It’s not hard to understand the criticism: Since 1978 and as of November 2013, the BIA has processed 51 of the 356 petitions for federal acknowledgment it has received. Only 17 tribes have been recognized and 34 denied. But it’s also easy to understand why the process has moved at a snail’s pace: In numerous reports and at various hearings members of Congress have heard repeatedly that the federal recognition process is perpetually understaffed and underfunded. Furthermore, during the eight years of the Bush administration federal recognition and other Indian affairs came to a virtual standstill, according to former Interior Secretary Ken Salazar.

“It was an attitude that Indian country was not important and it manifested itself in a whole host of things — [such as] thousands of applications pending for taking land into trust that simply were not acted on,” Salazar said. “It was a bad time.”

RELATED: Salazar and Washburn: Much Achieved, Much More to Do

RELATED: Bush administration put the wreck in federal recognition

Additionally, since Indian gaming soared to success from the mid-1990s until the 2008 recession, the federal recognition process has become increasingly politicized with opposition from anti-Indian groups, local communities and states.

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