Kevin Washburn: “The discussion draft is a starting point in the conversation with federally recognized tribes, petitioners and the public on how to ensure that the process is fair, efficient and transparent.”

Washburn's Bold Plan to Fix Interior's Federal Recognition Process

Gale Courey Toensing
June 28, 2013


A draft proposal of far-reaching revisions to the Interior Department’s process for federal acknowledgment of Indian tribes is being hailed as the best thing to happen in decades to a system that’s been described as “broken, long, expensive, burdensome, intrusive, unfair, arbitrary and capricious, less than transparent, unpredictable, and subject to undue political influence and manipulation.”

Kevin Washburn, Interior’s Assistant Secretary for Indian Affairs, unveiled a red lined  “Preliminary Discussion Draft” of potential changes to Interior’s process for acknowledging Indian groups as federally recognized tribes on Friday, June 21.

“The discussion draft is a starting point in the conversation with federally recognized tribes, petitioners and the public on how to ensure that the process is fair, efficient and transparent,” Washburn said in a statement. “We are starting with an open mind and no fixed agenda, and we’re looking forward to getting input from all stakeholders before we move forward with a proposed rule that will provide additional certainty and timeliness to the process. In many parts of the discussion draft, we have made no fixed recommendations in order to have the benefit of that input in formulating a proposed rule.”

Washburn’s review of the federal acknowledgment process is a promise kept. Last fall soon after his appointment as Assistant Secretary for Indian Affairs, Washburn told Indian Country Today Media Network he intended to tackle the issue. “This is one [topic] I heard about unanimously—from on the Hill, from tribal leaders, from people within the department. There’s great dissatisfaction with…the acknowledgment-recognition process and, honestly, that dissatisfaction has been [building for] 20 years or more. [Reforming it is] something we really do hope to accomplish, and we will accomplish it only with extensive tribal consultation,” he said. (Related story:  Q&A With Ken Salazar and Kevin Washburn)

Washburn and other Interior officials attended a meeting to review the discussion draft with the National Congress of American Indians’ Federal Recognition Task Force on Monday, June 24, a day before the official opening of the organization’s mid-year conference in Reno, Nevada. It was a full house, participants said, and the proposal was enthusiastically received during a robust discussion. The release of the discussion draft marks the beginning of a comment period that will end August 16. Before then, the Interior Department will hold a series of formal consultations and public meetings on the draft new rules around the country.

A scroll through the discussion draft shows there is much red-lining and a lot to be discussed. But the most significant changes are proposed for the toughest two of the seven mandatory criteria a tribe currently must meet to be acknowledged – proof that it has had maintained continuous political authority over a distinct community of members from historical times to the present. The proposed new rule would require tribes to prove continuous political authority and community since 1934, aligning the review with the federal government’s repudiation of the allotment and assimilation policies of the late 1800s and early part of the 1900s and eliminate the requirement that an external entity identify the group as Indian since 1900.

Attorney Michael Anderson (Muscogee Creek Nation), former Interior Department Associate Solicitor for Indian Affairs and Deputy Assistant Secretary for Indian Affairs, lauded the proposed revisions.

“I think it’s the most dramatic, bold proposal made in the federal acknowledgment area in probably the last 20 years, particularly the fact of utilizing as a starting point 1934, which is the year the Indian Reorganization Act (IRA) was passed and a lot of tribes were declared organized tribes during that time,” Anderson told Indian Country Today Media Network in a phone interview following the Task Force meeting. Not all tribes organized under the IRA, “but at least there was a systematic effort to identify Indian entities and Indian tribes during that time period so using that date is valid and I think will be a well received proposal mainly because it marked the end of the allotment era and (introduced) the era of self determination and reorganization.” The proposal doesn’t turn on whether a tribe was organized under the IRA. “As long as you can show community and political structure and the other elements in the regulations you can still become recognized. It’s just that you don’t have to go back to 1789 and the treaty-making period and the early 1800s when records were regularly destroyed by fire or lost.”

Rev. John Norwood (Nanticoke-Lenni Lenape) and co-chair of NCAI’s Federal Recognition Task Force, said the proposed “starting date” of 1934 signifies the most important step forward, philosophically, because it eliminates the requirement to have a tribe’s identity documented by outside observers. “This was placing major criteria on whether, principally, non-Natives took enough notice or had enough interest in writing something about you, undermining the value of a tribe's own internal proofs. This was insulting and represented a perspective that the ‘Native’ proofs were inadequate to stand on their own,” Norwood said. “This criteria was one, among many other indignities of Federal Indian Policy, that represented a colonized view of American Indians – that ‘legitimacy’ was based on whether someone else identified you.”

Another important change in the draft proposal gives new weight to tribes that have maintained state-recognized reservations since 1934. The State of Connecticut under the “leadership” of then Attorney General Richard Blumenthal, now Senator Blumenthal, was able to overturn positive Final Determinations for the Eastern Pequot Tribal Nation (EPTN) and the Schaghticoke Tribal Nation (STN) in 2005 based in part by arguing that the tribes’ reservations established in 1683 and 1736, respectively – and recognized by the state ever since – were irrelevant to their bids for federal acknowledgment.

The tribal-state relationship should “absolutely” play a role in federal acknowledgment, Anderson said. “The fact that the state has recognized a tribal entity with a state homeland whether it’s for 200 years or 100 years or 50 years is a very important piece of evidence showing that this group has existed as a political entity as an Indian tribe and for that not to be given the proper weight was very arbitrary. I think that’s an important positive new development,” Anderson said.

Norwood, whose Nanticoke Lenni-Lenape Tribal Nation has sought federal recognition since 1992, said the federal acknowledgment process should give weight to historic state recognition but should not penalize worthy tribes that don’t have a long term state relationship.

The draft proposal provides hope to the many tribes, like the Eastern Pequots and Schaghticokes, whose federal acknowledgments were undone by political influence, presidential and congressional shifts and simple neglect by uncaring administrations. “It seems that, under some circumstances, some tribes will be given the opportunity to have such a wrong made right – some of the denials have defied logic!” Norwood said. “It appears that the new regulations allow for the admission that the Office of Federal Acknowledgement (OFA) may have made errors in the past. I think many people would agree that there have been final decisions that are in need of review.”

There are other changes both large and small throughout the document. The draft proposes among other things to eliminate the “letter of intent” to petition for federal acknowledgment that tribes have filed since the regulations were established in 1978. (The Georgia Tribe of Eastern Cherokees, for example, filed a letter of intent to petition in 1979. According to the Office of Federal Acknowledgment’s website the petition is “Ready, Waiting for Active Consideration.) Now, instead of filing a letter saying it intends to petition, a tribe can simply file a petition. The draft aims to shorten the process to as little as two years, proposes to limit the number of pages of a petition, eliminates review and reconsideration by the Interior Board of Indian Appeals, requires OFA staff to review continuous community and political authority within the context of an individual tribe’s history, culture and social organization and generally eliminates the rigid one-size-fits-all approach of the outdated and tribally unfriendly regulations in place.

No one thinks the discussion draft is perfect, “but it was good,” said Judith Shapiro, an attorney who has practiced Indian law for decades with expertise in gaming and federal recognition and attended the Task Force meeting with other attorneys and tribal leaders. “We said, ‘We haven’t read the discussion draft closely yet, but we will and you’ll be hearing from us.’ And we’re looking forward to working with him (Washburn) and commenting to make it better. They (Washburn and his team) made it clear they’re interested in working with the tribes that are in the recognition process to make it better,” Shapiro said. “It was a good faith effort on their part. After all they had promised to get this draft proposal out by summer and they released it on the solstice, so, you know, thanks!”