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BIA Reforms Finally Announced: Anti-Indian Forces Show Their Knives

Gale Courey Toensing
7/8/15

The Bureau of Indian Affairs has unwrapped its long-awaited package of reformed regulatory procedures and criteria for the federal acknowledgment of Indian tribes.

U.S. Secretary of the Interior Sally Jewell and Assistant Secretary-Indian Affairs Kevin K. Washburn released the new streamlined “final rule” June 29. It is the first major overhaul of the regulations for federal acknowledgment (or federal recognition) since they were established in 1978.

But the road ahead for the new rule is fraught with uncertainty. Some Indian law experts say a provision removed from the final rule that would have allowed previously denied tribes to re-petition under the new regulations will likely result in litigation. And the question of whether the new rule will even be implemented is up in the air: On June 16, the Republican-led House Committee on Appropriations voted 30-21 to approve a $30.17 billion spending plan for the Department of the Interior and various other related agencies that includes a rider prohibiting the implementation of the new tribal recognition rule. It’s not known yet who added the rider or why but it is the third assault in what some tribal leaders say is Congress’s new war on Indian country. The House Subcommittee on Indian, Insular and Alaska Native Affairs recently held heated oversight hearings in which the termination of federal recognition was discussed and the Interior Department’s authority to take land into trust was challenged by committee members who didn’t seem to know Congress gave Interior that authority.

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Washburn and his team worked for three years on the revision project. They held dozens of consultations and public meetings all over the country and teleconferences that lasted for hours. They read thousands of opinions submitted during extended public comment periods and produced a discussion draft released in the spring of 2013 and a proposed rule in spring of 2014.

The goal was to repair a federal recognition system that has been universally criticized as broken, long, expensive, burdensome, less than transparent, unpredictable, and subject to undue political influence and manipulation. The new rule will foster what the department says will be a more transparent, fair, timely and consistent process. It will reduce the governmental red tape that has snarled some tribes seeking federal status in a process lasting more than three-decades, and it will be flexible enough to accommodate the unique histories of individual tribal nations. Some of the new regulations say:

— As a first step, reviewers will establish whether a petitioning group’s members can prove descent from an historic tribe; if not, the petition will be denied without further review;

— Petitions and the public documents submitted with them will be posted on the Interior Department’s website;

— Petitioners who receive a negative Proposed Finding (PF) will have the opportunity for a hearing, in which third parties may intervene, before an administrative law judge who will then provide a recommended decision to the Assistant Secretary;

— A positive Final Determination will be issued without further review when there are no objections to a positive Proposed Finding.

— Evidence or methodologies that satisfied any criterion in the past will satisfy that criterion in the present. So, for example, documentary gaps longer than 10 years may be justified in certain historical situations and contexts because previous final decisions have accepted them.

— The year 1900 will be used as the starting date to identify a tribe and its continuous community and political authority.

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