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The Rise of Tribes and the Fall of Federal Indian Law
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McCain to address federal recognition concerns
Friday, April 22, 2005

The Senate Indian Affairs Committee has scheduled an oversight hearing on the federal recognition process that chairman Sen. John McCain (R-Arizona) says has become tainted by gaming.

In the past decade, tribal casinos have grown into an $18 billion industry that many are eager to tap into. Investors have poured millions into tribal recognition petitions in hopes of joining the nationwide expansion.

Along with proposals for off-reservation casinos, the activity has led to added scrutiny, McCain said at the National Congress of American Indians winter session early last month. "The process of tribal recognition has been long criticized as being slow, opaque and unfair," McCain told tribal leaders.

"It's now being accused of being improperly influenced by outside interests," McCain added. "I intend to examine these concerns."

Nearly all of the criticism comes from non-Indian politicians and activists in Connecticut, home to two of the largest casinos in the world. Two more casinos are on the horizon now that the Bureau of Indian Affairs has recognized the Schaghticoke Tribal Nation and the Eastern Pequot Tribal Nation.

But concerns are surfacing in other parts of the country, most notably California. Tribes whose federal recognition was terminated then later restored are pushing controversial proposals for off-reservation casinos. Some tribal leaders are beginning to speak out against the trend.

The dollar figures behind the initiatives are staggering. Frederick A. DeLuca, the founder of the Subway sandwich chain, acknowledged he spent $12 million to help the Schaghticokes win recognition. He is now hoping to help the tribe open a casino.

Casino mogul Donald Trump gave $10 million to a faction the Eastern Pequots in hopes of landing a gaming deal once the tribe received recognition. But after being passed over in favor of a wealthy developer, he filed suit claiming he was cheated out of at least $500 million.

Not every tribe, however, has such good fortune. The Shinnecock Nation of New York, which has sought recognition since the late 1970s, has relied on non-profit organizations like the Native American Rights Fund to make its case. Lance Gumbs, a tribal trustee, said the Shinnecocks have spent only about $1 million over the past 30 years while waiting for an answer from the BIA on its status.

BIA officials, members of Congress and the General Accountability Office have all noted concerns about the time, effort and financial resources it takes to document a recognition petition. Tribal groups submit thousands and thousands of documents to back up their claims, and opposing groups, including states and local governments, add to the mound of paper.

"The administrative record for an acknowledgment petition is voluminous," the BIA's principal deputy assistant secretary Mike Olsen said in Congressional testimony in February. "Some completed petitions have been in excess of 30,000 pages."

It's not surprising to some in Indian Country why the process demands so much effort these days. "A monumental factor in the increased costs is that the political climate ... was totally different than now due to the onslaught of Indian gaming," Tim Martin, a member of the Poarch Band of Creek Indians, an Alabama tribe that was recognized in 1984, said at an April 2004 hearing.

But not everyone agrees that placing the blame on gaming is fair. In recent testimony to Congress, former assistant secretary Kevin Gover said recognition "is not about gaming. Most of the currently noteworthy petitions were filed well before the Indian Gaming Regulatory Act." IGRA was passed in 1988.

"I have come to view the program as being primarily about justice," Gover said.

Since 1978, when the recognition process was encoded into regulations, the BIA has recognized less than 20 tribes and has rejected just as many. More than a dozen petitions are awaiting action and more than 200 groups have notified the agency of their intent to go through the process.

The Senate Indian Affairs Committee hearing will take place May 11.

Only on Indianz.Com:
Federal Recognition Database (July 2004)

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