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The Rise of Tribes and the Fall of Federal Indian Law
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Familiar problems aired at recognition hearing
Thursday, May 12, 2005

The Senate Indian Affairs Committee opened hearings into the federal recognition process on Wednesday although debate centered more on the $18.5 billion tribal gaming industry than anything else.

Critics from Connecticut came armed with familiar charges of corruption and cronyism at the Bureau of Indian Affairs. But they offered scant new evidence that tribes and their wealthy backers are unduly influencing the process.

Tribal representatives, meanwhile, sought to direct attention to the struggles they face in their quest to gain federal recognition. Lengthy delays are common, they said, citing waits of up to 20 years for an answer from the BIA.

The clashing voices meant there was little agreement on potential improvements to a system often called "too slow, too costly and too opaque," observed Sen. John McCain (R-Arizona), the committee's chairman. He said he plans to hold additional hearings on the subject in hopes of developing fixes.

McCain said he was concerned that outside interests are pouring millions into tribal recognition petitions in hopes of opening casinos. "Isn't there something wrong with that picture?" he asked.

But Sen. Daniel Inouye (D-Hawaii), the committee's former vice chairman, urged the panel to avoid a "rush to judgment" in examining the process. "It is not about gaming," he said

Seven witnesses from Connecticut argued otherwise in over 40 minutes of testimony during the two-hour hearing. "When Indian gaming came along, all of a sudden you find huge financial backing," said Rep. Christopher Shays (R-Connecticut).

Richard Velky, the chief of the recently recognized Schaghticoke Tribal Nation of Connecticut, didn't deny his tribe is supported by the wealthy founder of the Subway restaurant chain and others. "That's been in the newspapers back home continuously," he told McCain, who asked about the tribe's backers and their plans for a casino.

"This process is not an easy process," Velky added. He blamed the high cost of the effort on opponents from the state who have mounted legal challenges, introduced bills and hired lobbyists in hopes of overturning the BIA's favorable decision for the tribe and another tribe whose status is under appeal.

Kathleen J. Bragdon, an anthropology professor at the College of William and Mary in Virginia, also said tribes are being forced, mainly by the BIA, to document their petitions with more and more evidence. "An adequate report 25 years ago was 100 pages long," she testified. "Today it would be several thousand."

The discussion highlighted the one issue that the tribal, state and federal witnesses could agree on. They all said the BIA needs more resources to handle recognition petitions.

Sen. Joe Lieberman (D-Connecticut) referred to a bill he introduced to increase the BIA's recognition budget from about $1 million to $10 million and to provide financial assistance to tribal groups and interested parties. "We're not here on an anti-Indian mission," he said.

Otherwise, there were few solutions in common among the camps. While the Connecticut delegation called for a complete overhaul of the process, the Interior Department's two witnesses gave different accounts.

"While this process has been harshly criticized for its lack of transparency, based on my office's experience, it is, relatively speaking, one of the more transparent processes in DOI," testified Mary Kendall, the deputy Inspector General. She later said her office doesn't believe the recognition regulations need to be codified into law because the process is already "working" as intended.

R. Lee Fleming, the director of the BIA's Office of Federal Acknowledgment, said changes have already been made to streamline the process without resorting to new laws or major regulatory enhancements. Since January 2001, he said the agency has completed 17 decisions: nine proposed findings, six final determinations and two reconsidered final determinations.

Fleming, however, did support a law to impose a "sunset" on the process. This would require all tribes seeking recognition to submit an application by a certain date.

Kendall also said her office is concerned about issues that are not directly related to recognition. She supported legislation to limit ex-Interior officials from going to work for tribes after they leave office and said that Congress could strengthen lobbying rules.

As far back as the 1990s, members of Congress have introduced bills to reform the process. One bill by Retired Sen. Ben Nighthorse Campbell (R-Colorado), the former chairman of the committee went so far as to strip the BIA of its recognition duties and hand them to an independent commission.

Yet these and other efforts, including some by McCain, have consistently failed. Rep. Richard Pombo (R-California), the chairman of the House Resources Committee, is also wading into the debate.

McCain didn't say when the next recognition hearing would be held but said the final word wouldn't rest with the BIA. "Congress retains the ultimate authority and responsibility to recognize and deal with Indian tribes," he said.

Written Testimony:
Oversight Hearing on Federal Recognition of Indian Tribes (May 11, 2005)

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

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