BIA issues long-awaited update to federal recognition process

Monday, June 29, 2015

The Bureau of Indian Affairs released the long-awaited Part 83 reforms to the federal recognition process on Monday amid Congressional opposition.

The final rule will be published in the Federal Register on Wednesday. Interior Department officials said it will speed up a process that takes decades to complete and has become costly for the BIA, petitioning groups and interested parties.

"This updated process for important tribal recognition makes good on a promise to clarify, expedite and honor a meaningful process for federal acknowledgement to our First Americans," Interior Secretary Sally Jewell said in a press release.

“This updated rule is the product of extraordinary input from tribal leaders, states, local governments and the public,” added Assistant Secretary Kevin Washburn, the head of the BIA.

The final regulation differs from the proposed rule in two significant ways. First, the BIA will rely on 1900 as the starting date for evaluating petitioning groups rather than 1934.

"[B]ased on its experience in nearly 40 years of implementing the regulations, every group that has proven its existence from 1900 forward has successfully proven its existence prior to that time as well, making 1900 to the present a reliable proxy for all of history but at less expense," the BIA explained.

The final rule also does not allow groups that already went through the process to submit new petitions. Members of Congress, some state and local officials and even some federally-recognized tribes objected to the controversial provision that was in the original proposal.

"After reviewing the comments both in support of and in opposition to allowing for any opportunity for re-petitioning, limiting re-petitioning by providing for third-party input, and other suggested approaches for re-petitioning, the department has determined that allowing re-petitioning is not appropriate," the BIA said.

"Allowing for re-petitioning by denied petitioners would be unfair to petitioners who have not yet had a review, and would hinder the goals of increasing efficiency and timeliness by imposing the additional workload associated with re-petitions," the BIA added.

Even though the final rule has been scaled back, Republicans on Capitol Hill are trying to block it anyway. H.R.2822, the fiscal year 2016 Interior appropriations bill, prevents the BIA from using federal funds to "implement, administer, or enforce" the reforms that have been years in the making.

The House began consideration of the bill last Thursday before going on a break this week. The Senate version of the Interior appropriations measure does not address the rule so any differences would have to be addressed later in legislative process.

The BIA's federal acknowledgment process formally began in 1978. Since then, only 17 groups have won recognition while 34 have been denied, underscoring the difficult nature of the process.

The tribes that are successful waited decades and spent millions of dollars documenting their cases. For those in the Northeast, where the time of first contact dates to the 1600s, the process has become extremely cumbersome.

The Shinnecock Nation of New York was the fourth group to submit a petition in 1978. But the final answer didn't come until October 2010.

The Mashpee Wampanoag Tribe of Massachusetts also endured a lengthy wait after first seeking federal status in 1975. The BIA issued its final decision in May 2007.

The Shinnecock Nation and the Mashpee Wampanoag Tribe were the last two tribes to secure recognition through the BIA.

Additional Coverage:
New regulation makes it easier for Indian tribes to get federal recognition (AP 6/29)

Federal Register Notices:
Federal Acknowledgment of American Indian Tribes (July 30, 2014)
Federal Acknowledgment of American Indian Tribes (May 29, 2014)