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House committee advances controversial federal recognition bill

Friday, September 9, 2016

Indianz.Com SoundCloud: House Natural Resources Committee Markup September 8, 2016

Republicans advanced a controversial federal recognition reform bill at a markup on Capitol Hill on Thursday, after loading it up with provisions aimed at embarrassing tribes and Democrats.

H.R.3764, the Tribal Recognition Act, has already seen fierce opposition from Indian Country, Democratic lawmakers and the Obama administration because the bill strips the Bureau of Indian Affairs of its ability to make decisions on federal recognition petitions. Instead, Congress would be required to take action on every single case.

But rather than address the concerns, Rep. Rob Bishop (R-Utah), the chairman of the House Natural Resources Committee, made the debate even more contentious. He added provisions to extend federal recognition to the Little Shell Tribe of Chippewa Indians in Montana and six tribes in Virginia to the package.

The Little Shell Tribe and the Virginia tribes have seen bipartisan support for their federal recognition bills and Indian Country also has been generally supportive. By including them in H.R.3764, Bishop is essentially forcing Democrats to abandon those efforts due to the controversial nature of the Tribal Recognition Act.

Chief Stephen Adkins of the Chickahominy Tribe. His tribe is one of six Virginia tribes that has been included in H.R.3764, a controversial federal recognition bill. Photo by Dan Addison / University of Virginia

"I just want to make it very clear that the Little Shell Tribe of Chippewa Indians and the six Indian tribes of Virginia have been duped by this bill," Rep. Raul Ruiz (D-California), the top Democrat on the House Subcommittee on Indian, Insular and Alaska Native Affairs, said at the markup on Thursday.

If Republicans were to bring H.R.286, the Little Shell Tribe of Chippewa Indians Restoration Act, and H.R.872, the Thomasina E. Jordan Indian Tribes of Virginia Federal Recognition Act, up for consideration, Ruiz said the effort would see "unanimous" support.

"Instead, it was lumped into this very dirty bill that goes to the heart of self-determination of all tribes around our nation," Ruiz said.

In hopes of making that point, Rep. Raúl M. Grijalva (D-Arizona), the top Democrat on the House Natural Resources Committee, tried to strip H.R.3764 of all but the Little Shell and Virginia tribal provisions. But Republicans, who outnumber Democrats on the panel, beat back his amendment after it was put to a recorded vote.

Grijalva also offered another amendment to ensure that all land placed in trust before February 24, 2009 -- the date of the U.S. Supreme Court decision in Carcieri v. Salazar -- cannot be challenged in court. But Republicans rejected that effort as well when it was put to a recorded vote.

H.R.3764 itself was approved by a vote of 23 to 13. All the no votes came from Democrats.

"Congress already has the right to recognize tribes, as we have done many times, but this cannot be the only avenue for tribes," Grijalva said during the markup.

Chief Little Shell was a leader of the Little Shell Tribe in the late 1800s. Photo from Turtle Mountain Chippewa Heritage Center

Congress indeed has extended federal recognition to tribes but hasn't done so through a stand-alone bill since the mid-1990s. Even though individual Republicans have supported the Little Shell Tribe, the Virginia tribes and even the Lumbee Tribe, their party at large has repeatedly prevented recognition bills from gaining traction.

Despite the paltry record, Congress managed to recognize two tribes in December 2000. In that situation, the Shawnee Tribe and the Federated Indians of Graton Rancheria were included in a much-larger bill that became law at the very end of the 106th Congress, as lawmakers were looking to wrap up their work and as then-president Bill Clinton was heading out of office.

So-called lame duck sessions are known for wheeling and dealing and also for regrets. In the case of the Shawnees, Congress went back and restricted the Oklahoma tribe's land-into-trust rights after its leaders tried to pursue a casino. And the Graton Rancheria had to overcome significant political and legal opposition before opening a casino in California.

Gaming is the "elephant in the room," Bishop said at the markup on Thursday. He asserted that the "many, if not most" of the federal recognition petitions submitted to the BIA were filed after the passage of the Indian Gaming Regulatory Act in 1988.

In fact, of all the tribes that have won recognition through the BIA, only one started seeking an acknowledgment of its relationship with the United States after 1988. The rest began their efforts in the early 1980s and the 1970s, although some came forward even earlier.

Bishop also admitted that he wrote H.R.3764 "in part" to punish the Obama administration for finalizing the Part 83 reforms to the federal acknowledgment process. During the first half of the markup, which took place on Wednesday, he said the changes "relaxed" the standards for recognition but did not explain how that would happen.

Bishop's bill can now be considered by the full House. With the November election quickly approaching, President Barack Obama and Congress will soon find themselves in another lame-duck session.

“The validity of a Native American or Alaska Native community’s request for recognition should have nothing to do with who won the last election,” Grijalva said after the markup. “This bill tells millions of American citizens that politics, not science and history, will determine their legal status from now on. It’s a patronizing and insulting way to treat communities that have already suffered far too many years of government neglect.”

"The current administrative process in the Department of the Interior is without a statutory basis and therefor has a constitutional problem. If unelected political appointees can override historical analysis by their own inference to recognize a tribe, we have a serious issue," Bishop said after the markup.

House Committee on Natural Resources Notices:
Markup on 4 Bills (September 7, 2016)
Markup on 4 Bills (September 8, 2016)