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Lack of evidence addressed in recognition bill
WEDNESDAY, FEBRUARY 19, 2003

A provision in the Senate's new federal recognition bill allows the Bureau of Indian Affairs to take into consideration actions that federal or state governments have taken against petitioning groups.

If holes in a tribe's historical record can be attributed to "official" or "unofficial" acts, the BIA can overlook them. The exception is a nod to the unique history of assimilation and termination that tribes have faced, an aide to Sen. Ben Nighthorse Campbell (R-Colo.) said.

"Gaps in political continuity brought about by official action by the United States or a state government," said Paul Moorehead, chief counsel on the Senate Indian Affairs Committee, "ought to benefit the petitioner."

In reviewing whether a tribe is eligible for federal status, BIA researchers have always viewed evidence in context. For example, limited documentation during Colonial times isn't considered a hindrance to recognition. The Branch of Acknowledgment and Research (BAR) can also weigh evidence more heavily in certain time periods.

But the bill, if enacted, would provide a solid basis for the BIA to ignore a lack of evidence. It would be entirely up to the assistant secretary for Indian affairs to determine when to apply the exception.

"There may be criteria that are part of a tribe's record that may not register on the official BAR criteria but that a tribe or group ought to benefit from," said Moorehead.

A similar view is held by former assistant secretary Kevin Gover, who said treatment of Indians during the late 1800s and through the 1900s shouldn't be used against petitioners. Federal and state policies were often designed to eradicate tribal people, he said.

"The continuity is just so hard to prove, particularly in New England and in California," he argued recently. "It didn't pay to be an Indian in those days. You were trying not to be noticed."

Critics, however, have taken the opposite approach. Connecticut attorney general Richard Blumenthal is fighting the BIA's decision to recognize the historic Eastern Pequot Tribe and says state actions -- or inaction, as the case may be -- can't be used to patch up holes in the historical record.

Campbell plans to hold hearings on the bill this session, Moorehead said. They would follow ones the committee held last year to address an issue that has grown in controversy in Indian and non-Indian circles.

The National Congress of American Indians (NCAI), the National Indian Gaming Association (NIGA) and the United South and Eastern Tribes (USET), which represent federally recognized tribes, have all taken an interest. Officials with the organizations said they support reform of the recognition process and want to see it shielded from the debate over gaming.

NCAI's winter session, to take place in Washington, D.C., next week, will include a day-long task force on federal acknowledgment. Tribal leaders will also hear from Sen. Chris Dodd (D-Conn.), whose attempt to impose a moratorium on recognition decisions failed last summer, and Rosemary Cambra, chairwoman of the Muwekma Ohlone Tribe, which was denied status by retired assistant secretary Neal McCaleb.

Get the Bill:
Federal Acknowledgment Process Reform Act of 2003 (S.297)