Tribes denied federal recognition see mixed decisions in court system

Tuesday, April 3, 2018  

Being denied federal recognition by the Buerau of Indian Affairs is usually the kiss of death, as many petitioning groups have found over the years.

The Nipmuc Nation is the latest to taste defeat. After seeing a glimmer of hope at the end of the Clinton administration, the Massachusetts-based tribe, whose historic reservation is on the National Register of Historic Places, was denied acknowledgment during the Bush era amid heightened political tensions.

But taking the case to court hasn't resulted in success. Though Judge Timothy S. Hillman last week said the BIA provided spotty "technical assistance" to the tribe as it sought to bolster its petition, and added in a footnote that the existence of the tribe is "indisputable," he upheld the agency's denial of recognition.

In the March 30 decision, a copy of which was posted by Turtle Talk, Hillman wrote that "it is very difficult—some would say almost impossible-- for the petitioning tribe to satisfy all of the criterion. Such is the case here."

Another tribe has found it difficult to come back from a denial of recognition as well. But the Burt Lake Band of Ottawa and Chippewa Indians, whose petition was also rejected during the Bush years, is seeing a little more success in the courts.

In a March 29 decision, a copy of which was posted by Turtle Talk, Judge Amy Berman Jackson said the tribe could challenge a recently finalized BIA regulation which bars groups that were previously rejected from filing another petition. At one point, the proposed rule would have allowed resubmissions but Obama administration officials removed the provision after facing fire from Republican members of Congress.

As a result, the Burt Lake Band was "adversely affected and aggrieved by the choices made by the agency" when the BIA issued the Part 83 regulation and suffered an injury that was "concrete and particularized," Jackson wrote last week..

Despite the win on standing, victory is far from clear for the Michigan-based tribe, whose ancestors signed numerous treaties with the United States. Since the Part 83 rule bars re-petitioning, the tribe never submitted a new one because doing so "would have been futile and resulted in certain denial," according to its complaint in the case.

The Trump administration hasn't expressed an interest in reopening the finalized rule either.

"At this point in time, we have no plans to revisit those," John Tahsuda, the highest-ranking official at the BIA said during his first Congressional appearance last September. "Certainly they went through a full review process."

That's probably one reason why the tribe asked to be placed on the list of federally recognized entities.

"The court does not have free-standing authority to by-pass the entire federal recognition process and order the agency to add plaintiff to the list," Jackson wrote in denying that request.

The BIA's federal acknowledgment process officially began in 1978. Since then, the agency has approved 18 petitions, the most recent one being for the Pamunkey Tribe in 2016.

A larger number of petitions have been rejected. Despite lawsuits and internal reconsiderations, none have been overturned.

That leaves legislative recognition as the only viable means for rejected tribes. But even that route isn't easy -- up until six tribes from Virginia this year, Congress hadn't passed a stand-alone federal acknowledgment bill since the mid-1990s.