Battles Brewing Over Proposed Tribal-Recognition Rules

Some members of Congress fear the new rules might open up new avenues for tribal casinos or lead to fresh fights over historic lands.

Secretary of the Interior Sally Jewell testifies before the Senate Committee on Indian Affairs.
National Journal
Billy House
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Billy House
May 22, 2014, 4:34 p.m.

The In­teri­or De­part­ment an­nounced Thursday its long-awaited new rules for grant­ing fed­er­al re­cog­ni­tion to Nat­ive Amer­ic­an tribes — but some law­makers are already seek­ing changes.

Some mem­bers of Con­gress and of­fi­cials on the state and loc­al levels have been war­ily bra­cing for the pro­posed rules. Many have been wor­ried about how far and wide they might open up new av­en­ues for tri­bal casi­nos. They also are wor­ried the rules might erode state tax bases and lead to new battles over his­tor­ic lands.

The new rules by Sec­ret­ary of the In­teri­or Sally Jew­ell and As­sist­ant Sec­ret­ary-In­di­an Af­fairs Kev­in Wash­burn would rep­res­ent the re­form­a­tion of a 35-year-old pro­cess by which the In­teri­or of­fi­cially re­cog­nizes In­di­an tribes.

The fed­er­al gov­ern­ment already re­cog­nizes 566 tribes — but only 17 of those have been re­cog­nized un­der this 35-year-old pro­cess, which the pro­pos­al is seek­ing to re­vise.

And, in fact, the pro­posed changes an­nounced Thursday keep and in­cor­por­ate a key fea­ture floated in a draft plan in June to provide re­cog­ni­tion to a tribe that can show “com­munity and polit­ic­al in­flu­ence/au­thor­ity from 1934 to the present,” rather than from as early as 1789 un­der ex­ist­ing rules.

The change would also elim­in­ate the need for a pe­ti­tion­er to demon­strate that third parties identi­fy them as a tribe from 1900 to the present.

Spe­cific­ally, the rule change relates to the “Party 83 pro­cess” un­der Title 25 of the Code of Fed­er­al Reg­u­la­tions, Pro­ced­ures for Es­tab­lish­ing That an Amer­ic­an In­di­an Group Ex­ists as an In­di­an Tribe.

“Pres­id­ent Obama be­lieves that re­form­ing the fed­er­al ac­know­ledg­ment pro­cess will strengthen our im­port­ant trust re­la­tion­ship with In­di­an tribes,” said Jew­ell in a state­ment.

But the fear from some law­makers and state and loc­al politi­cians was that the new lan­guage de­vised by the Bur­eau of In­di­an Af­fairs could res­ult in fed­er­al re­cog­ni­tion for lit­er­ally hun­dreds of tribes that for years have struggled and failed to re­ceive that status — and could give them all the priv­ileges that come with such re­cog­ni­tion.

Con­necti­c­ut of­fi­cials were among those who re­spon­ded in a luke­warm way to Thursday’s an­nounce­ment. In a joint state­ment, Con­necti­c­ut Gov. Dan­nel Mal­loy, At­tor­ney Gen­er­al George Jepsen, U.S. Sens. Richard Blu­menth­al and Chris Murphy, and Reps. Rosa De­Lauro, John Lar­son, Joe Court­ney, Jim Himes, and Eliza­beth Etsy called the pro­posed re­vi­sions “a step in the right dir­ec­tion.”

“However, we be­lieve ad­di­tion­al changes and cla­ri­fic­a­tions are ne­ces­sary to en­sure that Con­necti­c­ut’s in­terests are pro­tec­ted, and we will con­tin­ue to work for their in­clu­sion,” they said.

The state­ment did not spe­cify how they wanted it changed.

The Con­necti­c­ut of­fi­cials’ re­ac­tion comes amid con­cerns about its po­ten­tial im­pact on the state’s cur­rent gambling agree­ment with the Mashantuck­et Pequot and Mo­hegan tribes — which are already op­er­at­ing casi­nos there — and could fur­ther erode the state’s tax base.

The East­ern Pequot of North Ston­ing­ton, the Golden Hill Paugus­sett of Col­chester and Trum­bu­ll, and the Schaghticoke of Kent are re­por­ted to be among the tribes in that state that have been fight­ing for years to get fed­er­al re­cog­ni­tion.

Fed­er­al re­cog­ni­tion es­tab­lishes the U.S. gov­ern­ment as the trust­ee for tri­bal lands and re­sources and makes tri­bal mem­bers and gov­ern­ments eli­gible for fed­er­al budget as­sist­ance and pro­gram ser­vices. In short, this means the fed­er­al au­thor­it­ies would pro­tect their sov­er­eign status, their lands and tri­bal prop­erty, and their rights as a de­pend­ent na­tion.

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