Federal Recognition

by Abigail Coleman

“Today we are going to talk about the Federal acknowledgment process, which is a very important issue, and one I think that does need substantial oversight.” - Chairman of the Committee on Indian Affairs, Hon. Bryon L. Dorgan (“Fixing the Federal Acknowledgement Process” 1)

The Merriam-Webster dictionary defines recognition as the state of being recognized: such as a formal acknowledgment of the political existence of a government or nation (2024). In Indigenous studies and politics, recognition comes in the form of federal recognition, or acknowledgment, “a formal procedure whereby government officials recognize the legal existence of a tribe” (Fixcio 947). Being recognized by the federal government is a way for tribes to prove their existence and heritage, receive federal assistance through the Bureau of Indian Affairs (BIA), and, most importantly, create a government-to-government relationship between the United States and the tribe (Fixcio; Busholtz). Federal recognition allows tribes to establish courts of law and law enforcement, regulate businesses, and levy taxes (Bushholtz; Montenegro). They gain access to special assistance programs such as economic development, job training, employment, education, health care, agriculture, natural resource management, and improvements to tribal infrastructure (Bushholtz; Montenegro). Federally recognized tribes are exempted from local and state taxes as these bodies' jurisdiction over tribes is limited, with tribal lands held in trust by the federal government. Regarding tribal income, federally recognized tribes can enter gaming compacts with the state and open bingo parlors and casinos (Bushholtz; Montenegro; Fixcio). These establishments provide money to the tribe and jobs to its citizens, some tribes even distribute casino income among tribal members (Bushholtz). As these programs are funded by federal taxes, the government must ensure the recognition of the correct Native entities. The government has an inherent nature as a colonizing power, however, and has a deep history of doing as little as possible to assist Native peoples. This history is visible in the past and impacts the modern-day politics surrounding which tribes become federally recognized.

The process of federal recognition historically came from treaties, legislation, executive orders, or administrative decisions (Fixcio). Thus, most tribes that had signed treaties with the American government were automatically enrolled as federally recognized tribes, as by definition, treaties are signed agreements between sovereign nations (Busholtz). However, not all tribes that entered into treaties became federally recognized, as “Congress failed to ratify the[se] treaties” (Bushholtz 439). After Congress passed a bill in 1871 that ended the treaty-making period, the only avenues for federal recognition were congressional or administrative action or presidential proclamation (Busholtz). While disheartening, the issue of federal recognition did not become widespread until 1934, when the Indian Reorganization Act (IRA) was passed. With the IRA, only federally recognized tribes may form governments and receive the benefits and exemptions of recognition, with the BIA and the solicitor of the Department of the Interior becoming the government agencies tasked with recognizing tribes (Busholtz).

An outcry from Native activists in the 1960s and 70s drew attention to issues regarding land claims and the rights of unrecognized Native tribes culminated in 1978, when the BIA established the Federal Acknowledgement Process (FAP). This process goes through the Branch of Acknowledgement and Research (BAR) and the Office of Federal Acknowledgment (OFA) within the Department of the Interior (DOI), and its purpose is to analyze recognition petitions (Fixcio; Montenegro). The criteria for the FAP are as follows:

1. Demonstrate that [the tribe] has been identified as an American Indian entity on a substantially continuous basis since 1900;

2. Show that a predominant portion of the petitioning group comprises a distinct community and has existed as a community from historical times until the present;

3. Demonstrate that it has maintained political influence or authority over its members as an autonomous entity from historical times until the present;

4. Provide a copy of the group’s present governing document including its membership criteria;

5. Demonstrate that its membership consists of individuals who descend from the historical Indian tribe or from historical Indian tribes that combined and functioned as a single autonomous political entity and provide a current membership list;

6. Show that the membership of the petitioning group is composed principally of persons who are not members of any acknowledged North American Indian tribe; and

7. Demonstrate that neither the petitioner nor its members are the subject of congressional legislation that has expressly terminated or forbidden the Federal relationship (“Federal Acknowledgement”)

The BIA standardized the criteria to easily identify authentic Native tribes (Montenegro). Each criterion is considered met if the evidence establishes a reasonable likelihood that the information related to each criterion is valid (“Federal Acknowledgement”). The first criterion is the most troublesome, as it is “structurally incompatible with most tribes” (122) due to the termination policy in 1953 (Montenegro). Formally known as the House Concurrent Resolution 108, the termination policy was an attempt to eliminate federal responsibility for Native tribes and allowed the government to terminate the recognition of tribes as self-sufficient enough that they no longer required government support. These tribes lost access to health care, education, and several other services, with many tribes being unable to pay the taxes they had been exempted from with federal recognition, resulting in the loss of their land through tax forfeiture (Buchholtz). The government demolished several reservation land bases, decentralized Indian affairs, and even relocated Natives to urban areas (Montenegro). Between 1953 and 1964, over 109 tribal entities were terminated (Bushholtz; Montenegro). As a result of this policy, most tribes that were previously federally recognized but then terminated have been unable to regain recognition due to displacement by governmental policies.

Beyond that, many documents that qualify as evidence for each of the FAP’s criteria have been destroyed, removed, or appropriated (Montenegro). Legitimate evidence of Nativeness includes: identification as an Indian entity by federal authorities, relationships with state governments based on the identification of the group as Indian, dealings with a county, parish, or other local government in a relationship based on the group’s Indian identity, identification as an Indian entity by anthropologists, historians, or other scholars, identification as an Indian entity in newspapers or books, and identification as an Indian entity in relationships with Indian tribes or with national, regional, or state Indian organizations (Montenegro). To an eye learned in Native issues and the effects of settler colonialism, it quickly becomes clear that these criteria are designed to be exclusionary. Due to settler colonialism and associated assimilation tactics (residential schools, outlawing of traditional practices, prior termination of recognition, religious missions, broken treaties, physical removal of Natives from their ancestral homes, etc.) many of these legitimate documents have been destroyed, used for the benefit of non-Native entities, or held by the US government and federal agencies inaccessible to tribes (Montegero). The vast majority of the Native identification methods stem from the recognition of a tribe from the colonial entity which has a clear history of Native erasure, genocide, or assimilation. In combination with the history of the current US government which has exhibited in multiple instances an unwillingness to aid Native tribes as seen in the termination policy, the bias results in a process that views the evidence in the most unfavorable light (Montenegro). When the OFA reviews the evidence for federal recognition, they often do so without proper context and expect the tribe they are examining to meet the federal standard of Native - often a stereotype or generalization (Montenegro; Klopotek). Even when tribes hire anthropologists, historians, sociologists, genealogists, archeologists, and lawyers, there is no guarantee that the evidence provided to the OFA will meet the arbitrary requirements of what Native is.

The last form of accepted evidence of a Native entity is interesting, as it requires another recognized Native entity to vouch for the one seeking recognition. This is a rather messy situation, as federally recognized tribes are incentivized to stand against tribes seeking recognition due to the benefits that recognition gives, specifically gaming compacts (Buchholz). Federally recognized tribes are concerned that entities seeking recognition are non-Native entities attempting to achieve recognition to open casinos and bingo halls, thus directing revenue away from previously recognized tribes to the new ones (Buchholz). This is only furthered by internal tribal politics, as the tribes that distribute casino revenue with growing enrollment are coerced into restricting membership criteria so that those already receiving payments will not see a decrease as the income is split among more individuals (Buchholtz). Their fears are only validated when newly federally recognized tribes commonly construct casinos and bingo halls due to the cost of recognition and the long list of professionals needed to achieve it (Buchholtz).

Debates on who should and should not be recognized extend beyond tribes, as they impact tribal citizenship. The fourth criterion of the FAP is membership criteria, where what legally defines someone as Native is historically tied to blood quantum and Native erasure. Dating back to the 1866 Acts of General Authority in the State of Virginia, a declaration stated “every person, not a colored person, having one-fourth or more of Indian Blood” as a way to eliminate Natives and any claims they might hold via treaties (Rodriguez-Lonebear). Additionally, this made it so that a person could only be Native if they had more than one-fourth of Native blood, a way to ensure the number of Natives stayed low. Not simply a feature of the past, the IRA also established a “one-half or more Indian blood” requirement in its definition of Native. This use of blood quanta is not only for erasure but also to decrease the number of people who qualify for governmental support. Unfortunately, this practice of blood quanta has been enveloped into tribal communities as a method of determining citizenship (Rodriguez-Lonebear). For tribes using blood quanta, there is confusion around who has 100% pure Native blood and who decides that. Still more, it causes issues for the sovereignty of individual people who have low blood quanta and wish to marry someone outside of the tribe (depending upon the tribe), they have to weigh the benefits of tribal membership versus love. As said by Rodriguez-Lonebear, a sociologist and advocate for Native interests, “Native nations…must [push back against blood quantum] because tribal demographic survival demands it” (532). Luckily, her research around blood quanta as a criterion for citizenship has seen a trend away from blood quanta and toward more inclusive measures of belonging. While the majority of Native nations use blood quanta, there is an increasing number of tribes using other methods of membership with significant variations between each (Rodriguez-Lonebear). Gradually, tribes are taking back their sovereign rights to decide who is part of their tribe or extended family.

Unfortunately, tribes seeking federal recognition will likely not gain recognition. Some of those petitioning might not even live to see the fruits of their labor, as the FAP takes large swaths of time and money to make a decision, with many tribes and advocates fighting for changes to be made to the process. During the 2009 U.S. Senate Indian Affairs Committee convened for an Oversight Hearing on Fixing the Federal Recognition Process, Frank Ettawageshik, former chairman of his tribe and co-chair of the National Congress of American Indians (NCAI) Federal Acknowledgement Task Force, stated that “at the rate that [the Department of the Interior and the Office of Federal Acknowledgement] were considering petitions, in our case, it would have been between 50 and 100 years before they got to our petition” (“Fixing the Federal Acknowledgement Process” 22). In this hearing, the Chairman of the committee stated the Little Shell Band of Chippewa Indians and the Muscogee Nation had both been in the FAP for around 30 years, with the Little Shell Band of Chippewa Indians having their petition for acknowledgment revoked (“Fixing the Federal Acknowledgment Process”). The Muscogee Nation’s was not yet revised, even though their petition was deemed complete in 2003, six years before the hearing (“Fixing the Federal Acknowledgment Process”). Part of the reason behind this drawn-out timeline is the lack of clarity regarding “what level of evidence is really sufficient to meet the ‘reasonable likelihood’ standard required by regulations” (“Fixing the Federal Acknowledgment Process” 2). The Little Shell Band of Chippewa Indians had been told in 2000 that they did not need to provide evidence of identification as Native in every decade up to the petition, only to have their petition denied on the basis that they failed to provide this very evidence (“Fixing the Federal Acknowledgment Process”). Deciding this was unfair, Congress provided the tribe legislative recognition (Murphy). The DOI, however, denies the claim that federal recognition is arbitrary (Klopotek).

The unclarity of the FAP is only exacerbated by the final criteria, “neither the petitioner nor its members are the subject of congressional legislation that has expressly terminated or forbidden the Federal relationship” (“Federal Acknowledgement”). In other words, should a tribe’s petition for recognition be denied for any reason (including due to being misdirected as with the Little Shell Band of Chippewa Indians) they are unable to reapply for federal recognition. The Office of Federal Acknowledgement says this is because “[a]llowing 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” (Federal Register). These criteria also apply to tribes who had their recognition terminated by the termination policy, even though there were no issues in their paperwork, only with the government attempting to reduce costs.

Among all the hardships that Native peoples have faced in the past and present, a poorly orchestrated means of denying tribes’ sovereignty and recognition is far from unordinary. Activists have been pushing for clearer guidelines for evidence and faster timelines, but it appears that the government will fight them every step of the way. It is important that during the fight for recognition with the federal government tribes do not turn on each other, as weakening our allies only leaves us as easy prey for the real enemy. I encourage those reading this keyword to look at all government programs and recognition criteria with a critical eye, as they do not have our best interests at heart. The government will do everything in its power to promote infighting both within and between tribes while providing federally recognized tribes the bare minimum.

Works Cited

Bushholtz, Debra. “Sovereignty and Dependence: Rights, Reservations, Recognition, Federal Recognition.” Encyclopedia of American Indian issues today, Lawson, R. M., Vol.2, 2013, 434-43. https://ebookcentral.proquest.com/lib/dartmouth-ebooks/reader.action?docID=1183923

Donald L. Fixico. Treaties with American Indians: An Encyclopedia of Rights, Conflicts, and Sovereignty [3 volumes]. ABC-CLIO, 2007. http://publisher.abc-clio.com.dartmouth.idm.oclc.org/9781576078815

“Federal Acknowledgement.” U.S. Department of the Interior, U.S. Department of the Interior, 29 Dec. 2015, www.doi.gov/ocl/federal-acknowledgement#:~:text=Under%20the%20Department%27s%20regulations%2C%20in,or%20forbidden%20the%20Federal%20relationship.

Federal Register. Authenticated U.S. Government Information, vol. 80, no. 126, 2015. https://www.govinfo.gov/content/pkg/FR-2015-07-01/pdf/2015-16193.pdf

“Fixing the Federal Acknowledgment Process.” 2009, p. 25-8. https://congressional-proquest-com.dartmouth.idm.oclc.org/congressional/docview/t29.d30.hrg-2009-ias-0020?accountid=10422

Klopotek, Brian. The long outwaiting: Federal recognition *policy in three Louisiana Indian communities, University of Minnesota, United States -- Minnesota, 2004. ProQuest, https://www.proquest.com/dissertations-theses/long-outwaiting-federal-recognition-policy-three/docview/305158487/se-2.

Montenegro, María. “Unsettling Evidence: An Anticolonial Archival Approach/Reproach to Federal Recognition.” Archival Science, vol. 19, no. 2, 2019, pp. 117–40, https://doi.org/10.1007/s10502-019-09309-9.

Murphy, M. Maureen. District Court Rejects DOI’s Ban on Tribes’ Re-Petitioning for Federal Recognition. Library of Congress Public Edition, vol. 10411, Congressional Research Service, 2020. https://crsreports.congress.gov/product/pdf/LSB/LSB10411

“Recognition.” Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-webster.com/dictionary/recognition. Accessed 18 Nov. 2024.

Rodriguez-Lonebear, Desi. “The Blood Line: Racialized Boundary Making and Citizenship among Native Nations.” Sociology of Race and Ethnicity (Thousand Oaks, Calif.), vol. 7, no. 4, 2021, pp. 527–42, https://doi.org/10.1177/2332649220981589.