Victory for lobbyists in tribal reforms

Victory for lobbyists in tribal reforms
© Getty

The Obama administration has issued a set of conservative reforms to the requirements for being recognized by the government as a native tribe, handing a victory to lobbyists and lawmakers who mobilized against an earlier plan.

The Bureau of Indian Affairs (BIA) had sought to address complaints that the recognition process for tribes is outdated, costly and cumbersome, and released a draft of regulations last year intended to streamline the process.


The draft generated significant opposition, with some warning the proposal could make tribal status — and the associated federal benefits — too easy to obtain.

In the weeks before the rules became final, advocates made a last-ditch push for alterations, meeting with White House and Interior Department officials to press their concerns. 

Top aides to Sen. Chris MurphyChristopher (Chris) Scott MurphySenators huddle on Russia sanctions as tensions escalate Bipartisan Senate group discusses changes to election law Democrats face scaled-back agenda after setbacks MORE (D-Conn.), a Connecticut business group, lobbyists for a California Indian tribe and commercial gaming interests all huddled in the last month with officials tasked with reviewing BIA’s final rule.

Ultimately, the final rules issued on Monday abandoned two of the most hotly contested proposals in the draft: one that would have required petitioning tribes to prove their history dating back to 1934, rather than 1900, and another that would have allowed tribes that were previously denied recognition to apply again.

“There were some unfortunate compromises, but in order to get any positive changes — they were seen as necessary,” said Pastor John Norwood, the co-chair of the National Congress of American Indians’s (NCAI) task force on federal acknowledgement, in an email on Monday. The NCAI, an advocacy organization, supported the proposals.

The proposed rule received more than 330 individual comments and a handful of form letters, one of which had hundreds of signatures. 

Despite the backlash, a number of the letters to the BIA expressed support for the proposed rule.

“A lot of these concerns are scare tactics used by D.C. lobbyists saying that this will lead to dozens of new tribes being recognized, which could not be further from the truth,” Michael Anderson, a lawyer specializing in American Indian law, told The Hill before the BIA issued the final rules.

Economic or business interests are fueling the opposition to the rule, argued Anderson, who also served as the deputy assistant secretary for Indian Affairs during the Clinton administration.

To be recognized by the government, a tribe must prove that it has had historical and continual involvement in the community where it is based, along with a consistent government. Outside entities can try and block an application in court. The BIA has a deep backlog of applications, and a decision on recognition can sometimes take decades.

Tribes can also receive federal recognition in other ways, including through an act of Congress, but it is rare. 

Federal recognition is prized because it grants tribes certain benefits and protections, including funding from the BIA and the ability to take federal land into a trust for a reservation.

Connecticut, in particular, has a rocky history with tribes, including land-right claims and litigation lasting about a decade with three state-recognized tribes that were applying for federal acknowledgement. 

Although the three tribes were eventually denied, the draft BIA rules would have allowed them to reapply, using state acknowledgement as reasoning for recognition by the federal government.

“Senator Murphy, together with his colleagues, has been consistent in conveying our suggestions for ways the rule could be improved so as to avoid the disparate impact it would otherwise have on our state,” Chris Harris, a Murphy spokesman, told The Hill in an email before the final rule was released.

Devin Rhinerson, a lobbyist representing the Morongo Band of Mission Indians, and Tom Brierton, a lobbyist representing card clubs that the Morongo has business agreements with, were among the others who met with officials at the White House to make the case against the draft proposal. 

In congressional testimony, Robert Martin, the chairman of the Morongo Band of Mission Indians, said the plan would “dramatically weaken the federal acknowledgement process” and lead to reservation shopping among tribes looking to build casinos.

Although the final rule contains significant changes, supporters of the draft are cheering some of the reforms to the 35-year-old recognition process.

“This is a step forward and represents a win on several fronts, but not all. If the spirit of the intention behind the new regulations is actually followed, the process will be greatly improved,” Norwood said.

He said that, in the past, “the ways that the current rules have been interpreted and applied have been at random.”

Under the rules, the BIA will attempt to chip away at its application backlog by beginning a phased review process that quickly eliminates groups who cannot meet key standards.

“In the past, if a group clearly failed one or more criteria for recognition early on, the [Interior Department’s Office of Federal Acknowledgement] still had to go through and evaluate the entire petition, a process that could take months or years and waste untold staff time and funds,” a lobbyist who asked for anonymity said in an email on Monday.

The agency has also promised to be more transparent during the determination process to allow for some flexibility in the records needed to apply for federal recognition “while maintaining the existing rigor” and to provide tribes with the ability to address potential negative findings before an administrative law judge.

The fight over the regulations may not be over.

The House is set to vote on funding legislation for the Interior Department that contains language blocking the new federal acknowledgement rules.

Meanwhile, NCAI, the tribal advocacy organization, has vowed to fight for stronger rules that allow tribes denied federal recognition the right to reapply.

“We will continue to fight on this so that tribes mistreated under the previous process still have access to justice,” Norwood said. “More work needs to be done. The fight continues. We remain resolute.”