Interior resumes centuries-old fight over who is an Indian today

By Dylan Brown | 12/08/2015 07:05 AM EST

A month after round one, the bell rings today on round two of Rep. Rob Bishop’s battle with the Bureau of Indian Affairs over who should answer the most essential, uncomfortable and historically patronizing question in federal relations with Native Americans — who is a real Indian?

A month after round one, the bell rings today on round two of Rep. Rob Bishop’s battle with the Bureau of Indian Affairs over who should answer the most essential, uncomfortable and historically patronizing question in federal relations with Native Americans — who is a real Indian?

The Utah Republican’s H.R. 3764 is headed back in front of the House Natural Resources Subcommittee on Indian, Insular and Alaska Native Affairs at 11 a.m. — with implications for myriad lands and resource management issues, overseen, at least nominally, by the Interior Department.

The bill would ensure only Congress can recognize the United States has a trust responsibility to protect the distinct rights of an American Indian tribe, stripping BIA of a power Bishop says it never had just months after the agency revamped its own acknowledgement policy.


In October, Bishop and BIA Assistant Secretary Kevin Washburn sparred for the second time this year over the constitutionality of BIA’s "Part 83" process, a set of criteria the agency has used to recognize 17 tribes since 1978 (E&E Daily, Oct. 29).

In this philosophical argument that fits neatly into his larger fight against executive overreach, Bishop says BIA is circumventing Congress’ exclusive authority over Indian tribes, guaranteed by the Constitution’s Indian Commerce Clause.

Politically motivated recognition decisions by both Congress and BIA, Bishop said, have proven it’s time to pass a law setting the criteria in stone.

Bishop said he was "open and amenable" to proposed criteria, but "Congress has to be the ones making this decision."

"The politics that was supposedly removed is the only way that people get a voice in the process," he said, accusing BIA of clinging to an outdated mindset that tribes need to be protected from Congress.

The sole witness at the October hearing, Washburn responded that not only has the executive branch been involved in tribal recognition since the country’s founding, but several laws already give BIA recognition authority.

He also shook his head at Bishop’s bill codifying the old recognition criteria widely condemned as "broken" after Congress spent the last two decades demanding the agency fix the expensive, intensive process that frequently takes potential tribes decades to complete.

"We adopted a lot of improvements, none of them radical, all of them evolutionary rather than revolutionary," he said.

Washburn, an enrolled member of the Chickasaw Nation of Oklahoma, questioned Bishop’s motivations when his constitutional concerns were noticeably absent from the more than 7,000 public comments on the new rule.

"I don’t think tribes want to put that much trust in the majority of Congress," he said, citing what he labeled inflammatory rhetoric voiced in Bishop’s committee that harkens back to the dark ages of Indian policy.

The question

Just the title of the April House Indian subcommittee hearing, "The Obama Administration’s Part 83 Revisions and How They May Allow the Interior Department to Create Tribes, not Recognize Them," was enough to outrage many people in Indian Country, but it was Alaska attorney Donald Mitchell that put a "knot" in Washburn’s stomach and got the wheels of Bishop’s legislation rolling (Greenwire, April 23).

Most Indian law experts generally work with tribes, but Mitchell, a Democrat who spent more than 25 years on Capitol Hill serving as general counsel for the Alaska Federation of Natives, has become the de facto contrarian when it comes to federal recognition and other issues, testifying before Congress roughly a dozen times.

Hyperlocal by nature, Indian issues rarely leave Congress’ back burner unless casinos are involved, splitting Congress along unusual lines.

The left is generally supportive of gaming as a means for tribal economic development, but gaming controversy has led Democrats from solid-blue states like California and Connecticut to oppose the recognition of a number of groups.

In his written testimony, Mitchell said Congress has avoided addressing the larger issues since BIA introduced its regulations in 1977.

But, he argued, that doesn’t mean Congress has ever truly ceded its "plenary and exclusive power over Indian affairs," something the Supreme Court has upheld repeatedly over the centuries.

Federal officials have cited an evolving slew of laws to justify agency acknowledgement, but none hold water, according to Mitchell.

According to the BIA website, the Federally Recognized Indian Tribe List Act, passed in 1994, codified the agency’s acknowledgement process.

"Nothing in that statutory text delegates the Secretary new authority to create new federally recognized tribes. And Congress intended no such result," Mitchell wrote in his testimony, citing a House report that specified the bill would make "no changes in existing law."

Mitchell also questioned the gradual loosening of recognition criteria making it easier for groups to gain tribal recognition in both the new rule, which requires tribes to prove their existence only back to 1900 instead of 1789, and 1994 revisions, which no longer required that "substantial portion" of a group live in a specific area or community.

"In other words, a ‘federally recognized tribe’ henceforth could be a social club whose members live scattered in towns and cities across a state, and indeed throughout the nation," Mitchell wrote.

In his testimony, he noted Interior’s recognition of the Cowlitz Indian Tribe despite most of the tribe living nowhere near the reservation along Interstate 5 north of Portland, Ore.

With S. 465 aiming to recognize six new tribes in Virginia, Mitchell urged Congress to think long and hard about recognizing tribes in the 21st century.

"Is it appropriate for a group to be designated as a new ‘federally recognized tribe’ because the individuals who are members of the group each had a single great or great-great or great-great-great grandparent who was a Native American?" he wrote.

The context

One thing beyond dispute for Mitchell and other experts is that for a significant portion of American history, the goal of the United States government has been to wipe Native Americans off the map.

Recognition followed two centuries of termination and assimilation of Native American communities through wars and broken treaties.

Native Americans were gradually pushed west of the Mississippi River, then forced onto small reservations at gunpoint. Once the American landscape was conquered in the late 1800s, federal officials divided up reservations into individual parcels. President Theodore Roosevelt called allotment policy "a mighty pulverizing engine to break up the tribal mass," as Native Americans unfamiliar with private property and farming sold off their holdings to avaricious whites.

The 1934 Indian Reorganization Act ended allotment, but not Congress’ ability to dissolve tribal communities. Up until President Nixon condemned the practice, Congress outright terminated the status of more than 100 tribes, some of which are still fighting to have their status restored or lands returned (E&E Daily, Oct. 28).

Finally after the "tribal awakening" of the civil rights era, Congress issued a 1977 report arguing "in excess of 100,000 Indians" were member of tribes in need of recognition and protection.

A year later, the Bureau of Indian Affairs unveiled the regulations that would become the Part 83 process.

Congress continued recognizing tribes, but agency acknowledgement hoped to replace local political wrangling with a team of anthropologists, historians and other researchers examining historical evidence.

Seven criteria were designed to be stringent enough to preserve the unique status of Indians, but recognition often drags on for decades.

Richard Monette, a tribal law professor at the University of Wisconsin and former chairman of the Turtle Mountain Band of Chippewa Indians in North Dakota, said many unrecognized groups are tired of constant "requirement creep."

"The first tribe got recognized with an application that was about five pages long," he said. "Today, they are turning over documents that fill a small building and sometimes that is still not enough."

Congress would be "a thousand times worse," Monette said, arguing instead for legal certainty. If Congress wanted to do recognition right, it would pass a law setting the standards and delegate the work to BIA.

"Then get out of the way and let the experts do it, and fund them accordingly," he said.

Monette’s not optimistic that will happen, however, as many unrecognized tribes, particularly in California, would likely build casinos right in the backyard of established tribes that are loyal campaign contributors.

The rebuttal

Congress just needs to read its own laws, according to Robert Williams Jr., E. Thomas Sullivan professor of law and co-chairman of the Indigenous Peoples Law and Policy Program at the University of Arizona, to see that Interior already "clearly" has the power to recognize tribes under the Federally Recognized Indian Tribe List Act.

"In 1994, Congress thought it was just fine to go ahead with this process," said Williams, whose own heritage traces back to the unrecognized Lumbee Tribe of North Carolina.

Williams doesn’t want to see recognition become a "political football," but nothing is stopping Congress from overturning the law.

"Whether it’s the liberals or the conservatives [on the Supreme Court], all recognize Congress’ power as stemming from the Doctrine of Discovery and their right of conquest, and that’s the scandal of it all," he said.

Williams noted Chief Justice John Marshall asserted the United States had a right to conquer "the Indian savages" in 1823’s Johnson v. M’Intosh, and Lone Wolf v. Hitchcock, a case cited in the October hearing memo that gives Congress the authority to breach Indian treaties — a ruling Williams said is widely condemned for its the outright racism and similarities to the Supreme Court affirming 19th century bans on Chinese immigrants.

Bishop’s committee is off to a "really rocky start," Williams said, as that memo follows another arguing allotment policy that was "clearly ethnocide" had "humane" origins, comparing it to the argument that slavery wasn’t all bad for slaves.

"Just about every Indian knows allotment was a really horrible thing," he said. "The present day reality of so much of Indian Country has been shaped by that act to the detriment."

The idea of dividing Native Americans into tribes is itself a "19th century anthropological invention," Williams said, so it shouldn’t be surprising that it is incredibly difficult for anyone trying to interpret historical documents.

Add to that 200 years of "systematic, genocidal destruction of Indian peoples," and Williams said questioning groups with gaps in their history is like asking German Jews the same question about World War II.

The specter of splinter groups, offshoots of existing tribes, is raised by many members of Congress, namely in California, but Williams said rifts in tribal groups were the direct result of federal policies jamming rival tribes onto the same reservation.

"Splinter groups is just another stereotypical way to try and capture an ethnographic and cultural reality that most non-Indians have a poor understanding of because we all live in splintered communities," he said.

He also said the time and expense of federal recognition filters out any "charlatans and make-pretends and wannabes." Maybe, he said, there is a reason BIA has only recognized 17 tribes and rejected 34 others.

"I don’t know if that’s a process that’s broken or is a process that recognizes just what’s at stake," he said.

Despite residual flaws, he said Washburn, a former colleague at the University of Arizona, made a "dramatic improvement" with the new rules.

"Is it good public policy? Absolutely," he said. "Can Congress improve on it? Probably not. Leave it alone."

Williams said Bishop’s bill is likely to get vetoed if it passes, but the future remains uncertain with the Obama administration leaving Washington, D.C., in 13 months.

"It might just be setting it up on the tee depending on what happens in 2017," he said.

Schedule: The hearing is today at 11 a.m. in 1334 Longworth.

Witnesses: Utah Attorney General Sean Reyes (R); Robert Martin, chairman, Morongo Band of Mission Indians; Nicholas Mullane II, selectman, Town of North Stonington, Conn.; and Brian Patterson, president, United South and Eastern Tribes Inc.