Indian Issues: More Consistent and Timely Tribal Recognition	 
Process Needed (07-FEB-02, GAO-02-415T).			 
                                                                 
In 1978, the Bureau of Indian Affairs (BIA) established a	 
regulatory process for recognizing tribes. The process requires  
tribes that are petitioning for recognition to submit evidence	 
that they have continuously existed as an Indian tribe since	 
historic times. Recognition establishes a formal		 
government-to-government relationship between the United States  
and a tribe. The quasi-sovereign status created by this 	 
relationship exempts some tribal lands from most state and local 
laws and regulations, including those that regulate gambling. GAO
found that the basis for BIA's tribal recognition decisions is	 
not always clear. Although petitioning tribes must meet set	 
criteria to be granted recognition, no guidance exists to clearly
explain how to interpret key aspects of the criteria. This lack  
of guidance creates controversy and uncertainty for all parties  
about the basis for decisions. The recognition process is also	 
hampered by limited resources; a lack of time; and ineffective	 
procedures for providing information to interested third parties,
such as local municipalities and other Indian tribes. As a	 
result, the number of completed petitions waiting to be 	 
considered is growing. BIA estimates that it may take up to 15	 
years before all currently completed petitions are resolved; the 
process for evaluating a petition was supposed to take about two 
years. This testimony summarizes a November report (GAO-02-49).  
-------------------------Indexing Terms------------------------- 
REPORTNUM:   GAO-02-415T					        
    ACCNO:   A02736						        
  TITLE:     Indian Issues: More Consistent and Timely Tribal	      
Recognition Process Needed					 
     DATE:   02/07/2002 
  SUBJECT:   Eligibility criteria				 
	     Federal aid programs				 
	     Indian affairs legislation 			 
	     Intergovernmental relations			 

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GAO-02-415T
     
United States General Accounting Office

GAO Testimony

Before the Subcommittee on Energy Policy, Natural Resources and Regulatory
Affairs, Committee on Government Reform, House of Representatives

For Release on Delivery
Expected at 10:00 a.m.
Thursday, February 7, 2002 INDIAN ISSUES

More Consistent and Timely Tribal Recognition Process Needed

Statement of Barry T. Hill, Director Natural Resources and Environment

GAO-02-415T

Mr. Chairman and Members of the Subcommittee:

Thank you for the opportunity to discuss our work on the Bureau of Indian
Affairs' (BIA) regulatory process for federally recognizing Indian tribes. 1
As you know, federal recognition of an Indian tribe can have a tremendous
effect on the tribe, surrounding communities, and the nation as a whole.
There are currently 562 recognized tribes2 with a total membership of about
1.7 million. In addition, several hundred groups are currently seeking
recognition. Federally recognized tribes are eligible to participate in
federal assistance programs. In fiscal year 2000, about $4 billion was
appropriated for programs and funding almost exclusively for recognized
tribes. Additionally, recognition establishes a formal
government-to-government relationship between the United States and a tribe.
The quasi-sovereign status created by this relationship exempts certain
tribal lands from most state and local laws and regulations. Such exemptions
generally apply to lands that the federal government has taken in trust for
a tribe or its members. Currently, about 54 million acres of land are being
held in trust.3 The exemptions also include, where applicable, laws
regulating gambling. The Indian Gaming Regulatory Act of 1988,4 which
regulates Indian gambling operations, permits a tribe to operate casinos on
land in trust if the state in which it lies allows casino-like gambling and
the tribe has entered into a compact with the state regulating its gambling
businesses. In 1999, federally recognized tribes reported an estimated $10
billion in gambling revenue, surpassing the amounts that the Nevada casinos
collected that year.

In 1978, the BIA, an agency within the Department of the Interior,
established a regulatory process for recognizing tribes. The process
requires tribes that are petitioning for recognition to submit evidence that
they meet certain criteria-basically that the petitioner has continuously
existed as an Indian tribe since historic times. Owing to the rights and
benefits that accrue with recognition and the controversy surrounding

1The term "Indian tribe" encompasses all Indian tribes, bands, villages,
groups and pueblos as well as Eskimos and Aleuts.

2This number includes three tribes that were notified by the Assistant
Secretary-Indian Affairs on December 29, 2000, of the "reaffirmation" of
their federal recognition.

3Tribal lands not in trust may also be exempt from state and local
jurisdiction for certain purposes in some instances.

425 U.S.C. 2701

Indian gambling, BIA's regulatory process has been subjected to intense
scrutiny. Critics of the process claim that it produces inconsistent
decisions and takes too long. In light of the controversies surrounding the
federal recognition process, we issued a report last November5 evaluating
the BIA's regulatory recognition process and recommending ways to improve
the process.

In summary, we reported the following:

* First, the basis for BIA's tribal recognition decisions is not always
clear. While there are set criteria that petitioning tribes must meet to be
granted recognition, there is no guidance that clearly explains how to
interpret key aspects of the criteria. For example, it is not always clear
what level of evidence is sufficient to demonstrate that a tribe has
continued to exist over a period of time-a key aspect of the criteria. The
lack of guidance in this area creates controversy and uncertainty for all
parties about the basis for decisions reached. To correct this, we recommend
that the BIA develop and use transparent guidelines for interpreting key
aspects of its recognition decisions.

* Second, the recognition process is hampered by limited resources, a lack
of time frames, and ineffective procedures for providing information to
interested third parties, such as local municipalities and other Indian
tribes. As a result, there is a growing number of completed petitions
waiting to be considered. BIA officials estimate that it may take up to 15
years before all currently completed petitions are resolved; BIA's
regulations outline a process for evaluating a petition that was designed to
take about 2 years. To correct these problems, we recommend that the BIA
develop a strategy for improving the responsiveness of the recognition
process, including an assessment of needed resources.

Historically, tribes have been granted federal recognition through treaties,
by the Congress, or through administrative decisions within the executive
branch- principally by the Department of the Interior. In a 1977 report to
the Congress, the American Indian Policy Review Commission criticized the
criteria used by the department to assess whether a group should be
recognized as a tribe. Specifically, the report stated that the criteria
were

5Indian Issues: Improvements Needed in Tribal Recognition Process
(GAO-02-49, Nov. 2, 2001)

Background

not very clear and concluded that a large part of the department's tribal
recognition policy depended on which official responded to the group's
inquiries. Until the 1960s, the limited number of requests by groups to be
federally recognized gave the department the flexibility to assess a group's
status on a case-by-case basis without formal guidelines. However, in
response to an increase in the number of requests for federal recognition,
the department determined that it needed a uniform and objective approach to
evaluate these requests. In 1978, it established a regulatory process for
recognizing tribes whose relationship with the United States had either
lapsed or never been established-although tribes may seek recognition
through other avenues, such as legislation or Department of the Interior
administrative decisions unconnected to the regulatory process. In addition,
not all tribes are eligible for the regulatory process. For example, tribes
whose political relationship with the United States has been terminated by
Congress, or tribes whose members are officially part of an already
recognized tribe, are ineligible to be recognized through the regulatory
process and must seek recognition through other avenues.

The regulations lay out seven criteria that a group must meet before it can
become a federally recognized tribe. Essentially, these criteria require the
petitioner to show that it is a distinct community that has continuously
existed as a political entity since a time when the federal government
broadly acknowledged a political relationship with all Indian tribes. The
burden of proof is on petitioners to provide documentation to satisfy the
seven criteria. A technical staff within BIA, consisting of historians,
anthropologists, and genealogists, reviews the submitted documentation and
makes its recommendations on a proposed finding either for or against
recognition. Staff recommendations are subject to review by the department's
Office of the Solicitor and senior officials within BIA. The Assistant
Secretary-Indian Affairs makes the final decision regarding the proposed
finding, which is then published in the Federal Register and a period of
public comment, document submission, and response is allowed. The technical
staff reviews the comments, documentation, and responses and makes
recommendations on a final determination that are subject to the same levels
of review as a proposed finding. The process culminates in a final
determination by the Assistant Secretary who, depending on the nature of
further evidence submitted, may or may not rule the same as the proposed
finding. Petitioners and others may file requests for reconsideration with
the Interior Board of Indian Appeals.

Clearer Guidance Needed on Evidence Required for Recognition Decisions

While we found general agreement on the seven criteria that groups must meet
to be granted recognition, there is great potential for disagreement when
the question before the BIA is whether the level of available evidence is
high enough to demonstrate that a petitioner meets the criteria. The need
for clearer guidance on criteria and evidence used in recognition decisions
became evident in a number of recent cases when the previous Assistant
Secretary approved either proposed or final decisions to recognize tribes
when the staff had recommended against recognition. Much of the current
controversy surrounding the regulatory process stems from these cases.

For example, concerns over what constitutes continuous existence have
centered on the allowable gap in time during which there is limited or no
evidence that a petitioner has met one or more of the criteria. In one case,
the technical staff recommended that a petitioner not be recognized because
there was a 70-year period for which there was no evidence that the
petitioner satisfied the criteria for continuous existence as a distinct
community exhibiting political authority. The technical staff concluded that
a 70-year evidentiary gap was too long to support a finding of continuous
existence. The staff based its conclusion on precedent established through
previous decisions in which the absence of evidence for shorter periods of
time had served as grounds for finding that petitioners did not meet these
criteria. However, in this case, the previous Assistant Secretary determined
that the gap was not critical and issued a proposed finding to recognize the
petitioner, concluding that continuous existence could be presumed despite
the lack of specific evidence for a 70-year period.

The regulations state that lack of evidence is cause for denial but note
that historical situations and inherent limitations in the availability of
evidence must be considered. The regulations specifically decline to define
a permissible interval during which a group could be presumed to have
continued to exist if the group could demonstrate its existence before and
after the interval. They further state that establishing a specific interval
would be inappropriate because the significance of the interval must be
considered in light of the character of the group, its history, and the
nature of the available evidence. Finally, the regulations also note that
experience has shown that historical evidence of tribal existence is often
not available in clear, unambiguous packets relating to particular points in
time.

The department grappled with the issue of how much evidence is enough when
it updated the regulations in 1994 and intentionally left key aspects of the
criteria open to interpretation to accommodate the unique

characteristics of individual petitions. Leaving key aspects open to
interpretation increases the risk that the criteria may be applied
inconsistently to different petitioners. To mitigate this risk, BIA uses
precedents established in past decisions to provide guidance in interpreting
key aspects in the criteria. However, the regulations and accompanying
guidelines are silent regarding the role of precedent in making decisions or
the circumstances that may cause deviation from precedent. Thus,
petitioners, third parties, and future decisionmakers, who may want to
consider precedents in past decisions, have difficulty understanding the
basis for some decisions. Ultimately, BIA and the Assistant Secretary will
still have to make difficult decisions about petitions when it is unclear
whether a precedent applies or even exists. Because these circumstances
require judgment on the part of the decisionmaker, public confidence in the
BIA and the Assistant Secretary as key decisionmakers is extremely
important. A lack of clear and transparent explanations for their decisions
could cast doubt on the objectivity of the decisionmakers, making it
difficult for parties on all sides to understand and accept decisions,
regardless of the merit or direction of the decisions reached. Accordingly,
in our November report, we recommend that the Secretary of the Interior
direct the BIA to provide a clearer understanding of the basis used in
recognition decisions by developing and using transparent guidelines that
help interpret key aspects of the criteria and supporting evidence used in
federal recognition decisions. The department, in commenting on a draft of
this report, generally agreed with this recommendation.

Because of limited resources, a lack of time frames, and ineffective
procedures for providing information to interested third parties, the length
of time needed to rule on petitions is substantial. The workload of the BIA
staff assigned to evaluate recognition decisions has increased while
resources have declined. There was a large influx of completed petitions
ready to be reviewed in the mid-1990s. Of the 55 completed petitions that
BIA has received since the inception of the regulatory process in 1978, 23
(or 42 percent) were submitted between 1993 and 1997 (see fig. 1).

Recognition Process Ill-Equipped to Provide Timely Response

Figure 1: Number of Petitioning Groups in Regulatory Process

Note: Status as of the last day of each calendar year.

Source: BIA.

The chief of the branch responsible for evaluating petitions told us that,
based solely on the historic rate at which BIA has issued final
determinations, it could take 15 years to resolve all the currently
completed petitions. In contrast, the regulations outline a process for
evaluating a completed petition that should take about 2 years.

Compounding the backlog of petitions awaiting evaluation is the increased
burden of related administrative responsibilities that reduce the time
available for BIA's technical staff to evaluate petitions. Although they
could not provide precise data, members of the staff told us that this
burden has increased substantially over the years and estimate that they now
spend up to 40 percent of their time fulfilling administrative
responsibilities. In particular, there are substantial numbers of Freedom of
Information Act (FOIA) requests related to petitions. Also, petitioners and
third parties frequently file requests for reconsideration of recognition
decisions that need to be reviewed by the Interior Board of Indian Appeals,
requiring the staff to prepare the record and response to issues referred to
the Board. Finally, the regulatory process has been subject to an increasing
number of lawsuits from dissatisfied parties, filed by petitioners who have
completed the process and been denied recognition, as well as current
petitioners who are dissatisfied with the amount of time it is taking to
process their petitions.

Staff represents the vast majority of resources used by BIA to evaluate
petitions and perform related administrative duties. Despite the increased
workload faced by the BIA's technical staff, the available staff resources
to complete the workload have decreased. The number of BIA staff members
assigned to evaluate petitions peaked in 1993 at 17. However, in the last 5
years, the number of staff members has averaged less than 11, a decrease of
more than 35 percent.

In addition to the resources not keeping pace with workload, the recognition
process also lacks effective procedures for addressing the workload in a
timely manner. Although the regulations establish timelines for processing
petitions that, if met, would result in a final decision in approximately 2
years, these timelines are routinely extended, either because of BIA
resource constraints or at the request of petitioners and third parties
(upon showing good cause). As a result, only 12 of the 32 petitions that BIA
has finished reviewing were completed within 2 years or less, and all but 2
of the 13 petitions currently under review have already been under review
for more than 2 years.

While BIA may extend timelines for many reasons, it has no mechanism that
balances the need for a thorough review of a petition with the need to
complete the decision process. The decision process lacks effective time
frames that create a sense of urgency to offset the desire to consider all
information from all interested parties in the process. BIA recently dropped
one mechanism for creating a sense of urgency. In fiscal year 2000, BIA
dropped its long-term goal of reducing the number of petitions actively
being considered from its annual performance plan because the addition of
new petitions would make this goal impossible to achieve. The BIA has not
replaced it with another more realistic goal, such as reducing the number of
petitions on ready status or reducing the average time needed to process a
petition once it is placed on active status.

As third parties become more active in the recognition process-for example,
initiating inquiries and providing information-the procedures for responding
to their increased interest have not kept pace. Third parties told us that
they wanted more detailed information earlier in the process so they could
fully understand a petition and effectively comment on its merits. However,
there are no procedures for regularly providing third parties with more
detailed information. For example, while third parties are allowed to
comment on the merits of a petition prior to a proposed finding, there is no
mechanism to provide any information to third parties prior to the proposed
finding. In contrast, petitioners are provided an opportunity to respond to
any substantive comment received prior to the

proposed finding. As a result, third parties are making FOIA requests for
information on petitions much earlier in the process and often more than
once in an attempt to obtain the latest documentation submitted. Since BIA
has no procedures for efficiently responding to FOIA requests, staff members
hired as historians, genealogists, and anthropologists are pressed into
service to copy the voluminous records needed to respond to FOIA requests.

In light of these problems, we recommended in our November report that the
Secretary of the Interior direct the BIA to develop a strategy that
identifies how to improve the responsiveness of the process for federal
recognition. Such a strategy should include a systematic assessment of the
resources available and needed that leads to development of a budget
commensurate with workload. The department also generally agreed with this
recommendation.

In conclusion, the BIA's recognition process was never intended to be the
only way groups could receive federal recognition. Nevertheless, it was
intended to provide the Department of the Interior with an objective and
uniform approach by establishing specific criteria and a process for
evaluating groups seeking federal recognition. It is also the only avenue to
federal recognition that has established criteria and a public process for
determining whether groups meet the criteria. However, weaknesses in the
process have created uncertainty about the basis for recognition decisions,
calling into question the objectivity of the process. Additionally, the
amount of time it takes to make those decisions continues to frustrate
petitioners and third parties, who have a great deal at stake in resolving
tribal recognition cases. Without improvements that focus on fixing these
problems, parties involved in tribal recognition may look outside of the
regulatory process to the Congress or courts to resolve recognition issues,
preventing the process from achieving its potential to provide a more
uniform approach to tribal recognition. The result could be that the
resolution of tribal recognition cases will have less to do with the
attributes and qualities of a group as an independent political entity
deserving a government-to-government relationship with the United States,
and more to do with the resources that petitioners and third parties can
marshal to develop successful political and legal strategies.

Mr. Chairman, this completes my prepared statement. I would be happy to
respond to any questions you or other Members of the Committee may have at
this time.

Contact And For further information, please contact Barry Hill on (202)
512-3841. Individuals making key contributions to this testimony and the
report on

Acknowledgments which it was based are Robert Crystal, Charles Egan, Mark
Gaffigan, Jeffery Malcolm, and John Yakaitis.

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