Indian Issues: Improvements Needed in Tribal Recognition Process
(02-NOV-01, GAO-02-49).
Federal recognition enables Indian tribes to participate in
billion dollar federal assistance programs and can result in the
granting of significant rights as sovereign entities--including
exemptions from state and local jurisdiction and the ability to
establish casino gambling operations. The significance of these
benefits and rights has increased since the inception of the
Bureau of Indian Affairs' (BIA) regulatory process for federal
recognition in 1978. The Indian gambling industry has flourished
since the enactment of the Indian Gaming Regulatory Act in 1988,
with 193 tribes generating close to $10 billion in annual
revenues in 1999 from their gambling operations. Because of
weaknesses in the recognition process, the basis for BIA's tribal
recognition decisions is not always clear and the length of time
involved can be substantial. Although there are set criteria that
petitioning tribes must meet to be granted recognition, there is
no clear guidance that explains how to interpret key aspects of
the criteria. Also, the regulatory process is not equipped to
respond in a timely manner. Although workload has increased with
more detailed petitions ready for evaluation and increased
interest from third parties, the number of staff assigned to
evaluate the petitions has decreased by about 35 percent from its
peak in 1993. Just as important, the process lacks effective
procedures for promptly addressing the increased workload. In
particular, the process does not impose effective timelines that
create a sense of urgency, and procedures for providing
information to interested third parties are ineffective.
-------------------------Indexing Terms-------------------------
REPORTNUM: GAO-02-49
ACCNO: A02067
TITLE: Indian Issues: Improvements Needed in Tribal Recognition
Process
DATE: 11/02/2001
SUBJECT: Federal aid programs
Indian affairs legislation
Intergovernmental relations
HHS Administration for Native American's
Program
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GAO-02-49
Report to Congressional Requesters
United States General Accounting Office
GAO
November 2001 INDIAN ISSUES Improvements Needed in Tribal Recognition
Process
GAO- 02- 49
Page i GAO- 02- 49 Indian Issues Letter 1
Results in Brief 2 Background 3 Federal Recognition Confers Benefits and
Sovereign Rights to
Indian Tribes 5 Weaknesses Exist in the BIA Regulatory Process for
Recognizing
Tribes 10 Conclusions 19 Recommendations to the Secretary of the Interior 20
Agency Comments 20
Appendix I: How Tribes Have Become Federally Recognized 21 Appendix II: The
BIA Regulatory Tribal Recognition Process 27 Appendix III: The Rise of the
Indian Gambling Industry 32
Indian Gaming Regulatory Act 32 The Indian Gambling Industry 34 Current
Indian Gambling Legal Issues 37
Appendix IV: Comments From the Department of the Interior 39 Appendix V:
Scope and Methodology 48 Appendix VI: GAO Contact and Staff Acknowledgments
49 Tables
Table 1: Funding for IHS and BIA, Fiscal Year 2000 6 Table 2: Federal
Funding Targeted at Indians Outside of IHS and
BIA, Fiscal Year 2000 7 Table 3: Forty- seven Tribes Have Been Individually
Recognized
Since 1960 25 Contents
Page ii GAO- 02- 49 Indian Issues
Table 4: The Regulatory Process 27 Table 5: Status of Petitions, as of
August 2001 31 Table 6: How Tribes With Class II or Class III Gambling
Facilities
Were Recognized 36
Figures
Figure 1: Number of Petitioning Groups in Regulatory Process by Year 15
Figure 2: Receipt of Petitions for Recognition by Year 30 Figure 3: Indian
Gambling Revenues in Constant Dollars, 1988- 1999 35 Figure 4: Distribution
of Class III Indian Gambling Facilities 36
Page 1 GAO- 02- 49 Indian Issues
November 2, 2001 The Honorable Roy Blunt The Honorable Ernest Istook The
Honorable Nancy Johnson The Honorable Christopher Shays The Honorable Rob
Simmons The Honorable Frank Wolf House of Representatives
The federal recognition of an Indian tribe 1 can have a tremendous effect on
the tribe, surrounding communities, and the nation as a whole. Recognized
tribes and their members have almost exclusive access to about $4 billion in
funding for health, education, and other social programs provided by the
federal government. 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-
including, where applicable, laws regulating gambling. Many recognized
tribes have opened casinos and other gambling operations- some of which have
developed into successful enterprises. In 1999, federally recognized tribes
reported more gambling revenue than the Nevada casinos collected that year.
As of May 2001, there were 561 2 recognized tribes with a total membership
of about 1.7 million. In addition, several hundred groups are currently
seeking federal recognition.
In 1978, the Bureau of Indian Affairs (BIA), an agency within the Department
of the Interior, established a regulatory process intended to provide a
uniform and objective approach to recognizing tribes. This process requires
groups that are petitioning for recognition to submit evidence that they
meet certain criteria- basically that the petitioner has continued to exist
as a political and social community descended from a historic tribe. Owing
to the rights and benefits that accrue with recognition and the controversy
surrounding Indian gambling, BIA?s
1 The term ?Indian tribe? encompasses within its meaning all Indian tribes,
bands, villages, groups, and pueblos as well as Eskimos and Aleuts. 2 This
number includes three tribes that were notified by the Assistant Secretary-
Indian Affairs on December 29, 2000, of the ?reaffirmation? of their federal
recognition. The current Assistant Secretary is reconsidering these three
cases.
United States General Accounting Office Washington, DC 20548
Page 2 GAO- 02- 49 Indian Issues
regulatory process has been subject to intense scrutiny by groups seeking
recognition and other interested parties- including already recognized
tribes and affected state and local governments. Critics of the process
claim that it takes too long and produces inconsistent decisions.
Dissatisfaction with the process has led to an increasing number of lawsuits
in federal courts concerning the recognition process. In recent Congresses,
including the 107th Congress, bills were introduced to reform the
recognition process. In light of the controversies surrounding the federal
recognition process and the ongoing discussions on how to reform the
process, you asked us to review various aspects of the tribal recognition
process. As agreed with your offices, this report (1) describes the
significance of federal recognition and (2) evaluates the BIA regulatory
recognition process and makes recommendations for improvement, as necessary.
Additionally, as requested, appendix I provides a historical overview of how
tribes have been recognized; appendix II provides an explanation of the BIA
regulatory process and the status of petitions for recognition; and appendix
III provides information on Indian gambling operations.
Federal recognition makes Indian tribes eligible to participate in billion
dollar federal assistance programs and can result in the granting of
significant rights as sovereign entities- including exemptions from state
and local jurisdiction and the ability to establish casino gambling
operations. The significance of these benefits and rights has been
increasing since the inception of BIA?s regulatory process for federal
recognition in 1978. About $4 billion was appropriated for programs and
funding almost exclusively for recognized tribes in fiscal year 2000, about
a 30- percent increase in real terms from a $3- billion funding level in
1978. Today, the federal government holds title to about 54 million acres in
trust for federally recognized Indian tribes and their members. Finally, the
Indian gambling industry has flourished since the enactment of the Indian
Gaming Regulatory Act in 1988, with 193 tribes generating approximately $10
billion in annual revenues in 1999 from their gambling operations. However,
that revenue has been concentrated in a relatively few number of tribes,
with 27 tribes producing two- thirds of all revenue.
Because of weaknesses in the recognition process, the basis for BIA?s tribal
recognition decisions is not always clear and the length of time involved
can be substantial. First, while there are set criteria that petitioners
must meet to be granted recognition, there is no clear guidance that
explains how to interpret key aspects of the criteria. For example, it is
not always clear what level of evidence is sufficient to demonstrate a
Results in Brief
Page 3 GAO- 02- 49 Indian Issues
tribe?s continuous existence over a period of time- one of the key aspects
of the criteria. As a result, there is less certainty about the basis of
recognition decisions. Second, the regulatory process is not equipped to
respond in a timely manner. While workload has increased with more detailed
petitions ready for evaluation and increased interest from third parties,
the number of staff assigned to evaluate the petitions has decreased by
about 35 percent from its peak in 1993. BIA has not maintained funding for
this process in light of the increasing demands for program funding needed
to provide services to currently recognized tribes. Just as important, the
process lacks effective procedures for promptly addressing the increased
workload. In particular, the process does not impose effective timelines
that create a sense of urgency, and procedures for providing information to
interested third parties are ineffective. As a result, a number of groups
that have submitted completed petitions are still awaiting active
consideration- some for over 5 years. It may take up to 15 years to resolve
all these completed petitions, despite the fact that active consideration of
a completed petition was designed to reach a final decision in about 2
years. We are making recommendations to the Secretary of the Interior aimed
at ensuring a more predictable and timely process.
The Department of the Interior commented on a draft of this report and
generally agreed with our findings and recommendations. The Department also
provided a plan for implementing our recommendations.
Historically, tribes have been granted federal recognition through treaties,
by the Congress, or through administrative decisions within the executive
branch- principally by BIA within the Department of the Interior. (See app.
I for additional information on how tribes have been recognized.) In a 1977
report to the Congress, the American Indian Policy Review Commission found
that the criteria used by the Department to assess a group?s status were not
very clear and concluded that a large part of its 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
permitted the Department 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 approach to evaluate these requests. In 1978, it
established a regulatory process for recognizing Background
Page 4 GAO- 02- 49 Indian Issues
tribes. 3 In 1994, the Department revised the regulations to clarify what
evidence was needed to support the requirements for recognition, although
the basic criteria used to evaluate a petition were not changed. 4 In
addition, in 1997 BIA updated guidelines on the process, and in February
2000, BIA issued a notice in the Federal Register clarifying internal
processing procedures. 5
In summary, a group enters the regulatory process and becomes a petitioner
by submitting a letter of intent requesting recognition. A petitioner then
must provide documentation that addresses seven criteria that, in general,
demonstrates continuous existence as a political and social community that
is descended from a historic tribe. The technical staff within BIA?s Branch
of Acknowledgement and Research (BAR) reviews the submitted documentation,
provides technical review and assistance, and determines, with the
petitioner?s concurrence, when the petition is ready for active
consideration. Once the petition enters active consideration, the BAR staff
reviews the documented petition and makes 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, culminating with the approval of the Assistant Secretary- Indian
Affairs. After a proposed finding is approved by the Assistant Secretary, it
is published in the Federal Register
and a period of further comment, document submission, and response is
allowed. The BAR staff reviews 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 that, depending on the nature of
further evidence submitted, may or may not be the same as the proposed
finding.
Requests for reconsideration may be filed with the Interior Board of Indian
Appeals within 90 days after the final determination. This review process
can result in affirmation of the Assistant Secretary?s decision or direction
to the Assistant Secretary to issue a reconsidered determination. BIA has
received 250 petitions for recognition under this process. However, many of
these petitions consist only of letters of intent to petition or are
3 43 Fed. Reg. 39361 (Sept. 5, 1978). 4 59 Fed. Reg. 9280 (Feb. 25, 1994). 5
65 Fed. Reg. 7052 (Feb. 11, 2000).
Page 5 GAO- 02- 49 Indian Issues
petitions for which only partial documentation has been submitted. Others
are no longer active because they have been withdrawn or resolved outside
the regulatory process or because a petitioner has lost contact with BIA. In
fact, of the 250 petitions, only 55 have completed documentation that allows
them to be considered by the process. For those completed petitions, BIA has
finalized 29 decisions- 14 recognizing a tribe and 15 denying recognition.
Of the remaining 26 completed petitions, 3 decisions are pending; 13 are
under active consideration; and 10 are ready, awaiting active consideration.
A complete outline of the process and the status of the 250 petitions are
provided in appendix II.
With federal recognition, Indian tribes become eligible to participate in
billion dollar federal assistance programs and can be granted significant
privileges as sovereign entities- including exemptions from state and local
jurisdiction and the ability to establish casino gambling operations.
Federally recognized tribes and their members have almost exclusive access
to about $4 billion annually in federal funding through direct payments and
services unavailable to the general public or to Indians that are not
members of recognized tribes. For example, tribal governments can receive
direct payments to provide community services, such as health clinics or
sewer improvements, and members of tribes may be eligible for housing
programs or small business loans. The exemptions from state and local
jurisdiction for recognized tribes 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. 6 The Indian Gaming
Regulatory Act of 1988 (IGRA), 7 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, tribes collected
about $10 billion in gambling revenue.
6 Tribal lands not in trust may also be exempt from state and local
jurisdiction for certain purposes in some instances. 7 25 U. S. C. 2701.
Federal Recognition
Confers Benefits and Sovereign Rights to Indian Tribes
Page 6 GAO- 02- 49 Indian Issues
Federal recognition provides a tribe with access to special Indian programs
reserved almost exclusively for recognized tribes and their members. The
Department of Health and Human Service?s Indian Health Service (IHS) and
BIA- the two main agencies that provide funding and services to tribes and
their members- have a combined annual budget of over $4 billion (see table
1). The combined funding for the two agencies has increased by $1 billion
(in real terms) since the regulatory recognition process was established in
1978. Both agencies have established procedures for funding newly recognized
tribes. At IHS, newly recognized tribes are assigned funds on a case- by-
case basis. At BIA, newly recognized tribes with 1,500 members or less are
provided with base funding of $160,000; tribes with 1,501 to 3,000 members
are provided $300,000; and the base funding for tribes with more than 3,000
members is determined on a case- by- case basis.
Table 1: Funding for IHS and BIA, Fiscal Year 2000 Dollars in billions
Agency Funding
IHS $2.4 BIA 1.9
Total $4.3
In addition to the funding and services from IHS and BIA, the Office of
Management and Budget estimates that for fiscal year 2000 an additional $3.9
billion was appropriated for other federal programs specifically for Indians
or set- asides for Indians within larger programs (see table 2). Federal
recognition is not necessarily an eligibility requirement for these
programs. In fact, the eligibility requirements for these programs vary
widely, making it difficult to estimate the funding for programs that
require federal recognition for eligibility. Tribes may have been eligible
for some of these programs, or for similar programs, prior to their federal
recognition. For example, the Department of Housing and Urban Development
provides grant funding under the Native American Housing Assistance and
Self- Determination Act to federally recognized tribes and some nonfederally
recognized Indian groups. Additionally, Indians, as U. S. citizens, are
eligible to receive assistance from any federal program for which they meet
the eligibility requirements. Recognized Tribes Are
Entitled to Benefits From the Bureau of Indian Affairs and Other Federal
Agencies
Page 7 GAO- 02- 49 Indian Issues
Table 2: Federal Funding Targeted at Indians Outside of IHS and BIA, Fiscal
Year 2000
Dollars in billions Agency Funding
Department of Education $1.577 Department of Housing and Urban Development
0.693 Department of Health and Human Services (excluding IHS) 0.354
Department of the Interior (excluding BIA) 0.326 Department of
Transportation 0.250 Department of Agriculture 0. 198 Department of Justice
0. 195 Environmental Protection Agency 0.170 Other agencies 0. 179
Total $3.942
By 1886, Indian lands had been reduced to about 140 million acres largely on
reservations west of the Mississippi River. The federal government?s Indian
policy encouraging assimilation further reduced Indian land holdings by two-
thirds, to about 49 million acres in 1934. However, in 1934, the
government?s Indian policy changed to encourage tribal selfgovernance with
the Indian Reorganization Act. 8 The act provided the Secretary the
authority to take land in trust on behalf of federally recognized tribes or
their members. Since 1934, the total acreage held in trust by the federal
government for the benefit of tribes and their members has increased from
about 49 million to about 54 million acres.
Much of the recent controversy over recognition decisions, whether made by
the Congress or the Department, stems from events that can only occur after
a tribe is recognized. With recognition, the federal government can take
land in trust for tribes that may not have a land base or may want to add to
their land base. This raises concerns from local communities regarding the
loss of local jurisdiction over the land. For example, land taken in trust
is no longer subject to local property taxes and zoning ordinances.
Additionally, gambling may occur on land held in trust by the federal
government for tribes or their members. However, the process of taking land
in trust, like gambling, is not governed by the same laws and regulations
that govern tribal recognition. Land may be taken in trust
8 25 U. S. C. 461. Recognized Tribes May
Have Land Taken in Trust
Page 8 GAO- 02- 49 Indian Issues
through legislation or BIA regulations. The regulations governing the
landin- trust process became effective in October 1980 and set forth
criteria, including the impact on the local tax base and jurisdictional
problems, that the Secretary should consider in evaluating requests to take
land in trust. At that time the regulations did not require notification of
affected state and local communities, nor did they allow for outside
comments. Taking land in trust became more controversial with the enactment
of IGRA in 1988. In 1995, the land- in- trust regulations were revised to
require that affected state and local governments be notified of each land-
in- trust request and that they be given 30 days to submit written comments.
The revised regulations also distinguished between on- and off- reservation
acquisitions. The criteria for off- reservation acquisitions became more
stringent, and state and local governments? concerns were given more weight.
Indian gambling, a relatively new phenomenon, started in the late 1970s when
a number of Indian tribes began to establish bingo operations as a
supplemental means of funding tribal operations. However, state governments
began to question whether tribes possessed the authority to conduct gambling
independently of state regulation. Although many lower courts upheld the
tribal position, the matter was not resolved until 1987 when the U. S.
Supreme Court issued its decision in California v. Cabazon Band of Mission
Indians. 9 That decision confirmed the tribes? authority to establish
gambling operations on their reservations outside state regulation- provided
the affected state permitted some type of gambling. In 1988, the Congress
passed IGRA, which established a regulatory framework to govern Indian
gambling operations. One of the more important features of IGRA is that only
federally recognized Indian tribes may engage in gambling. IGRA established
three classes of gambling to be regulated by a combination of tribal
governments, state governments, BIA, and the National Indian Gaming
Commission (NIGC)- an entity created by IGRA to enforce IGRA requirements
and to ensure the integrity of Indian gambling operations.
Under IGRA, Class I gambling consists of social gambling for minimal prizes
or ceremonial gambling. It is regulated solely by the tribe and requires no
financial reporting to other authorities. Class II gambling consists of
gambling pull- tabs, bingo- like games, and punch boards. A tribe
9 480 U. S. 202 (1987). Recognized Tribes May
Establish Gambling Operations
Page 9 GAO- 02- 49 Indian Issues
may conduct, license, and regulate Class II gambling if (1) the state in
which the tribe is located permits such gambling for any purpose by a person
or organization and (2) the tribal governing body adopts a gambling
ordinance that is approved by NIGC. Class III gambling consists of all other
forms of gambling, including casino games, slot machines, and parimutuel
betting. 10 It, too, is only allowed in states that permit similar types of
gambling. The courts have interpreted this to mean, for example, that even
if a state only allows charitable casino nights and state- run lotteries,
tribes may operate casinos. Additionally, to balance the interests of both
the state and the tribe, IGRA requires that tribes and states negotiate a
compact regulating the tribal gambling operations. The Department of the
Interior must approve the compact. IGRA also requires a tribe to adopt a
gambling ordinance, which must be approved by NIGC.
According to the June 1999 final report of the National Gambling Impact
Study Commission, gambling revenues have proven to be a critical source of
funding for many tribal governments, providing much needed improvements in
the health, education, and welfare of Indians living on reservations across
the United States. In the 5- year span from fiscal years 1995 through 1999,
gambling revenues have almost doubled from $5.5 billion to $9.8 billion-
surpassing even Nevada with fiscal year 1999 revenues of $8.5 billion and
Atlantic City with $4.2 billion. However, of the 561 recognized tribes, only
193 tribes, or about 34 percent, actually participate in gambling and only
27 tribes (or about 5 percent) generate more than $100 million on an annual
basis. According to NIGC, during fiscal year 1999, those 27 tribes produced
two- thirds of all Indian gambling revenue-$ 6.4 billion out of total
revenues of $9.8 billion. According to the National Gambling Impact Study
Commission report, some tribes have rejected Indian gambling in referenda.
The report notes that other tribal governments are in the midst of policy
debates about whether to permit gambling and related commercial developments
on their reservations. Not all gambling facilities achieve the same benefits
or success. Some tribes operate their casinos at a loss, and a few have been
forced to close moneylosing facilities. Appendix III provides more detailed
information on Indian gambling operations.
10 Pari- mutuel betting is generally considered to include on- track, off-
track, and inter- track betting on horse racing, dog racing, and jai alai.
Page 10 GAO- 02- 49 Indian Issues
We have identified areas in the BIA regulatory process where changes could
better ensure more predictable and timely decisions. First, clearer guidance
is needed on the key aspects of the criteria and supporting evidence used in
recognition decisions. In particular, guidance is needed in instances when
limited evidence is available to demonstrate petitioner compliance with
criteria. The Department has continued to struggle with the question of what
level of evidence is sufficient to meet criteria in recognition cases. The
lack of guidance in this area creates controversy and uncertainty for all
parties about the basis for decisions reached. Second, the process is also
hampered by limited resources, a lack of time frames, and ineffective
procedures for providing information to interested third parties. 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 these currently completed petitions are resolved, despite the fact that
active consideration of a completed petition was designed to reach a final
decision in about 2 years.
BIA regulations lay out seven criteria that must all be met before a group
can become a federally recognized tribe. These criteria, if met, identify
those Indian groups with inherent sovereignty that have existed continuously
and that are entitled to a government- to- government relationship with the
United States. In general, a technical staff within BIA, consisting of
historians, anthropologists, and genealogists, evaluates the evidence
submitted by a petitioner and makes a recommendation on whether or not to
recognize the group as a tribe. After being reviewed by Bureau officials and
the Department?s Office of the Solicitor, the recommendation is presented to
the Assistant Secretary- Indian Affairs, who may accept or reject the
recommendation. The regulations also call for guidelines that explain the
criteria, the types of evidence that may be used to demonstrate particular
criteria, and other information. However, the guidelines, which were last
updated in 1997, do not provide much guidance on the consideration of the
criteria and evidence. Rather, the guidelines are generally geared toward
providing petitioners with a basic understanding of the process. The
following are seven criteria for recognition under the regulatory process:
(a) The petitioner has been identified as an American Indian entity on a
substantially continuous basis since 1900.
(b) A predominant portion of the petitioning group comprises a distinct
community and has existed as a community from historical times until the
present. Weaknesses Exist in
the BIA Regulatory Process for Recognizing Tribes
Clearer Guidance Needed on Evidence Required for Recognition Decisions
Page 11 GAO- 02- 49 Indian Issues
(c) The petitioner has maintained political influence or authority over its
members as an autonomous entity from historical times until the present.
(d) The group must provide a copy of its present governing documents and
membership criteria.
(e) The petitioner?s membership consists of individuals who descend from a
historical Indian tribe or tribes, which combined and functioned as a single
autonomous political entity.
(f) The membership of the petitioning group is composed principally of
persons who are not members of any acknowledged North American Indian tribe.
(g) Neither the petitioner nor its members are the subject of congressional
legislation that has expressly terminated or forbidden recognition.
While we found general agreement about the seven criteria that groups must
meet to be granted recognition, there is great potential for disagreement
when evidence to support the criteria is lacking. The need for clearer
guidance on criteria and evidence used in recognition decisions became
evident in a number of recent cases. The BIA technical staff, in conducting
a detailed review of the evidence submitted, relies on precedents from past
decisions in assessing whether a petitioner meets the criteria in order to
ensure consistency in its recommendations. However, the Assistant Secretary
has rejected several recent recommendations made by the technical staff, all
resulting in either proposed or final decisions to recognize tribes when the
staff had recommended against recognition. While the technical staff claims
that its recommendations were based on precedent, transparent guidance on
past precedents is not readily available to affected parties or the
decisionmaker. At the same time, while the Assistant Secretary is charged
with making the final decisions, it is not always clear why the Assistant
Secretary differed with the technical staff recommendations. Much of the
current controversy surrounding the regulatory process stems from these
cases.
The regulations state that lack of evidence is cause for denial, but they
note that historical situations and inherent limitations in the availability
of evidence must be considered. At the heart of the recent differences
between the staff?s recommendations and the Assistant Secretary?s decisions
are different positions on what is required to support two key aspects of
the criteria. In particular, there are differences over (1) what is
Page 12 GAO- 02- 49 Indian Issues
needed to demonstrate continuous existence and (2) the proportion of members
of the petitioning group that must demonstrate descent from a historic
tribe.
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 these 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 where 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 Assistant Secretary 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 1997 guidelines generally do not provide any discussion of past
precedents in dealing with gaps in evidence when trying to meet the
continuous existence criterion. Furthermore, while the regulations allow for
the consideration of reasons that might limit available evidence, the
Assistant Secretary?s decision did not explain why evidence might be
limited. Such an explanation would seem appropriate as part of the report
called for in the regulations that summarizes the evidence, reasoning, and
analyses that are the basis for proposed findings.
The Department has grappled with this issue in the past. In updating the
recognition regulations in 1994, it noted that the primary question of
evidence in recognition cases is usually not how to weigh evidence for and
against a position, but whether the level of evidence is high enough, even
in the absence of negative evidence, to demonstrate meeting a criterion. For
example, the 1994 regulations clarify the standard for demonstrating
continuous existence by requiring that a petitioner demonstrate that it
meets the criterion of a distinct community with political authority on a
?substantially continuous basis? and by explaining that this does not
require meeting the criterion at every point in time. However, 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. BIA stated
that establishing a specific interval would be inappropriate because the
significance of the interval must be considered in light of the character of
Page 13 GAO- 02- 49 Indian Issues
the group, its history, and the nature of the available evidence. BIA also
noted that its experience has been that historical evidence of tribal
existence is often not available in clear, unambiguous packets relating to
particular points in time. While the consideration of continuous existence
in light of limited evidence in different historical circumstances will
always be a difficult issue, the 1997 guidelines, which could provide
guidance based on how this issue was handled in previous cases, are largely
silent on this issue.
Another key aspect of criteria that has stirred up controversy and created
uncertainty is the proportion of a petitioner?s membership that must
demonstrate that it meets the criterion of descent from a historic Indian
tribe. In one case, the technical staff recommended that a petitioner not be
recognized because the petitioner could only demonstrate that 48 percent of
its members were descendents. The technical staff concluded that finding
that the petitioner had satisfied this criterion would have been a departure
from precedent established through previous decisions in which petitioners
found to meet this criterion had demonstrated a higher percentage of
membership descent from a historic tribe. However, in the proposed finding,
the Assistant Secretary found that the petitioner satisfied the criterion.
The Assistant Secretary told us that this decision was not consistent with
previous decisions by other Assistant Secretaries but that he believed the
decision to be fair because the standard used for previous decisions was
unfairly high. Clear guidance on this aspect of the criterion is lacking.
The 1997 guidelines do not provide any information on past precedents used
in assessing a petitioner?s ability to demonstrate descent. Further, the
Assistant Secretary?s written decision did not explain why evidence might be
limited and perhaps cause a deviation from past precedent or why past
standards were unfairly high in this case. Without such an explanation, the
report, which the regulations call for to summarize the evidence, reasoning,
and analyses that serve as the basis for proposed findings, is incomplete.
When the Department revised the regulations in 1994, it clarified what was
required of petitioners to meet the criterion of membership descent from
historic tribes to a modest extent. However, the Department stated that it
intentionally avoided establishing a specific percentage of members required
to demonstrate descent because the significance of the percentage varies
with the history and nature of the petitioner and the particular reasons why
a portion of the membership may not meet the requirements of the criterion.
The current language under the criterion only states that a petitioner?s
membership must consist of individuals who descend from historic tribes- no
minimum percentage or quantifying term
Page 14 GAO- 02- 49 Indian Issues
such as ?most? or ?some? is used; the 1997 guidelines note only that it need
not be 100 percent demonstrated. Again, the 1997 guidelines provide no
discussion of past precedents to provide guidance on how this issue was
handled in the past.
While the 1994 revision to the regulations helped clarify what is required
of petitioners to be granted federal recognition, the Department
intentionally left key aspects of the criteria open to interpretation to
accommodate the unique characteristics of individual petitions. However,
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. A February 2000
Federal Register notice concerning changes to the internal processing of
recognition petitions states that the process will continue to apply the
precedents established in past decisions. 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, it becomes difficult for petitioners, third parties, and future
decisionmakers- who may want to consider precedents in past decisions- to
understand the basis for some decisions reached. If there are precedents
regarding aspects of criteria like continuous existence and the proportion
of membership demonstrating descent, it is not clear what they are or how
that information is made available to petitioners, third parties, and
decisionmakers. 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 the
judgment of the decisionmaker, acceptance of BIA and the Assistant Secretary
as key decisionmakers is extremely important. A lack of clear and
transparent explanations of the decisions reached may cast doubt on the
objectivity of decisionmakers, making it difficult for parties on all sides
to understand and accept decisions, regardless of the merit or direction of
the decisions reached.
Because of limited resources, a lack of time frames, and ineffective
procedures for providing information to interested third parties, the length
of time involved in reaching final decisions is substantial. The workload of
BIA staff assigned to evaluate recognition decisions has increased while
resources have declined. BIA, working in conjunction with a petitioner to
ensure that all documentation is provided, determines when a petition is
complete and thus ready for active consideration (ready status). Once a
petition is deemed ready for active consideration, petitioners and other
Process Ill Equipped to
Provide Timely Response
Page 15 GAO- 02- 49 Indian Issues
interested parties must wait until BIA has staff available to begin active
consideration. BIA begins active consideration of the complete petition
(active status) based on the order in which petitioners entered ready
status. There was a large influx of petitions placed into ready status in
the mid- 1990s. Of the 55 petitions that BIA has placed in ready status
since the inception of the regulatory process in 1978, 23 (42 percent) were
placed there between 1993 and 1997 (see fig. 1).
Figure 1: Number of Petitioning Groups in Regulatory Process by Year
Note: Status as of the last day of each calendar year. Source: BIA.
There are currently 10 petitions in ready status- and 6 of these have been
waiting at least 5 years. In addition, BIA staff is fully committed to the
active consideration of another 13 petitions. According to BIA staff, the
petitions under active consideration and those awaiting review are becoming
more complex and detailed as both petitioners and third parties, with
increasing interests at stake, commit significant resources to their
petitions and comments. The chief of the branch that is responsible for
Page 16 GAO- 02- 49 Indian Issues
evaluating petitions told us that, based solely on the historic rate at
which BIA has issued final determinations, 11 it could take 15 years to
resolve all the petitions currently awaiting active consideration. In
contrast, the regulations outline a process for active consideration of a
completed petition that should take about 2 years.
Compounding the backlog of petitions awaiting evaluation, the increased
number of related administrative responsibilities that the technical staff
must assume further limits the proportion of their time spent on evaluating
petitions. Although it could not provide precise data, BIA technical staff
estimated that it spends up to 40 percent of its time on administrative
responsibilities. In particular, there are substantial numbers of Freedom of
Information Act (FOIA) requests for information related to petitions. Also,
petitioners and third parties frequently file requests for reconsideration
of recognition decisions that are 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. These lawsuits
include 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. BIA is currently
involved with 17 cases before Federal Circuit and District Courts concerning
the recognition process. Eight of these cases are inactive for a variety of
reasons such as the courts awaiting BIA action on pending petitions.
However, depending on circumstances, these inactive cases may be reactivated
at any moment.
While the workload associated with evaluating petitions for recognition has
increased, the available resources have decreased. Staff represents the vast
majority of resources used by BIA to evaluate petitions and perform related
administrative duties. The number of BIA staff assigned to evaluate
petitions peaked in 1993 at 17. However, in the last 5 years, the number of
staff has averaged less than 11, a decrease of more than 35 percent. BIA,
responsible for a wide variety of programs for recognized tribes, faced
overall funding cutbacks in the mid- 1990s. Given the need for funding to
provide services to currently recognized tribes, funding for staffing the
recognition process was not as high a priority. As a result, BIA made no
11 Besides through final determinations, petitions have also been resolved
in other ways. For example, when petitioners were recognized legislatively,
merged with other petitioners, or withdrew from the process.
Page 17 GAO- 02- 49 Indian Issues
request for additional staff from fiscal years 1995 through 2000 and only
requested one additional staff person for fiscal years 2001 and 2002. In
contrast to other federal resources for recognition issues, less funding has
been provided within BIA to process petitions than has been provided in
federal grants to petitioning groups through a program administered by the
Department of Health and Human Service?s Administration for Native
American?s (ANA) program. In fiscal year 2000, estimated funding for BIA
staff evaluating petitions and related costs was about $900,000, while
funding for the ANA grants has averaged about $1.8 million a year for the
last 9 years.
While resources have not kept pace with workload, the process also lacks
effective procedures for addressing the workload in a timely manner. The
process lacks any real timelines that impose a sense of urgency on the
process. There are no time frames established for petitioners to submit
documentation with their letters of intent to petition. While BIA has
received 250 petitions for recognition, many of these are only letters of
intent, and in some instances, BIA has received nothing else in over 20
years. Even when documentation is submitted, BIA has no time frames to
review it in order to provide technical assistance, nor is there any
schedule for the initiation of active consideration. As a result, only 55
petitions have reached the stage where they are complete and ready for
active consideration. Once active consideration begins, the regulations do
establish timelines that, if met, would result in a final decision in
approximately 2 years. However, these timelines for processing petitions are
routinely extended because of BIA resource constraints and at the request of
petitioners and third parties. BIA has completed active consideration for
only 32 of the 55 petitions- with only 12 of 32 petitions completed within 2
years or less. 12 Of the remaining 23 completed petitions, only 13 are
currently active, with 10 more petitions waiting. All but 2 of the 13
currently active petitions have already been active for more than 2 years- 2
of them longer than 10 years. Of the 10 petitions waiting active
consideration, more than half have been waiting for over 5 years. Without
any effective schedule for the process from the beginning to the end, it
will become increasingly difficult for BIA to complete its assigned duties
in evaluating petitions in a timely manner.
12 Although 32 petitions have completed active consideration, only 29 have
been finalized. The remaining three petitions are pending.
Page 18 GAO- 02- 49 Indian Issues
While timelines have been extended for many reasons, including BIA resource
constraints and requests by petitioners and third parties (upon showing good
cause), BIA has no mechanism to balance the need for a thorough review of a
petition with the need to complete the decision process. The decision
process lacks effective timelines that create a sense of urgency to offset
the desire to consider all information from all interested parties in the
process. BIA has argued that it cannot guarantee timelines because it cannot
predict future workload or behavior of petitioners and third parties.
However, these decisions may be taken away from BIA as petitioners,
frustrated by the length of time to process petitions, successfully gain
court intervention that establishes scheduled timelines. At least one
petitioner filed a lawsuit in federal court just to maintain its place in
line. While each petition differs, BIA may look to the model offered in one
lawsuit where all parties- petitioner, third parties, and BIA- agreed to a
compromise schedule encouraged and endorsed by the court. On a broader
level, BIA recently dropped one mechanism for creating a sense of urgency.
In fiscal year 2000, BIA dropped its long- term goal to reduce 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 Bureau did not replace 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, procedures
for responding to their increased interest have not kept pace. Once BIA
provides interested third parties the report summarizing the evidence,
reasoning, and analysis behind a proposed finding, the parties have 180 days
to submit arguments and evidence to rebut or support the proposed finding.
However, based on the number of FOIA requests that BIA has received
regarding recognition petitions, it appears that many parties believe this
amount of time is insufficient. Third parties told us they wanted more
detailed information earlier in the process so that they could fully
understand a petition and effectively comment on its merits. However, there
are no procedures for regularly providing third parties 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. BIA has no
Page 19 GAO- 02- 49 Indian Issues
procedures for efficiently responding to FOIA requests. Staff members hired
as historians, genealogists, and anthropologists are pressed into service to
copy the voluminous records of petitions in order to respond to FOIA
requests. In addition, much of the information, particularly the information
related to membership lists and the demonstration of descent, involves
sensitive information subject to the protections of the Privacy Act.
Therefore, all information must be reviewed and redacted, as appropriate, to
ensure that sensitive information is not released. While additional
resources to handle FOIA requests may help, improved procedures that address
the elevated interest of third parties could alleviate some of the multiple
FOIA requests that third parties view as their only means to meaningful
participation in the process.
Although the regulation- based recognition process was never intended to be
the only way groups could receive federal recognition, it was intended to
provide a clear, uniform, and objective approach for the Department of the
Interior that established 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 create uncertainty about the basis for recognition decisions, and
the amount of time it takes to make those decisions impede the process from
fulfilling its promise as a uniform approach to tribal recognition.
Questions about the level of evidence required to meet the criteria and the
basis for decisions reached will continue without more transparent guidance.
In addition, the increasing amount of time involved in the process will
continue 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, confidence in the regulatory process as an
objective and efficient approach will erode. As a result, parties involved
in tribal recognition may look outside of the regulatory process to the
Congress or courts to resolve recognition issues, which has the potential to
undermine the entire regulatory process. The end 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 of 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 a successful political and legal strategy.
Conclusions
Page 20 GAO- 02- 49 Indian Issues
To ensure more predictable and timely tribal recognition decisions, we
recommend that the Secretary of the Interior direct 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 and develop a strategy that identifies how to improve the
responsiveness of the
process for federal recognition. This strategy should include a systematic
assessment of the resources available and needed that leads to development
of a budget commensurate with workload.
We provided the Department of the Interior with a draft of this report. The
Department generally agreed with our findings and recommendations and
provided a plan for implementing our recommendations. These comments and the
plan are reprinted in appendix IV. The Department also provided us with
technical comments on the draft and we made corrections where appropriate.
We conducted our work from October 2000 through September 2001 in accordance
with generally accepted government auditing standards. Appendix V explains
our methodology in detail.
We are sending copies of this report to the Secretary of the Interior, the
Assistant Secretary- Indian Affairs, and interested congressional
committees. We will make copies available to others on request.
If you or your staff have any questions on this report, please call me or
Mark Gaffigan on (202) 512- 3841. Key contributors are listed in appendix
VI.
Barry T. Hill Director, Natural Resources
and Environment Recommendations to
the Secretary of the Interior
Agency Comments
Appendix I: How Tribes Have Become Federally Recognized
Page 21 GAO- 02- 49 Indian Issues
The United States has recognized Indian tribes under a variety of
circumstances. There are 556 tribes on the Bureau of Indian Affairs? (BIA)
most recent list of recognized tribes published in March 2000. 1 Since then,
another five tribes have been recognized, for a total of 561 federally
recognized tribes. Although BIA only published its first list of recognized
tribes in 1979, the federal government has ?recognized? tribes since
colonial times- although the term was not used until much later. In early
American history, the government acknowledged such relationships through
treaties and agreements with tribal governments. Recognition means that a
tribe is formally recognized as a sovereign entity with a government- to-
government relationship with the United States. The basic concept underlying
Indian sovereignty is that it is not granted by the Congress but rather is
an inherent status of the tribe that has never been lost or extinguished.
Although all recognized tribes have the same sovereignty and political
relationship with the United States regardless of the means by which they
were recognized, why they are on the list, or how they got on the list,
varies significantly.
About 92 percent of the 561 currently recognized tribes either were part of
the federal effort to reorganize and strengthen tribal governments in the
1930s or were part of a group of Alaskan tribes that were determined to have
existing governmental relations with the United States when BIA?s first list
of recognized tribes appeared in 1979. The remaining 8 percent- 47 tribes-
were individually recognized between 1960 and the present by the Congress or
the Department of the Interior. Of these, the Congress recognized 16 tribes
and the Department of the Interior recognized 31 tribes. Of the 31 tribes
that the Department of the Interior recognized, 14 were recognized through
the BIA regulatory process established in 1978, 10 through administrative
decisions before the regulatory process was established, and 7 through
administrative decisions after the regulatory process was established and
outside of the process.
There are 292 tribes on the current list of recognized tribes that can trace
their federal recognition at least back to the era of the Indian
Reorganization Act of 1934 (IRA) and related laws. 2 These laws helped
1 65 Fed. Reg. 13298 (Mar. 13, 2000). 2 Although many IRA provisions did not
originally apply to the Territory of Alaska or the state of Oklahoma, the
Alaskan Reorganization Act and the Oklahoma Indian Welfare Act included
similar provisions and explicitly extended other IRA provisions to Alaska
and Oklahoma in 1936. Appendix I: How Tribes Have Become
Federally Recognized
Appendix I: How Tribes Have Become Federally Recognized
Page 22 GAO- 02- 49 Indian Issues
define and create the tribal governments that exist today. Tribal
governments had been severely weakened by earlier federal Indian policy. In
1830, the federal government formally established the removal policy of
exchanging federal lands west of the Mississippi for lands held by Indian
tribes in the east and eventually developed a system of reservations to
house them. In the ensuing dispersion, many tribes wound up splintered among
two or more reservations or placed with other tribes on a single
reservation. Then, beginning in the 1880s, federal Indian policy shifted to
emphasize the assimilation of Indians into mainstream cultures by dividing
reservation land into individual allotments, terminating historical tribal
governments, and suppressing Indian customs and tribal laws. In the 1920s,
federal Indian policy shifted once more; this time away from isolationism
and assimilation and toward tribal self- governance, culminating in IRA.
IRA established a process to form stronger tribal governments and terminated
the federal policy of breaking up reservations. Tribes on reservations were
granted authority to reorganize their governments and adopt a constitution,
and groups of tribes residing on the same reservation could reorganize into
a single tribe by adopting a constitution. The act, however, does not apply
to any reservation where the majority of adult Indians, in a special
election called by the Secretary of the Interior, voted against it. In
calling these elections, the Secretary of the Interior made determinations
that, in effect, recognized a particular group of Indians as a tribe. In
making these determinations, the Secretary considered whether the group
had existing treaty relations with the United States or had been
designated a tribe by an act of the Congress or an executive order; had
been treated as having collective rights in tribal lands or funds, even
though not expressly designated as a tribe; had been treated as a tribe by
other tribes; and had exercised political authority over its members by a
tribal council or
other form of government. The Secretary also considered factors of lesser
importance, such as the existence of special appropriation items for the
group and the social solidarity of the group. In addition to these tribes,
known as historic tribes, IRA allowed Indians without a common tribal
affiliation to organize into tribes. Indian residents of a reservation at
the time the act was passed could organize as a tribe by adopting a
constitution. Also, groups of Indians who were not residents of a
reservation yet whose members were
Appendix I: How Tribes Have Become Federally Recognized
Page 23 GAO- 02- 49 Indian Issues
one- half or more Indian blood were permitted to organize under the act if
the Secretary of the Interior established a reservation for them.
For a brief period, federal Indian policy reverted to assimilation during
the 1950s and 1960s . As a result of legislation during this time, the
political relationship with some tribes was terminated. Termination by the
Congress, however, did not terminate the tribes? existence, but only the U.
S. government?s relation with the tribes. While the Congress and federal
courts restored federal recognition to 37 of these terminated tribes- the
most recent in December 2000- relations with many other terminated tribes
were not restored. Because the Congress terminated these tribes, the tribes
are not eligible to be recognized through the regulatory process.
The names of 222 Alaskan tribes now appear on BIA?s current list of
recognized tribes. These were determined to have governmental relations with
the United States at the time the first list was published in 1979. However,
these tribes were not included in the first list because they were not
completely identified and their status remained uncertain until 1993.
According to one Department official involved in developing the first list,
Alaskan tribes were not included in the list because of errors in the list
and confusion over the political status of Alaskan tribes created by
provisions of a 1936 amendment to IRA, which instructed most Alaskan tribes
to be brought under the act. In 1993, the Department of the Interior?s
Office of the Solicitor issued a comprehensive opinion analyzing the status
of Alaskan tribes and determined that they were tribes in the same sense as
tribes in the contiguous 48 states. BIA then identified 222 Alaskan tribes
and included them on the list of recognized tribes published in October
1993.
The remaining 47 tribes have been individually recognized since 1960 (see
table 3 at the end of this appendix). The Congress has recognized 16 of
these tribes through legislation. Although the Congress?s power to recognize
a group as a tribe is not unlimited, it is loosely defined. The Supreme
Court ruled in United States v. Sandoval that the Congress may not
arbitrarily recognize a group or a community as a tribe. 3 However, the only
practical limitations upon congressional decisions as to tribal existence
are the broad requirements that (1) the group have some ancestors who lived
in what is now the United States before discovery by Europeans and (2) the
group be a ?people distinct from others.? In some
3 231 U. S. 28 (1913).
Appendix I: How Tribes Have Become Federally Recognized
Page 24 GAO- 02- 49 Indian Issues
instances, the Congress recognized tribes as part of a land settlement claim
in New England. In other instances, groups that had been previously
considered part of an already recognized tribe were recognized as a separate
tribe. In still other cases, the Congress simply granted recognition.
According to Department officials, the underlying position of the
administration has always been that the executive branch can correct
mistakes and oversights regarding which groups the federal government
recognizes as Indian tribes but cannot create new tribes. The essential
prerequisite for recognition is the tribe?s continuous existence as a
political entity since a time when the federal government broadly
acknowledged a political relationship with all Indian tribes. The regulatory
process was established to recognize tribes whose relationship with the
United States had either lapsed or never been established. Tribes recognized
through the regulatory process had to provide evidence that they satisfied
the seven criteria, including that the tribe has continually existed from
historical times to the present and that its members descended from a
historic tribe. The Department of the Interior has individually recognized a
total of 31 tribes. Of these, 14 tribes were recognized through the BIA
regulatory process and 17 outside of the regulatory process through
administrative decisions- 10 before the regulatory process was established
and 7 after it was established.
Of the seven tribes recognized outside the regulatory process established in
1978, one had its continuous existence as a federally recognized tribe
substantiated just months after the regulatory process was established; one
was established as a ?half- blood community? as defined under provisions of
IRA; one was reclassified as an independent tribe that previously had been
dealt with as part of another recognized tribe; and one was recognized
because land had been taken in trust on its behalf, indicating that it had a
political relationship with the United States. In the three other instances,
the Assistant Secretary recently ?reaffirmed? the tribes? federal
recognition, ruling that their historical political relationship with the
United States had not lapsed, citing a BIA administrative error that caused
the names of the tribes not to be placed on the list of recognized tribes.
Members of the BIA staff responsible for implementing the BIA regulatory
process for recognizing tribes took issue with the Assistant Secretary?s
three recent ?reaffirmations? because of factual concerns about the groups
that were to be recognized and because the decisions were recognitions
outside of the regulatory process. In particular, they thought that the
groups should have gone through the regulatory process because the
regulations provided for a review of
Appendix I: How Tribes Have Become Federally Recognized
Page 25 GAO- 02- 49 Indian Issues
groups that had previously been unambiguously recognized but whose present
status was now uncertain.
Table 3: Forty- seven Tribes Have Been Individually Recognized Since 1960
Tribe name How the tribe was recognized Date the tribe was
recognized
Miccosukee Tribe of Indians of Florida Decision by an Assistant Secretary of
the Interior Nov. 17, 1961 Burns Paiute Tribe of the Burns Paiute Indian
Colony of Oregon Department of the Interior Solicitor?s opinion Nov. 16,
1967 Nooksack Indian Tribe of Washington Department of the Interior
Solicitor?s opinion Aug. 13, 1971 Upper Skagit Indian Tribe of Washington
Decision by the Deputy Commissioner for Indian
Affairs June 9, 1972 Sauk- Suiattle Indian Tribe of Washington Decision by
the Deputy Commissioner for Indian
Affairs June 9, 1972 Passamaquoddy Tribe of Maine Administrative decision a
June 29, 1972 Penobscot Tribe of Maine Administrative decision a July 14,
1972 Sault Ste. Marie Tribe of Chippewa Indians of Michigan Decision by the
Deputy Commissioner for Indian
Affairs/ clarified by Department of the Interior Solicitor?s opinion (2/ 27/
74)
Sept. 7, 1972 Tonto Apache Tribe of Arizona Congressional recognition (P. L.
92- 470) Oct. 6, 1972 Coushatta Tribe of Louisiana Decision by the Assistant
to the Secretary of the
Interior June 27, 1973 Stillaguamish Tribe of Washington Decision by the
Acting Secretary of the Interior
responding to Stillaquamish Tribe v. Klepp Oct. 27, 1976 Modoc Tribe of
Oklahoma Congressional recognition (P. L. 95- 281) May 15, 1978 Pascua Yaqui
Tribe of Arizona Congressional recognition (P. L. 95- 375) Sept. 18, 1978
Karuk Tribe of California Decision by the Assistant Secretary- Indian
Affairs Jan. 15, 1979 Grand Traverse Band of Ottawa & Chippewa Indians of
Michigan Administrative recognition under 25 C. F. R. 83 May 27, 1980
Houlton Band of Maliseet Indians of Maine Congressional recognition (P. L.
96- 420); land claim
settlement Oct. 10, 1980 Jamestown S?Klallam Tribe of Washington
Administrative recognition under 25 C. F. R. 83 Feb. 10, 1981 Jamul Indian
Village of California Deputy Assistant Secretary- Indian Affairs
designation as half- blood community July 7, 1981 Tunica- Biloxi Indian
Tribe of Louisiana Administrative recognition under 25 C. F. R. 83 Sept. 25,
1981 Cow Creek Band of Umpqua Indians of Oregon Congressional recognition
(P. L. 97- 391) Dec. 29, 1982 Death Valley Timbi- Sha Shoshone Band of
California Administrative recognition under 25 C. F. R. 83 Jan. 3, 1983
Kickapoo Traditional Tribe of Texas Congressional recognition (P. L. 97-
429) as part of
Kickapoo Tribe of Oklahoma; organized as a separate tribe on 7/ 11/ 89
Jan. 8, 1983 Narragansett Indian Tribe of Rhode Island Administrative
recognition under 25 C. F. R. 83 Apr. 11, 1983 Mashantucket Pequot Tribe of
Connecticut Congressional recognition (P. L. 98- 134); land claim
settlement Oct. 18, 1983 Poarch Band of Creek Indians of Alabama
Administrative recognition under 25 C. F. R. 83 Aug. 10, 1984 Wampanoag
Tribe of Gay Head (Aquinnah) of Massachusetts Administrative recognition
under 25 C. F. R. 83 Apr. 11, 1987 Ysleta Del Sur Pueblo of Texas
Congressional recognition (P. L. 100- 89) Aug. 18, 1987
Appendix I: How Tribes Have Become Federally Recognized
Page 26 GAO- 02- 49 Indian Issues
Tribe name How the tribe was recognized Date the tribe was recognized
Lac Vieux Desert Band of Lake Superior Chippewa Indians of Michigan
Congressional recognition (P. L. 100- 420) Sept. 8, 1988 Coquille Tribe of
Oregon Congressional recognition (P. L. 101- 42) June 28, 1989 San Juan
Southern Paiute Tribe of Arizona Administrative recognition under 25 C. F.
R. 83 Mar. 28, 1990 Aroostook Band of Micmac Indians of Maine Congressional
recognition (P. L. 102- 171); land
claim settlement Nov. 26, 1991 Ione Band of Miwok Indians of California
Decision by the Assistant Secretary- Indian Affairs Mar. 22, 1994 Mohegan
Indian Tribe of Connecticut Administrative recognition under 25 C. F. R. 83
May 14, 1994 Pokagon Band of Potawatomi Indians of Michigan Congressional
recognition (P. L. 103- 323) Sept. 21, 1994 Little River Band of Ottawa
Indians of Michigan Congressional recognition (P. L. 103- 324) Sept. 21,
1994 Little Traverse Bay Bands of Odawa Indians of Michigan Congressional
recognition (P. L. 103- 324) Sept. 21, 1994 Central Council of the Tlingit &
Haida Indian Tribes, Alaska Congressional recognition (P. L. 103- 454) Nov.
2, 1994 Jena Band of Choctaw Indians, Louisiana Administrative recognition
under 25 C. F. R. 83 Aug. 29, 1995 Huron Potawatomi, Inc., Michigan
Administrative recognition under 25 C. F. R. 83 Mar. 17, 1996 Samish Indian
Tribe, Washington Administrative recognition under 25 C. F. R. 83 Apr. 26,
1996 Delaware Tribe of Indians, Oklahoma Decision by the Assistant
Secretary- Indian Affairs;
tribe previously dealt with as part of Cherokee Nation of Oklahoma
Sept. 23, 1996 Match- e- be- nash- she- wish Band of Pottawatomi Indians of
Michigan Administrative recognition under 25 C. F. R. 83 Aug. 23, 1999
Snoqualmie Tribe, Washington Administrative recognition under 25 C. F. R. 83
Oct. 6, 1999 Loyal Shawnee Tribe, Oklahoma Congressional recognition (P. L.
106- 568); tribe
formally part of Cherokee Nation of Oklahoma Dec. 27, 2000 Lower Lake
Rancheria, California Decision by the Assistant Secretary- Indian Affairs
(reaffirmation of recognition) Dec. 29, 2000 King Salmon Tribe, Alaska
Decision by the Assistant Secretary- Indian Affairs
(reaffirmation of recognition) Dec. 29, 2000 Shoonaq? Tribe of Kodiak,
Alaska Decision by the Assistant Secretary- Indian Affairs
(reaffirmation of recognition) Dec. 29, 2000 a We determined the dates the
tribes were recognized based on the Department of the Interior?s
position that the tribes were recognized on the date the U. S. Attorney?s
Office filed an action against the state of Maine on behalf of the
Passamaqvoddy and the Penobscot in
U. S. v. Maine (Civ. Action No. 1969 N. D.) and U. S. v. Maine (Civ. Action
No. 1960 N. D.), respectively.
Appendix II: The BIA Regulatory Tribal Recognition Process
Page 27 GAO- 02- 49 Indian Issues
The regulatory process used by BIA to determine a group?s eligibility for
tribal recognition is listed in the Federal Register. The regulatory
process, which is based on regulations that were originally promulgated in
1978 and revised in 1994, 1 is summarized in table 4.
Table 4: The Regulatory Process Steps in the regulatory process Timelines
BIA receives letter of intent to petition from a group wanting to be
recognized as an Indian tribe
BIA acknowledges receipt of petition.
BIA publishes notices of receipt in the
Federal Register and local newspaper( s) within 60 days from receipt.
BIA notifies in writing the governor and attorney general of the state in
which the petitioner is located. It also notifies any other recognized tribe
or any other petitioner who appears to have a historical or present
relationship with the petitioner or which may otherwise be considered to
have a potential interest.
30 days from receipt. 60 days from receipt.
No specified time. Petitioner provides BIA with documents and evidence BIA
conducts a technical assistance (TA)
review- a preliminary review of the documented petition to provide the
petitioner an opportunity to supplement or revise the petition prior to it
being placed on active consideration- when the petition is considered in
full.
Petitioners have the option of responding to the TA review or requesting
that BIA proceed with the active consideration of the petition using the
materials already submitted.
After the group responds to the TA review and before the petition is
placed on active consideration, BIA investigates the petitioner if there is
little or no evidence that the group can meet criteria under (e), (f), or
(g). a If the review finds that the evidence clearly establishes that the
group does not meet one or more of these criteria, BIA can issue a proposed
finding declining to recognize the tribe.
No specified time. No specified time. No specified time.
Ready, waiting for active consideration The order of consideration of
petitions is determined by the date of BIA?s notification to the petitioner
that it considers the petition ready to be placed on active consideration.
N/ A
1 59 Fed. Reg. 9280 (Feb. 25, 1994). Appendix II: The BIA Regulatory Tribal
Recognition Process
Appendix II: The BIA Regulatory Tribal Recognition Process
Page 28 GAO- 02- 49 Indian Issues
Steps in the regulatory process Timelines
Active consideration BIA notifies the petitioner and interested parties
when the petition comes under active consideration. Interested parties are
third parties that can establish a legal, factual, or property interest in
the recognition decision.
BIA reviews the petition to determine whether the petitioner is entitled
to be recognized. BIA may also initiate other research for any purpose
relative to analyzing the petition and may consider any evidence submitted
by third parties.
BIA prepares a report summarizing the evidence, reasoning, and analyses
that are the basis for the recommendation it makes to the Assistant
Secretary- Indian Affairs. The Assistant Secretary then makes a proposed
determination regarding the petitioner?s status. A summary of this
determination is published in the Federal Register.
Copies of the BIA report are provided to the petitioner and third parties.
No specified time. N/ A 365 days from the time the petitioner is placed on
active consideration. May be extended.
Public comment period Upon publication of the proposed finding, the
petitioner and any third party may submit arguments and evidence to BIA to
rebut or support the proposed finding. Third parties must provide copies of
their submissions to the petitioner.
180 days from the publication of the proposed finding. May be extended.
Response by the petitioner to public comments The petitioner responds to
submissions by third parties. 60 days from the
close of public comment period. May be extended. Consultation period At
the end of the response to public
comments period, BIA consults with the petitioner and the interested parties
to determine an equitable time for consideration of arguments and evidence
submitted during the response period.
No time specified. Final determination After consideration of the
arguments and
evidence rebutting or supporting the proposed finding and the petitioner?s
response to the comments of third parties, the BIA technical staff makes a
recommendation to the Assistant Secretary- Indian Affairs, who makes a final
determination regarding the petitioner?s status. A summary of this
determination is published in the Federal Register.
60 days from the end of the consultation period. May be extended.
Appendix II: The BIA Regulatory Tribal Recognition Process
Page 29 GAO- 02- 49 Indian Issues
Steps in the regulatory process Timelines
Effective date The determination will become effective 90 days from
publication of the final determination unless the petitioner or a third
party files a request for the Interior Board of Indian Appeals to reconsider
the determination.
90 days from the publication of the final determination.
Requests for reconsideration The Board will consider requests that allege
that there is new evidence, that the evidence or research used to make the
final determination is faulty, or that there is a reasonable interpretation
of the evidence not previously considered.
Determination on whether a request for reconsideration alleges any of these
grounds made within 120 days of publication of the final determination.
Board evaluation of request The Board may establish such
procedures, as it deems appropriate to evaluate the request for
reconsideration. The Board may either affirm the decision or remand it to
the Assistant Secretary for reconsideration.
No time specified. Secretary?s discretion to request reconsideration If
the Board affirms decision, but finds
request alleges other grounds, the request is sent to the Secretary of the
Interior who has the discretion to request the Assistant Secretary to
reconsider after receiving further comments from petitioners and interested
parties.
In general, 45 days for comments. The Secretary shall decide whether to
request reconsideration within 60 days of receipt of all comments.
Reconsidered determination The Assistant Secretary shall issue a
reconsidered determination stemming from either the Board?s remand or the
Secretary?s request for reconsideration.
Within 120 days of the Board?s remand or Secretary?s request. a Criterion
(e) is: the petitioner?s membership consists of individuals who descend from
a historical
Indian tribe, or tribes which combined and functioned as a single autonomous
political entity. Criterion (f) is: the membership of the petitioning group
is composed principally of persons who are not members of any acknowledged
North American Indian tribe. Criterion (g) is: neither the petitioner nor
its members are the subject of congressional legislation that has expressly
terminated or forbidden recognition.
Source: 59 Fed. Reg. 9280 (Feb. 25, 1994).
BIA has received 250 petitions through its regulatory process. Forty of
these petitions were requests for recognition made before the inception of
the process in October 1978. There has been a general increase in the number
of petitions received per year since the passage of the Indian Gaming
Regulatory Act in 1988, which regulates Indian gambling, as shown in figure
2.
Appendix II: The BIA Regulatory Tribal Recognition Process
Page 30 GAO- 02- 49 Indian Issues
Figure 2: Receipt of Petitions for Recognition by Year
Note: BIA received 40 petitions prior to October 1978, when the regulations
became effective. These and the other petitions received during 1978 are
included in 1979.
Source: BIA.
BIA classifies petitions for tribal recognition in three categories: not
ready for evaluation (because of incomplete documentation), ready for
evaluation, and resolved. Of the 250 petitions that BIA has received, 175
are not ready to be evaluated, and of these, at least 60 are more than 10
years old. Another 20 have been resolved outside the regulatory process,
either through congressional or Department of the Interior action or through
the action of the petitioner- such as withdrawing from the process or
merging with another petitioner. Of the remaining 55 petitions, 23 petitions
are ready to be evaluated or are actively being evaluated, and 32 petitions
have completed the process, although the final outcome of 3 of these
petitions is pending. The Interior Board of Indian Appeals has sent two
petitions back to the Secretary to determine whether they should be
reconsidered, and a final determination is pending for the third. The status
of all petitions is summarized in table 5.
Appendix II: The BIA Regulatory Tribal Recognition Process
Page 31 GAO- 02- 49 Indian Issues
Table 5: Status of Petitions, as of August 2001 Not ready for evaluation 175
Petitioner has submitted a letter of intent only 105 Petitioner has not
submitted a complete petition 55 Petition inactive (petitioner is no longer
in touch with BIA or legislative action required) 15
Ready for evaluation 23
Petition is being actively considered 13 Petition is ready, waiting to be
actively considered 10
Resolved through regulatory process 32
Petitioner recognized 14 Petitioner denied recognition 15 Decision pending 3
Resolved outside the regulatory process 20
Recognized or status clarified by the Congress or the Department of the
Interior 12 Petition withdrawn 8
Total 250
Source: BIA.
Appendix III: The Rise of the Indian Gambling Industry
Page 32 GAO- 02- 49 Indian Issues
The Indian gambling industry, a relatively new phenomenon, traces its
genesis back to the late 1970s when a number of Indian tribes established
bingo operations as a supplemental means of funding tribal operations. At
about the same time, a number of state governments also began exploring the
potential for increasing state revenues through state- sponsored gambling.
By the mid 1980s, a number of states had authorized charitable gambling and
some sponsored state- run lotteries. However, tribal and state governments
soon found themselves at odds over whether tribal governments had the
authority to conduct gambling independently of state regulation. Although
many lower courts upheld the tribal position, the matter was not resolved
until 1987 when the U. S. Supreme Court issued its decision in California v.
Cabazon Band of Mission Indians. 1 That decision confirmed the authority of
tribes to establish gambling operations on their reservations outside state
regulation- provided the affected state permitted some type of gambling. At
about the same time the Cabazon case was being litigated, there was a
widespread increase of Indian bingo halls in many parts of the country. In
response to state concerns that Indian gambling would present an attractive
target for organized crime, the Congress took up the issue and passed
legislation- the Indian Gaming Regulatory Act (IGRA) in 1988- which was a
compromise between Indian and state interests. Since IGRA, Indian gambling
has grown to include 193 tribes with over 300 facilities that generated
close to $10 billion in revenue.
With the passage of IGRA in 1988, the Congress established the
jurisdictional framework that would govern Indian gambling. IGRA established
a comprehensive system for regulating gambling activities on Indian lands.
IGRA established the following three classes of gambling to be regulated by
a combination of tribal governments, state governments, BIA, and the
National Indian Gaming Commission (NIGC).
Class I gambling consists of social gambling for minimal prizes or
ceremonial gambling. It is regulated solely by the tribe, and no financial
reporting to other authorities is required. Class II gambling consists of
gambling pull- tabs, bingo- like games, and
punch boards. A tribe may conduct, license, and regulate Class II gambling
if (1) the state in which the tribe is located permits such gambling for any
purpose by a person or organization and (2) the tribal governing body adopts
a gambling ordinance that is approved by NIGC.
1 480 U. S. 202 (1987). Appendix III: The Rise of the Indian
Gambling Industry Indian Gaming Regulatory Act
Appendix III: The Rise of the Indian Gambling Industry
Page 33 GAO- 02- 49 Indian Issues
Class III gambling consists of all other forms of gambling, including
casino games, slot machines, and pari- mutuel betting. 2 Generally, Class
III gambling is often referred to as full- scale casino- style gambling.
Class III games are regulated as indicated below.
Class III gambling is only allowed in states that permit similar types of
gambling. However, class III gambling has been broadly defined under IGRA.
For example, the allowance of charitable Las Vegas nights and state- run
lotteries has sufficed to allow tribes to operate casinos. IGRA also
requires that states and tribes negotiate a tribal- state compact to balance
the interests of both the state and the tribe. The tribal- state compact is
an agreement that may include provisions concerning standards for the
operation and maintenance of the gambling facility, the application of laws
and regulations of the tribe or state that are related to the licensing and
regulation of the gambling activity, and the assessment by the state of
amounts necessary to defray the costs of regulating the gambling activity.
The Secretary of the Interior must approve any tribalstate compact and has
delegated this authority to the Assistant SecretaryIndian Affairs. As of
July 6, 2000, 24 states had negotiated 267 compacts with 212 Indian tribes.
Tribes may have compacts with more than one state, and they may also have
more than one compact for different types of games. Thirty- seven tribes had
compacts without any operating gambling facilities. IGRA also authorizes
NIGC to oversee and regulate Indian gambling activities. NIGC?s mission is
to provide fair and consistent enforcement of IGRA requirements to ensure
the integrity of Indian gambling operations. Among its responsibilities,
NIGC reviews tribal investigations of key gambling employees and management
officials and approves tribal gambling ordinances. Additionally, all Class
II and Class III gambling operations are required to submit copies of their
annual financial statement audits to NIGC.
Although the Congress intended regulatory issues to be addressed in tribal-
state compacts, it left a number of key functions in federal hands,
including approval authority over compacts, management contracts, and tribal
ordinances. IGRA specifies that the tribal ordinance concerning the conduct
of Class II or Class III gambling on Indian lands within the tribe?s
jurisdiction must provide that the net revenues from any tribal gambling are
not to be used for purposes other than to (1) fund tribal government
2 Pari- mutuel betting is generally considered to include on- track, off-
track, and inter- track betting on horse racing, dog racing, and jai alai.
Appendix III: The Rise of the Indian Gambling Industry
Page 34 GAO- 02- 49 Indian Issues
operations or programs, (2) provide for the general welfare of the Indian
tribe and its members, (3) promote tribal economic development, (4) donate
to charitable organizations, or (5) help fund operations of local government
agencies. A tribe may distribute a portion of its net revenues directly to
tribal members, provided that the tribe has a revenue allocation plan
approved by BIA. This plan should describe how the tribe intends to allocate
net revenues among various governmental, educational, and charitable
projects, including direct payments to tribal members.
Gambling revenues generated by federally recognized tribes and their
federally chartered corporations are not subject to federal income tax. The
Internal Revenue Service (IRS) has determined that tribes are political
agencies that the Congress did not intend to include within the meaning of
the income tax provisions of the Internal Revenue Code. Any income earned by
a tribe is not subject to federal income tax, regardless of whether the
business activity takes place inside or outside of Indianowned lands. On the
other hand, IRS has found that individual tribal members, like all U. S.
citizens, must pay federal income tax unless a specific exemption can be
found in a treaty or statute. In some cases, an individual tribal member may
receive general welfare payments from the tribe. Although amounts paid for
general welfare may not be taxable, payments made pro rata to all tribal
members are evidence that the payments are not based on need and, thus,
probably will not qualify for the general welfare exclusion, according to
IRS. IGRA provides that net revenues from gambling may be used to make per
capita payments to members of the Indian tribe, but only if the tribe has
prepared a revenue allocation plan to distribute revenues to uses authorized
by IGRA. The plan must be approved by the Secretary of the Interior as
adequate, especially funding for tribal government operations and promoting
tribal economic development. IGRA also requires the protection and
preservation of the interests of minors who are entitled to receive any of
the payments. Because the payments are per capita distributions of gambling
proceeds, they are generally subject to taxation.
Since the passage of IGRA in 1988, Indian gambling revenues have grown 60
fold- from $171 million in 1988 to $9.8 billion in 1999 (see fig. 3).
However, a few tribes generated most of the revenues. Although 193 tribes
have Class II or Class III gambling facilities, NIGC reports that just 27
tribes are responsible for generating more than $6.4 billion, or more than
65 percent, of the total $9.8 billion in revenues that tribes reported in
1999. The Indian Gambling
Industry
Appendix III: The Rise of the Indian Gambling Industry
Page 35 GAO- 02- 49 Indian Issues
Figure 3: Indian Gambling Revenues in Constant Dollars, 1988- 1999
Note: Conversion to 1999 constant dollars used the Consumer Price Index.
Source: Tax Policy: A Profile of the Indian Gaming Industry (GAO/ GGD- 97-
91, May 5, 1997) for years 1988 to 1994 and National Indian Gaming
Commission data for years 1995 to 1999.
Although Indian gambling is a relatively new phenomenon, most of the 193
tribes with Class II or Class III gambling facilities can trace their
existence back to the era of the Indian Reorganization Act of 1934. (See
app. I for additional information on how tribes were recognized.) Almost all
of the remaining tribes with Class II or Class III facilities had been
individually recognized since 1960. Two tribes were recognized as part of a
large group of Alaskan tribes fully identified in 1993 (see table 6).
Appendix III: The Rise of the Indian Gambling Industry
Page 36 GAO- 02- 49 Indian Issues
Table 6: How Tribes With Class II or Class III Gambling Facilities Were
Recognized Recognition category Total tribes per
category Tribes with
gambling facilities by category
Percentage of tribes with gambling facilities
by category
IRA era tribes 292 170 59 Tribes individually recognized since 1960
47 21 45 Alaskan tribes identified in 1993 222 2 < 1 percent
Total 561 193 32
As of May 15, 2001, there were about 313 Indian gambling facilities in
operation. Of this number, 234 facilities conducted some form of Class III
gambling, often in conjunction with Class II gambling. The remaining 79
facilities conducted only Class II gambling. Figure 4 shows the distribution
of facilities with Class III gambling by state.
Figure 4: Distribution of Class III Indian Gambling Facilities
Source: GAO?s analysis of NIGC data on Indian gambling facilities as of May
2001.
Appendix III: The Rise of the Indian Gambling Industry
Page 37 GAO- 02- 49 Indian Issues
As shown in figure 5, Indian gambling has become a nationwide business,
having operations in 23 states, with the heaviest concentration in the West
and Midwest. In 1999, the Indian gambling industry generated $9.8 billion
while Nevada?s and Atlantic City?s casinos reported revenues of about $9
billion and $4.2 billion, respectively, for the same period.
IGRA requires states to negotiate in good faith with Indian tribes when
forming gambling compacts. In cases where a tribe believes that the state
has not negotiated in good faith, IGRA authorizes the tribe to bring suit in
federal district court. If the court finds that the state has indeed failed
to negotiate in good faith, the court may order the state to conclude a
compact in 60 days. However, in a case decided by the U. S. Supreme Court in
March 1996, Seminole Tribe of Florida v. Florida, 3 the Court held that the
Congress did not have the constitutional authority to make the state subject
to suit in federal court and that a state could assert an Eleventh Amendment
immunity defense to avoid a lawsuit brought by the tribe. 4 The Seminole
Tribe decision did not address the issue of whether a state could
effectively prevent casino- type gambling within its borders by refusing to
negotiate in good faith and asserting sovereign immunity if the tribe sues.
Also, the Supreme Court expressed no opinion on a substitute remedy for a
tribe bringing suit.
To prevent a stalemate in tribal- state compacts, the Department of the
Interior issued a regulation on April 12, 1999, for dealing with tribal-
state compacts when states and tribes cannot reach an agreement. The
regulation prescribes alternative procedures to establish Class III gambling
when a state does not waive its Eleventh Amendment immunity from a lawsuit.
The regulation authorizes the tribe to submit a proposal to the Department
to establish gambling procedures. The Department must notify the state of
the tribe?s request and solicit the state?s comments on the tribe?s proposed
procedures, including any comments on the proposed scope of gambling. The
state is invited to submit alternative proposed procedures. Based on its
review of the proposed submissions, the Assistant Secretary- Indian Affairs
may approve the tribe?s proposal or
3 517 U. S. 44 (1996). 4 The Eleventh Amendment states: ?The Judicial power
of the United States shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United States by Citizens
of another State, or by Citizens or Subjects of any Foreign State.? A state,
however, may choose to waive its Eleventh Amendment immunity from suit.
Current Indian
Gambling Legal Issues
Appendix III: The Rise of the Indian Gambling Industry
Page 38 GAO- 02- 49 Indian Issues
convene an informal conference with the state and the tribe to resolve any
areas of disagreement. The states of Alabama, Florida, and Kansas have filed
suit challenging the new regulation. As of September 2001, these cases were
pending in federal court.
Appendix IV: Comments From the Department of the Interior Page 39 GAO- 02-
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Appendix IV: Comments From the Department of the Interior
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Appendix V: Scope and Methodology Page 48 GAO- 02- 49 Indian Issues
In this report, we describe the significance of federal tribal recognition,
including information on Indian gambling; evaluate the BIA?s regulatory
recognition process; and provide a historical overview of how tribes have
been recognized.
In describing the significance of federally recognizing Indian tribes, we
spoke with and obtained documents from BIA, the Department of Health and
Human Service?s Indian Health Service, and the National Indian Gaming
Commission. We also analyzed pertinent legislation and other documents.
Because the revenue collected from gambling by Indian tribes is proprietary
information, NIGC did not provide us with any tribe- specific information.
Instead, it summarized the revenue information before providing it to us.
In evaluating the BIA regulatory process, we spoke with BIA and other
Department of the Interior officials familiar with the process, including
the former Assistant Secretary- Indian Affairs, the former Deputy Assistant
Secretary- Indian Affairs, representatives for the Department?s Office of
the Solicitor, and officials from BIA?s Branch of Acknowledgment and
Research, who are responsible for implementing the regulatory process. We
also analyzed BIA records on how it processes petitions for recognition. We
did not, however, evaluate the merits of individual tribes? petitions or the
decisions regarding those petitions. We also spoke with tribal leaders who
are current petitioners or who have completed the process, experts in Indian
law and the recognition process, and representatives of state and local
governments affected by tribal recognition to obtain their views of the
recognition process.
In determining how tribes became federally recognized, we analyzed BIA and
Department of the Interior records regarding the implementation of the
Indian Reorganization Act of 1934 to identify tribes recognized at that
point in time or created by that act during the early years of its
implementation. We also analyzed other BIA and Department of the Interior
records, as well as legislation and related documentation, to determine how
other tribes became recognized. In some instances, we spoke with BIA and
Department officials who played a direct role in a tribe?s recognition.
We performed our work from October 2000 through September 2001 in accordance
with generally accepted government auditing standards. Appendix V: Scope and
Methodology
Appendix VI: GAO Contact and Staff Acknowledgments Page 49 GAO- 02- 49
Indian Issues
Mark Gaffigan (202) 512- 3168 In addition to the above named, Charles T.
Egan, Robert Crystal, Jeffery Malcolm, and John Yakaitis made key
contributions to this report. Appendix VI: GAO Contact and Staff
Acknowledgments GAO Contact Acknowledgments
(360011)
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