Indian Issues: Timeliness of the Tribal Recognition Process Has  
Improved, but It Will Take Years to Clear the Existing Backlog of
Petitions (10-FEB-05, GAO-05-347T).				 
                                                                 
The Bureau of Indian Affairs' (BIA) regulatory process for	 
recognizing tribes was established in 1978. The process requires 
groups that are petitioning for recognition to submit evidence	 
that they meet certain criteria--basically that the petitioner	 
has continuously existed as an Indian tribe since historic times.
Critics of the process claim that it produces inconsistent	 
decisions and takes too long. Congressional policymakers have	 
struggled with the tribal recognition issue for over 27 years.	 
H.R. 4933 and H.R. 5134, introduced in the 108th Congress, and	 
H.R. 512, which was introduced last week, have focused on the	 
timeliness of the recognition process. This testimony is based in
part on GAO's report, Indian Issues: Improvements Needed in	 
Tribal Recognition Process (GAO-02-49, November 2, 2001).	 
Specifically, this testimony addresses (1) the timeliness of the 
recognition process as GAO reported in November 2001 and (2) the 
actions the Department of the Interior's Office of Federal	 
Acknowledgment has taken since 2001 to improve the timeliness of 
the recognition process.					 
-------------------------Indexing Terms------------------------- 
REPORTNUM:   GAO-05-347T					        
    ACCNO:   A17396						        
  TITLE:     Indian Issues: Timeliness of the Tribal Recognition      
Process Has Improved, but It Will Take Years to Clear the	 
Existing Backlog of Petitions					 
     DATE:   02/10/2005 
  SUBJECT:   Claims processing					 
	     Evaluation criteria				 
	     Evaluation methods 				 
	     Indian affairs legislation 			 
	     Internal controls					 
	     Native American claims				 
	     Strategic planning 				 
	     Policies and procedures				 
	     Timeliness 					 

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GAO-05-347T

United States Government Accountability Office

GAO Testimony

Before the Committee on Resources,

House of Representatives

For Release on Delivery

Expected at 10:00 a.m. EST INDIAN ISSUES

Thursday, February 10, 2005

  Timeliness of the Tribal Recognition Process Has Improved, but It Will Take
                Years to Clear the Existing Backlog of Petitions

Statement of Robin M. Nazzaro, Director Natural Resources and Environment

GAO-05-347T

[IMG]

February 10, 2005

INDIAN ISSUES

Timeliness of the Tribal Recognition Process Has Improved, but It Will Take
Years to Clear the Existing Backlog of Petitions

  What GAO Found

In November 2001, GAO reported that BIA's tribal recognition process was
ill equipped to provide timely responses to tribal petitions for federal
recognition. BIA's regulations outline a process for evaluating a petition
that was designed to take about 2 years. However, the process was being
hampered by limited resources, a lack of time frames, and ineffective
procedures for providing information to interested third parties, such as
local municipalities and other Indian tribes. As a result, there were a
growing number of completed petitions waiting to be considered. In 2001,
BIA officials estimated that it could take up to 15 years for all the
completed petitions to be resolved. To correct these problems, we
recommended that BIA develop a strategy that identified how to improve the
responsiveness of the process for federal recognition. Such a strategy was
to include a systematic assessment of the resources available and needed
that could lead to the development of a budget commensurate with the
workload.

While Interior's Office of Federal Acknowledgment has taken a number of
important steps to improve the responsiveness of the tribal recognition
process, it still could take 4 or more years, at current staff levels, to
work through the existing backlog of petitions currently under review, as
well as those that are ready and waiting for consideration. In response to
GAO's 2001 report, two vacancies within the Office of Federal
Acknowledgment were filled, resulting in a professional staff of three
research teams, each consisting of a cultural anthropologist, historian,
and genealogist. In addition, the September 2002 Strategic Plan, issued by
the Assistant Secretary for Indian Affairs in response to GAO's report,
has been almost completely implemented by the Office of Federal
Acknowledgment. The main impediment to completely implementing the
Strategic Plan and to making all of the information that has been compiled
more accessible to the public is the fact that BIA continues to be
disconnected from the Internet because of ongoing computer security
concerns involving Indian trust funds.

                 United States Government Accountability Office

Mr. Chairman and Members of the Committee:

Thank you for the opportunity to discuss our work on the Bureau of Indian
Affairs' (BIA) regulatory process for federally recognizing Indian
tribes.1 There are currently 562 recognized tribes in the Unites States
with a total membership of about 1.8 million. In addition, several hundred
groups are currently seeking recognition. Congressional policymakers have
struggled with the tribal recognition issue for over 27 years. Since 1977,
28 bills have been introduced to add a statutory framework for the tribal
recognition process. Additional bills have also been introduced to
recognize specific tribes; provide grants to local communities or Indian
groups involved in the tribal recognition process; or, more recently,
address the timeliness of the recognition process. H.R. 4933 and H.R.
5134, introduced in the 108th Congress, and H.R. 512, which was introduced
last week, have focused on the timeliness of the recognition process.

As you know, federal recognition of an Indian tribe can dramatically
affect economic and social conditions for the tribe and the surrounding
communities. Federally recognized tribes are eligible to participate in
federal assistance programs. In fiscal year 2004, the Congress
appropriated about $6 billion for programs and funding almost exclusively
for recognized tribes. Recognition also establishes a formal
government-togovernment relationship between the United States and a
tribe. The quasisovereign status created by this relationship exempts
certain tribal lands from most state and local laws and regulations. Such
exemptions generally apply to lands that the federal government has taken
in trust for a tribe or its members. Currently, about 54 million acres of
land are held in trust.2 The exemptions also include, where applicable,
laws regulating gaming. The Indian Gaming Regulatory Act of 1988, which
regulates Indian gaming operations, permits a tribe to operate casinos on
land in trust if the state in which it lies allows casino-like gaming and
the tribe has entered into a compact with the state regulating its gaming
businesses.3 In fiscal year 2003, federally recognized tribes reported an
estimated $16.7 billion in gaming revenue.

1In this statement the term "Indian tribe" encompasses all Indian tribes,
bands, villages, groups, and pueblos, as well as Eskimos and Aleuts.

2Tribal lands not in trust may also be exempt from state and local
jurisdiction for certain purposes in some instances.

325 U.S.C. S: 2701.

BIA's regulatory process for recognizing tribes was established in 1978.
The process requires groups that are petitioning for recognition to submit
evidence that they meet certain criteria-basically that the group has
continuously existed as an Indian tribe since historic times. Critics of
the process claim that it produces inconsistent decisions and takes too
long. In November 2001, we reported on BIA's regulatory recognition
process, including the timeliness of the process, and recommended ways to
improve it.4 We testified on this issue in February 2002 before the House
Committee on Government Reform, Subcommittee on Energy Policy, Natural
Resources and Regulatory Affairs,5 and again in September 2002 before the
Senate Committee on Indian Affairs.6 Our testimony today is based on our
November 2001 report and the actions the Department of the Interior's
Office of Federal Acknowledgment has taken to improve the timeliness of
the recognition process.7

In summary,

o  	In November 2001, we reported that BIA's tribal recognition process
was ill equipped to provide timely responses to tribal petitions for
federal recognition. BIA's regulations outline a process for evaluating a
petition that was designed to take about 2 years. However, the process was
hampered by limited resources, a lack of time frames, and ineffective
procedures for providing information to interested third parties, such as
local municipalities and other Indian tribes. As a result, there were a
growing number of completed petitions waiting to be considered. In 2001,
BIA officials estimated that it could take up to 15 years for all the
completed petitions to be resolved. To correct these problems, we
recommended that BIA develop a strategy that identified how to improve

4GAO, Indian Issues: Improvements Needed in Tribal Recognition Process,
GAO-02-49 (Washington, D.C.: Nov. 2, 2001).

5GAO, Indian Issues: More Consistent and Timely Tribal Recognition Process
Needed, GAO-02-415T (Washington, D.C.: Feb. 7, 2002).

6GAO, Indian Issues: Basis for BIA's Tribal Recognition Decisions Is Not
Always Clear, GAO-02-936T (Washington, D.C.: Sept. 17, 2002).

7In 2001, the tribal recognition process was administered by BIA's Branch
of Acknowledgment and Research. In a reorganization, effective July 27,
2003, the Branch of Acknowledgment and Research was elevated and moved
into Interior's Office of the Assistant Secretary for Indian Affairs and
renamed the Office of Federal Acknowledgment. In this statement, when
referring to our work from 2001, we will refer to the tribal recognition
process as a BIA process; in all other cases, we will refer to it as a
process within Interior's Office of Federal Acknowledgment.

the responsiveness of the process for federal recognition. Such a strategy
was to include a systematic assessment of the resources available and
needed that could lead to the development of a budget commensurate with
the workload.

o  While Interior's Office of Federal Acknowledgment has taken a number of

Background

important steps to improve the responsiveness of the tribal recognition
process it still could take 4 or more years, at current staff levels, to
work through the existing backlog of petitions currently under review, as
well as those that are ready and waiting for consideration. In response to
our 2001 report, two vacancies within the Office of Federal Acknowledgment
were filled, resulting in a professional staff of three research teams,
each consisting of a cultural anthropologist, historian, and genealogist.
In addition, the September 2002 Strategic Plan, issued by the Assistant
Secretary for Indian Affairs in response to our report, has been almost
completely implemented by the Office of Federal Acknowledgment. The main
impediment to completely implementing the Strategic Plan and to making all
of the information that has been compiled more accessible to the public is
the fact that BIA continues to be disconnected from the Internet because
of ongoing computer security concerns involving Indian trust funds.

Historically, the U.S. government has granted federal recognition through
treaties, congressional acts, or administrative decisions within the
executive branch-principally by the Department of the Interior. In a 1977
report to the Congress, the American Indian Policy Review Commission
criticized the department's tribal recognition policy. Specifically, the
report stated that the department's criteria for assessing whether a group
should be recognized as a tribe were not clear and concluded that a large
part of the department's policy depended on which official responded to
the group's inquiries. Nevertheless, until the 1960s, the limited number
of requests for federal recognition gave the department the flexibility to
assess a group's status on a case-by-case basis without formal guidelines.
However, in response to an increase in the number of requests for federal
recognition, the department determined that it needed a uniform and
objective approach to evaluate these requests. In 1978, it established a
regulatory process for recognizing tribes whose relationship with the
United States had either lapsed or never been established-although tribes
may also seek recognition through other avenues, such as legislation or
Department of the Interior administrative decisions, which are unconnected
to the regulatory process. In addition, not all tribes are eligible for
the regulatory process. For example, tribes whose political

relationship with the United States has been terminated by the Congress,
or tribes whose members are officially part of an already recognized
tribe, are ineligible to be recognized through the regulatory process and
must seek recognition through other avenues.

The 1978 regulations lay out seven criteria that a group must meet before
it can become a federally recognized tribe. Essentially, these criteria
require the petitioner to show that it is descended from a historic tribe
and is a distinct community that has continuously existed as a political
entity since a time when the federal government broadly acknowledged a
political relationship with all Indian tribes. The burden of proof is on
petitioners to provide documentation to satisfy the seven criteria. The
technical staff within Interior's Office of Federal Acknowledgment,
consisting of historians, anthropologists, and genealogists, reviews the
submitted documentation and makes recommendations on a proposed finding
either for or against recognition. Staff recommendations are subject to
review by Interior's Office of the Solicitor and senior officials within
the Office of the Assistant Secretary for Indian Affairs. The Assistant
Secretary for Indian Affairs makes the final decision regarding the
proposed finding, which is then published in the Federal Register, and a
period of public comment, document submission, and response is allowed.
The technical staff reviews the comments, documentation, and responses and
makes recommendations on a final determination that are subject to the
same levels of review as a proposed finding. The process culminates in a
final determination by the Assistant Secretary who, depending on the
nature of further evidence submitted, may or may not rule the same way as
the proposed finding. Petitioners and others may file requests for
reconsideration with the Interior Board of Indian Appeals.

Congressional policymakers have struggled with the tribal recognition
issue for decades. Since 1977, 28 bills have been introduced to add a
statutory framework for the tribal recognition process (see table 1).

Table 1: Bills Introduced to Provide a Specific Statutory Framework for
Interior's Tribal Recognition Process, as of December 31, 2004

Session of Bills introduced in the Bills introduced in Total number
Congress House of Representatives the Senate of bills

                     95      H.R. 11630            S. 2375                  6 
                             H.R. 12691                          
                             H.R. 12830                          
                             H.R. 12996                          
                             H.R. 13773                          

                                       a

                                 96 H.R. 2701 1

a a

                                      97 0

a a

                                      98 0

a a

                                      99 0

a a

100

                          101                        a                 S. 611 
                                                                       S. 912 
                          102        H.R. 3430                        S. 1315 
                          103        H.R. 2549                        S. 1844 
                                     H.R. 4462         
                          104         H.R. 671                         S. 479 
                                     H.R. 2591         
                                     H.R. 2997         

                       105                 H.R. 115                         a 
                       106                 H.R. 361                    S. 611 
                       107                H.R. 1175                    S. 504 
                                          H.R. 3548                   S. 1392 
                       108                H.R. 4213                    S. 297 
                                                                       S. 462 
                     Total      17 House bills                11 Senate bills 

Source: GAO analysis.

aNo bills introduced.

Of the House bills, only H.R. 4462 from the 103rd Congress was passed by
the full House (on October 3, 1994). None of the Senate bills have been
passed by the full Senate. Additional bills have also been introduced to
recognize specific tribes; provide grants to local communities or Indian
groups involved in the tribal recognition process; or, more recently,
address the timeliness of the recognition process. For example, H.R. 4933
and H.R. 5134, introduced in the 108th Congress, and H.R. 512, which was

  In 2001 the Recognition Process Was Ill Equipped to Provide a Timely Response

introduced last week, have focused on the timeliness of the recognition
process.

BIA's regulations outline a process for active consideration of a
completed petition that should take about 2 years. However, because of
limited resources, a lack of time frames, and ineffective procedures for
providing information to interested third parties, we reported in 2001
that the length of time needed to rule on tribal petitions for federal
recognition was substantial. At that time, the workload of the BIA staff
assigned to evaluate recognition decisions had increased while resources
had declined. There was a large influx of completed petitions ready to be
reviewed in the mid1990s. The chief of the branch responsible for
evaluating petitions told us that based solely on the historic rate at
which BIA had issued final determinations, it could take 15 years to
resolve all the completed petitions then awaiting active consideration.

Compounding the backlog of petitions awaiting evaluation in 2001 was the
increased burden of related administrative responsibilities that reduced
the proportion of time available to BIA's technical staff to evaluate
petitions. Although they could not provide precise data, members of the
staff told us that this burden had increased substantially over the years
and estimated that they spent up to 40 percent of their time fulfilling
administrative responsibilities. In particular, there were substantial
numbers of Freedom of Information Act (FOIA) requests related to
petitions. Also, petitioners and third parties frequently filed requests
for reconsideration of recognition decisions that needed to be reviewed by
the Interior Board of Indian Appeals, requiring the staff to prepare the
record and respond to issues referred to the Board. Finally, the
regulatory process had been subject to an increasing number of lawsuits
from dissatisfied parties-those petitioners who had completed the process
and had been denied recognition, as well as by petitioners who were
dissatisfied with the amount of time it was taking to process their
petitions.

Technical staff represented the vast majority of resources used by BIA to
evaluate petitions and perform related administrative duties. Despite the
increased workload faced by BIA's technical staff, the available staff
resources to complete the workload had decreased. The number of BIA staff
assigned to evaluate petitions peaked in 1993 at 17. However, from 1996
through 2000, the number of staff averaged less than 11, a decrease of
more than 35 percent.

While resources were not keeping pace with workload, the recognition
process also lacked effective procedures for addressing the workload in a
timely manner. Although the regulations established timelines for
processing petitions that, if met, would result in a final decision in
approximately 2 years, these timelines were routinely extended, either
because of BIA resource constraints or at the request of petitioners and
third parties (upon showing good cause). As a result, only 12 of the 32
petitions that BIA had finished reviewing by 2001 were completed within 2
years or less, and all but 2 of the 13 petitions under review in 2001 had
already been under review for more than 2 years.

While BIA could extend the timelines, it had no mechanism to balance the
need for a thorough review of a petition with the need to complete the
decision process. As a result, the decision process lacked effective
timelines that would have created a sense of urgency to offset the desire
to consider all information from all interested parties in the process. In
fiscal year 2000, BIA dropped its long-term goal of reducing the number of
petitions actively being considered from its annual performance plan
because the addition of new petitions would have made this goal impossible
to achieve.

We also found that as third parties, such as local municipalities and
other Indian tribes, became more active in the recognition process-for
example, initiating inquiries and providing information-the procedures for
responding to their increased interest had not kept pace. 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, in 2001 there were no procedures for regularly providing
third parties more detailed information. For example, while third parties
were allowed to comment on the merits of a petition before a proposed
finding, there was no mechanism to provide any information to third
parties before the proposed finding. As a result, third parties were
making FOIA requests for information on petitions much earlier in the
process and often more than once in an attempt to obtain the latest
documentation submitted. Since BIA had no procedures for efficiently
responding to FOIA requests, staff members hired as historians,
genealogists, and anthropologists were pressed into service to copy the
voluminous records of petitions to respond to FOIA requests.

In light of these problems, we recommended in our November 2001 report
that the Secretary of the Interior direct BIA to develop a strategy to
improve the responsiveness of the process for federal recognition. Such a
strategy was to include a systematic assessment of the resources available

  Timeliness Has Improved, but It Will Still Take Years to Clear the Existing
  Backlog of Petitions

and needed that could lead to the development of a budget commensurate
with the workload. The department generally agreed with this
recommendation.

In response to our report, Interior's Office of Federal Acknowledgment has
hired additional staff and taken a number of other important steps to
improve the responsiveness of the tribal recognition process. However, it
still could take 4 or more years, at current staff levels, to work through
the existing backlog of petitions currently under review, as well as those
ready and waiting for consideration. In response to our report, two
vacancies within Interior's Office of Federal Acknowledgment were filled,
resulting in a professional staff of three research teams, each consisting
of a cultural anthropologist, historian, and genealogist. In September
2002, the Assistant Secretary for Indian Affairs estimated that three
research teams could issue three proposed findings and three final
determinations per year and eliminate the backlog of petitions in
approximately 6 years, or by September 2008.

Through additional appropriations in fiscal years 2003 and 2004, the
Office of Federal Acknowledgment was also able to utilize two sets of
contractors to assist with the tribal recognition process. The first set
of contractors included two FOIA specialists/record managers. The second
set of contractors included three research assistants who worked with a
computer database system scanning and indexing documents to help expedite
the professional research staff evaluation of a petition. Both sets of
contractors helped make the process more accessible to petitioners and
interested parties, while increasing the productivity of the professional
staff by freeing them of administrative duties.

In addition, the September 2002 Strategic Plan, issued by the Assistant
Secretary for Indian Affairs in response to our report, has been almost
completely implemented by the Office of Federal Acknowledgment. Among
other things, the Office of Federal Acknowledgment has developed a CD-ROM
compilation of prior acknowledgment decisions and related documents that
is a valuable tool for petitions and practitioners involved in the tribal
recognition process. The main impediment to completely implementing the
Strategic Plan and to making all of the information that has been compiled
more accessible to the public is the fact that BIA continues to be
disconnected from the Internet because of ongoing computer security
concerns involving Indian trust funds.

Even though Interior's Office of Federal Acknowledgment has increased
staff resources for processing petitions and taken other actions that we
recommended, as of February 4, 2005, there were 7 petitions in active
status and 12 petitions in ready and waiting for active consideration
status. Eight of the 12 petitions have been waiting for 7 years or more,
while the 4 other petitions have been ready and waiting for active
consideration since 2003.

  Contact and Acknowledgments

(360550)

In conclusion, although Interior's recognition process is only one way by
which groups can receive federal recognition, it is the only avenue to
federal recognition that has established criteria and a public process for
determining whether groups meet the criteria. However, in the past,
limited resources, a lack of time frames, and ineffective procedures for
providing information to interested third parties resulted in substantial
wait times for Indian groups seeking federal recognition. While Interior's
Office of Federal Acknowledgment has taken a number of actions during the
past 3 years to improve the timeliness of the process, it will still take
years to work through the existing backlog of tribal recognition
petitions.

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

For further information, please contact Robin M. Nazzaro on (202) 5123841.
Individuals making key contributions to this testimony and the report on
which it was based are Charles Egan, Mark Gaffigan, and Jeffery Malcolm.

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