The Bureau of Indian Affairs' Process for Recognizing Groups as Indian Tribes

The Bureau of Indian Affairs’s Process for
Recognizing Groups as Indian Tribes
M. Maureen Murphy
Legislative Attorney
American Law Division
The list of federally recognized Indian tribes is not a static one. The Department of
the Interior’s Bureau of Indian Affairs has an administrative process by which a group
may establish itself as an Indian tribe and become eligible for the services and benefits
accorded Indian tribes under federal law. The process requires extensive documentation,
including verification of continuous existence as an Indian tribe since 1900, and
generally takes considerable time. Final determinations are subject to judicial review.
This report will be updated as warranted by legislative activity.
Federal Recognition or Acknowledgment of Indian Tribal
The list of federally recognized Indian tribes is not static. Not only does Congress
periodically pass legislation according federal recognition to individual tribes, but the
Department of the Interior (DOI), through its Bureau of Indian Affairs (BIA) has a
process, 25 C.F.R. Part 83, by which a group can establish itself as an Indian tribe and
thereby become eligible for all the services and benefits accorded to Indian tribes under1
federal law. Included among these are the ability to have land taken into trust under 25

1 The federal courts have had a role in determining whether a group qualifies as an Indian tribe
for a particular purpose. For example, in 1877, in United States v. Joseph, 94 U.S. 614, the
Supreme Court determined that the Pueblos were not an Indian tribe for purposes of the Indian
liquor laws. Later, their status was reconsidered, and the Pueblos were held to be an Indian tribe
and their lands protected under a federal law that prohibited the sale or alienation of Indian land
without federal approval. United States v. Candelaria, 231 U.S. 28 (1913). Groups have sought
court orders to compel DOI to process their applications for acknowledgment in a more timely
fashion. See, e.g., Tribe v. Babbitt, 233 F. Supp. 2d 30 (D.D.C. 2000). That approach may have
been precluded by a ruling in Mashpee Wapanoag Tribal Council, Inc. v. Norton, 336 F. 3d 1094

C.F.R. Part 151 and to conduct gaming under the Indian Gaming Regulatory Act, 25
U.S.C. §§ 2701, et seq. As of November 16, 2001, there were approximately 212 groups
petitioning under this process, including 186 that were not ready for evaluation.
The Administrative Recognition Process
DOI regulations, 25 C.F.R. § 83.7, include seven mandatory criteria. For each of
these, the petitioning group must establish “a reasonable likelihood of the validity of the
facts relating to that criterion.” 25 C.F.R. § 83.6(d).
!Existence as an Indian tribe on a continuous basis since 1900. Evidence
may include documents showing that governmental authorities —
federal, state, or local — have identified it as an Indian group;
identification by anthropologists and scholars; and evidence from
newspapers and books.
!Existence predominantly as a community. This may be established by
geographical residence of 50% of the group; marriage patterns; kinship
and language patterns; cultural patterns; and social or religious patterns.
!Political influence or authority over members as an autonomous entity
from historical times until the present. This may be established by
showing evidence of leaders’ ability to mobilize the group or settle
disputes, inter-group communication links, and active political processes.
!Copies of its governing documents and membership criteria.
!Evidence that the membership descends from an historical tribe or tribes
that combined and functioned together as a political entity. This may be
established by tribal rolls, federal or state records, church or school
records, affidavits of leaders and members, and other records.
!Unless unusual circumstances exist, evidence that most of the group’s
members do not belong to any other acknowledged North American tribe.
!Absence of federal legislation barring recognition.

1 (...continued)
(D.C. Cir. 2003), in favor of DOI. The court found that competing agency priorities and limited
resources must be considered in claims that the length of time it takes to process an
acknowledgment petition is unreasonable within the meaning of the Administrative Procedure
Act. 5 U.S.C. § 555(b). Other groups have tried the indirect approach of identifying a statute that
requires that the plaintiff be an Indian tribe and suing under that statute in an attempt to force
a court to determine whether that particular statute’s definition of “Indian tribe” has been met.
In Golden Hill Paugusset Tribe of Indians v. Weicker, 39 F. 3d 51 (2d Cir. 1994), involving a
land claim by a group asserting that it is an Indian tribe and its land had been alienated without
federal approval in violation of 25 U.S.C. § 177, the court remanded the case to the district court
with instructions to enjoin the litigation for 18 months pending DOI resolution of the group’s
acknowledgment petition. In New York v. Shinnecock Indian Nation, 280 F. Supp. 2d 1 (E.D.
N.Y. 2003), the court temporarily enjoined a state-recognized tribe’s construction of a gaming
operation for 18 months pending DOI action on an acknowledgment petition. Both courts saw
DOI’s jurisdiction over the question as primary and their court’s jurisdiction as secondary and
seemed to have indicated that the court would take up the issue of tribal existence in the absence
of a ruling by DOI.

Time Line for Handling Petitions by Groups Seeking Indian
Tribal Status
!Group presents petition to BIA.
!BIA must acknowledge receipt of letter of intent or petition within 30
days. It must issue a Federal Register notice within 60 days. This acts
as a notice to interested parties to submit factual or legal arguments in
support of or opposing the petition. Notice is also to be supplied to the
governor and attorney general of the state in which the group is located.
!BIA conducts a technical assistance review and informs the petitioner as
to supplemental material needed. Petitioner may withdraw petition or
supply needed material. No time frame is given for this stage of the
process. If BIA finds that petition clearly does not meet certain
mandatory criteria, it may deny petition and issue Federal Register
!When the BIA determines that the petition is ready for active
consideration, it informs the petitioner. No time frame is given.
!When active consideration begins, the petitioner and interested parties are
notified of the names of researchers and their supervisors. No time frame
specified for beginning active consideration.
!Proposed findings must be published in the Federal Register a year after
active consideration has begun. But active consideration may be
suspended for administrative reasons or petition problems.
!After proposed findings are published, supporters or opponents have 180
days to submit arguments in support or in opposition, with the possibility
of a 180-day extension. During the period, the Assistant Secretary for
Indian Affairs, upon request, may hold a formal meeting to inquire into
the basis for the proposed finding.
!After the expiration of the comment period and any extension, the
petitioner has a minimum of 60 days to respond, and time may be
extended by the Assistant Secretary. Thereafter, the Assistant Secretary
has the discretion to solicit comments from the petitioner or interested
parties, but no unsolicited comments will be accepted. The petitioner and
interested parties will be informed of any extension of the comment or
response periods.
!When the comment period has expired, the Assistant Secretary will
consult with the petitioner and interested parties to determine a time
frame for considering evidence and arguments.
!A final determination must be published in the Federal Register within
60 days after consideration has begun unless there has been extension by
the Assistant Secretary. The determination must be published in the
Federal Register. Petitioner and interested parties must be notified of
any extension of the 60 days.
!Determination is effective 90 days after publication unless the petitioner
or an interested party files a request for reconsideration with the Interior
Board of Indian Appeals (Board) under 25 C.F.R. § 83.11. To vacate the
determination, the petitioner or interested party must prove by the
preponderance of the evidence: (1) that there is new evidence that could
affect the determination; (2) that a substantial part of the evidence relied

upon was unreliable; (3) that the petitioner’s or the BIA’s research was
inadequate in a material respect; or (4) that reasonable alternative
interpretations, not considered, would affect the determination. 25
C.F.R. § 83.11(d)(1)-(4).
!The Board may either affirm the determination or vacate it and remand
it to the Assistant Secretary for reconsideration. Under certain
circumstances, it may affirm the determination but send it to the
Secretary for reconsideration.
!If the determination has been sent to the Secretary for reconsideration, the
petitioner and interested parties have 30 days to submit comments. If an
interested party opposing a petition submits comments, the petitioner
shall have 15 days, after receipt of comments, to respond.
!The Secretary must make a determination within 60 days of receipt of all
comments. If the Secretary decides against reconsideration, the decision
becomes effective when all parties are notified.
!If the determination has been remanded to the Assistant Secretary, a
reconsidered determination must be issued within 120 days of receipt of
the Board’s decision. The reconsidered determination is effective when
notice is published in the Federal Register.
!Upon final agency action, a challenge may be raised in a federal district
court under the judicial review provision of the Federal Administrative
Procedure Act, 5 U.S.C. § 702.
Proposed Legislation
Congress has considered replacing the administrative recognition process by a statute
to be administered outside of BIA. H.Rept. 105-737, 105th Cong, 2d Sess. (1998), saw
the current administrative process as poorly funded, too protracted, and deficient in due
process. Costs per tribe can run to $500,000; the average year sees the completion of only
1.3 petitions; and sometimes the very people who search out the facts of a case craft the
decision. A GAO Report, Indian Issues: Improvements Needed in Tribal Recognition
Process (November 2001), recommended that DOI improve its responsiveness and
develop transparent guidelines for interpreting the main criteria under the recognition
procedures. Three 107th Congress bills, S. 504, S. 1392, and H.R. 1175, would have
provided a statutory recognition process. Another, S. 1393, would have authorized
grants for petitioning groups and local government participation. Other bills recognize
specific groups as Indian tribes.
In the 108th Congress, two bills would have established a statutory framework for an
administrative acknowledgment process by which an Indian group or tribe could petition
DOI for recognition as an Indian tribe: S. 462 and S. 297. Another, S. 463, would have
authorized grants for petitioning groups and local government participation in the
administrative acknowledgment process.
In the 109th Congress, there have been several bills, including:
H.R. 309 would establish a process by which a Native Hawaiian governmental entity
may be recognized by the United States. Specifically excluded from any powers
conferred is the right to conduct gaming under IGRA or be eligible for any BIA programs
and services not otherwise available.

H.R. 464 would establish an independent Commission on Indian Recognition, which
is to operate for eight years, to adjudicate petitions by groups seeking recognition as
Indian tribes. The bill would withdraw existing BIA authority to recognize groups as
Indian tribes and require it to transfer all pending petitions to the Commission. The
legislation would set procedures, including deadlines, for the Commission’s handling of
petitions and for according recognition. Included are: identification by at least one
specified governmental or other entity, as an Indian group; existence as a community from
historical times to the present; political influence and autonomy; governing documents;
and, membership rolls. There are provisions making available to petitioners certain
procedural rights in any adjudicatory hearing and the authority to bring an enforcement
action in federal court.
H.R. 512 would, if a group requested it, require the Secretary to meet an expedited
schedule for issuing proposed findings and final determinations for groups that have made
an initial application before October 17, 1988, and were listed as “Ready, Waiting for
Active Consideration” on July 1, 2004. It also would provide petitioners a means of
judicial adjudication should the Secretary fail to meet the established deadlines as well
as judicial review of an adverse determination.
H.R. 852 would extend recognition to the Duwamish Tribe; establish its service
area; and, require the Secretary to take into trust any fee land, in the service area or the
Tribe’s aboriginal homelands, which is transferred by the Tribe to the Secretary within

10 years of enactment.

H.R. 1354 would specify that federal acknowledgment is not to be granted to any
group unless it has met all criteria in 25 C.F.R., Part 83, in effect on January 1, 2004. It
would require the Secretary, in issuing any proposed findings, to publish in the Federal
Register detailed findings on the application of each of the criteria.
S. 437 would set a date by which the Secretary must review the petition of the Grand
River Band of Ottawa Indians and submit detailed findings with respect to certain
questions relating to the history of the Band. Failure to submit such a report would
require the Secretary to recognize the Band as an Indian tribe. There is also a provision
reaffirming any rights of the Band that have previously been abrogated or diminished.
S. 480 would provide federal recognition to six tribes of Virginia, require the
Secretary to take land in specified counties in trust as a reservation for each of the tribes
should such land be transferred to the Secretary for that purpose; and specifies that some
of the exceptions to the Indian Gaming Regulatory Act’s (IGRA) prohibition on gaming
on lands acquired after October 17, 1988, would not be available to the tribes. It does not
eliminate the exception under 25 U.S.C. § 2719(b)(1)(A), which requires the Secretary
to make a two-part determination that gaming on the land would be in the best interest of
the tribe and not detrimental to the local community in which the governor of the state
concurs. Nor does it eliminate the other requirements under IGRA, including a tribal-
state compact for casino gaming.
S. 630 would establish a statutory framework for an administrative acknowledgment
process by which an Indian group or tribe could petition DOI for recognition as an Indian
tribe with a government-to-government relationship with the United States and members
entitled to federal services to Indians. The bill sets standards for eligibility that generally

deny eligibility to: groups formed after December 31, 2002, for the purpose of seeking
acknowledgment; groups separating from an existing federally recognized Indian tribe;
terminated tribes; and groups whose petition for acknowledgment had previously been
denied by DOI. Among the mandatory criteria for acknowledgment in this legislation are:
identification as an Indian group on a substantially continuous basis since 1900; existence
of a distinct community comprised of a predominant portion of the membership since
1900; maintenance of political influence as an autonomous authority over members since
1900; evidence of governing documents and membership criteria; list with addresses of
current members; evidence that members are not members of other Indian tribes; and,
evidence that there has been no federal termination of tribal existence or prohibition on
acknowledging the group.