Currently, a little over 560 Native American Tribes and Alaska Native organizations enjoy official federal recognition by the United States government. Hundreds of other Tribes across the country remain unrecognized, consigned to a political and legal purgatory and facing uncertain futures. The stakes could hardly be higher, as federal recognition brings national “legitimacy” as a Tribal entity, along with land, services, and money. Many Tribes have recognition applications that have been pending in the Bureau of Indian Affairs (BIA) for decades, yet the prospect of a final decision on their fate as a nation remains frustratingly unclear.
In order to attain federal recognition, a Tribe must establish its fulfillment of seven criteria to the satisfaction of the BIA:
(1) The Tribe has been identified as an American Indian entity on a
substantially continuous basis since 1900.
(2) A predominant portion of the Tribe comprises a distinct
community and has existed as a community from historical times until
(3) The Tribe has maintained political influence or authority over its
members as an autonomous entity from historical times until the
(4) The Tribe must provide a copy of its present governing documents and
(5) The Tribe’s membership consists of individuals who descend from
a historical Indian tribe or tribes, which combined and functioned as a
single autonomous political entity.
(6) The membership of the Tribe is composed principally of
persons who are not members of any acknowledged North American
(7) Neither the Tribe nor its members are the subject of congressional
legislation that has expressly terminated or forbidden recognition.
Once a Tribe has submitted evidence on these seven criteria, the technical staff within BIA’s Branch of Acknowledgement and Research reviews the submitted documentation and determines 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.
Much of the publicized controversy over recognition decisions stems from events that occur after a Tribe is recognized, such as taking land into trust and off the local tax registers, or the immunity Tribes generally enjoy from local environmental and business regulations. Yet before the matter can even get to that point, the burden of satisfying the seven criteria can be overwhelming. In many instances, the historical policies and actions of the US government were specifically designed to eliminate the very socio-political authority and consistency the Tribe is now required to prove. Furthermore, the ability of the federal government to objectively analyze a Tribe’s petition must always be suspect, as international relations of this type are always colored by the self-interest of the participants.
Interestingly, some of the strongest opposition to the federal recognition of a given Tribe often comes from an unlikely source: other Tribes. A recent article about recognition disputes in the Pacific Northwest details such conflicts and highlights a primary factor: economics. After persevering through grinding poverty for decades, Tribes that are presently realizing positive economic development are understandably keen to protect their gains and future potential growth. Casino gaming is a typical engine that drives such growth, and numerous Tribes have effectively cornered-the-market on gaming in their localities by virtue of being “the only game in town”. The recognition of a new Tribe in the same locality, with its own ability to open a casino, becomes an immediate cause for concern for the existing Tribe’s revenue stream.
On the political front, a typical inter-Tribal argument against recognition is that the aspiring Tribe was at some point in history subsumed within a larger, currently-recognized Tribe. The legal basis for such arguments is often a treaty, usually signed in the 19th Century, wherein the federal government and certain Tribes purported to recognize each other and divide up territory (and the people living therein) for governance. Yet Tribes themselves have long fiercely criticized the legitimacy of many of these agreements, having usually been signed at the conclusion of military campaigns where the overriding priority was simply to end years of horrific human suffering. Parallels can be drawn to the annexation of the Baltic Republics into the Soviet Union, of Balkan states into the former Yugoslavia, and of Tibet into China. In each instance there were treaties or other legal paperwork “legitimizing” these acquisitions of smaller nations by larger states, yet it was obvious to all that these political maneuvers were the direct and exclusive product of the power of the gun.
In recent decades, many nationalist movements around the globe have succeeded in removing the yoke of totalitarianism, and have formed or re-established new nations that more properly reflect the ethnic and cultural heritage of the people. Such movements have been almost universally recognized as legitimate, and they have been celebrated by the Western democracies as the political expression of natural human rights. Are Native Americans any less entitled to pursue their goals of establishing self-identified nations?