The Long and Winding Road to Federal Recognition

By Dorothy Alther, Executive Director

The federal government defines a “tribe” as “a designated group with whom the federal government has established some kind of political relationship or recognition.” Federal recognition entitles tribes to federal benefits, services, provides governmental immunity from unconsented lawsuits, to establish and be governed by their own laws, and to come within federal statutes that protect tribal resources. How and why countless tribes in California are “unrecognized” is beyond the scope of this paper but is a topic for a later date.

There are two paths to federal recognition: filing a petition with the Office of Federal Acknowledgement (OFA) or seeking congressional recognition through legislation, both paths are time-consuming and expensive.

The OFA is housed within the Bureau of Indian Affairs and the petitioning process and recognition criteria is set forth under federal regulations found at 25 C.F.R. Part 83, recently amended in 2015. There are seven criteria that an unrecognized tribe must meet to have a successful petition:

Criterion 83.11(a)- Identifications of Indian entity from 1900 to present: the petitioner must be identified as an “Indian entity” by external sources as it existed contemporary the time of the identifications and should be no more than 10 years. This means the petitioner must find an outside source that identifies the tribe as a “tribe” or a distinct group beginning in 1900 through 2020.

Criterion 83.11(b) – Distinct Community: documentation of the group’s social and cultural events and activities from 1900 to the present.

Criterion 83.11 (c)- Political Influence or Authority: evidence that reflects the petitioner’s political events and activities from 1900 to the present.

Criterion 83.11(d)- Governing documents: Constitution and tribal laws that address enrollment, elections, or other internal matters.

Criterion 83.11 (e)-Descent of current members from historical Indian tribe: this criteria requires a complete genealogy to establish the earliest members of the tribe and that all current members descend from these ancestors.

Criterion 83.11 (f) – Membership is composed principally of persons who are not members of any other federally recognized Indian tribe.

Criterion 83.11 (g) – No congressional legislation that prohibits or terminated the federal relationship.

As you can see meeting this criterion requires in-depth research of historical, anthropological, ethnological, and genealogical work dating back to 1900 and for every decade to current times. In compiling this documentation tribes rely on dedicated tribal members and professional volunteers such as university professors and graduate students. Also challenging is when tribes are faced with “gaps” in their history and no documentation can be found. Remember there were periods in California history of extermination of Native people and the destruction of tribes. California tribes and their members during these periods clearly would not have wanted to be “externally identified” or their cultural practices documented and may have been prevented from exercising “political influence” over their members. As a result, a tribe might have difficulty meeting the OFA criterion.

Even once a petition is completed, it can take the OFA years to review and verify the tribe’s documentation. Most tribal petitions are massive since all facts within the petition must be supported by sources verifying the facts. The 2015 regulatory changes to Part 83 attempts to streamline the review process to make the decision-making process more efficient and expeditious. Time will tell.

Given the cumbersome OFA process, some tribes have turned to Congress for legislative recognition. Even with this alternative route, tribes are often still required to demonstrate their historical existence and that they continue today as organized functioning governments. Because legislative recognition is a political process it is critical that there be no strong opposition to the tribe’s recognition. A congressional representative may shy away from sponsoring or supporting a bill if there is opposition from the county or other tribes back home.

Because most unrecognized tribes have no financial resources they cannot hire a lobbyist to usher their recognition bill through the halls of Congress (House and Senate) and lack the political clout needed to open doors to key politicians. However, strong letter-writing campaigns and perseverance can and does work. Finding friendly congressional representatives to commit to seeing the recognition bill through is the key to success.