Draft 25 CFR Part 83 Regs (Office of Federal Acknowledgment)



Quick Comments:

This revision strikes me as a response in some ways to the Carcieri decision. The first obvious change is that tribal groups need only to prove existence (for lack of a better word so early in the morning) dating back to 1934 instead of 1900. As a result, some of the substantive criteria has been changed due to the date change, and perhaps even liberalized to the benefit of petitioning groups.

Finally, there appears to be some changes allowing for expedited decisions favoring tribes previously recognized in some contexts, perhaps ala Tejon.

Federal Court Holds Bush-Era Denial of Duquamish Federal Recognition Violated APA

Here are the materials in Hansen v. Salazar (W.D. Wash.):

DCT Order Granting Hansen Motion

Hansen Motion for Summary J

Interior Cross-Motion

Muckleshoot Response

Hansen Reply

The Second Time Around: Looking Ahead to President Obama’s Second Term

Two weeks ago, we took a look back at some of the significant federal Indian policy developments during President Obama’s first term.  President Obama’s historic inauguration last week marked the beginning of his second term, which will bring a new set of challenges and opportunities for the Administration’s Indian policy agenda. 

The ongoing stalemate in Congress regarding the federal budget, a Republican House of Representatives, and the fact that the 2016 Presidential campaign will kick off immediately after the 2014 mid-term elections, will make it difficult to push significant Indian policy reforms through Congress.  Nevertheless, Indian country leaders will continue to press for reforms in a number of important areas. 

Look for the following issues to receive attention in the next four years: 

  • Violence Against Women Act (VAWA): Congress failed to reauthorize VAWA at the conclusion of the last term.  In light of recent elections, there is growing pressure on Congress (especially the Republican Party) to pass this reauthorization.  The question is whether a final bill will include provisions designed to enhance protections for Indian women (it can’t be repeated often enough that 1 in 3 American Indian women will be raped in their lifetimes) by restoring tribal criminal jurisdiction over domestic violence on Indian lands.  The Obama Administration has worked to ensure that Indian Country language is included in this legislation.
  • Carcieri Fix: As with VAWA, Congress has failed to enact legislation to address the 2009 Carcieri decision.  The politics of a Carcieri Fix are more complex than VAWA reauthorization.  President Obama expressed support for a Carcieri fix as recently as December, and tribal advocates continue to press for this legislation.
  • Climate Change, Environmental Protection, and Sacred Sites:  In his second inaugural address, President Obama stated, “We will respond to the threat of climate change, knowing that the failure to do so would betray our children and future generations.”  Tribal communities, especially those located in Alaska and on the coasts, are at the forefront of feeling the impact of climate change.  The Administration has pledged to address the issue, and it must include tribes in that effort. 

The Department of the Interior has been criticized by tribal leaders for not taking adequate steps to protect sacred sites in its push to permit renewable energy projects on public lands during the first term. But, at the 2012 White House Tribal Nations Conference, the Administration announced an interagency Memorandum of Understanding intended to help agencies – including the Department of the Interior – work with tribes to protect sacred sites.  The U.S. Department of Agriculture prepared a report to Secretary Vilsack on tribal sacred sites in December 2012.  

The #IdleNoMore movement in the United States is coalescing around environmental and sacred sites issues, and will put significant pressure on the Administration to respond to Indian Country on these issues.

  • Energy Development:  The Department of the Interior’s new leasing regulations will make it easier for developers to establish renewable energy projects on tribal lands, but federal tax policies still make it difficult for tribes to partner with those developers (beyond simply serving as a landlord, and receiving rent).  Addressing these tax inequities, and revising the Department of the Interior’s Right of Way regulations, are the next steps in unlocking Indian Country’s renewable energy potential.

With respect to conventional energy, the oil & gas boom in places like the Fort Berthold Reservation and the U&O Reservation have posed significant challenges on the BIA to keep pace with development.  Shrinking budgets, due to the stalemate in Congress, will make it even more difficult for the BIA to work with tribes to ensure that they can capitalize on their energy resources.

  • Federal Recognition:  In 2012, the Department of the Interior presented testimony to the Senate Committee on Indian Affairs and suggested that some groundwork had been laid to address problems in the federal recognition process (Disclosure: I served as the witness for the Department of the Interior in that hearing).  The rulemaking process is long and arduous, and it takes several years to publish rules – even where there is a consensus in support of that effort.  The recognition process has strayed far from its roots in international law to a faux “scientific” review.  DOI will be under pressure to complete this reform before the conclusion of President Obama’s second term. 
  • Gaming: The Department of the Interior made significant progress in lifting the effective moratorium on reviewing tribal gaming applications, rescinding the infamous “Commutability Memo” in the process.  During President Obama’s first term, DOI set out a process whereby it would complete a review of applications based upon its own regulations.  DOI also issued three “Two-Part” Determinations, and articulated the factors that would be used to issue those decisions (with particular focus given to local support and tribal historical connections to proposed gaming sites).  The Department will be under pressure, from tribes, local governments, states, and Congress, to consistently apply these standards and issue decisions in a timely manner.
  • Playing Defense:  Finally, the Obama Administration will likely be put in the position of defending (in courts of law and public opinion) its advances in Indian policy.  Presently, there are ongoing lawsuits challenging the way in which the Administration has interpreted the Indian Reorganization Act in light of the Carcieri decision.  We may also see a pushback against DOI’s efforts to acquire land in trust on behalf of tribes.  The tax provisions of the BIA’s new leasing regulations, which clarify the federal government’s interest in promoting economic development on Indian lands, may also serve as a flashpoint.

There are a number of other issues that we can expect to arise during the next four years as well, including the selection of a new Secretary of the Interior to replace Ken Salazar, appointing an Indian judge to the federal bench, protecting tribes from the PACT Act, implementing the Cobell settlement, and putting meat on the bones of the President’s decision to endorse the United Nations Declaration on the Rights of Indigenous People. 

There is also a likelihood that other events will transpire that could affect Indian Country’s and the President’s agenda (such as a Supreme Court decision in its upcoming ICWA case or other unforeseen events).  No matter what, the next four years will present enough policy and legal issues to keep Indian Country leaders and advocates burning the midnight oil.

Senate Indian Affairs Oversight Hearing on Federal Recognition

With a BIA official


on Federal Recognition: Political and Legal Relationship between Governments

Thursday, July 12 2012
Senate Dirksen Bldg 628

The purpose of this hearing is to examine the process of recognizing tribes through the Administrative and Congressional processes.

The Honorable Jim Webb
United States Senator, Washington, DC

Panel # 1

Mr. Bryan Newland
Senior Policy Advisor to the Assistant Secretary
Indian Affairs, U.S. Department of the Interior, Washington, DC


Panel # 2

The Honorable Stephen R. Adkins
Chickahominy Indian Tribe, Charles City, VA


The Honorable Paul Brooks
Lumbee Tribe of North Carolina, Pembroke, NC


Mr. John Norwood
National Congress of American Indian Taskforce on Federal Acknowledgment, Washington, DC


Mr. K. Jerome Gottschalk
Staff Attorney
Native American Rights Fund, Boulder, CO


Mr. Michael J. Anderson
Anderson Indian Law, Washington, DC


Schaghticoke Tribal Nation v. Kempthorne Cross-Motions for Summary Judgment

The parties in Schaghticoke Tribal Nation v. Kempthorne have filed cross-motions for summary judgment.

STN’s brief was filed in September: Schaghticoke Summary Judgment Brief

The United States brief is here: Federal Summary Judgment Brief

The State of Connecticut’s brief is here: Connecticut Intervenors Brief for Summary Judgment

Schaghticoke Tribal Nation v. Kempthorne Materials

Filed orders and opinions are available here in this ongoing case:

Here are the proposed finding documents dated December 5, 2002.

Here is the notice of proposed finding against the Nation dated December 11, 2002.

Here are the final determination documents dated January 29, 2004.

Here is the notice of final determination dated February 5, 2004 favoring federal recognition of STN.

Here is the appeal to to IBIA, dated May 12, 2005, reversing the decision.

Interlocutory opinions in the ongoing federal case in the US District Court in Connecticut are here:

June 14, 2006 opinion

June 26, 2006 opinion

October 3, 2006 Opinion

March 3, 2007 Opinion

A motion for summary judgment has been filed. Once we get that motion, we will upload it here.

The Schaghticoke Case: Federal Recognition and Politics

The federal recognition process is broke and the case of the petition of the Schaghticoke Tribal Nation in Connecticut is the perfect example.

Here are the proposed finding documents dated December 5, 2002.

Here is the notice of proposed finding against the Nation dated December 11, 2002.

Here are the final determination documents dated January 29, 2004.

Here is the notice of final determination dated February 5, 2004 favoring federal recognition of STN.

Here is the appeal to to IBIA, dated May 12, 2005, reversing the decision.

Here is an editorial in the (normally) hostile Hartford Courant decrying the blatant anti-Indian politics played by powerful figures that have corrupted the recognition process in this matter, and as reported in Indianz.com. From the editorial:

We know about all the press conferences, the showboat congressional hearings and the charges of corruption that dominated the Schaghticoke Tribal Nation’s long, unsuccessful fight for federal recognition.

Now, as the Schaghticokes, whose reservation is in Kent, make a final pitch to revive their case in federal court, it’s clear powerful forces were at work behind the scenes. Led by our congressional delegation, opponents went straight to the top in their effort to undo the tribe’s federal recognition.

Interlocutory opinions in the ongoing federal case in the US District Court in Connecticut are here:

June 14, 2006 opinion

June 26, 2006 opinion

Other opinions will be added as we find them.

My own work on federal recognition can be found here.