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United States General Accounting Office: 


Before the Subcommittee on Energy Policy, Natural Resources and 
Regulatory Affairs, Committee on Government Reform, House of 

For Release on Delivery: 
Expected at 10:00 a.m. 
Thursday, February 7, 2002: 

Indian Issues: 
More Consistent and Timely Tribal Recognition Process Needed: 

Statement of Barry T. Hill, Director: 
Natural Resources and Environment: 


Mr. Chairman and Members of the Subcommittee: 

Thank you for the opportunity to discuss our work on the Bureau of 
Indian Affairs' (BIA) regulatory process for federally recognizing 
Indian tribes.[Footnote 1] As you know, federal recognition of an 
Indian tribe can have a tremendous effect on the tribe, surrounding 
communities, and the nation as a whole. There are currently 562 
recognized tribes[Footnote 2] with a total membership of about 1.7 
million. In addition, several hundred groups are currently seeking 
recognition. Federally recognized tribes are eligible to participate 
in federal assistance programs. In fiscal year 2000, about $4 billion 
was appropriated for programs and funding almost exclusively for 
recognized tribes. Additionally, recognition establishes a formal 
government-to-government relationship between the United States and a 
tribe. The quasi-sovereign 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 being held in trust.[Footnote 3] The 
exemptions also include, where applicable, laws regulating gambling. 
The Indian Gaming Regulatory Act of 1988,[Footnote 4] which regulates 
Indian gambling operations, permits a tribe to operate casinos on land 
in trust if the state in which it lies allows casino-like gambling and 
the tribe has entered into a compact with the state regulating its 
gambling businesses. In 1999, federally recognized tribes reported an 
estimated $10 billion in gambling revenue, surpassing the amounts that 
the Nevada casinos collected that year. 

In 1978, the BIA, an agency within the Department of the Interior, 
established a regulatory process for recognizing tribes. The process 
requires tribes 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. 
Owing to the rights and benefits that accrue with recognition and the 
controversy surrounding Indian gambling, BIA's regulatory process has 
been subjected to intense scrutiny. Critics of the process claim that 
it produces inconsistent decisions and takes too long. In light of the 
controversies surrounding the federal recognition process, we issued a 
report last November[Footnote 5] evaluating the BIA's regulatory 
recognition process and recommending ways to improve the process. 

In summary, we reported the following: 

* First, the basis for BIA's tribal recognition decisions is not 
always clear. While there are set criteria that petitioning tribes 
must meet to be granted recognition, there is no guidance that clearly 
explains how to interpret key aspects of the criteria For example, it 
is not always clear what level of evidence is sufficient to 
demonstrate that a tribe has continued to exist over a period of time—
a key aspect of the criteria. The lack of guidance in this area 
creates controversy and uncertainty for all parties about the basis 
for decisions reached. To correct this, we recommend that the BIA 
develop and use transparent guidelines for interpreting key aspects of 
its recognition decisions. 

* Second, the recognition process is 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 is a growing number of 
completed petitions waiting to be considered. BIA officials estimate 
that it may take up to 15 years before all currently completed 
petitions are resolved; BIA's regulations outline a process for 
evaluating a petition that was designed to take about 2 years. To 
correct these problems, we recommend that the BIA develop a strategy 
for improving the responsiveness of the recognition process, including 
an assessment of needed resources. 


Historically, tribes have been granted federal recognition through 
treaties, by the Congress, or through 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 criteria used by the department to assess 
whether a group should be recognized as a tribe. Specifically, the 
report stated that the criteria were not very clear and concluded that 
a large part of the department's tribal recognition policy depended on 
which official responded to the group's inquiries. Until the 1960s, 
the limited number of requests by groups to be federally recognized 
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 
seek recognition through other avenues, such as legislation or 
Department of the Interior administrative decisions 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 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 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 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. A 
technical staff within BIA, consisting of historians, anthropologists, 
and genealogists, reviews the submitted documentation and makes its 
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. 
The Assistant Secretary-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 as the proposed 
finding. Petitioners and others may file requests for reconsideration 
with the Interior Board of Indian Appeals. 

Clearer Guidance Needed on Evidence Required for Recognition Decisions: 

While we found general agreement on the seven criteria that groups 
must meet to be granted recognition, there is great potential for 
disagreement when the question before the BIA is whether the level of 
available evidence is high enough to demonstrate that a petitioner 
meets the criteria. The need for clearer guidance on criteria and 
evidence used in recognition decisions became evident in a number of 
recent cases when the previous Assistant Secretary approved either 
proposed or final decisions to recognize tribes when the staff had 
recommended against recognition. Much of the current controversy 
surrounding the regulatory process stems from these cases. 

For example, concerns over what constitutes continuous existence have 
centered on the allowable gap in time during which there is limited or 
no evidence that a petitioner has met one or more of the criteria. In 
one case, the technical staff recommended that a petitioner not be 
recognized because there was a 70-year period for which there was no 
evidence that the petitioner satisfied the criteria for continuous 
existence as a distinct community exhibiting political authority. The 
technical staff concluded that a 70-year evidentiary gap was too long 
to support a finding of continuous existence. The staff based its 
conclusion on precedent established through previous decisions in 
which the absence of evidence for shorter periods of time had served 
as grounds for finding that petitioners did not meet these criteria 
However, in this case, the previous Assistant Secretary determined 
that the gap was not critical and issued a proposed finding to 
recognize the petitioner, concluding that continuous existence could 
be presumed despite the lack of specific evidence for a 70-year period. 

The regulations state that lack of evidence is cause for denial but 
note that historical situations and inherent limitations in the 
availability of evidence must be considered. The regulations 
specifically decline to define a permissible interval during which a 
group could be presumed to have continued to exist if the group could 
demonstrate its existence before and after the interval. They further 
state that establishing a specific interval would be inappropriate 
because the significance of the interval must be considered in light 
of the character of the group, its history, and the nature of the 
available evidence. Finally, the regulations also note that experience 
has shown that historical evidence of tribal existence is often not 
available in clear, unambiguous packets relating to particular points 
in time. 

The department grappled with the issue of how much evidence is enough 
when it updated the regulations in 1994 and intentionally left key 
aspects of the criteria open to interpretation to accommodate the 
unique characteristics of individual petitions. Leaving key aspects 
open to interpretation increases the risk that the criteria may be 
applied inconsistently to different petitioners. To mitigate this 
risk, BIA uses precedents established in past decisions to provide 
guidance in interpreting key aspects in the criteria. However, the 
regulations and accompanying guidelines are silent regarding the role 
of precedent in making decisions or the circumstances that may cause 
deviation from precedent. Thus, petitioners, third parties, and future 
decisionmakers, who may want to consider precedents in past decisions, 
have difficulty understanding the basis for some decisions. 
Ultimately, BIA and the Assistant Secretary will still have to make 
difficult decisions about petitions when it is unclear whether a 
precedent applies or even exists. Because these circumstances require 
judgment on the part of the decisionmaker, public confidence in the 
BIA and the Assistant Secretary as key decisionmakers is extremely 
important. A lack of clear and transparent explanations for their 
decisions could cast doubt on the objectivity of the decisionmakers, 
making it difficult for parties on all sides to understand and accept 
decisions, regardless of the merit or direction of the decisions 
reached. Accordingly, in our November report, we recommend that the 
Secretary of the Interior direct the BIA to provide a clearer 
understanding of the basis used in recognition decisions by developing 
and using transparent guidelines that help interpret key aspects of 
the criteria and supporting evidence used in federal recognition 
decisions. The department, in commenting on a draft of this report, 
generally agreed with this recommendation. 

Recognition Process Ill-Equipped to Provide Timely Response: 

Because of limited resources, a lack of time frames, and ineffective 
procedures for providing information to interested third parties, the 
length of time needed to rule on petitions is substantial. The 
workload of the BIA staff assigned to evaluate recognition decisions 
has increased while resources have declined. There was a large influx 
of completed petitions ready to be reviewed in the mid-1990s. Of the 
55 completed petitions that BIA has received since the inception of 
the regulatory process in 1978, 23 (or 42 percent) were submitted 
between 1993 and 1997 (see figure 1). 

Figure 1: Number of Petitioning Groups in Regulatory Process: 

[Refer to PDF for image: line graph] 

The graph depicts the Number of Petitioning Groups in Regulatory 
Process for the years 1980 through 2000. 

Note: Status as of the last day of each calendar year. 

Source: BIA. 

[End of figure] 

The chief of the branch responsible for evaluating petitions told us 
that, based solely on the historic rate at which BIA has issued final 
determinations, it could take 15 years to resolve all the currently 
completed petitions. In contrast, the regulations outline a process 
for evaluating a completed petition that should take about 2 years. 

Compounding the backlog of petitions awaiting evaluation is the 
increased burden of related administrative responsibilities that 
reduce the time available for BIA's technical staff to evaluate 
petitions. Although they could not provide precise data, members of 
the staff told us that this burden has increased substantially over 
the years and estimate that they now spend up to 40 percent of their 
time fulfilling administrative responsibilities. In particular, there 
are substantial numbers of Freedom of Information Act (FOIA) requests 
related to petitions. Also, petitioners and third parties frequently 
file requests for reconsideration of recognition decisions that need 
to be reviewed by the Interior Board of Indian Appeals, requiring the 
staff to prepare the record and response to issues referred to the 
Board. Finally, the regulatory process has been subject to an 
increasing number of lawsuits from dissatisfied parties, filed by 
petitioners who have completed the process and been denied 
recognition, as well as current petitioners who are dissatisfied with 
the amount of time it is taking to process their petitions. 

Staff represents the vast majority of resources used by BIA to 
evaluate petitions and perform related administrative duties. Despite 
the increased workload faced by the BIA's technical staff, the 
available staff resources to complete the workload have decreased. The 
number of BIA staff members assigned to evaluate petitions peaked in 
1993 at 17. However, in the last 5 years, the number of staff members 
has averaged less than 11, a decrease of more than 35 percent. 

In addition to the resources not keeping pace with workload, the 
recognition process also lacks effective procedures for addressing the 
workload in a timely manner. Although the regulations establish 
timelines for processing petitions that, if met, would result in a 
final decision in approximately 2 years, these timelines are 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 has finished reviewing 
were completed within 2 years or less, and all but 2 of the 13 
petitions currently under review have already been under review for 
more than 2 years. 

While BIA may extend timelines for many reasons, it has no mechanism 
that balances the need for a thorough review of a petition with the 
need to complete the decision process. The decision process lacks 
effective time frames that create a sense of urgency to offset the 
desire to consider all information from all interested parties in the 
process. BIA recently dropped one mechanism for creating a sense of 
urgency. 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 
make this goal impossible to achieve. The BIA has not replaced it with 
another more realistic goal, such as reducing the number of petitions 
on ready status or reducing the average time needed to process a 
petition once it is placed on active status. 

As third parties become more active in the recognition process—for 
example, initiating inquiries and providing information—the procedures 
for responding to their increased interest have not kept pace. Third 
parties told us that they wanted more detailed information earlier in 
the process so they could fully understand a petition and effectively 
comment on its merits. However, there are no procedures for regularly 
providing third parties with more detailed information. For example, 
while third parties are allowed to comment on the merits of a petition 
prior to a proposed finding, there is no mechanism to provide any 
information to third parties prior to the proposed finding. In 
contrast, petitioners are provided an opportunity to respond to any 
substantive comment received prior to the proposed finding. As a 
result, third parties are 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 has no 
procedures for efficiently responding to FOIA requests, staff members 
hired as historians, genealogists, and anthropologists are pressed 
into service to copy the voluminous records needed to respond to FOIA 

In light of these problems, we recommended in our November report that 
the Secretary of the Interior direct the BIA to develop a strategy 
that identifies how to improve the responsiveness of the process for 
federal recognition. Such a strategy should include a systematic 
assessment of the resources available and needed that leads to 
development of a budget commensurate with workload. The department 
also generally agreed with this recommendation. 

In conclusion, the BIA's recognition process was never intended to be 
the only way groups could receive federal recognition. Nevertheless, 
it was intended to provide the Department of the Interior with an 
objective and uniform approach by establishing specific criteria and a 
process for evaluating groups seeking federal recognition. It is also 
the only avenue to federal recognition that has established criteria 
and a public process for determining whether groups meet the criteria. 
However, weaknesses in the process have created uncertainty about the 
basis for recognition decisions, calling into question the objectivity 
of the process. Additionally, the amount of time it takes to make 
those decisions continues to frustrate petitioners and third parties, 
who have a great deal at stake in resolving tribal recognition cases. 
Without improvements that focus on fixing these problems, parties 
involved in tribal recognition may look outside of the regulatory 
process to the Congress or courts to resolve recognition issues, 
preventing the process from achieving its potential to provide a more 
uniform approach to tribal recognition. The result could be that the 
resolution of tribal recognition cases will have less to do with the 
attributes and qualities of a group as an independent political entity 
deserving a government-to-government relationship with the United 
States, and more to do with the resources that petitioners and third 
parties can marshal to develop successful political and legal 

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. 

Contact And Acknowledgments: 

For further information, please contact Barry Hill on (202) 512-3841.
Individuals making key contributions to this testimony and the report 
on which it was based are Robert Crystal, Charles Egan, Mark Gaffigan,
Jeffery Malcolm, and John Yakaitis. 

[End of section] 


[1] The term "Indian tribe" encompasses all Indian tribes, bands, 
villages, groups and pueblos as well as Eskimos and Aleuts. 

[2] This number includes three tribes that were notified by the 
Assistant Secretary-Indian Affairs on December 29, 2000, of the 
"reaffirmation" of their federal recognition. 

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

[4] 25 U.S.C. 2701. 

[5] Indian Issues: Improvements Needed in Tribal Recognition Process 
[hyperlink,], Nov. 2, 2001. 

[End of section] 

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