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Before the Committee on Indian Affairs, U.S. Senate:

United States General Accounting Office:


For Release on Delivery Expected at 10:00 a.m. Tuesday, September 17, 



Basis for BIA’s Tribal Recognition Decisions Is Not Always Clear:

Indian Issues:

Statement of Barry T. Hill, Director, 

Natural Resources and Environment:


Mr. Chairman and Members of the Committee:

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 dramatically affect economic and social conditions for 

the tribe and the surrounding communities. There are currently 562 

recognized tribes 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 2002, the Congress appropriated 

about $5 billion for programs and funding almost exclusively for 

recognized tribes. Recognition also 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 held in trust.[Footnote 2] The exemptions also 

include, where applicable, laws regulating gaming. The Indian Gaming 

Regulatory Act of 1988, which regulates Indian gaming operations, 

permits a tribe to operate casinos on land in trust if the state in 

which it lies allows casino-like gaming and the tribe has entered into 

a compact with the state regulating its gaming businesses.[Footnote 3] 

In 1999, federally recognized tribes reported an estimated $10 billion 

in gaming revenue, surpassing the amounts that the Nevada casinos 

collected that year. In fiscal year 2001, Indian gaming revenues 

increased to $12.7 billion.

Owing to the rights and benefits that accrue with recognition and the 

controversy surrounding Indian gaming, BIA’s regulatory process has 

been subject to intense scrutiny by groups seeking recognition and 

other interested parties--including already recognized tribes and 

affected state and local governments. The controversies surrounding the 

regulatory process for recognizing tribes continue with two highly 

anticipated decisions issued in July 2002. In the first decision, the 

Assistant Secretary-Indian Affairs determined that two petitioners, the 

Eastern Pequot Indians of Connecticut and the Paucatuck Eastern Pequot 

Indians of Connecticut, are derived from a single historical tribe and 

are therefore recognized as a single tribe.[Footnote 4] In the second 

decision, the previous Assistant Secretary’s January 2001 decision to 

recognize the Chinook Indian Tribe/Chinook Nation was reversed by the 

current Assistant Secretary after the decision was reconsidered at 

request of the Quinault Indian Nation.[Footnote 5]

BIA’s regulatory process for recognizing tribes was established in 

1978. The process requires groups 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. Critics of the process claim that it produces inconsistent 

decisions and takes too long. In November 2001, we reported on BIA’s 

regulatory recognition process, including the criteria for recognizing 

tribes, and recommended ways to improve it.[Footnote 6] In particular, 

we recommended that BIA develop transparent guidelines to provide a 

clearer understanding of the basis for recognition decisions. We 

testified on this report in February 2002 before the House Committee on 

Government Reform, Subcommittee on Energy Policy, Natural Resources and 

Regulatory Affairs.[Footnote 7] Our testimony today is based on that 

report and focuses on the application of the criteria that Indian 

groups must meet under the regulatory process to be granted 


In summary, as we reported in November 2001, 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 recommended that BIA 

develop and use transparent guidelines for interpreting key aspects of 

its recognition decisions. The BIA is completing a strategic plan to 

implement this recommendation.


Historically, the U.S. government has granted federal recognition 

through treaties, congressional acts, or 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 department’s tribal recognition 

policy. Specifically, the report stated that the department’s criteria 

to assess whether a group should be recognized as a tribe were not 

clear and concluded that a large part of the department’s policy 

depended on which official responded to the group’s inquiries. 

Nevertheless, until the 1960s, the limited number of requests for 

federal recognition 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 


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 descended from a historic 

tribe and 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 

following are the seven criteria for recognition under the regulatory 


(a) The petitioner has been identified as an American Indian entity on 

a substantially continuous basis since 1900,

(b) A predominant portion of the petitioning group comprises a distinct 

community and has existed as a community from historical times until 

the present,

(c) The petitioner has maintained political influence or authority over 

its members as an autonomous entity from historical times until the 


(d) The group must provide a copy of its present governing documents 

and membership criteria,

(e) The petitioner’s membership consists of individuals who descend 

from a historical Indian tribe or tribes, which combined and functioned 

as a single autonomous political entity,

(f) The membership of the petitioning group is composed principally of 

persons who are not members of any acknowledged North American Indian 

tribe, and:

(g) Neither the petitioner nor its members are the subject of 

congressional legislation that has expressly terminated or forbidden 


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 BIA 

officials. 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 was as was ruled for 

the proposed finding. Petitioners and others may file requests for 

reconsideration with the Interior Board of Indian Appeals.

Clearer Guidance Needed on Criteria and Evidence Used in Recognition 


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 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 technical 

staff had recommended against recognition. Most recently, the current 

Assistant Secretary has reversed a decision made by the previous 

Assistant Secretary. Much of the current controversy surrounding the 

regulatory process stems from these cases. At the heart of the 

uncertainties are different positions on what a petitioner must present 

to support two key aspects of the criteria. In particular, there are 

differences over (1) what is needed to demonstrate continuous existence 

and (2) what proportion of members of the petitioning group must 

demonstrate descent from a historic tribe.

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 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:

Controversy and uncertainty also surround the proportion of a 

petitioner’s membership that must demonstrate that it meets the 

criterion of descent from a historic Indian tribe. In one case, the 

technical staff recommended that a petitioner not be recognized because 

the petitioner could only demonstrate that 48 percent of its members 

were descendants. The technical staff concluded that finding that the 

petitioner had satisfied this criterion would have been a departure 

from precedent established through previous decisions in which 

petitioners found to meet this criterion had demonstrated a higher 

percentage of membership descent from a historic tribe. However, in the 

proposed finding, the Assistant Secretary found that the petitioner 

satisfied the criterion. The Assistant Secretary told us that although 

this decision was not consistent with previous decisions by other 

Assistant Secretaries, he believed the decision to be fair because the 

standard used for previous decisions was unfairly high.

Again, the regulations intentionally left open key aspects of the 

criteria to interpretation. In this case they avoid establishing a 

specific percentage of members required to demonstrate descent because 

the significance of the percentage varies with the history and nature 

of the petitioner and the particular reasons why a portion of the 

membership may not meet the requirements of the criterion. The 

regulations state only that a petitioner’s membership must consist of 

individuals who descend from historic tribes--no minimum percentage or 

quantifying term such as “most” or “some” is used. The only additional 

direction is found in 1997 guidelines, which note that petitioners need 

not demonstrate that 100 percent of their membership satisfies the 


In updating its regulations in 1994, the department grappled with both 

these issues and ultimately determined that key aspects of the criteria 

should be left 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 of 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 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 

2001 report, we recommended that the Secretary of the Interior direct 

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. In commenting on a draft of this report, 

the department generally agreed with this recommendation. To implement 

the recommendation, the department pledged to formulate a strategic 

action plan by May 2002. To date, this plan is still in draft form. 

Officials told us that they anticipate completing the plan soon.

In conclusion, 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. Without improvements that focus on fixing these and 

other problems on which we have reported, parties involved in tribal 

recognition may increasingly 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 strategies.

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 T. 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.


[1] In this statement the term “Indian tribe” encompasses all Indian 

tribes, bands, villages, groups and pueblos as well as Eskimos and 


[2] Tribal lands not in trust may also be exempt from state and local 

jurisdiction for certain purposes in some instances.

[3] 25 U.S.C. 2701.

[4] 67 Fed. Reg. 44234 (July 1, 2002).

[5] 67 Fed. Reg. 46204 (July 12, 2002).

[6] U.S. General Accounting Office, Indian Issues: Improvements Needed 

in Tribal Recognition Process, GAO-02-49 (Washington, D.C.: Nov. 2, 


[7] U.S. General Accounting Office, Indian Issues: More Consistent and 

Timely Tribal Recognition Process Needed, GAO-02-415T (Washington, 

D.C.: Feb. 7, 2002).