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Has Improved, but It Will Take Years to Clear the Existing Backlog of 
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Testimony:

Before the Committee on Resources, House of Representatives:

United States Government Accountability Office:

GAO:

For Release on Delivery Expected at 10:00 a.m. EST:

Thursday, February 10, 2005:

Indian Issues:

Timeliness of the Tribal Recognition Process Has Improved, but It Will 
Take Years to Clear the Existing Backlog of Petitions:

Statement of Robin M. Nazzaro, Director, Natural Resources and 
Environment:

GAO-05-347T:

GAO Highlights:

Highlights of GAO-05-347T, a testimony before the Committee on 
Resources, House of Representatives: 

Why GAO Did This Study:

The Bureau of Indian Affairs’ (BIA) 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. 

Congressional policymakers have struggled with the tribal recognition 
issue for over 27 years. H.R. 4933 and H.R. 5134, introduced in the 
108th Congress, and H.R. 512, which was introduced last week, have 
focused on the timeliness of the recognition process.

This testimony is based in part on GAO’s report, Indian Issues: 
Improvements Needed in Tribal Recognition Process (GAO-02-49, November 
2, 2001). Specifically, this testimony addresses (1) the timeliness of 
the recognition process as GAO reported in November 2001 and (2) the 
actions the Department of the Interior’s Office of Federal 
Acknowledgment has taken since 2001 to improve the timeliness of the 
recognition process. 

What GAO Found:

In November 2001, GAO reported that BIA's tribal recognition process 
was ill equipped to provide timely responses to tribal petitions for 
federal recognition. BIA’s regulations outline a process for evaluating 
a petition that was designed to take about 2 years. However, the 
process was being 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 were a growing number of completed petitions waiting to 
be considered. In 2001, BIA officials estimated that it could take up 
to 15 years for all the completed petitions to be resolved. To correct 
these problems, we recommended that BIA develop a strategy that 
identified how to improve the responsiveness of the process for federal 
recognition. Such a strategy was to include a systematic assessment of 
the resources available and needed that could lead to the development 
of a budget commensurate with the workload.

While Interior’s Office of Federal Acknowledgment has taken a number of 
important steps to improve the responsiveness of the tribal recognition 
process, it still could take 4 or more years, at current staff levels, 
to work through the existing backlog of petitions currently under 
review, as well as those that are ready and waiting for consideration. 
In response to GAO’s 2001 report, two vacancies within the Office of 
Federal Acknowledgment were filled, resulting in a professional staff 
of three research teams, each consisting of a cultural anthropologist, 
historian, and genealogist. In addition, the September 2002 Strategic 
Plan, issued by the Assistant Secretary for Indian Affairs in response 
to GAO’s report, has been almost completely implemented by the Office 
of Federal Acknowledgment. The main impediment to completely 
implementing the Strategic Plan and to making all of the information 
that has been compiled more accessible to the public is the fact that 
BIA continues to be disconnected from the Internet because of ongoing 
computer security concerns involving Indian trust funds.

What GAO Recommends:

GAO’s November 2001 report recommended that BIA develop a strategy that 
identified how to improve the responsiveness of the process for federal 
recognition. 

www.gao.gov/cgi-bin/getrpt?GAO-05-347T.

To view the full product, including the scope and methodology, click on 
the link above. For more information, contact Robin M. Nazzaro at (202) 
512-3841 or nazzaror@gao.gov.

[End of section]

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] There are currently 562 recognized tribes in 
the Unites States with a total membership of about 1.8 million. In 
addition, several hundred groups are currently seeking recognition. 
Congressional policymakers have struggled with the tribal recognition 
issue for over 27 years. Since 1977, 28 bills have been introduced to 
add a statutory framework for the tribal recognition process. 
Additional bills have also been introduced to recognize specific 
tribes; provide grants to local communities or Indian groups involved 
in the tribal recognition process; or, more recently, address the 
timeliness of the recognition process. H.R. 4933 and H.R. 5134, 
introduced in the 108th Congress, and H.R. 512, which was introduced 
last week, have focused on the timeliness of the recognition process.

As you know, federal recognition of an Indian tribe can dramatically 
affect economic and social conditions for the tribe and the surrounding 
communities. Federally recognized tribes are eligible to participate in 
federal assistance programs. In fiscal year 2004, the Congress 
appropriated about $6 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 fiscal year 2003, federally recognized 
tribes reported an estimated $16.7 billion in gaming revenue.

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 
group 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 timeliness of the process, and 
recommended ways to improve it.[Footnote 4] We testified on this issue 
in February 2002 before the House Committee on Government Reform, 
Subcommittee on Energy Policy, Natural Resources and Regulatory 
Affairs,[Footnote 5] and again in September 2002 before the Senate 
Committee on Indian Affairs.[Footnote 6] Our testimony today is based 
on our November 2001 report and the actions the Department of the 
Interior's Office of Federal Acknowledgment has taken to improve the 
timeliness of the recognition process.[Footnote 7]

In summary,

* In November 2001, we reported that BIA's tribal recognition process 
was ill equipped to provide timely responses to tribal petitions for 
federal recognition. BIA's regulations outline a process for evaluating 
a petition that was designed to take about 2 years. However, the 
process was 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 were a growing number of completed petitions waiting to 
be considered. In 2001, BIA officials estimated that it could take up 
to 15 years for all the completed petitions to be resolved. To correct 
these problems, we recommended that BIA develop a strategy that 
identified how to improve the responsiveness of the process for federal 
recognition. Such a strategy was to include a systematic assessment of 
the resources available and needed that could lead to the development 
of a budget commensurate with the workload.

* While Interior's Office of Federal Acknowledgment has taken a number 
of important steps to improve the responsiveness of the tribal 
recognition process it still could take 4 or more years, at current 
staff levels, to work through the existing backlog of petitions 
currently under review, as well as those that are ready and waiting for 
consideration. In response to our 2001 report, two vacancies within the 
Office of Federal Acknowledgment were filled, resulting in a 
professional staff of three research teams, each consisting of a 
cultural anthropologist, historian, and genealogist. In addition, the 
September 2002 Strategic Plan, issued by the Assistant Secretary for 
Indian Affairs in response to our report, has been almost completely 
implemented by the Office of Federal Acknowledgment. The main 
impediment to completely implementing the Strategic Plan and to making 
all of the information that has been compiled more accessible to the 
public is the fact that BIA continues to be disconnected from the 
Internet because of ongoing computer security concerns involving Indian 
trust funds.

Background:

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 
for assessing 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 also seek recognition through other 
avenues, such as legislation or Department of the Interior 
administrative decisions, which are 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 the 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 1978 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 burden of proof is on petitioners to provide documentation to 
satisfy the seven criteria. The technical staff within Interior's 
Office of Federal Acknowledgment, consisting of historians, 
anthropologists, and genealogists, reviews the submitted documentation 
and makes recommendations on a proposed finding either for or against 
recognition. Staff recommendations are subject to review by Interior's 
Office of the Solicitor and senior officials within the Office of the 
Assistant Secretary for Indian Affairs. The Assistant Secretary for 
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 way 
as the proposed finding. Petitioners and others may file requests for 
reconsideration with the Interior Board of Indian Appeals.

Congressional policymakers have struggled with the tribal recognition 
issue for decades. Since 1977, 28 bills have been introduced to add a 
statutory framework for the tribal recognition process (see table 1).

Table 1: Bills Introduced to Provide a Specific Statutory Framework for 
Interior's Tribal Recognition Process, as of December 31, 2004:

Session of Congress: 95; 
Bills introduced in the House of Representatives: H.R. 11630; H.R. 
12691; H.R. 12830; H.R. 12996; H.R. 13773; 
Bills introduced in the Senate: S. 2375; 
Total number of bills: 6.

Session of Congress: 96; 
Bills introduced in the House of Representatives: H.R. 2701; 
Bills introduced in the Senate: [A]; 
Total number of bills: 1.

Session of Congress: 97; 
Bills introduced in the House of Representatives: [A]; 
Bills introduced in the Senate: [A]; 
Total number of bills: 0.

Session of Congress: 98; 
Bills introduced in the House of Representatives: [A]; 
Bills introduced in the Senate: [A]; 
Total number of bills: 0.

Session of Congress: 99; 
Bills introduced in the House of Representatives: [A]; 
Bills introduced in the Senate: [A]; 
Total number of bills: 0.

Session of Congress: 100; 
Bills introduced in the House of Representatives: [A]; 
Bills introduced in the Senate: [A]; 
Total number of bills: 0.

Session of Congress: 101; 
Bills introduced in the House of Representatives: [A]; 
Bills introduced in the Senate: S. 611; S. 912; 
Total number of bills: 2.

Session of Congress: 102; 
Bills introduced in the House of Representatives: H.R. 3430; 
Bills introduced in the Senate: S. 1315; 
Total number of bills: 2.

Session of Congress: 103; 
Bills introduced in the House of Representatives: H.R. 2549; H.R. 4462; 
Bills introduced in the Senate: S. 1844; 
Total number of bills: 3.

Session of Congress: 104; 
Bills introduced in the House of Representatives: H.R. 671; H.R. 2591; 
H.R. 2997; 
Bills introduced in the Senate: S. 479; 
Total number of bills: 4.

Session of Congress: 105; 
Bills introduced in the House of Representatives: H.R. 115; 
Bills introduced in the Senate: [A]; 
Total number of bills: 1.

Session of Congress: 106; 
Bills introduced in the House of Representatives: H.R. 361; 
Bills introduced in the Senate: S. 611; 
Total number of bills: 2.

Session of Congress: 107; 
Bills introduced in the House of Representatives: H.R. 1175; H.R. 3548; 
Bills introduced in the Senate: S. 504; S. 1392; 
Total number of bills: 4.

Session of Congress: 108; 
Bills introduced in the House of Representatives: H.R. 4213; 
Bills introduced in the Senate: S. 297; S. 462; 
Total number of bills: 3.

Session of Congress: Total; 
Bills introduced in the House of Representatives: 17 House bills; 
Bills introduced in the Senate: 11 Senate bills; 
Total number of bills: 28. 

Source: GAO analysis.

[A] No bills introduced.

[End of table]

Of the House bills, only H.R. 4462 from the 103rd Congress was passed 
by the full House (on October 3, 1994). None of the Senate bills have 
been passed by the full Senate. Additional bills have also been 
introduced to recognize specific tribes; provide grants to local 
communities or Indian groups involved in the tribal recognition 
process; or, more recently, address the timeliness of the recognition 
process. For example, H.R. 4933 and H.R. 5134, introduced in the 108th 
Congress, and H.R. 512, which was introduced last week, have focused on 
the timeliness of the recognition process.

In 2001 the Recognition Process Was Ill Equipped to Provide a Timely 
Response:

BIA's regulations outline a process for active consideration of a 
completed petition that should take about 2 years. However, because of 
limited resources, a lack of time frames, and ineffective procedures 
for providing information to interested third parties, we reported in 
2001 that the length of time needed to rule on tribal petitions for 
federal recognition was substantial. At that time, the workload of the 
BIA staff assigned to evaluate recognition decisions had increased 
while resources had declined. There was a large influx of completed 
petitions ready to be reviewed in the mid-1990s. The chief of the 
branch responsible for evaluating petitions told us that based solely 
on the historic rate at which BIA had issued final determinations, it 
could take 15 years to resolve all the completed petitions then 
awaiting active consideration.

Compounding the backlog of petitions awaiting evaluation in 2001 was 
the increased burden of related administrative responsibilities that 
reduced the proportion of time available to BIA's technical staff to 
evaluate petitions. Although they could not provide precise data, 
members of the staff told us that this burden had increased 
substantially over the years and estimated that they spent up to 40 
percent of their time fulfilling administrative responsibilities. In 
particular, there were substantial numbers of Freedom of Information 
Act (FOIA) requests related to petitions. Also, petitioners and third 
parties frequently filed requests for reconsideration of recognition 
decisions that needed to be reviewed by the Interior Board of Indian 
Appeals, requiring the staff to prepare the record and respond to 
issues referred to the Board. Finally, the regulatory process had been 
subject to an increasing number of lawsuits from dissatisfied parties-
-those petitioners who had completed the process and had been denied 
recognition, as well as by petitioners who were dissatisfied with the 
amount of time it was taking to process their petitions.

Technical staff represented the vast majority of resources used by BIA 
to evaluate petitions and perform related administrative duties. 
Despite the increased workload faced by BIA's technical staff, the 
available staff resources to complete the workload had decreased. The 
number of BIA staff assigned to evaluate petitions peaked in 1993 at 
17. However, from 1996 through 2000, the number of staff averaged less 
than 11, a decrease of more than 35 percent.

While resources were not keeping pace with workload, the recognition 
process also lacked effective procedures for addressing the workload in 
a timely manner. Although the regulations established timelines for 
processing petitions that, if met, would result in a final decision in 
approximately 2 years, these timelines were 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 had finished reviewing by 2001 were completed 
within 2 years or less, and all but 2 of the 13 petitions under review 
in 2001 had already been under review for more than 2 years.

While BIA could extend the timelines, it had no mechanism to balance 
the need for a thorough review of a petition with the need to complete 
the decision process. As a result, the decision process lacked 
effective timelines that would have created a sense of urgency to 
offset the desire to consider all information from all interested 
parties in the process. 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 
have made this goal impossible to achieve.

We also found that as third parties, such as local municipalities and 
other Indian tribes, became more active in the recognition process--for 
example, initiating inquiries and providing information--the 
procedures for responding to their increased interest had not kept 
pace. Third parties told us they wanted more detailed information 
earlier in the process so that they could fully understand a petition 
and effectively comment on its merits. However, in 2001 there were no 
procedures for regularly providing third parties more detailed 
information. For example, while third parties were allowed to comment 
on the merits of a petition before a proposed finding, there was no 
mechanism to provide any information to third parties before the 
proposed finding. As a result, third parties were 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 had no procedures for efficiently responding to FOIA 
requests, staff members hired as historians, genealogists, and 
anthropologists were pressed into service to copy the voluminous 
records of petitions to respond to FOIA requests.

In light of these problems, we recommended in our November 2001 report 
that the Secretary of the Interior direct BIA to develop a strategy to 
improve the responsiveness of the process for federal recognition. Such 
a strategy was to include a systematic assessment of the resources 
available and needed that could lead to the development of a budget 
commensurate with the workload. The department generally agreed with 
this recommendation.

Timeliness Has Improved, but It Will Still Take Years to Clear the 
Existing Backlog of Petitions:

In response to our report, Interior's Office of Federal Acknowledgment 
has hired additional staff and taken a number of other important steps 
to improve the responsiveness of the tribal recognition process. 
However, it still could take 4 or more years, at current staff levels, 
to work through the existing backlog of petitions currently under 
review, as well as those ready and waiting for consideration. In 
response to our report, two vacancies within Interior's Office of 
Federal Acknowledgment were filled, resulting in a professional staff 
of three research teams, each consisting of a cultural anthropologist, 
historian, and genealogist. In September 2002, the Assistant Secretary 
for Indian Affairs estimated that three research teams could issue 
three proposed findings and three final determinations per year and 
eliminate the backlog of petitions in approximately 6 years, or by 
September 2008.

Through additional appropriations in fiscal years 2003 and 2004, the 
Office of Federal Acknowledgment was also able to utilize two sets of 
contractors to assist with the tribal recognition process. The first 
set of contractors included two FOIA specialists/record managers. The 
second set of contractors included three research assistants who worked 
with a computer database system scanning and indexing documents to help 
expedite the professional research staff evaluation of a petition. Both 
sets of contractors helped make the process more accessible to 
petitioners and interested parties, while increasing the productivity 
of the professional staff by freeing them of administrative duties.

In addition, the September 2002 Strategic Plan, issued by the Assistant 
Secretary for Indian Affairs in response to our report, has been almost 
completely implemented by the Office of Federal Acknowledgment. Among 
other things, the Office of Federal Acknowledgment has developed a CD-
ROM compilation of prior acknowledgment decisions and related documents 
that is a valuable tool for petitions and practitioners involved in the 
tribal recognition process. The main impediment to completely 
implementing the Strategic Plan and to making all of the information 
that has been compiled more accessible to the public is the fact that 
BIA continues to be disconnected from the Internet because of ongoing 
computer security concerns involving Indian trust funds.

Even though Interior's Office of Federal Acknowledgment has increased 
staff resources for processing petitions and taken other actions that 
we recommended, as of February 4, 2005, there were 7 petitions in 
active status and 12 petitions in ready and waiting for active 
consideration status. Eight of the 12 petitions have been waiting for 7 
years or more, while the 4 other petitions have been ready and waiting 
for active consideration since 2003.

In conclusion, although Interior's recognition process is only one way 
by which groups can receive federal recognition, it is the only avenue 
to federal recognition that has established criteria and a public 
process for determining whether groups meet the criteria. However, in 
the past, limited resources, a lack of time frames, and ineffective 
procedures for providing information to interested third parties 
resulted in substantial wait times for Indian groups seeking federal 
recognition. While Interior's Office of Federal Acknowledgment has 
taken a number of actions during the past 3 years to improve the 
timeliness of the process, it will still take years to work through the 
existing backlog of tribal recognition petitions.

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 Robin M. Nazzaro on (202) 512-
3841. Individuals making key contributions to this testimony and the 
report on which it was based are Charles Egan, Mark Gaffigan, and 
Jeffery Malcolm.

FOOTNOTES

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

[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] GAO, Indian Issues: Improvements Needed in Tribal Recognition 
Process, GAO-02-49 (Washington, D.C.: Nov. 2, 2001).

[5] GAO, Indian Issues: More Consistent and Timely Tribal Recognition 
Process Needed, GAO-02-415T (Washington, D.C.: Feb. 7, 2002).

[6] GAO, Indian Issues: Basis for BIA's Tribal Recognition Decisions Is 
Not Always Clear, GAO-02-936T (Washington, D.C.: Sept. 17, 2002).

[7] In 2001, the tribal recognition process was administered by BIA's 
Branch of Acknowledgment and Research. In a reorganization, effective 
July 27, 2003, the Branch of Acknowledgment and Research was elevated 
and moved into Interior's Office of the Assistant Secretary for Indian 
Affairs and renamed the Office of Federal Acknowledgment. In this 
statement, when referring to our work from 2001, we will refer to the 
tribal recognition process as a BIA process; in all other cases, we 
will refer to it as a process within Interior's Office of Federal 
Acknowledgment.