The Journey to Federal Acknowledgment: The Process, Challenges, and Benefits

FEDERAL RECOGNITION FEATURED

Norine Holguin

7/19/20232 min read

people in black shirts and black shorts sitting on bench during daytime
people in black shirts and black shorts sitting on bench during daytime

For Native American tribes seeking federal acknowledgment, the journey is a complex and arduous process that requires meeting specific criteria set out in 25 CFR Part 83. The road to recognition involves understanding the mandatory and additional criteria, preparing a documented petition, and undergoing a lengthy review process with the Office of Federal Acknowledgment (OFA) under the Department of the Interior.

The Process of Federal Acknowledgment

The federal acknowledgment of American Indian tribes is a crucial aspect of the relationship between the United States government and Native American communities. This acknowledgment confers a host of legal rights and benefits, including the ability to self-govern and access to federal funding for essential services such as education, healthcare, and housing. However, the process of gaining federal acknowledgment is incredibly complex and challenging, as outlined in the Federal Register (80 FR 37861) and the Code of Federal Regulations (25 CFR 83).

The process for federal acknowledgment of American Indian tribes is governed by the regulations set forth in 25 CFR 83, also known as the Federal Acknowledgment Process (FAP). These regulations outline the criteria that a group must meet to be acknowledged as an American Indian tribe by the federal government.

The criteria include:

  1. Continuous Existence: The petitioner must demonstrate that it has existed as a distinct community from historical times to the present.

  2. Historical Tribe: The petitioner must show that it descends from a historical tribe or tribes that combined and functioned as a single autonomous political entity.

  3. Governing Document: The petitioner must have a governing document that includes its membership criteria.

  4. Distinct Community: The petitioner must prove that it comprises a distinct community with significant social relationships and shared activities.

  5. Political Authority: The petitioner must demonstrate that it has maintained political influence or authority over its members as an autonomous entity.

  6. Membership: The petitioner must provide a list of its current members who descend from a historical Indian tribe and are not enrolled in any other federally recognized tribe.

  7. Recognition by Others: The petitioner must show that it has been identified as an Indian entity on a substantially continuous basis by others, such as government agencies or scholars.

  8. Congressional Termination: The petitioner must prove no congressional legislation exists expressly terminating or forbidding the federal relationship.

The Challenges of Federal Acknowledgment

  1. Burdensome Documentation: The process requires extensive documentation to prove the criteria listed above. Gathering this documentation can be incredibly challenging, especially for tribes that have experienced displacement, forced assimilation, and the destruction of their records.

  2. Lengthy Process: The process of federal acknowledgment is notoriously lengthy, often taking decades to complete. This prolonged timeline places a significant burden on petitioning tribes, both in terms of resources and the delay in accessing crucial federal benefits.

  3. Costly Endeavor: The process of gathering documentation, legal representation, and navigating the bureaucratic process can be incredibly costly. Many tribes struggle to secure the necessary funding to complete the process.

  4. Stringent Criteria: The criteria for federal acknowledgment are incredibly stringent. Even tribes with a well-documented history and continuous existence may struggle to meet all the criteria to the satisfaction of the federal government.

  5. Political Controversy: The process of federal acknowledgment is often mired in political controversy. Local and state governments, as well as other federally recognized tribes, may oppose a tribe's petition for acknowledgment, further complicating the process.

Changes to the Process

The 25 CFR 83 regulation, which governs the Federal Acknowledgment Process (FAP) of American Indian tribes, underwent a significant change in 2015. The final rule was published on July 1, 2015, and became effective on July 31, 2015 (80 FR 37861).

Reasons for the Change:

  1. Streamlining the Process: Before the 2015 changes, the process for federal acknowledgment was notoriously lengthy, often taking decades to complete. The changes aimed to streamline the process and make it more efficient.

  2. Transparency: The revised rule aimed to make the process more transparent and easier to understand for petitioning groups.

  3. Flexibility in Documentation: The previous version of the rule required petitioning groups to provide a specific set of documents to prove their continuous existence as a distinct community. The 2015 changes provided more flexibility in the types of documentation that could be submitted, making it easier for tribes with missing or incomplete historical records to prove their case.

  4. Addressing Concerns: The changes aimed to address concerns raised by tribes, stakeholders, and Congress about the fairness and efficiency of the federal acknowledgment process.

The changes to 25 CFR 83 were made after extensive consultation with tribes, public meetings, and the consideration of over 330 comments received on the proposed rule. The changes aimed to make the process more efficient, transparent, and flexible while maintaining the rigor and integrity of the criteria for federal acknowledgment.

Benefits and Challenges of Federal Acknowledgment

Federal acknowledgment offers significant benefits to Indian tribes, including eligibility for federal programs and services, protection of tribal lands and resources, and the ability to engage in government-to-government negotiations with the federal government. However, the process can be lengthy, expensive, and complicated. It may require substantial documentation, face opposition from other tribes or groups, and be impacted by changes in political leadership or policies.

Tribal Sovereignty and Cultural Preservation

Federal acknowledgment is integral to tribal sovereignty, the inherent right of Indian tribes to self-govern and make decisions about their affairs. Moreover, it plays a crucial role in preserving tribal culture and traditions, protecting against forced assimilation and loss of cultural heritage.

Conclusion

The federal acknowledgment of American Indian tribes is a critical step in recognizing and supporting the sovereignty of Native American communities. However, the process of gaining federal acknowledgment is fraught with challenges, from the burdensome documentation requirements to the lengthy and costly process. As a result, many tribes find it incredibly difficult to navigate this process and secure the federal acknowledgment that is crucial for their community's well-being and future development. It is essential for policymakers and stakeholders to be aware of these challenges and work towards a more equitable and streamlined process for federal acknowledgment of American Indian tribes. By understanding the criteria, seeking help from relevant resources, and being prepared for the costs and potential challenges, tribes can increase their chances of success and attain their goals of federal recognition.

Citations:

Indian Affairs Bureau, “Federal Acknowledgment of American Indian Tribes.” Federal Register, 1 July 2015, www.federalregister.gov/documents/2015/07/01/2015-16193/federal-acknowledgment-of-american-indian-tribes.

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