From the Director's Desk
Before colonization, Indian tribes possessed complete sovereignty. However, given the governmental structure of the United States and the complex history of tribal-federal relations, tribes are now classified as domestic dependent nations. This means tribes have the power to define their own membership; structure and operate their tribal governments; regulate domestic relations; settle disputes; manage their property and resources; raise tax revenues; regulate businesses; and conduct relations with other governments. It also means that the federal government is obligated to protect tribal lands and resources; protect the tribe's right to self-government; and provide social, medical, educational and economic development services necessary for the survival and advancement of tribes.
That's if the tribe is federally recognized which leads me to explain to you why federal recognition is so important to Indian tribes.
Only with federal recognition can Indian tribes hope to build a better future for themselves and their children. Without recognition, tribes usually can't receive federal grants to help strengthen their governments or initiate economic development projects - which is why, today, so many unrecognized tribes are just barely managing to survive.
Without recognition, tribes can't participate in federal rehabilitation programs or receive federal health services - which is why Indian tribes so often live in the worst poverty, suffer the greatest health problems and experience the highest infant mortality rates.
Without recognition, tribes are severely disadvantaged in the legal arena when it comes to winning back traditional lands, protecting precious resources or otherwise winning lasting justice for their people.
With so much at stake, the good news is that under the priority of the preservation of tribal existence, NARF provides legal representation in the area of federal recognition and restoration of tribes. Since 1970, NARF has worked with more than twenty tribes seeking federal recognition and is currently assisting six different tribes (see this issue's lead article, "NARF's History in the Area of Federal Recognition & Restoration") in this expensive and exhaustive process that requires preparing a vast amount of historical, legal and anthropological documentation.
That's where you come in. Only with your continued support, can we hope to continue our work to gain federal recognition for Indian tribes.
Because ultimately, the existence of tribes as governments is fundamental to the survival of Indian people. And without tribes, there can be no tribal sovereignty, no tribal homelands, no tribal cultures, and no tribal languages.
John E. Echohawk (Pawnee)
Federal Recognition of Indian Tribes
Of all of the tribes in the United States (this includes bands, rancherias, pueblos, and Alaska Native villages), 556 have been recognized by the federal government and another 200 are awaiting federal recognition. Other tribes were "terminated" as governmental units in the 1950s and 60s1 and are awaiting federal restoration. These tribes are still governments, but they have no political relationship with the federal government and therefore, are not eligible for the rights, privileges and protections accorded to federally recognized tribes.
Alarmingly, many of the unrecognized tribes have formal treaty relationships predating the United States, or they have treaty rights that were either confirmed by the U.S. or were negotiated directly between the tribe and the United States.
So why are these Indian communities not recognized?
In some cases the tribes were small and isolated, were never powerful militarily, and were completely forgotten. For others who gained their recognized status through war and treaty and by lands set aside for them, they were stripped of their recognition through termination.
The majority of unrecognized tribes are found on the east and west coasts. Many exist in the original thirteen colonies, where a government-to-government relationship with the English crown, which ended with America's independence, was never formalized with the new government. The unrecognized tribes also tend to be smaller ones that attempted to keep peace with white settlers or remnant bands of larger tribes that were defeated and removed to Indian Country. Removal, which involved the signing of treaties, in and of itself granted federal recognition to many of the larger western tribes.
NARF's History in the Area of Federal Recognition & Restoration
In 1971, the Native American Rights Fund began working with the Menominee Tribe of Wisconsin to restore them as a federally recognized tribe after they had been terminated. NARF worked diligently to compile statistical information that detailed the devastating social, cultural and economic impact that termination had on the Menominee. Attorneys also drafted a tribal restoration bill for Congressional passage. In December 1973 those efforts paid off. The Menominee Restoration Act became law making it the first legislative restoration of a terminated tribe.
The second Indian restoration act enacted by Congress restored federal status to the terminated Siletz Tribe of Oregon. In 1855, the Siletz reservation covered over 1 million acres along the Oregon coast. By 1954 - when the Siletz Tribe was terminated - their reservation consisted of a 36-acre tribal cemetery. The Tribe's homeland and traditional way of life had been chipped away by changing federal Indian policy and the white settlers' demand for land. For the first time, allotted Indian lands were subject to property taxes and few had the means to pay. By 1960, most Indian-owned land had passed out of Indian ownership. With no homeland, the Siletz scattered. Later that decade, Siletz leaders mobilized with the help of the Native American Rights Fund to regain their federal relationship and to reverse the disastrous effects of termination. In 1977, the Siletz Restoration Act was signed into law. Three years later, a 3,600 acre reservation was established, thus securing the landbase and resources necessary for the Tribe's survival.
Up until 1983, when they gained federal recognition, the Kickapoo Indians managed to survive as a Tribe in primitive camps at Eagle Pass in Texas. They had no land, and they suffered from disease and malnutrition. With NARF's assistance, the Kickapoo gained 100 acres of land and federal services providing health care, housing and education.
In 1987, the Gay Head Wampanoag Tribe of Massachusetts was federally acknowledged. In that same year, by an act of Congress, the Alabama Coushatta Tribe and the Isleta del Sur Pueblo of Texas were restored as federally recognized tribes.
In 1992, the federal district court in Arizona upheld the Department of Interior's recognition of the tribal status of the San Juan Southern Paiute and ruled that the Tribe is entitled to a land base.
Of these tribes, NARF continues to work with the Alabama Coushatta Tribe on a land claims settlement and with the San Juan Southern Paiute on securing their landbase.
The Passamaquoddy Tribe of Maine, Pasqua Yaqui Tribe of Arizona, Louisiana's Tunica Biloxi Tribe, the Poarch Creek Tribe of Alabama, the Mashantucket Pequot Tribe of Connecticut, and the Narragansett Tribe of Rhode Island have all achieved federal restoration or recognition with the assistance of the Native American Rights Fund.
The Federal Acknowledgement Process
Before 1978, federal recognition had been accorded to Indian tribes through treaty, land set aside for a tribe, by legislative means, by various forms of administrative decision within the Executive Branch of the Federal Government, or through cases brought in the courts. However, in 1978 the Bureau of Indian Affairs enacted administrative procedures governing the administrative process for Federal acknowledgement.2 The 1978 regulations (Title 25 of the Code of Federal Regulations, Part 83) departed significantly from what had been prior Bureau practice. From 1935 to 1974, the BIA determined tribal existence based on whether the tribe fulfilled one or more of following: a) had treaty relations with the U.S.; b) had been denominated a tribe by act of Congress or executive order; c) had been treated as having collective rights in tribal lands or funds; d) had been treated by a tribe or band by other tribes; or e) had exercised political authority over its members through a tribal council or other governmental forms.
The new 1978 regulations took a socio-anthropological approach and lacked any reference to treaties, acts of Congress or executive orders as a means of prior federal recognition. The regulations, which are still in use today, require a petitioner (the tribe applying for federal recognition) to meet seven criteria by demonstrating that:
The tribe has been identified by reliable external sources on a substantially continuous basis as an Indian entity since 1900; and
The tribe has maintained a continuous community from historical times to the present day; and
The Assistant Secretary for Indian Affairs currently carries out the prescribed duties through the Branch of Acknowledgement and Research (BAR) within the Bureau of Indian Affairs.3 Petitioning for federal recognition is an exhaustive process that includes submitting a letter of intent requesting acknowledgement; submitting a petition with supporting documents; undergoing a preliminary review of the petition for purpose of technical assistance; awaiting notice of active consideration; being actively involved in the BAR staff's consideration of the petition; awaiting the proposed finding on federal recognition being published in the Federal Register; undergo public comment; and awaiting the final determination of federal recognition.
Each petition is reviewed by a team consisting of an anthropologist, a genealogist, and a historian. If BAR refuses to acknowledge the petitioning tribe, the only opportunities to contest the adverse findings is to request reconsideration from the Assistant Secretary through the Secretary of Interior, or seek an appeal through the Interior Board of Indian Appeals, or ultimately through federal court review.
Current NARF Federal Recognition Cases
NARF currently represents six Indian tribes who have survived intact as identifiable Indian tribes, but who are not federally recognized. These Indian tribes, for differing reasons, do not have a government-to-government relationship between themselves and the federal government.
NARF submitted a petition for federal recognition on behalf of the Little Shell Tribe of Chippewa Indians of Montana. The BIA placed the Tribe's petition on active review status in 1997. The governing federal regulations provide for a twelve-month review process prior to issuing preliminary findings. The regulations also allow the government to grant itself a six-month extension beyond the one-year active review period. Although the due date for the findings of tribal status was in February 1998, the extensions continued through February 1999, exactly two years after the petition was placed on active review. In November 1999, the Department of Interior notified the Tribe that it expected to issue its proposed findings in early 2000. After additional delays, the Bureau published in the Federal Register on July 17, 2000 the "proposed finding that acknowledges that the Little Shell Tribe of Chippewa Indians of Montana exists as an Indian Tribe within the meaning of Federal law." There is now a six-month comment period after which the Tribe has an opportunity to respond to any comments before a final determination is made.
Between 1795 and 1854, the Miami Indians of the Midwest signed twelve treaties with the United States. As wave upon wave of white settlers moved westward, the Miamis surrendered thousands of acres of fertile land - keeping only small parcels in Indiana for themselves. When the movements of their hunting parties provoked fear and led to violence, they agreed to abandon their roaming and keep to their own lands in exchange for a modest, subsistence-level annuity. In 1846 annuity payments were withheld and, under threat of violence, half the tribe was forcibly removed to Kansas. And in 1854, the two now distinct Miami groups separately negotiated and signed their twelfth treaty with the government of the United States. Yet, the U.S. still refuses to recognize the Miami Tribe of Indians as a tribe.
NARF has challenged the Bureau of Indian Affairs' refusal to acknowledge that the Miami Nation of Indiana is an Indian tribe. In an earlier opinion, Miami Nation v. Babbitt I, the U.S. District Court in Indiana rejected, among other things, the Tribe's claim that they were recognized in an 1854 treaty and were never terminated by Congress. In July 2000, the District Court held in Miami Nation v. Babbitt II that the BIA's failure to acknowledge the Miami as a tribe was not an "arbitrary and capricious" decision and therefore could not be disturbed through an Administrative Procedures Act challenge. This decision will likely be appealed.Since 1988, the Native American Rights Fund has provided legal and technical assistance to the Shinnecock Indian Nation in preparing the necessary historical, legal and anthropological documentation to support its petition for acknowledgement. In September 1998, the Shinnecock Indian Nation submitted its petition and has since been working on a response to a BIA technical assistance letter explaining alleged omissions or deficiencies in the petition. The State of New York acknowledges the Shinnecock Indian Nation and interacts with the Nation as a political entity. However, because the Shinnecock Indian Nation does not have the same government-to-government relationship with the federal government, it is seeking an administrative determination by the Department of Interior that the Nation has continued to exist as an Indian tribe from the first recorded contact with the European settlers in 1640 to the present day.
The Nation's reservation, established in 1859, is located next to Southampton, New York on Long Island. The Shinnecock Tribe has occupied the eastern end of Long Island since time immemorial.The United Houma Nation of Louisiana is a state-recognized Indian Tribe. The first historical contact of Europeans with the historical Houma Indian tribe dates to the 1682 voyage of LaSalle, at which time the Houma Indian tribe was living on the Mississippi-Louisiana state border, north of present-day Baton Rouge, Louisiana. The United Houma Nation migrated from their lands into southern Louisiana. Unfortunately, in past decades, big oil companies moved in and barred them from their traditional fishing and ceremonial lands.
The Native American Rights Fund has represented the United Houma Nation of Louisiana since 1974 in their struggle to obtain an administrative determination by the BIA that they are a federally-recognized tribe.
NARF responded to proposed findings against federal acknowledgement issued by the Bureau of Indian Affairs under their acknowledgement regulations. The Tribe has their petition for federal recognition pending before the BIA and is now waiting for a final decision on its petition. In the meantime, NARF is assisting the Tribe in revising its constitution to strengthen its tribal government and to improve its chances for federal recognition.
The Mashpee Wampanoag Tribal Council Inc. of Massachusetts has lived in the same area of Cape Cod for hundreds of years. They have kept their land. But after World War II, rapid immigration of non-Indians threatened the balance of a local power that had allowed the Mashpee to survive. In 1977, they went to court to win back 11,000 undeveloped acres that had been taken from them in violation of the Non-Intercourse Act of 1790. Astoundingly, the jury ruled that the Mashpee were not a tribe.
NARF has represented the Mashpee Wampanoag Tribe since the mid-1970s in seeking federal acknowledgement. Most recently, NARF responded to alleged deficiencies made by the BIA concerning the Tribe's petition for federal recognition. The BIA has now placed the Tribe on "ready for active consideration" status, a stage prior to the BIA actively considering their petition.
After many years of research and documentation, the Pamunkey Tribe of Virginia and NARF are now finalizing its petition for federal recognition. The petition will likely be filed with the BIA early next year. The Pamunkey Tribe is part of a confederacy named for Powhatan, a chief who first welcomed English settlers to Virginia's shores. They have remained in their tribal homeland along the Pamunkey River in eastern Virginia throughout recorded history. Their territorial rights have been formally and continuously recognized by the colonial and state governments of Virginia since the mid-1600s.
NARF continues to work with Congress on behalf of its federal recognition clients to reform the present acknowledgement process of the Department of Interior through legislation. Targets of reform include overcoming the increasing problems of bureaucratic delays, unequal treatment in evaluation of petitions, lack of an independent appellate process, and non-standardized criteria. Without Congressional attention to these issues, NARF predicts that its clients will be waiting for federal acknowledgement well into the 21st century.
1Termination Policy - In a move to sever the government-to-government relationship between tribes and the federal government, Congress passed House Concurrent Resolution 108 (H.R. 108) in 1953. Federal funding of all existing service programs to tribes was to end and Indians were to be considered to be a disadvantaged minority group. Tribes were no longer to be recognized as governmental units. The termination policy was in effect until the mid-1960s.
2Congress still has the power to acknowledge tribes through legislation, and the President has the power by Executive Order. And although Federal Courts have the power through litigation, they usually direct petitioners to exhaust the administrative process first.
3 Just this past June, Kevin Gover, Assistant Secretary of Indian Affairs, recently made the recommendation that the BIA's power to recognize tribes be turned over to a three-member commission that Congress would create under a bill (S. 611 - the "Indian Federal Recognition Administrative Procedures Act of 1999).
On the Case
Mark C. Tilden (Navajo) joined NARF as a staff attorney in September 1994 and is currently serving on the Litigation Management Committee. He represents tribal governments in federal recognition, federal administrative law, Indian family and child welfare law, environmental law and water law. He also lectures and trains in these specific areas. Before joining NARF, Mark practiced law at Fredericks, Pelcyger, Hester & White with an emphasis in Indian law. While attending law school, he worked for the Colorado Attorney General's office, Supreme Court of Colorado, Big Mountain Legal Defense Office, and NARF. He received a Bachelor of Science and Business Administration degree from Creighton University in 1987 and a Juris Doctorate from the University of Denver College of Law in 1990.
Kim Gottschalk joined NARF as a staff attorney in August of 1982. From 1974-1982 he worked with the law firm of Fettinger and Bloom in Alamagordo, New Mexico representing the Mescalero Apache Tribe. At NARF, Kim has worked on recognition land claims and water cases, international matters, and is serving on NARF's Litigation Management Committee. He earned an A.B. from Ft. Hays Kansas State College and a J.D. degree from Northwestern University in 1974.
Keith Harper is a member of the Cherokee Nation of Oklahoma and received a B.A. in sociology and psychology from the University of California - Berkeley and a J.D. from New York University (NYU) School of Law. Following law school, Keith became an associate at Davis, Polk & Wardwell and then served as law clerk to the Honorable Lawrence W. Pierce of the U.S. Court of Appeals, Second Circuit. Subsequent to the judicial clerkship, Keith was granted a Skadden Arps Fellowship to join the Native American Rights Fund, where he remains a senior staff attorney today. Among other cases, Keith represents 500,000 individual Indians in a multi-billion dollar suit against the United States for the government's failure to properly manage these individual Indians' trust funds.
Lorna Babby is a member of the Oglala Sioux Tribe. She has been a NARF staff attorney since January 1998 and currently works in the areas of government accountability, federal recognition, Indian education, and legislative monitoring. She is a 1991graduate of Yale Law School. Prior to joining NARF, she worked as a staff attorney with the Indian Law Resource Center on issues relating to Indian lands and resources, and as a water rights specialist with the Bureau of Indian Affairs on Indian reserved water rights settlement negotiations and litigation.
Events - NARF 30th Anniversary
The late 1960s and early 1970s were an era of change and controversy across the United States The Vietnam War started and ended A new breed of culture emerged - the hippie generation. Their mantra of sex, drugs, and rock n' roll was prevalent in that day's music, ideas, and new type of society Civil Rights was a strong issue, with the militant Black Panther group being formed and Muslim leader Malcolm X's assassination Indian activists established the American Indian Movement Farm workers organized under the leadership of Cesar Chavez The National Organization for Women was founded sparking the movement for women's rights Our country reeled in shock when Bobby Kennedy and Martin Luther King Jr. were assassinated The U.S. became the first nation to land astronauts on the moon. The Watergate scandal destroyed Richard M. Nixon's presidency and in 1970, the Native American Rights Fund was founded.
The staff of the Native American Rights Fund commemorated NARF's thirtieth anniversary from May 4-6, 2000 with the Board of Directors, National Support Committee members, donors, and local sponsors who traveled to Boulder from all over the country. National Support Committee members Owanah Anderson (Choctaw), Katrina McCormick Barnes, Ada Deer (Menominee), Harvey Dennenberg, Richard Dysart, Lucille Echohawk (Pawnee), Richard "Skip" Hayward (Mashantucket Pequot), Chris McNeil (Tlingit), David Risling, Jr. (Hoopa), and Aine Ungar served on the "Honorary 30th Anniversary Host Committee" and attended the three days of events.
The commemoration started on May 4th with a Benefit Silent & Live Auction that featured artwork, merchandise and gift certificates from local, regional and national businesses, artists and galleries. Thanks to the stellar auctioneering ability of NARF Board Member Wallace Coffey (Comanche), the auction raised more than $30,000 for NARF.
The Funder Recognition Dinner, which was held on the following evening, was dedicated to recognizing and honoring selected foundations, tribes, corporations and individuals who have consistently supported NARF. The program included keynote addresses by Clinton Pattea, President of the Fort McDowell Mohave Apache Community (the tribe is a former client of NARF), Susan Beresford, President of the Ford Foundation, Richard Hayward, Vice Chairman of the Mashatucket Pequot Tribe, and Aine Ungar, major donor.
The 30th Anniversary celebration commenced on Saturday with a Community Feast and Pow-Wow in appreciation of Indian community organizations and NARF donors for their support during our thirty years of service to Indian people. Wallace Coffey was the Master of Ceremonies and Rick Williams was the Arena Director.
Head Man Dancer: John Emhoolah
Funder Recognition Dinner Honorees
lakota word meaning "camp crier"
Don Ragona, Director of Planned Gifts
The new millennium has certainly been exciting for us so far. Over the past year Peta Uha Council members Paul and Catherine "Cat" Brotzman (owners of Four Winds Trading Company/Red Feather Music) have been putting together a collection of music by contemporary Native musicians. This collection called Emerging Power- A Benefit For The Native American Rights Fund - went on sale in May.
"Emerging Power" (the cover art was donated by world-renowned Comanche artist Rance Hood) features some of the best known and top award-winning Native American artists including: Joanne Shenandoah, R. Carlos Nakai, Jerry Alfred, Bill Miller, Brule, Andrew Vasquez, Burning Sky, Quiltman, Karen Therese, Lawrence Laughing, and Huayucaltia. "Emerging Power" is available in CD or cassette and can be purchased through Red Feather Music (1-800-456-5444; www.nativevillage.com) or at a Barnes & Noble book store or Tower Records nearest you.
Thank you Paul and Cat and everyone at Red Feather Music and Four Winds Trading Company for your time, effort, encouragement and support!
This spring we celebrated our anniversary commemorating thirty years of fighting for the rights of Native Americans. The three-day celebration that included a reception and benefit auction, funder recognition dinner and community pow-wow and feast was a huge success. I would like to personally thank all those friends and supporters who helped make these events so rewarding.
Attention Peta Uha Council members! Look for some exciting changes and opportunities in 2001. More details to come in the next Justice.
Until our next issue, have a safe and enjoyable fall.