K Jerome Gottschalk Testimony on Recognition (July 12, 2012)
U.S. Senate Committee on Indian Affairs – Oversight Hearing
Attorney: Kim Jerome Gottschalk
In February 1997, the Department of Interior placed the tribe’s federal recognition petition on active review status. In July 2000, the Assistant Secretary for Indian Affairs (AS-IA) published a Preliminary Determination in favor of recognition. A technical assistance meeting was held with the Office of Federal Acknowledgment (OFA) to outline a program of action to strengthen the petition prior to the final determination. Substantial work was done to strengthen the tribe’s petition, and the final submissions were made in February 2005.
The Office of Federal Acknowledgment (OFA) indicated that it would reach a final determination by the end of 2007 and began active consideration of the tribe’s material in August 2007, including a three-week site visit in October 2007. The deadline was not met; the date was moved to the end of July 2008. Before that date arrived, the AS-IA granted OFA new deadlines of January 28 and then July 27, 2009. OFA granted itself an extension of time to September 25, 2009, and then a further extension to October 26, 2009. On October 27, 2009, the Acting AS-IA issued a “Final Determination” against recognition of the tribe, overruling the decision in the Preliminary Determination. The stated rationale for the Final Determination was an unwillingness to go along with the “departures from precedent,” which the previous AS-IA found to be justified by historical circumstances.
In February 2010, the tribe filed a Request for Reconsideration with the Interior Board of Indian Appeals (IBIA). On June 12, 2013, the IBIA affirmed the negative Final Determination, but referred five legal questions to the Secretary of the Interior (SOI). With a 30-day comment period, NARF submitted comments on the questions on July 11, 2013.
Meanwhile, on June 21, 2013, the AS-IA announced “Consideration of Revision to Acknowledgment Regulations” and issued draft regulations with major changes in the regulations. In light of this announcement, NARF urged the Department of the Interior to suspend Final Determination until the regulations were revised. NARF submitted extensive comments on the draft regulations on September 24, 2013. On January 14, 2014 the AS-IA granted the Little Shell Tribe’s request to place their petition on suspension pending completion of the process to amend the acknowledgment regulations. The tribe’s “Final Determination” has never become final and effective.
On May 22, 2014, the AS-IA issued proposed regulations for comment. The Department of Interior held several consultations and public hearings on the proposed regulations, and NARF submitted comments on the proposed regulations on behalf of the tribe. The final rule was published on July 1, 2015, and the tribe is considering its options in light of the new rule.
Concurrently, the tribe is pursuing legislative recognition, and its recognition bill was favorably reported out of the Senate Committee on Indian Affairs on March 18, 2015. In addition, a hearing was held on the House bill on October 5, 2015 in the House Natural Resources Committee.
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