Since the period of self-determination that began in 1968, there has been a dramatic shift in legislative policy and attitude toward Native Americans, evidenced by the passing of acts developed to foster and stimulate economic development in reservation communities. Examples of these acts include the Indian Financing Act and the Native American Programs Act, which establish a revolving line of credit; the Indian Gaming Regulatory Act of 1988, which allows tribes the opportunity to conduct gaming; and the Indian Tribal Government Tax Status Act, which allows tribes to utilize the tax advantages enjoyed by states and to raise money for governmental programs.
Unrecognized tribes, frustrated because these benefits are not reaching their communities, petition to become federally recognized. Of the more than 600 tribes to date, 562 tribes are federally recognized.
The federal government classifies tribes into four categories: (1) federally recognized tribes, (2) unrecognized tribes, (3) tribes that have been terminated, and (4) tribes recognized by states. More than 200 tribes are not recognized by the federal government because of termination, have never been formally recognized via treaty or other legislation, or have been decimated by war and disease. Many of these tribes are currently seeking formal recognition in order to receive federal assistance, but tribes that were terminated cannot seek recognition.
The current process, known as the Federal Acknowledgement Process (FAP) was initiated by Congress on October 2, 1978. The secretary of the interior and the Bureau of Indian Affairs (BIA) set forth ethnohistorical, genealogical, anthropological, geographical, and legislative requirements that petitioners must meet to be recognized. A group must be able to prove that it meets these criteria:
(1) The group can be identified by historical evidence, written or oral, as being an American Indian Tribe; (2) its members are descendants of an Indian Tribe that inhabited a specific area, and these members continue to inhabit a specific area in a community viewed as American Indian and distinct from other populations in the area; (3) the Indian group has maintained governmental authority over its members as an autonomous entity throughout history until the present; (4) the membership of the group is composed principally of persons who are not members of any other Indian tribe; and (5) the tribe has not been the subject of congressional legislation expressly terminating their relationship with the federal government.
Many tribes cannot seek recognition because of the fifth clause, termination; but there are other means, beyond the recognition guidelines, that a tribe can pursue, such as Department of the Interior administrative decisions and congressional legislation.
To date, several hundred groups are seeking federal recognition through the Federal Acknowledgement Process by meeting the requirements and submitting to review by the Department of the Interior. The process is costly, more than $250,000 per case. The benefits of reestablishing the relationship between government and tribe are immense. Not only is the tribe eligible for welfare benefits, health care, education, and other federal assistance, but the tribe can enter into and negotiate casino gaming compacts if the state in which it is located allows this form of gaming. Indian gaming is a multibillion-dollar business that has benefited the tribes that operate casinos.
Kurt T. Mantonya
O'Brien, Sharon. American Indian Tribal Governments. Norman: University of Oklahoma Press, 1989; Prevar, Stephen L. An American Civil Liberties Union Handbook: The Rights of Indians and Tribes. Carbondale: Southern Illinois University Press, 1992; U.S. Senate Committee on Indian Affairs. Testimony Before the Committee on Indian Affairs, U.S. Senate. Indian Issues: Basis for BIA's Tribal Recognition Decisions Is Not Always Clear. Statement of Barry T. Hill, Director, Natural Resources and Environment. Washington, D.C.: General Accounting Office, 2002.