Congressman Wolf’s interest in the FAP and federal recognition is not merely academic. While his letter to the Bush administration claims to be motivated by a desire to help Native Americans, one only has to look at recent events in his home state of Virginia to surmise his true intent. Simply put, Congressman Wolf wants to close the door on Indian gaming in Virginia by blocking the federal recognition of the Indian tribes in his own state. However, by stopping the federal recognition of these Indian nations he is denying them a host of federal rights including their ability to live according to their own traditions on their own lands and to develop programs for adequate housing, access to health care and improved education, among others. His attack on Indian gaming has transformed into an attack on Indian people.

Linking Federal Recognition and Indian Gaming is Inappropriate

Linking the process of federal recognition to Indian gaming is inappropriate and masks the injustices endured by unrecognized tribes in the United States. State recognized Indian nations, including those in Virginia, are denied access to basic federal Indian programs. They undertake the grueling FAP for myriad reasons, including a desire to enhance their ability to maintain their language, culture and ways of life. It is a dangerous precedent when Indian gaming opponents involve themselves in Indian issues beyond gaming.

To portray the struggles of unrecognized Indian nations as merely a quest for the right to engage in Indian gaming belittles tribal cultures, overlooks a long history of failed federal programs, and smacks of racism. Linking Federal recognition with gaming undermines and disguises the reasons that tribal governments pursue gaming in the first place: because federal programs have failed to adequately promote viable reservation economies for Indian people to replace our traditional economies. Traditional economies were destroyed by land theft and the destruction of native species, like the buffalo and the salmon.

Congressman Wolf and others wrongly believe that there is a necessary relationship between recognition and gaming and so skew political opinion against the Federal acknowledgment process. This tactic it is not new. It seems that these days, linking anything with Indian gaming immediately makes it controversial. For example, gaming opponents in Hawaii recently tried to convince people in that state that if the state legislature were to legalize gambling in Hawaii then "any Indian tribe in the country could come and open a casino here." Of course this statement is not true; But it was not meant to be true. It was meant to strengthen opposition to gaming in Hawaii by implying that somehow Native Americans might get involved or benefit. People’s ignorance of the facts of Indian gaming often leads to emotionalism, misinformation and ultimately attacks on tribal sovereignty.

Call for a moratorium sounds familiar…this time only for Indians!

As many people in the gaming industry may recall, the Final Report of the National Gambling Impact Study Commission called for a moratorium on gaming. Because the evidence to support this recommendation was flimsy at best, the gaming community largely ignored their statement. In fact, the Public Sector Gaming Study Commission and others argued that, contrary to what the NGISC said about the spread of gaming being haphazard and not well thought out, states and other gaming jurisdictions felt that decisions to legalize gambling were thorough and correct. But Congressman Wolf clearly has not given up his idea for a gambling moratorium. This time, however, he is pursuing a moratorium only on Indian gaming. This attack on the FAP is nothing more than a backdoor attempt by Rep. Wolf to impose his moratorium…but this time to Indian nations who do not have a government-to-government relationship with the federal government. His target is wrong and the result is unfair.

A Moratorium Would Achieve Only Prolonged Suffering for Indian Nations

A moratorium on the process for federal recognition of Indian tribes will not stop Indian gaming because the two issues are not related. The fact is that only one Indian nation that received federal recognition by the BIA since 1988 has pursued gaming. Indeed, some would question whether a moratorium on recognition is even necessary since the process takes a minimum of ten years and the BIA’s BAR has only ruled on 30 applications in 23 years (15 positive and 15 negative). The impact of a moratorium on the federal recognition will be to delay and ultimately deny Indian people their inherent rights. A 1976 Federal report showed that tribal members who belonged to unrecognized tribes were far more likely to suffer from poor health, inferior education and inadequate housing than members of federally recognized tribes. Rep. Wolf’s proposed moratorium will not stop Indian gaming but it would prolong of the suffering of Indian people.

Facts about the Federal Recognition of Indian nations
by the Federal Government

Criteria for Establishing that an American Indian Group Exists as an Indian Tribe
25 CFR 83.7 (a)-(g)

(a)   A Statement of facts establishing that the petitioner has been identified from historical times until the present on a substantially continuous basis, as "American Indian," or "aboriginal."

(b)   Evidence that a substantial portion of the petitioning groups inhabits a specific area or lives in a community viewed as American Indian and distinct from other populations in the area, and that its members are descendants of an Indian tribe which historically inhabited a specific area.

(c)   A statement of facts which establishes that the petitioner has maintained tribal political influence or other authority over its members as an autonomous entity throughout history until the present.

(d)   A copy of the group’s present governing document, or in the absence of a written document, a statement describing in full the membership criteria and the procedures through which the group currently governs its affairs and its members.

(e)   A list of all known current members of the group and a copy of each available former list of members based on the tribe’s own defined criteria.

(f)    The membership of the petitioning group is composed principally of persons who are not members of any other North American Indian tribe.

(g)   The petitioner is not, nor are its members, the subject of congressional legislation which has expressly terminated or forbidden the Federal relationship.

Steps in the Federal Acknowledgment Process (25 CFR 83.9):

1. Letter of Intent (119 total: 103 active, 10 inactive, 6 ineligible)[1]

• Petitioner submits letter of intent and begins compiling documentation
• BIA/BIA acknowledges receipt of letter within 30 days, announces letter of intent in Federal Register
• within 60 days, notifies state governor and attorney general, and related or interested recognized tribes and petitioning groups, and publishes notice of letter of intent in local newspapers.

• Petitioner submits initial documented petition to BIA-BAR for review and responds to BIA-BAR letters and technical assistance
• BIA-BAR conducts initial review, provides technical assistance, sends letter of obvious deficiencies, determines whether petitioner meets requirements of previous federal acknowledgment (if claimed), and determines if little or no evidence that petitioner can meet criteria for descent, non-membership in recognized tribe, or non-termination.

• Petitioner submits final documented petition to BIA-BAR
• BIA-BAR notifies petitioner that documented petition is ready for active consideration and maintains dated register of petitions ready for active consideration.

• Petitioner responds to substantive comments on petition
• BIA-BAR notifies petitioner of substantive comments and allows for response, notifies petitioner and interested parties that petition is under active consideration, and provides contact information, determines whether petition meets the mandatory acknowledgment criteria and prepares proposed findings to acknowledge or deny acknowledgment.

5a.  Proposed Finding to Acknowledge of Deny Acknowledgment

• BIA-BAR publishes proposed finding in Federal Register and prepares summary report

5b.   Response to Proposed Finding (3)

• Petitioner and others submit arguments and evidence in response to proposed finding (if disagree), request formal meeting on the record and the Petitioner then responds to others’ comments
• BIA-BAR provides technical advice and records used for proposed finding, holds hearing on the record, if requested, on reasoning, analysis and factual basis of proposed finding.

6a.  AS/IA Consideration of Proposed Finding for Final Determination (4)

• Petitioner and others consult with AS/IA to determine timeframe for consideration
• AS/IA consults with petitioner and others to determine timeframe for consideration and notify them of date consideration begins. Consider proposed finding, arguments, evidence, and comments submitted during response period and prepare final determination.

6b. AS/IA Final Determination to Acknowledge of Deny Acknowledgment

• AS/IA makes final determination and publishes summary of final determination in Federal Register.

7. Appeal of Final Determination, within Interior Department (1)

• Petitioner and Interested Parties may file request for reconsideration of final determination with IBIA by stating grounds for reconsideration to IBIA, submitting briefs and replies to IBIA and submitting comments to SOI.
• IBIA judges timelines and grounds for reconsideration, affirms or vacates final determination, sends certain reconsideration requests to SOI and ma remand to AS/IA. SOI then determines whether to request reconsideration by AS/IA, receives comments, may review and make available further information and notifies all parties of decision. AS/IA provides documents and records to IBIA, reconsiders if so directed, issues reconsidered determination and publishes notice of reconsidered determination in Federal Register.

8. Litigation of Final Determination in Federal Court (2)

• Petitioner and Interested Parties may file suit in federal court.
• SOI, AS/IA, Interior Solicitor, DOI and DOJ respond to suit in federal court.

Acknowledgment:

• By AS/IA through Federal Acknowledgment Process (FAP): 15
• By AS/IA confirmation of recognition: 1
• By AS/IA determination that petitioner was part of recognized tribe: 1
• By Congress through enacted statutes: 8

Denials of Acknowledgment:

• By AS/IA through Federal Acknowledgment Process (FAP): 15

Other Final Actions:

• Petitions withdrawn through merger or at petitioner’s request: 4
• Petitioner formally dissolved: 1
• Petitioner removed from FAP because not Indian: 1

Overview of petitions resolved

Acknowledged through 25 CFR 14: 15 total
From 1978-1988: 7
From 1988-present: 8 (only one, Mohegan, has gaming)

"New" Legislative Recognition: 6 total
From 1980-1988: 2
From 1988-present: 4

• A De Facto Moratorium on the Federal Acknowledgment of Indian Nations:
  For the 7 Indian nations who have been federally recognized by the BIA since 1988, it took an average of 17 years to get through the Federal Acknowledgment Process.

Indian Nations Acknowledged through 25 CFR 83

Indian Nations Denied Acknowledgment through 25 CFR 83