For Some Native Tribes, Federal Recognition Remains Out of Reach

By Aura Bogado Oct 15, 2014

The federal government recognizes 566 tribal governments within the United States. By all accounts, the process by which tribal entities apply for and attain–or are rejected from–federal recognition is cumbersome. In May, the Department of the Interior suggested a batch of rule changes that would streamline the process. Connecticut has become ground zero for conflict between tribes seeking federal recognition and lawmakers who say this status would diminish local and state tax revenues, lead to land claims and expand Indian gaming.

Why Federal Recognition Matters

For Native American tribes, federal recognition creates nation-to-nation relationships with the federal government that acknowledge their self-determination and tribal sovereignty. When they become federally recognized, tribes can establish their own zoning and land-use laws on their reservations. In general, these tribes are also exempt from local and state taxes; free of many state laws; and allowed to pursue big gaming such as high-stakes bingo, slots and casinos.

The process for obtaining federal recognition was established in 1978. The Department of the Interior sets the standards and an Indian Affairs assistant secretary decides each petition on a case-by-case basis. The process is a long one–as Nedra Darling, spokeswoman for Office of the Assistant Secretary for Indian Affairs points out, it can often take decades. Indeed, a look at petitioners awaiting consideration includes the Muscogee Nation of Florida, which sent a letter of intent 36 years ago.

In 2005, a Government Accountability Office report indicated that the "tribal recognition process was ill-equipped to provide timely responses to tribal petitions for federal recognition," and it recommended an overhaul. Nearly a decade later, the Bureau of Indian Affairs is taking on the issue. 

This past May, Indian Affairs assistant secretary Kevin Washburn issued a proposal outlining changes. The current policy requires tribes to prove that they’ve had "continuous political authority and community" since 1789 and that "an external entity" has identified the group as Indian since 1900. Washburn’s plan require tribes to illustrate their political authority and community since 1934.

Public comments on the proposal were supposed to close on August 1, but extension requests were so overwhelming that the deadline was stretched to September 30.

Enter the States

Twenty-three states have their own system for recognition. State-recognized tribes are ineligible for tribal gaming and they must pay local and state taxes. Under Washburn’s proposal, tribes that have been state-recognized since at least 1934 would be eligible to petition for federal recognition.

Federal recognition doesn’t guarantee that these tribes will live on a reservation."If a state-recognized tribe receives federal recognition, it would have to undergo an additional application process," explains Darling. "[It would be under] a separate regulation … to obtain federal trust land."

Still, it’s almost certain that after a state-recognized tribe is federally recognized, their reservation will become federal trust land. This paves the way for land use-changes including the potential advent of casinos. Critics in California and Connecticut have expressed concerns that they will lose some of their tax base, and that new casinos will bring in traffic that wears on state infrastructure and roads. 

There are two federally recognized tribes within Connecticut–the Mashantucket Pequot and the Mohegan Indian Tribe. The state recognizes the Eastern Pequot Tribal Nation, the True Golden Hill Paugussett Indian Nation and the Schaghticoke Tribal Nation.

Connecticut’s congressional delegation, which is made up of two senators and five representatives (all Democrats), opposed an early discussion draft of Washburn’s proposed changes in 2013. This summer all seven lawmakers objected to the final draft during Indian Affairs’ public comment period.

Within the last decade or so, two of Connecticut’s state-recognized tribes–the Eastern Pequot and the Schaghticoke–gained federal recognition. But that didn’t go uncontested by the state: During his stint as Connecticut’s attorney general, now-Senator Richard Blumenthal fervently opposed federal recognition for both. And he won.

In a 195-page request for the Department of the Interior to reconsider its recognition of the Schaghticoke in 2005, Blumenthal wrote, "there was no Schaghticoke Tribe when colonists settled the area." He did this despite the fact that Connecticut recognized and established a reservation for the tribe in 1736. Blumenthal also demanded federal recognition be revoked from the Eastern Pequot–a tribe for whom Connecticut first established a reservation in 1683. In an extraordinary move, under pressure from the state of Connecticut, the Bureau of Indian Affairs rescinded federal recognition for both tribes.

Schaghticoke Chief Richard Velky says it was a striking blow for his nation of about 325.

Members of the Schaghticoke tribe began their petition for federal recognition in 1981. They underwent a rigorous, 23-year process and were finally federally recognized in 2004. Just a year later, their recognition was taken away. "It [has been] a long and brutal path," says Velky.

Connecticut Rewrites the Rules

In a letter rejecting Washburn’s May 2014 proposal, Connecticut lawmakers suggested their own language that would allow tribes that have been denied federal recognition to reapply for it but give third parties–such as the state lawmakers themselves–veto power over the Bureau of Indian Affairs. As the proposed rule changes stand now, Connecticut might have the power to veto federal recognition for the Schaghticoke and other tribal nations that apply. The changes could also mean that these nations might have an opening for federal litigation.

Despite its numerous letters and requests to Indian Affairs, Velky says he’s surprised that Blumenthal and the state of Connecticut hasn’t contacted the Schaghticoke themselves.

"[Blumenthal] never ever called us in and sat down and said, ‘Look, let’s discuss this,’" says Velky. "For [the state], it all seems to be based around casinos."

The two federally recognized tribes within Connecticut operate two casinos; federal recognition of more tribes could mean even more casinos in the state. That’s what worries some lawmakers.

At this point, the proposed changes are just that–proposals. And it’s unclear whether the third-party veto will make its way into the final rule change. "The department is in the process of reviewing all comments received on the proposed rule," says the BIA’s Darling. Officials haven’t set a deadline for the final approval of the rules. 

Velky says he’ll wait. 

"This hurts the elders the most," he says, explaining that he’s deeply disappointed that the Schaghticoke have lost about 65 people since they started the federal recognition process more than three decades ago. "It’s just ludicrous."