Obama administration moving new tribal recognition rules

Washington – The Obama administration is on the brink of making new federal tribal recognition rules – a move that could be a boon to several Connecticut tribes — and opponents are making 11th-hour attempts to stop or slow the process.

The Bureau of Indian Affairs said late Monday that its long rule-making process is nearly over. The new regulations are on their way to the Office of Management and Budget’s Office of Information and Regulatory Affairs for final review “after…numerous tribal consultations and as part of President Obama’s commitment to strengthen the nation-to-nation relationship with Native Americans.”

“This rule is the culmination of a multi-year effort by the department to reform the federal government’s tribal recognition process by making that process more transparent, efficient, timely, and flexible, while at the same time maintaining the integrity of the acknowledgement process,” said BIA spokeswoman Nedra Darling.

Opponents of the new regulations, concerned about their ramifications, aren’t giving up.

Rep. Don Young, R-Alaska, has scheduled a hearing of the Indian affairs panel of the House Committee on Natural Resources on Wednesday. The topic is  “The Obama administration’s Part 83 Revisions and How They May Allow the Interior Department to Create Tribes, Not Recognize Them.”

The title of the hearing reflects opponents’ concern that changing the rules will extend protections and rights, including the right to open casinos, to those who don’t merit them.

Connecticut officials in particular are concerned about large land claims and the possibility new Indian casinos could affect a slot machine revenue-sharing agreement between the state and the Mashantucket Pequots and the Mohegans, two federally recognized tribes with gaming operations in Connecticut.

Federal recognition also establishes the federal government as the trustee of tribal lands and makes tribal governments and tribe members eligible for federal programs and funding.

The Eastern Pequot Tribal Nation of North Stonington, the Golden Hill Paugussett Nation of Bridgeport and the Schaghticoke Tribal Nation of Kent, which have not been invited to testify at Wednesday’s hearing, have been struggling for recognition for years. But their efforts have drawn strong opponents in the state, including Sen. Richard Blumenthal, D-Conn., who will be a key witness.

The “Part 83” process, named after a section in the federal code, was established in 1978 to give tribes a structured way to seek federal acknowledgement.

Kevin Washburn, the Interior Department’s Assistant Secretary for Indian Affairs, wanted to make the Part 83 process more transparent and quicker. In a draft proposal unveiled about a year ago, he proposed modifying certain requirements.

For instance, current tribal recognition rules require a tribe to prove it has been a community with a continuous political authority “from historical times.”  Washburn’s proposal would change that to allow a petitioning tribe to demonstrate it has maintained a state reservation or a tribal authority since at least 1934.

Washburn said the changes were overdue because the regulations have only been updated once since they were created.

Now he’ll have to justify his proposal to Young and other lawmakers,  even though Congress can block the new regulations only through new legislation — a measure that would likely earn a veto from President Obama.

There have been objections to Washburn’s plan from other quarters, but Connecticut officials from every level of government have swamped the BIA with criticisms.

Reps. Elizabeth Esty, D-5^th District, and Joe Courtney, D-2^nd District, were among five House members — including Young — who sent Interior Secretary Sally Jewell a letter last month warning the new regulations could “create new problems that lead to unintended and unjustifiable outcomes.”

They said the funding to each of the tribes would drop as the number of federally recognized tribes, now about 560, grows and the federal budget does not.

In their March 26 letter, the lawmakers also asked the Interior Department to hold off issuing the final regulations until “we have conducted the necessary oversight.”

The lawmakers requested a meeting “in the next two weeks to discuss how we will coordinate with the department as we undertake this congressional oversight.”

The meeting has not taken place.

Washburn’s overhaul draft would allow tribes like Connecticut’s Eastern Pequot, Golden Hill Paugussett and the Schaghticoke — groups that have been refused recognition under the present rules — to reapply. But in response to Connecticut’s pushback, Washburn added the requirement that the Connecticut tribes’  applications would be subject to the approval of those who have previously opposed their bids.

The Connecticut tribes, and many other Indians, hope the final rules eliminate that “third-party veto” provision, which they say is unconstitutional.

Brian Cladoosby, president of the National Congress of American Indians, will be a witness at Wednesday’s hearing. The NCAI has condemned the “third-party veto.”

Other witnesses include the representatives from California’s Morongo Band of Mission Indians and the Tulalip Tribes and the Quinault Indian Nation of Washington state.