WASHINGTON — The U.S. Department of the Interior has encountered opposition to its proposed revision to the regulations governing the process for tribes to gain federal recognition — a revision that is expected to make that process easier.
“It’s causing some alarm at the local government level in California,” Napa County Counsel Minh Tran told the Napa Valley Register last month. “We are looking to urge that Congress hold some oversight hearings. They basically have the effect of watering down the seven criteria that have been in place for the last 36 years.”
The current regulation, known as Part 83, was adopted in 1978. It requires Indian groups to prove they’ve existed since the creation of the U.S. government in 1789. To prove their existence, tribes must furnish documentation of genealogical records and evidence of the historic existence as a tribal government.
“Through this Administration’s outreach initiatives, tribal leaders have told us that the current process can be inconsistent, cost millions of dollars and take decades to complete. Our proposed rule maintains the rigorous integrity needed, but allows that process to be conducted in a timely, efficient and transparent manner,” said DOI Secretary Sally Jewell in a May press release.
Tribes and the Bureau of Indian Affairs have both criticized the recognition process as being unpredictable and lacking in transparency. The DOI’s proposed revision would streamline the process by requiring proof of a tribe’s existence since 1934, the year that the Indian Reorganization Act was passed, rather than 1789.
The new rule would also allow tribes larger gaps in proving the existence of their continuity and lower standards for acceptable genealogical evidence.
“Reform of the process is long-overdue,” said DOI Assistant Secretary Kevin Washburn, a member of the Chickasaw Nation in Oklahoma, in the May press release.
“One of my first assignments at the Department was to search for ways to improve the federal recognition process and address long-standing criticisms of those regulations,” Washburn continued. “This initiative is the product of substantial Tribal consultation and public comment and we are grateful for the broad public interest in this reform effort and the helpful guidance we have received from Tribes and the public.”
Federal acknowledgment makes tribal members and governments eligible for federal funding for health, education, housing and other programs, and it also gives tribes the option to put land into federal trust.
Casino concerns
More than 80 Native American groups in California have petitioned for federal recognition since the 1970s. Among them, the Mishewal Wappo Tribe, with about 340 members, hopes to regain their original ancestral land in Napa Valley, in the central west coast of California, as well as federal recognition.
The Wappo Tribe has indigenous roots in Napa, Sonoma and Lake counties. In the early 1900s the government relegated them to a plot called the Alexander Valley Rancheria, near Healdsburg, California. Then, in 1961, Congress passed a law allowing the BIA to dismantle the rancheria, causing the tribe to lose its federal recognition. The reservation lands were sold to private owners over the following decades. (In California, it is important to note, rancherias are composed of federal land set aside by the federal government to be occupied by a number of Native American tribes without land.)
Since 1979, the Wappos have been unsuccessful in petitioning Congress to restore their recognition. They have also petitioned the BIA, but the BIA has denied the reinstatement because the 1961 law remains on the books.
The tribe filed a lawsuit in 2009, contending that the loss of their recognition was carried out illegally because James Adams, a non-tribal member who lived at the rancheria at the time, and tribal member William McCloud were the only ones who voted to terminate recognition.
Napa and Sonoma counties joined the lawsuit in 2010, in opposition of federal recognition. U.S. District Court Judge Edward Davila removed the counties from the lawsuit in 2012, stating that they had no standing in the case.
In its July commentary to the DOI opposing a change in rules, the Sonoma County Supervisors wrote:
“Once land is removed from the County’s jurisdiction, it loses regulatory jurisdiction, while still retaining criminal jurisdiction and the obligation to provide law enforcement and other services for the benefit of the trust land, without receipt of tax revenue or other guaranteed compensation, in perpetuity. As a result, California Counties have a significant interest in ensuring that the first step — the federal government’s acknowledgement of a tribe — is characterized by fairness, integrity, transparency, and accuracy.”
The counties’ opposition is largely driven by concerns that the tribe would gain land to be put into federal trust, thus changing local zoning laws that would eliminate environmental protections for the county’s agricultural lands and make way for possible developments, warehouses, or other economic projects.
Sonoma County Deputy Counsel Jennifer Klein said that there would be public outcry against “anyone buying agricultural land who would want to tear down the oak trees and develop.”
Also taking into consideration the ongoing drought crippling the state’s water resources, Klein noted, “This concerns everyone. How much water would a development need to use?”
Jeff Brax, another Sonoma County deputy counsel, said that it’s not a “tribe vs. not a tribe question,” but that Napa and Sonoma counties have “taken extra precautions” to protect land within their jurisdictions.
“Their [the Wappos’] statements are always careful to say they don’t have plans for a casino ‘at this time’ but their backers and funding suggest they may,” Brax continued. “Both counties [Napa and Sonoma] have a lot of open space between towns. They have not yet purchased any property — that we know of. If they get recognition, then they’ll pick a site.”
Another factor fueling opposition is that tribe’s recognition would also lead to a loss of property tax on land belonging to the tribe.
“It’s a unique history here, a different dynamic. We have many small tribes,” Klein noted. “There’s a lot of land that potentially could be put into trust.”
The tribe’s lawsuit, however, specifies only land that is managed by the DOI and is available for transfer.
The BIA process for lands taken into trust by the BIA affords local governments, such as the county government, the right to be heard with respect to the potential impacts to their jurisdiction.
“With its lawsuit, however, the Mishewal Wappo Tribe of Alexander Valley seeks to have a judge order the Secretary of the Interior to take unidentified lands into trust that lie within the alleged historic aboriginal territory in Alexander Valley (not limited to the former rancheria) and thereby evade the administrative process and public comment for such land acquisitions,” Napa County’s position paper states.
The county’s statement says, “In their lawsuit, the Tribe seeks a court order to compel the Secretary to take unidentified lands in Napa and Sonoma into trust for them and to deem such lands qualify as ‘restored lands,’ which is the specific land status they need to build and operate a casino.”
“This indicates a clear intent on their part to engage in large-scale gaming,” it asserts.
Congress passed the Indian Gaming Regulatory Act in 1988 to provide for gaming only on “Indian lands,” usually trust lands of tribal governments. The act restricts gaming to lands acquired by a tribe before 1988, although several exceptions have been made for land acquisition after that year.
“The tribe specifically asked that the lands taken into trust be deemed ‘restored lands,’ which is the specific land status they need under the federal Indian gaming statute to build and operate a large, Las Vegas-style casino in Napa County,” Napa County Supervisor Diane Dillon told the Napa Valley Registerin October 2012.
“Our significant protectable interests here include our precious agricultural preserve, our concern for the environment, the orderly administration of our comprehensive land use regulations, and the quality of life in Napa County, which we have fought to protect for decades, and we disagree with the judge’s decision,” she said.
Dillon speculated that the tribe was seeking federal recognition through litigation because it could not qualify for recognition through established BIA procedures. The county maintains that only Congress — not the federal courts — should be able to grant tribes recognition.
After the county was removed from the lawsuit, Wappo Tribal Chairman Scott Gabaldon commented that he expects “bigger fights” in the future. Land and a casino are not the lawsuit’s primary focus, he said, but gaining federal recognition is.
The county’s position paper says the Wappos’ lawsuit is being funded by an unnamed investor who would share any profits from future tribal enterprises.
Opposing the reform, U.S. Rep. Mike Thompson, D-St. Helena, posted a news article on his website reporting that he and other lawmakers and county officials contend that “tribes shouldn’t use the courts to get recognition, which carries with it an ability to petition the federal government to take land into trust. Taking land into trust exempts it from local land-use and zoning restrictions, and local officials fear that would be the first step in having a casino built in Napa County. Tribal officials have said that is an option they are weighing for economic development.”
“Getting one’s own sovereignty status is a huge, serious, for-perpetuity type of privilege,” Napa County Counsel Tran said. “It is complex, but it should be complex. We want to make sure that only (those) who are deserving earn that privilege.”
The Mishewal Wappo Tribe’s case is currently in U.S. District Court in San Jose, where it is awaiting a ruling. California has 109 federally recognized tribes and 68 petitioning for recognition.
Key points of the new rule
If the courts deny the Wappo Tribe recognition, the tribe would be eligible to apply again under the new proposed rule. Applicants who were denied before the new rule or who had tried to appeal to a U.S. District Court will also be allowed to appeal.
BIA held five tribal consultation meetings and five public hearings across the country between July and August this year. Due to the significant response from the public, the comment period was extended until Sept. 30, after which the comments will be reviewed and taken into consideration for any modifications.
In total, more than 2,800 commenters have provided input on the discussion draft.
Deputy Counsel Klein said, “Sonoma County disagrees with limiting local government in the process. The new rules say that there will be a process of notification to states and tribes within 25 miles for comment, but nothing for local government.”
The BIA has reported that the overwhelming majority of commenters support doing away with the current requirement for providing external evidence of identification as an Indian entity, but they also want clarification that the evidence could be submitted to support other requirements. Few comments stated that the external identification requirement is necessary, as every petitioner identifies itself as a tribe.
The new rule proposes to establish a series of reviews that would allow for decisions to be issued earlier by filtering out those that do not meet criteria sooner.
Under the new rule:
- Applicants meeting requirements would receive a determination more quickly if the decision is uncontested by the state, local government, or tribes within the state or within 25 miles of the petitioner’s base;
- Regulations would also limit the time for the federal government to review evidence and the time that petitioners can be asked for more documentation;
- Petitioners who have held reservation land at any time since 1934 can use that holding as evidence that it is a community and political entity;
- Applicants would no longer have to provide evidence that they have existed as a group for each 10-year period required under the current process.
Of the 566 federally recognized tribes, 17 have been recognized through the Part 83 process under Title 25 of the Code of Federal Regulations, Procedures for Establishing that an American Indian Group Exists as an Indian Tribe. Of the vast remainder, most have been federally recognized through Congress.