Department of Interior Archives

Native leaders seek more control over assets

Ute Mountain Ute chairman presses for trust-fund reforms

WASHINGTON – Tribal leaders appealed to the federal government for greater control of their assets during a hearing of the Senate Committee on Indian Affairs on Wednesday.

In the 1800s, the federal government agreed to hold Indian lands for 25 years, promising to allot economic benefits of the land to Indians – a trust. The beneficiaries could not sell, lease or otherwise encumber their allotted lands without government approval. This practice is still in effect today, according to a recent Department of Interior report to Congress.

“Leasing lands should be tribally driven,” said Ute Mountain Ute Tribal Chairman Manuel Heart in a telephone interview. “We know what’s best for us.”

The trust is established in the Constitution and in extensive case law, but it is not codified in any congressional statute. Tribes support legislation by Sen. Michael Crapo, R-Idaho, and Rep. Mike Simpson, R-Idaho, to codify the trust and reform it to give more management control to tribal governments.

The legislation would maintain federal responsibility and oversight for the trust, but seeks to ensure accountability by having Native Americans provide input in management decisions.

Tribal leaders are also calling for the elimination of the Office of the Special Trustee. They say it is superfluous to the Bureau of Indian Affairs, and it causes delays and hurdles for tribal management.

The National Congress of American Indians has issued a resolution expressing the importance of the legislation in streamlining rules to promote economic development.

“We go to the BIA, and they say you have to go to the OST, then they send us back to the BIA,” said Ernest Stensgar, vice chairman of the Coeur d’Alene Tribe of Indians, describing the permitting process for logging projects. “OST is a problem. Our processes can come to a dead stop as we wait to find out who has jurisdiction.”

Kevin Washburn, assistant secretary for Indian Affairs, acknowledged as many as 43 steps are required for permitting development but said merging the positions would be “like rearranging the deck chairs on the Titanic.”

“Frankly, this fiduciary function is very important, having that expertise,” Washburn said. “We’re very cautious about claims that the OST position needs to be reformed.”

The committee also discussed the Supreme Court’s ruling on Carcieri v. Salazar. In 2009, the court ruled that only tribes recognized before 1934 should be included in the trust.

“It’s (Carcieri analysis) has been a horrible burden,” said Washburn, who explained that counties often fear a loss of tax revenue from tribes being accepted into the trust. “If there’s disagreement from the local or state governments, proposals to join the trust can languish for years.”

Washburn described another challenge concerning states’ jurisdiction.

“State taxation crowds out the ability of tribes to develop their lands,” he said.

“If we really want to get serious about issues like native youth suicides, then we have to allow development and tackling dual taxation.”

Heart said state control has affected the Ute Mountain Utes. The tribe has about 20,000 acres in New Mexico, but because New Mexico doesn’t recognize the Ute Mountain Utes, the state collects taxes from companies. Heart says that revenue belongs to the tribe.

These types of uncertainties create land insecurity and end up stifling economic interests for both native and non-native people, said Gregory Smith, an attorney working to defend tribal rights in the Southwest.

Heart said the Ute Mountain Utes have casinos and oil and gas developments, and they are looking to invest in solar energy, as well.

Department of the Interior Announces Final Federal Recognition Process to Acknowledge Indian Tribes

Date: June 29, 2015
Contacts: Jessica Kershaw (DOI), Interior_Press@ios.doi.gov
Nedra Darling (ASIA), 202-219-4152

Initiative Reforms a Process Long Criticized as “Broken,” Increases Transparency in Important Review of Tribal Recognition Status

WASHINGTON – U.S. Secretary of the Interior Sally Jewell and Assistant Secretary-Indian Affairs Kevin K. Washburn today released a final rule to reform the regulatory process by which the Department of the Interior officially recognizes Indian tribes. The updated rule promotes a more transparent, timely and consistent process that is flexible enough to account for the unique histories of tribal communities, while maintaining the rigor and integrity of the criteria that have been in place for nearly 40 years.

“Since the beginning of President Obama’s Administration, the Department has worked with tribal and government leaders on improving the federal acknowledgment process, which has been criticized as inconsistent, slow and expensive,” Secretary Jewell said. “This Administration takes very seriously its important trust and treaty responsibilities to Native Americans and Alaska Natives. This updated process for important tribal recognition makes good on a promise to clarify, expedite and honor a meaningful process for federal acknowledgement to our First Americans.”

“This updated rule is the product of extraordinary input from tribal leaders, states, local governments and the public,” said Assistant Secretary Washburn. “We have a responsibility to recognize those tribes that have maintained their identity and self-governance despite previous federal policies expressly aimed at destroying tribes. This new process remains rigorous, but it promotes timely decision-making through expedited processes and increases transparency by posting all publically available petition materials online so that stakeholders are well-informed at each stage of the process. Many of these improvements came from public comments by stakeholders and we are grateful for their guidance.”

To maintain the substantive rigor and integrity of the current regulatory process (described in Part 83, Title 25 – Code of Federal Regulations), the final rule carries forward the current standard of proof and seven mandatory criteria that petitioners must meet to substantiate their claim to tribal identification, community and political authority. To promote fairness and consistent implementation, the new process provides that prior decisions, which found evidence or methodology sufficient to satisfy a particular criterion for a previous petitioner, are sufficient to satisfy that criterion for a present petitioner. The final rule further promotes consistent application by establishing a uniform evaluation period of more than a century, from 1900 to the present, to satisfy the seven mandatory criteria.

Key features of the final rule promote transparency by:

Increasing public access to petition documents for Federal Acknowledgment;
Expanding distribution of notices of petitions to include local governments; and
Increasing due process by providing for an administrative judge to conduct a comprehensive hearing and issue a recommended decision for proposed negative findings.

In a separate action, Assistant Secretary Washburn issued a policy statement explaining that the Department intends to rely on the newly reformed Part 83 process as the sole administrative avenue for acknowledgment as a tribe as long as the new rule is in effect and being implemented.

To build public trust in the Federal Acknowledgement process, the Department has been working to reform the Part 83 process since the beginning of the Obama Administration. At that time in 2009, Interior initiated its own review. In 2012, the Department identified guiding principles of the reform effort. In recognition of the high level of interest, the Department used a transparent rulemaking approach and significant outreach effort. Before beginning the formal rulemaking initiative, Interior issued a discussion draft in 2013 to facilitate public input on how to improve the process.

Through the discussion draft and ensuing tribal consultations and public meetings, the Department obtained substantial feedback. In total, more than 2,800 commenters provided input on the discussion draft. The Department issued a proposed rule in May of 2014 and extended the public comment period on that proposal in response to requests from tribes, state and local governments, members of Congress and the public. In total, more than 330 unique comments were submitted on the proposed rule. The final rule reflects substantial changes to the discussion draft and the proposed rule in response to public comments.

Federal acknowledgment establishes the U.S. Government as the trustee for Tribal lands and resources and makes Tribal members and governments eligible for federal budget assistance and program services. Since 1978, 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. The Department has denied acknowledgment to 34 other petitioning groups.

Though far more tribes have been recognized through Executive or Congressional action, the Part 83 process is an important mechanism because it allows deliberative consideration of petitions by a staff of federal experts in anthropology, genealogy and history and ultimately allows for a decision by the Assistant Secretary-Indian Affairs. When petitioning groups that meet the criteria are officially “acknowledged” as Indian tribes, the U.S. Government accepts trusteeship of Tribal lands and natural resources. Tribal governments and members then become eligible to receive federal health, education, housing and other program and technical assistance.

The final rule and other information is online here.

Tribes support changing feds’ recognition process

By PHILIP MARCELO, Associated Press

MASHPEE, Mass. (AP) – American Indians attending a Tuesday hearing at the Mashpee Wampanoag community center on Cape Cod said they support the federal government’s plan to make it easier for tribes to gain federal recognition.

But the tribal representatives, from New Jersey, Virginia, Missouri, New England and elsewhere, urged the U.S. Department of the Interior to go further.

They called for setting a time limit on the review process, which can sometimes take decades.

“There’s something wrong when a process takes more than a generation to complete,” said Cedric Cromwell, chairman of the tribal council for the Mashpee Wampanoags, which won federal recognition in 2007 after a 30-year quest.

Federal recognition brings tribes increased government benefits and special privileges, including seeking commercial ventures like building casinos and gambling facilities on sovereign lands.

Tribal leaders also strongly objected to a proposal they said effectively gives “veto power” to certain “third parties” when a tribe seeks to re-apply for recognition.

Dennis Jenkins, chairman of the Eastern Pequot Tribal Nation in Connecticut, said the provision would allow states, municipalities and other organizations that oppose tribal recognition to stand in the way of the federal decision-making process.

“It would be next to impossible for us to re-apply if this proposal goes through,” he said.

One attendee, meanwhile, suggested the proposed changes would “devalue” federal tribal recognition by setting the bar too low.

“The current process was not intended to create a tribal existence where none had existed,” said Michelle Littlefield, Taunton resident who has been an outspoken opponent of the Mashpee Wampanoags’ plan to build a $500 million resort casino in that city. “It is meant to protect the integrity of the historical Native American tribes that have an honored place in our nation’s history.”

The hearing was the last in a series of nationwide meetings on the proposal, and the only one held on the East Coast.

Assistant Secretary of Indian Affairs Kevin Washburn said the department believes it can make the tribal recognition process less costly and burdensome to tribes and more predictable and transparent without “sacrificing rigorousness.”

The Mashpee, who hosted the meeting, are among only 17 tribes that have been recognized by the Interior Department since the process was established 35 years ago.

The majority of the 566 federally-recognized tribes in the U.S. earned that status through an act of Congress.

The Interior Department proposes, among other things, lowering the threshold for tribes to demonstrate community and political authority.

Rather than from “first sustained contact” with non-Indians, tribes would need only to provide evidence dating back to 1934, which was the year Congress accepted the existence of tribes as political entities.

Washburn said that proposal, in particular, could help “level the playing field” among tribes.

Eastern tribes, he said, would otherwise need to provide a much more exhaustive historical record – sometimes dating as far back as 1789 – than their western counterparts.

“We’ve heard over and over that the process is broken,” Washburn said. “We’re going to do something.”

NCAI Applauds President Obama’s Historic Visit to Indian Country

Source: National Congress of American Indians

WASHINGTON, DC – The National Congress of American Indians (NCAI) applauds President Obama for upholding his ongoing commitment to tribal nations and Native peoples by travelling to the Standing Rock Sioux Reservation this Friday, June 13. Since taking office, President Obama has remained steadfast in honoring our nation-to-nation relationship. President Obama has kept his commitment to host the annual White House Tribal Nations Summit in Washington D.C. These summits have facilitated unprecedented engagement between tribal leaders and the President and members of his Cabinet.

At the 2013 White House Tribal Nations Summit, the President announced that he would visit Indian Country himself – a longtime priority of tribal leaders. Friday’s visit to Standing Rock fulfills that promise. This historic visit is the first by a sitting President in over 15 years and makes President Obama only the fourth President in history to ever visit Indian Country.

NCAI expects the President to address the economic development needs of tribal nations and the needs of Native youth. While tribal youth are included in the Administration’s “My Brother’s Keeper” initiative, this Administration has always known that Native children have specific cultural and education needs that require focused attention.

For this reason, Indian Country has witnessed an unprecedented collaboration between the Secretary Jewell at the Department of the Interior and Secretary Duncan at the Department of Education, to study what is necessary to make sure that all of our Native students – in public schools, tribal schools, and Bureau of Indian Education schools have the tools they need to ensure a strong future for all Native children. In 2013, Secretary Jewell visited the Pueblo of Laguna to see first hand how a tribal education department was improving the quality of schools operations, performance and structure of BIE schools. She witnessed a nation that was engaged and excited to participate in efforts to improve educational outcomes in Indian Country.

It will take visits like this – the agencies working together with tribal governments and national organizations such as the NCAI and the National Indian Education Association to ensure that our students can be the future tribal leaders, teachers, health care workers, and entrepreneurs that our nations and the United States need to thrive for generations to come.

The President’s visit builds on ongoing efforts of his Administration to work closely with tribal nations on policy that affects their citizens. We trust the visit will be a catalyst for more policies that will not only succeed today, but cement the positive relationship between tribal governments and the federal government well into the future. President Obama has made annual summits between our nations in his words, “almost routine.” We trust this will be the continuation of his Administration’s engagement with our nations that makes visits to Indian Country by the President and his Cabinet routine too.

About The National Congress of American Indians:

Founded in 1944, the National Congress of American Indians is the oldest, largest and most representative American Indian and Alaska Native organization in the country. NCAI advocates on behalf of tribal governments and communities, promoting strong tribal-federal government-to-government policies, and promoting a better understanding among the general public regarding American Indian and Alaska Native governments, people and rights. For more information visit www.ncai.org

DOJ’s ‘Operation Choke Point’ Infringes on Tribal Trust

By Barry Brandon, American Banker

Tribal sovereignty is the most valuable of all American Indian assets. Tribal governments’ inherent rights of self-government and self-determination are the foundation of tribal communities and tribal identity.

Tribal governments have worked hard to strengthen our partnerships with the federal government through self-determined economic development and the co-creation of new institutions, including the National Indian Gaming Commission, housed within the Department of Interior.

The relationship between tribal governments and the federal government goes beyond the DOI, however, to include Congress and the White House, which has a long-running formal policy of consultation with tribal governments. These complex and interdependent relationships, enshrined in the U.S. Constitution, are summarized as the “trust relationship” or even “trust responsibility,” so named because it captures the special fiduciary responsibility by the federal government towards tribes.

Recently, however, the relationship between some tribal governments and a particular division of the federal government, located in the Department of Justice, has been severely damaged by an internal campaign known within the DOJ as “Operation Choke Point.”

This behind-the-scenes attempt to shut down legal tribal businesses has disrupted our long-held tribal-federal partnership. It represents a total departure from more than a century of respect for, and engagement with, tribal governments as partners and co-regulators on issues ranging from law enforcement to economic development to education.

At issue in the short term are the legal, licensed and regulated e-commerce lending services that many tribes have established. What is at stake, however, is the long-term viability of the trust relationship itself.

In other economic ventures such as gaming, tribal governments have found strong opposition from state governments who see us as a competitor or, worse yet, as a willful violator of state regulations. It thus disturbs tribal governments that, in the case of legal online lending, the DOJ – our supposed federal partner – continues to attack and undermine our legal businesses.

As a member of the “federal family,” the DOJ has a mandate to exercise their trust responsibility to tribal governments. They have a responsibility to do this in a way that protects tribal businesses engaging in honest business practices, as ours do.

Like gaming enterprises operated by tribal governments, our online lending businesses are legally owned, operated and regulated under tribal regulatory authority. They are created pursuant to tribal law and our authority to create them is acknowledged in the Dodd-Frank Act. As with gaming, we have created partnerships with the federal government and federal regulatory bodies to ensure that consumers across the country have access to the services they need in a way that also drives economic growth on reservations.

Thus, we support and echo the concerns of House Oversight Committee Chairman Darrell Issa, as reported in American Banker, that the Justice Department’s dragnet does appear to be an effort to stomp out all short-term lending, including legal tribal government-owned enterprises.

In light of the fact that the Dodd-Frank Act treats tribes as states in the context of financial services, tribal governments have created the Native American Financial Services Association to collectively establish a model for self-regulation, and we have sought meaningful consultation with federal regulatory bodies to strengthen and operationalize our relationship as co-regulators.

In an election year, however, the successful negotiation of a co-regulatory environment is not deemed as newsworthy as “choking off” legal tribal businesses. It is this abandonment of the federal-tribal trust relationship that has allowed “Operation Choke Point” to run amok and allowed legislators to blindly prop it up.

In the wake of this abandonment, rather than focusing on the true bad actors in the industry, “Operation Choke Point” is having the opposite effect. As the DOJ’s blanket actions continue to choke the illegal businesses, they also drown the legal ones, like ours, leaving consumers further underserved and tribal communities further isolated. At NAFSA, we will continue fighting to strengthen our tribal laws and regulations, work with our federal partners and educate state governments about our legal right to offer these businesses.

We can only hope that the DOJ, as a member of the “federal family,” will abide by their obligation to consult with us before taking unilateral actions, especially those that do not consider our special “trust” relationship and damage the fragile economic strides we are seeking on isolated reservation lands.

Tribes, BIA and BLM collaborate on oil, gas operations

By The Ranger staff reports

The Arapaho and Shoshone tribes and the Department of the Interior, through the Bureau of Indian Affairs and the Bureau of Land Management, signed a memorandum of understanding Feb. 25 in Fort Washakie.

Through the MOU, the parties said they will engage in a cooperative environmental program to promote compliance on oil and gas properties by lessees and operators on the Wind River Indian Reservation.

“This MOU is a good opportunity for all of us to start fresh, to be on the same page and to work toward the same goals,” said BIA acting Rocky Mountain regional director Darryl LaCounte.

Specifically, the MOU outlines a process and timelines for the parties to:

– review all ongoing oil and gas operations on the reservation with tribal ownership interest to identify actual or potential adverse environmental effects;

– identify prospective sources of federal funding to the tribes to support monitoring, inspection and enforcement;

– develop an environmental plan for oil and gas operations; and

– formalize a structure for future communications between the parties regarding environmental concerns arising from oil and gas operations.

“We look forward to working collaboratively with the Arapaho and Shoshone tribes, as well as with the BIA, to manage oil and gas activities on the Wind River Indian Reservation,” said BLM Wyoming state director Don Simpson.

For more information, call BIA realty officer Marietta Shortbull at 332-4639 or BLM resource adviser Stuart Cerovski at 332-8400.