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Pages 1--54 from GAO-02-49: Indian Issues: Improvements Needed in Tribal Recognition Process
Page 1 2
Report to Congressional Requesters
United States General Accounting Office
GAO
November 2001 INDIAN ISSUES
Improvements Needed in Tribal Recognition
Process
GAO-02-49 1
1 Page 2 3
Page i GAO-02-49 Indian Issues
Letter 1
Results in Brief 2
Background 3
Federal Recognition Confers Benefits and Sovereign Rights to
Indian Tribes 5
Weaknesses Exist in the BIA Regulatory Process for Recognizing
Tribes 10
Conclusions 19
Recommendations to the Secretary of the Interior 20
Agency Comments 20
Appendix I: How Tribes Have Become Federally Recognized 21
Appendix II: The BIA Regulatory Tribal Recognition Process 27
Appendix III: The Rise of the Indian Gambling Industry 32
Indian Gaming Regulatory Act 32
The Indian Gambling Industry 34
Current Indian Gambling Legal Issues 37
Appendix IV: Comments From the Department of the Interior 39
Appendix V: Scope and Methodology 48
Appendix VI: GAO Contact and Staff Acknowledgments 49
Tables
Table 1: Funding for IHS and BIA, Fiscal Year 2000 6
Table 2: Federal Funding Targeted at Indians Outside of IHS and
BIA, Fiscal Year 2000 7
Table 3: Forty-seven Tribes Have Been Individually Recognized
Since 1960 25
Contents 2
2 Page 3 4
Page ii GAO-02-49 Indian Issues
Table 4: The Regulatory Process 27
Table 5: Status of Petitions, as of August 2001 31
Table 6: How Tribes With Class II or Class III Gambling Facilities
Were Recognized 36
Figures
Figure 1: Number of Petitioning Groups in Regulatory Process by
Year 15
Figure 2: Receipt of Petitions for Recognition by Year 30
Figure 3: Indian Gambling Revenues in Constant Dollars, 1988-1999 35
Figure 4: Distribution of Class III Indian Gambling Facilities 36 3
3 Page 4 5
Page 1 GAO-02-49 Indian Issues
November 2, 2001
The Honorable Roy Blunt
The Honorable Ernest Istook
The Honorable Nancy Johnson
The Honorable Christopher Shays
The Honorable Rob Simmons
The Honorable Frank Wolf
House of Representatives
The federal recognition of an Indian tribe 1 can have a tremendous effect on
the tribe, surrounding communities, and the nation as a whole. Recognized
tribes and their members have almost exclusive access to about $4 billion
in funding for health, education, and other social programs provided by
the federal government. Additionally, recognition establishes a formal
government-to-government relationship between the United States and a
tribe. The quasi-sovereign status created by this relationship exempts
certain tribal lands from most state and local laws and regulations—
including, where applicable, laws regulating gambling. Many recognized
tribes have opened casinos and other gambling operations— some of
which have developed into successful enterprises. In 1999, federally
recognized tribes reported more gambling revenue than the Nevada
casinos collected that year. As of May 2001, there were 561 2 recognized
tribes with a total membership of about 1.7 million. In addition, several
hundred groups are currently seeking federal recognition.
In 1978, the Bureau of Indian Affairs (BIA), an agency within the
Department of the Interior, established a regulatory process intended to
provide a uniform and objective approach to recognizing tribes. This
process requires groups that are petitioning for recognition to submit
evidence that they meet certain criteria— basically that the petitioner has
continued to exist as a political and social community descended from a
historic tribe. Owing to the rights and benefits that accrue with
recognition and the controversy surrounding Indian gambling, BIA's
1 The term "Indian tribe" encompasses within its meaning all Indian tribes, bands, villages,
groups, and pueblos as well as Eskimos and Aleuts.
2 This number includes three tribes that were notified by the Assistant Secretary-Indian
Affairs on December 29, 2000, of the "reaffirmation" of their federal recognition. The current Assistant Secretary is reconsidering these three cases.
United States General Accounting Office Washington, DC 20548 4
4 Page 5 6
Page 2 GAO-02-49 Indian Issues
regulatory process has been subject to intense scrutiny by groups seeking
recognition and other interested parties— including already recognized
tribes and affected state and local governments. Critics of the process
claim that it takes too long and produces inconsistent decisions.
Dissatisfaction with the process has led to an increasing number of
lawsuits in federal courts concerning the recognition process. In recent
Congresses, including the 107th Congress, bills were introduced to reform
the recognition process. In light of the controversies surrounding the
federal recognition process and the ongoing discussions on how to reform
the process, you asked us to review various aspects of the tribal
recognition process. As agreed with your offices, this report (1) describes
the significance of federal recognition and (2) evaluates the BIA regulatory
recognition process and makes recommendations for improvement, as
necessary. Additionally, as requested, appendix I provides a historical
overview of how tribes have been recognized; appendix II provides an
explanation of the BIA regulatory process and the status of petitions for
recognition; and appendix III provides information on Indian gambling
operations.
Federal recognition makes Indian tribes eligible to participate in billion
dollar federal assistance programs and can result in the granting of
significant rights as sovereign entities— including exemptions from state
and local jurisdiction and the ability to establish casino gambling
operations. The significance of these benefits and rights has been
increasing since the inception of BIA's regulatory process for federal
recognition in 1978. About $4 billion was appropriated for programs and
funding almost exclusively for recognized tribes in fiscal year 2000, about
a 30-percent increase in real terms from a $3-billion funding level in 1978.
Today, the federal government holds title to about 54 million acres in trust
for federally recognized Indian tribes and their members. Finally, the
Indian gambling industry has flourished since the enactment of the Indian
Gaming Regulatory Act in 1988, with 193 tribes generating approximately
$10 billion in annual revenues in 1999 from their gambling operations.
However, that revenue has been concentrated in a relatively few number
of tribes, with 27 tribes producing two-thirds of all revenue.
Because of weaknesses in the recognition process, the basis for BIA's
tribal recognition decisions is not always clear and the length of time
involved can be substantial. First, while there are set criteria that
petitioners must meet to be granted recognition, there is no clear guidance
that explains how to interpret key aspects of the criteria. For example, it is
not always clear what level of evidence is sufficient to demonstrate a
Results in Brief 5
5 Page 6 7
Page 3 GAO-02-49 Indian Issues
tribe's continuous existence over a period of time— one of the key aspects
of the criteria. As a result, there is less certainty about the basis of
recognition decisions. Second, the regulatory process is not equipped to
respond in a timely manner. While workload has increased with more
detailed petitions ready for evaluation and increased interest from third
parties, the number of staff assigned to evaluate the petitions has
decreased by about 35 percent from its peak in 1993. BIA has not
maintained funding for this process in light of the increasing demands for
program funding needed to provide services to currently recognized tribes.
Just as important, the process lacks effective procedures for promptly
addressing the increased workload. In particular, the process does not
impose effective timelines that create a sense of urgency, and procedures
for providing information to interested third parties are ineffective. As a
result, a number of groups that have submitted completed petitions are
still awaiting active consideration— some for over 5 years. It may take up
to 15 years to resolve all these completed petitions, despite the fact that
active consideration of a completed petition was designed to reach a final
decision in about 2 years. We are making recommendations to the
Secretary of the Interior aimed at ensuring a more predictable and timely
process.
The Department of the Interior commented on a draft of this report and
generally agreed with our findings and recommendations. The
Department also provided a plan for implementing our recommendations.
Historically, tribes have been granted federal recognition through treaties,
by the Congress, or through administrative decisions within the executive
branch— principally by BIA within the Department of the Interior. (See
app. I for additional information on how tribes have been recognized.) In a
1977 report to the Congress, the American Indian Policy Review
Commission found that the criteria used by the Department to assess a
group's status were not very clear and concluded that a large part of its
recognition policy depended on which official responded to the group's
inquiries. Until the 1960s, the limited number of requests by groups to be
federally recognized permitted the Department to assess a group's status
on a case-by-case basis without formal guidelines. However, in response to
an increase in the number of requests for federal recognition, the
Department determined that it needed a uniform approach to evaluate
these requests. In 1978, it established a regulatory process for recognizing
Background 6
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Page 4 GAO-02-49 Indian Issues
tribes. 3 In 1994, the Department revised the regulations to clarify what
evidence was needed to support the requirements for recognition,
although the basic criteria used to evaluate a petition were not changed. 4
In addition, in 1997 BIA updated guidelines on the process, and in
February 2000, BIA issued a notice in the Federal Register clarifying
internal processing procedures. 5
In summary, a group enters the regulatory process and becomes a
petitioner by submitting a letter of intent requesting recognition. A
petitioner then must provide documentation that addresses seven criteria
that, in general, demonstrates continuous existence as a political and
social community that is descended from a historic tribe. The technical
staff within BIA's Branch of Acknowledgement and Research (BAR)
reviews the submitted documentation, provides technical review and
assistance, and determines, with the petitioner's concurrence, when the
petition is ready for active consideration. Once the petition enters active
consideration, the BAR staff reviews the documented petition and makes
recommendations on a proposed finding either for or against recognition.
Staff recommendations are subject to review by the Department's Office of
the Solicitor and senior officials within BIA, culminating with the approval
of the Assistant Secretary-Indian Affairs. After a proposed finding is
approved by the Assistant Secretary, it is published in the Federal Register
and a period of further comment, document submission, and response is
allowed. The BAR staff reviews comments, documentation, and responses
and makes recommendations on a final determination that are subject to
the same levels of review as a proposed finding. The process culminates in
a final determination by the Assistant Secretary that, depending on the
nature of further evidence submitted, may or may not be the same as the
proposed finding.
Requests for reconsideration may be filed with the Interior Board of Indian
Appeals within 90 days after the final determination. This review process
can result in affirmation of the Assistant Secretary's decision or direction
to the Assistant Secretary to issue a reconsidered determination. BIA has
received 250 petitions for recognition under this process. However, many
of these petitions consist only of letters of intent to petition or are
3 43 Fed. Reg. 39361 (Sept. 5, 1978).
4 59 Fed. Reg. 9280 (Feb. 25, 1994).
5 65 Fed. Reg. 7052 (Feb. 11, 2000). 7
7 Page 8 9
Page 5 GAO-02-49 Indian Issues
petitions for which only partial documentation has been submitted. Others
are no longer active because they have been withdrawn or resolved
outside the regulatory process or because a petitioner has lost contact
with BIA. In fact, of the 250 petitions, only 55 have completed
documentation that allows them to be considered by the process. For
those completed petitions, BIA has finalized 29 decisions— 14 recognizing
a tribe and 15 denying recognition. Of the remaining 26 completed
petitions, 3 decisions are pending; 13 are under active consideration; and
10 are ready, awaiting active consideration. A complete outline of the
process and the status of the 250 petitions are provided in appendix II.
With federal recognition, Indian tribes become eligible to participate in
billion dollar federal assistance programs and can be granted significant
privileges as sovereign entities— including exemptions from state and local
jurisdiction and the ability to establish casino gambling operations.
Federally recognized tribes and their members have almost exclusive
access to about $4 billion annually in federal funding through direct
payments and services unavailable to the general public or to Indians that
are not members of recognized tribes. For example, tribal governments
can receive direct payments to provide community services, such as health
clinics or sewer improvements, and members of tribes may be eligible for
housing programs or small business loans. The exemptions from state and
local jurisdiction for recognized tribes generally apply to lands that the
federal government has taken in trust for a tribe or its members. Currently,
about 54 million acres of land are being held in trust. 6 The Indian Gaming
Regulatory Act of 1988 (IGRA), 7 which regulates Indian gambling
operations, permits a tribe to operate casinos on land in trust if the state in
which it lies allows casino-like gambling and the tribe has entered into a
compact with the state regulating its gambling businesses. In 1999, tribes
collected about $10 billion in gambling revenue.
6 Tribal lands not in trust may also be exempt from state and local jurisdiction for certain
purposes in some instances.
7 25 U. S. C. 2701.
Federal Recognition
Confers Benefits and Sovereign Rights to
Indian Tribes 8
8 Page 9 10
Page 6 GAO-02-49 Indian Issues
Federal recognition provides a tribe with access to special Indian
programs reserved almost exclusively for recognized tribes and their
members. The Department of Health and Human Service's Indian Health
Service (IHS) and BIA— the two main agencies that provide funding and
services to tribes and their members— have a combined annual budget of
over $4 billion (see table 1). The combined funding for the two agencies
has increased by $1 billion (in real terms) since the regulatory recognition
process was established in 1978. Both agencies have established
procedures for funding newly recognized tribes. At IHS, newly recognized
tribes are assigned funds on a case-by-case basis. At BIA, newly
recognized tribes with 1,500 members or less are provided with base
funding of $160,000; tribes with 1,501 to 3,000 members are provided
$300,000; and the base funding for tribes with more than 3,000 members is
determined on a case-by-case basis.
Table 1: Funding for IHS and BIA, Fiscal Year 2000
Dollars in billions
Agency Funding
IHS $2.4
BIA 1.9
Total $4.3
In addition to the funding and services from IHS and BIA, the Office of
Management and Budget estimates that for fiscal year 2000 an additional
$3.9 billion was appropriated for other federal programs specifically for
Indians or set-asides for Indians within larger programs (see table 2).
Federal recognition is not necessarily an eligibility requirement for these
programs. In fact, the eligibility requirements for these programs vary
widely, making it difficult to estimate the funding for programs that
require federal recognition for eligibility. Tribes may have been eligible for
some of these programs, or for similar programs, prior to their federal
recognition. For example, the Department of Housing and Urban
Development provides grant funding under the Native American Housing
Assistance and Self-Determination Act to federally recognized tribes and
some nonfederally recognized Indian groups. Additionally, Indians, as U. S.
citizens, are eligible to receive assistance from any federal program for
which they meet the eligibility requirements.
Recognized Tribes Are Entitled to Benefits From
the Bureau of Indian Affairs and Other Federal
Agencies 9
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Page 7 GAO-02-49 Indian Issues
Table 2: Federal Funding Targeted at Indians Outside of IHS and BIA, Fiscal
Year 2000
Dollars in billions
Agency Funding
Department of Education $1.577
Department of Housing and Urban Development 0.693
Department of Health and Human Services (excluding IHS) 0.354
Department of the Interior (excluding BIA) 0.326
Department of Transportation 0.250
Department of Agriculture 0. 198
Department of Justice 0. 195
Environmental Protection Agency 0.170
Other agencies 0. 179
Total $3.942
By 1886, Indian lands had been reduced to about 140 million acres largely
on reservations west of the Mississippi River. The federal government's
Indian policy encouraging assimilation further reduced Indian land
holdings by two-thirds, to about 49 million acres in 1934. However, in 1934,
the government's Indian policy changed to encourage tribal self-governance
with the Indian Reorganization Act. 8 The act provided the
Secretary the authority to take land in trust on behalf of federally
recognized tribes or their members. Since 1934, the total acreage held in
trust by the federal government for the benefit of tribes and their members
has increased from about 49 million to about 54 million acres.
Much of the recent controversy over recognition decisions, whether made
by the Congress or the Department, stems from events that can only occur
after a tribe is recognized. With recognition, the federal government can
take land in trust for tribes that may not have a land base or may want to
add to their land base. This raises concerns from local communities
regarding the loss of local jurisdiction over the land. For example, land
taken in trust is no longer subject to local property taxes and zoning
ordinances. Additionally, gambling may occur on land held in trust by the
federal government for tribes or their members. However, the process of
taking land in trust, like gambling, is not governed by the same laws and
regulations that govern tribal recognition. Land may be taken in trust
8 25 U. S. C. 461.
Recognized Tribes May Have Land Taken in Trust 10
10 Page 11 12
Page 8 GAO-02-49 Indian Issues
through legislation or BIA regulations. The regulations governing the land-in-
trust process became effective in October 1980 and set forth criteria,
including the impact on the local tax base and jurisdictional problems, that
the Secretary should consider in evaluating requests to take land in trust.
At that time the regulations did not require notification of affected state
and local communities, nor did they allow for outside comments. Taking
land in trust became more controversial with the enactment of IGRA in
1988. In 1995, the land-in-trust regulations were revised to require that
affected state and local governments be notified of each land-in-trust
request and that they be given 30 days to submit written comments. The
revised regulations also distinguished between on-and off-reservation
acquisitions. The criteria for off-reservation acquisitions became more
stringent, and state and local governments' concerns were given more
weight.
Indian gambling, a relatively new phenomenon, started in the late 1970s
when a number of Indian tribes began to establish bingo operations as a
supplemental means of funding tribal operations. However, state
governments began to question whether tribes possessed the authority to
conduct gambling independently of state regulation. Although many lower
courts upheld the tribal position, the matter was not resolved until 1987
when the U. S. Supreme Court issued its decision in California v.
Cabazon Band of Mission Indians. 9 That decision confirmed the tribes'
authority to establish gambling operations on their reservations outside
state regulation— provided the affected state permitted some type of
gambling. In 1988, the Congress passed IGRA, which established a
regulatory framework to govern Indian gambling operations. One of the
more important features of IGRA is that only federally recognized Indian
tribes may engage in gambling. IGRA established three classes of gambling
to be regulated by a combination of tribal governments, state
governments, BIA, and the National Indian Gaming Commission (NIGC)—
an entity created by IGRA to enforce IGRA requirements and to ensure the
integrity of Indian gambling operations.
Under IGRA, Class I gambling consists of social gambling for minimal
prizes or ceremonial gambling. It is regulated solely by the tribe and
requires no financial reporting to other authorities. Class II gambling
consists of gambling pull-tabs, bingo-like games, and punch boards. A tribe
9 480 U. S. 202 (1987).
Recognized Tribes May Establish Gambling
Operations 11
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may conduct, license, and regulate Class II gambling if (1) the state in
which the tribe is located permits such gambling for any purpose by a
person or organization and (2) the tribal governing body adopts a gambling
ordinance that is approved by NIGC. Class III gambling consists of all
other forms of gambling, including casino games, slot machines, and pari-mutuel
betting. 10 It, too, is only allowed in states that permit similar types
of gambling. The courts have interpreted this to mean, for example, that
even if a state only allows charitable casino nights and state-run lotteries,
tribes may operate casinos. Additionally, to balance the interests of both
the state and the tribe, IGRA requires that tribes and states negotiate a
compact regulating the tribal gambling operations. The Department of the
Interior must approve the compact. IGRA also requires a tribe to adopt a
gambling ordinance, which must be approved by NIGC.
According to the June 1999 final report of the National Gambling Impact
Study Commission, gambling revenues have proven to be a critical source
of funding for many tribal governments, providing much needed
improvements in the health, education, and welfare of Indians living on
reservations across the United States. In the 5-year span from fiscal years
1995 through 1999, gambling revenues have almost doubled from $5.5
billion to $9.8 billion— surpassing even Nevada with fiscal year 1999
revenues of $8.5 billion and Atlantic City with $4.2 billion. However, of the
561 recognized tribes, only 193 tribes, or about 34 percent, actually
participate in gambling and only 27 tribes (or about 5 percent) generate
more than $100 million on an annual basis. According to NIGC, during
fiscal year 1999, those 27 tribes produced two-thirds of all Indian gambling
revenue—$ 6.4 billion out of total revenues of $9.8 billion. According to the
National Gambling Impact Study Commission report, some tribes have
rejected Indian gambling in referenda. The report notes that other tribal
governments are in the midst of policy debates about whether to permit
gambling and related commercial developments on their reservations. Not
all gambling facilities achieve the same benefits or success. Some tribes
operate their casinos at a loss, and a few have been forced to close money-losing
facilities. Appendix III provides more detailed information on Indian
gambling operations.
10 Pari-mutuel betting is generally considered to include on-track, off-track, and inter-track
betting on horse racing, dog racing, and jai alai. 12
12 Page 13 14
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We have identified areas in the BIA regulatory process where changes
could better ensure more predictable and timely decisions. First, clearer
guidance is needed on the key aspects of the criteria and supporting
evidence used in recognition decisions. In particular, guidance is needed
in instances when limited evidence is available to demonstrate petitioner
compliance with criteria. The Department has continued to struggle with
the question of what level of evidence is sufficient to meet criteria in
recognition cases. The lack of guidance in this area creates controversy
and uncertainty for all parties about the basis for decisions reached.
Second, the process is also hampered by limited resources, a lack of time
frames, and ineffective procedures for providing information to interested
third parties. As a result, there is a growing number of completed petitions
waiting to be considered. BIA officials estimate that it may take up to
15 years before all these currently completed petitions are resolved,
despite the fact that active consideration of a completed petition was
designed to reach a final decision in about 2 years.
BIA regulations lay out seven criteria that must all be met before a group
can become a federally recognized tribe. These criteria, if met, identify
those Indian groups with inherent sovereignty that have existed
continuously and that are entitled to a government-to-government
relationship with the United States. In general, a technical staff within
BIA, consisting of historians, anthropologists, and genealogists, evaluates
the evidence submitted by a petitioner and makes a recommendation on
whether or not to recognize the group as a tribe. After being reviewed by
Bureau officials and the Department's Office of the Solicitor, the
recommendation is presented to the Assistant Secretary-Indian Affairs,
who may accept or reject the recommendation. The regulations also call
for guidelines that explain the criteria, the types of evidence that may be
used to demonstrate particular criteria, and other information. However,
the guidelines, which were last updated in 1997, do not provide much
guidance on the consideration of the criteria and evidence. Rather, the
guidelines are generally geared toward providing petitioners with a basic
understanding of the process. The following are seven criteria for
recognition under the regulatory process:
(a) The petitioner has been identified as an American Indian entity on a
substantially continuous basis since 1900.
(b) A predominant portion of the petitioning group comprises a distinct
community and has existed as a community from historical times until
the present.
Weaknesses Exist in
the BIA Regulatory Process for
Recognizing Tribes
Clearer Guidance Needed on Evidence Required for
Recognition Decisions 13
13 Page 14 15
Page 11 GAO-02-49 Indian Issues
(c) The petitioner has maintained political influence or authority over its
members as an autonomous entity from historical times until the
present.
(d) The group must provide a copy of its present governing documents and
membership criteria.
(e) The petitioner's membership consists of individuals who descend from
a historical Indian tribe or tribes, which combined and functioned as a
single autonomous political entity.
(f) The membership of the petitioning group is composed principally of
persons who are not members of any acknowledged North American
Indian tribe.
(g) Neither the petitioner nor its members are the subject of congressional
legislation that has expressly terminated or forbidden recognition.
While we found general agreement about the seven criteria that groups
must meet to be granted recognition, there is great potential for
disagreement when evidence to support the criteria is lacking. The need
for clearer guidance on criteria and evidence used in recognition decisions
became evident in a number of recent cases. The BIA technical staff, in
conducting a detailed review of the evidence submitted, relies on
precedents from past decisions in assessing whether a petitioner meets the
criteria in order to ensure consistency in its recommendations. However,
the Assistant Secretary has rejected several recent recommendations
made by the technical staff, all resulting in either proposed or final
decisions to recognize tribes when the staff had recommended against
recognition. While the technical staff claims that its recommendations
were based on precedent, transparent guidance on past precedents is not
readily available to affected parties or the decisionmaker. At the same
time, while the Assistant Secretary is charged with making the final
decisions, it is not always clear why the Assistant Secretary differed with
the technical staff recommendations. Much of the current controversy
surrounding the regulatory process stems from these cases.
The regulations state that lack of evidence is cause for denial, but they
note that historical situations and inherent limitations in the availability of
evidence must be considered. At the heart of the recent differences
between the staff's recommendations and the Assistant Secretary's
decisions are different positions on what is required to support two key
aspects of the criteria. In particular, there are differences over (1) what is 14
14 Page 15 16
Page 12 GAO-02-49 Indian Issues
needed to demonstrate continuous existence and (2) the proportion of
members of the petitioning group that must demonstrate descent from a
historic tribe.
Concerns over what constitutes continuous existence have centered on
the allowable gap in time during which there is limited or no evidence that
a petitioner has met one or more of these criteria. In one case, the
technical staff recommended that a petitioner not be recognized because
there was a 70-year period for which there was no evidence that the
petitioner satisfied the criteria for continuous existence as a distinct
community exhibiting political authority. The technical staff concluded
that a 70-year evidentiary gap was too long to support a finding of
continuous existence. The staff based its conclusion on precedent
established through previous decisions where the absence of evidence for
shorter periods of time had served as grounds for finding that petitioners
did not meet these criteria. However, in this case, the Assistant Secretary
issued a proposed finding to recognize the petitioner, concluding that
continuous existence could be presumed despite the lack of specific
evidence for a 70-year period. The 1997 guidelines generally do not
provide any discussion of past precedents in dealing with gaps in evidence
when trying to meet the continuous existence criterion. Furthermore,
while the regulations allow for the consideration of reasons that might
limit available evidence, the Assistant Secretary's decision did not explain
why evidence might be limited. Such an explanation would seem
appropriate as part of the report called for in the regulations that
summarizes the evidence, reasoning, and analyses that are the basis for
proposed findings.
The Department has grappled with this issue in the past. In updating the
recognition regulations in 1994, it noted that the primary question of
evidence in recognition cases is usually not how to weigh evidence for and
against a position, but whether the level of evidence is high enough, even
in the absence of negative evidence, to demonstrate meeting a criterion.
For example, the 1994 regulations clarify the standard for demonstrating
continuous existence by requiring that a petitioner demonstrate that it
meets the criterion of a distinct community with political authority on a
"substantially continuous basis" and by explaining that this does not
require meeting the criterion at every point in time. However, the
regulations specifically decline to define a permissible interval during
which a group could be presumed to have continued to exist if the group
could demonstrate its existence before and after the interval. BIA stated
that establishing a specific interval would be inappropriate because the
significance of the interval must be considered in light of the character of 15
15 Page 16 17
Page 13 GAO-02-49 Indian Issues
the group, its history, and the nature of the available evidence. BIA also
noted that its experience has been that historical evidence of tribal
existence is often not available in clear, unambiguous packets relating to
particular points in time. While the consideration of continuous existence
in light of limited evidence in different historical circumstances will
always be a difficult issue, the 1997 guidelines, which could provide
guidance based on how this issue was handled in previous cases, are
largely silent on this issue.
Another key aspect of criteria that has stirred up controversy and created
uncertainty is the proportion of a petitioner's membership that must
demonstrate that it meets the criterion of descent from a historic Indian
tribe. In one case, the technical staff recommended that a petitioner not be
recognized because the petitioner could only demonstrate that 48 percent
of its members were descendents. The technical staff concluded that
finding that the petitioner had satisfied this criterion would have been a
departure from precedent established through previous decisions in which
petitioners found to meet this criterion had demonstrated a higher
percentage of membership descent from a historic tribe. However, in the
proposed finding, the Assistant Secretary found that the petitioner
satisfied the criterion. The Assistant Secretary told us that this decision
was not consistent with previous decisions by other Assistant Secretaries
but that he believed the decision to be fair because the standard used for
previous decisions was unfairly high. Clear guidance on this aspect of the
criterion is lacking. The 1997 guidelines do not provide any information on
past precedents used in assessing a petitioner's ability to demonstrate
descent. Further, the Assistant Secretary's written decision did not explain
why evidence might be limited and perhaps cause a deviation from past
precedent or why past standards were unfairly high in this case. Without
such an explanation, the report, which the regulations call for to
summarize the evidence, reasoning, and analyses that serve as the basis
for proposed findings, is incomplete.
When the Department revised the regulations in 1994, it clarified what was
required of petitioners to meet the criterion of membership descent from
historic tribes to a modest extent. However, the Department stated that it
intentionally avoided establishing a specific percentage of members
required to demonstrate descent because the significance of the
percentage varies with the history and nature of the petitioner and the
particular reasons why a portion of the membership may not meet the
requirements of the criterion. The current language under the criterion
only states that a petitioner's membership must consist of individuals who
descend from historic tribes— no minimum percentage or quantifying term 16
16 Page 17 18
Page 14 GAO-02-49 Indian Issues
such as "most" or "some" is used; the 1997 guidelines note only that it need
not be 100 percent demonstrated. Again, the 1997 guidelines provide no
discussion of past precedents to provide guidance on how this issue was
handled in the past.
While the 1994 revision to the regulations helped clarify what is required
of petitioners to be granted federal recognition, the Department
intentionally left key aspects of the criteria open to interpretation to
accommodate the unique characteristics of individual petitions. However,
leaving key aspects open to interpretation increases the risk that the
criteria may be applied inconsistently to different petitioners. To mitigate
this risk, BIA uses precedents established in past decisions to provide
guidance in interpreting key aspects in the criteria. A February 2000
Federal Register notice concerning changes to the internal processing of
recognition petitions states that the process will continue to apply the
precedents established in past decisions. However, the regulations and
accompanying guidelines are silent regarding the role of precedent in
making decisions or the circumstances that may cause deviation from
precedent. Thus, it becomes difficult for petitioners, third parties, and
future decisionmakers— who may want to consider precedents in past
decisions— to understand the basis for some decisions reached. If there
are precedents regarding aspects of criteria like continuous existence and
the proportion of membership demonstrating descent, it is not clear what
they are or how that information is made available to petitioners, third
parties, and decisionmakers. Ultimately, BIA and the Assistant Secretary
will still have to make difficult decisions about petitions when it is unclear
whether a precedent applies or even exists. Because these circumstances
require the judgment of the decisionmaker, acceptance of BIA and the
Assistant Secretary as key decisionmakers is extremely important. A lack
of clear and transparent explanations of the decisions reached may cast
doubt on the objectivity of decisionmakers, making it difficult for parties
on all sides to understand and accept decisions, regardless of the merit or
direction of the decisions reached.
Because of limited resources, a lack of time frames, and ineffective
procedures for providing information to interested third parties, the length
of time involved in reaching final decisions is substantial. The workload of
BIA staff assigned to evaluate recognition decisions has increased while
resources have declined. BIA, working in conjunction with a petitioner to
ensure that all documentation is provided, determines when a petition is
complete and thus ready for active consideration (ready status). Once a
petition is deemed ready for active consideration, petitioners and other
Process Ill Equipped to Provide Timely Response 17
17 Page 18 19
Page 15 GAO-02-49 Indian Issues
interested parties must wait until BIA has staff available to begin active
consideration. BIA begins active consideration of the complete petition
(active status) based on the order in which petitioners entered ready
status. There was a large influx of petitions placed into ready status in the
mid-1990s. Of the 55 petitions that BIA has placed in ready status since the
inception of the regulatory process in 1978, 23 (42 percent) were placed
there between 1993 and 1997 (see fig. 1).
Figure 1: Number of Petitioning Groups in Regulatory Process by Year
Note: Status as of the last day of each calendar year.
Source: BIA.
There are currently 10 petitions in ready status— and 6 of these have been
waiting at least 5 years. In addition, BIA staff is fully committed to the
active consideration of another 13 petitions. According to BIA staff, the
petitions under active consideration and those awaiting review are
becoming more complex and detailed as both petitioners and third parties,
with increasing interests at stake, commit significant resources to their
petitions and comments. The chief of the branch that is responsible for 18
18 Page 19 20
Page 16 GAO-02-49 Indian Issues
evaluating petitions told us that, based solely on the historic rate at which
BIA has issued final determinations, 11 it could take 15 years to resolve all
the petitions currently awaiting active consideration. In contrast, the
regulations outline a process for active consideration of a completed
petition that should take about 2 years.
Compounding the backlog of petitions awaiting evaluation, the increased
number of related administrative responsibilities that the technical staff
must assume further limits the proportion of their time spent on evaluating
petitions. Although it could not provide precise data, BIA technical staff
estimated that it spends up to 40 percent of its time on administrative
responsibilities. In particular, there are substantial numbers of Freedom of
Information Act (FOIA) requests for information related to petitions. Also,
petitioners and third parties frequently file requests for reconsideration of
recognition decisions that are reviewed by the Interior Board of Indian
Appeals, requiring the staff to prepare the record and response to issues
referred to the Board. Finally, the regulatory process has been subject to
an increasing number of lawsuits from dissatisfied parties. These lawsuits
include petitioners who have completed the process and been denied
recognition as well as current petitioners who are dissatisfied with the
amount of time it is taking to process their petitions. BIA is currently
involved with 17 cases before Federal Circuit and District Courts
concerning the recognition process. Eight of these cases are inactive for a
variety of reasons such as the courts awaiting BIA action on pending
petitions. However, depending on circumstances, these inactive cases may
be reactivated at any moment.
While the workload associated with evaluating petitions for recognition
has increased, the available resources have decreased. Staff represents the
vast majority of resources used by BIA to evaluate petitions and perform
related administrative duties. The number of BIA staff assigned to evaluate
petitions peaked in 1993 at 17. However, in the last 5 years, the number of
staff has averaged less than 11, a decrease of more than 35 percent. BIA,
responsible for a wide variety of programs for recognized tribes, faced
overall funding cutbacks in the mid-1990s. Given the need for funding to
provide services to currently recognized tribes, funding for staffing the
recognition process was not as high a priority. As a result, BIA made no
11 Besides through final determinations, petitions have also been resolved in other ways. For
example, when petitioners were recognized legislatively, merged with other petitioners, or withdrew from the process. 19
19 Page 20 21
Page 17 GAO-02-49 Indian Issues
request for additional staff from fiscal years 1995 through 2000 and only
requested one additional staff person for fiscal years 2001 and 2002. In
contrast to other federal resources for recognition issues, less funding has
been provided within BIA to process petitions than has been provided in
federal grants to petitioning groups through a program administered by
the Department of Health and Human Service's Administration for Native
American's (ANA) program. In fiscal year 2000, estimated funding for BIA
staff evaluating petitions and related costs was about $900,000, while
funding for the ANA grants has averaged about $1.8 million a year for the
last 9 years.
While resources have not kept pace with workload, the process also lacks
effective procedures for addressing the workload in a timely manner. The
process lacks any real timelines that impose a sense of urgency on the
process. There are no time frames established for petitioners to submit
documentation with their letters of intent to petition. While BIA has
received 250 petitions for recognition, many of these are only letters of
intent, and in some instances, BIA has received nothing else in over 20
years. Even when documentation is submitted, BIA has no time frames to
review it in order to provide technical assistance, nor is there any schedule
for the initiation of active consideration. As a result, only 55 petitions have
reached the stage where they are complete and ready for active
consideration. Once active consideration begins, the regulations do
establish timelines that, if met, would result in a final decision in
approximately 2 years. However, these timelines for processing petitions
are routinely extended because of BIA resource constraints and at the
request of petitioners and third parties. BIA has completed active
consideration for only 32 of the 55 petitions— with only 12 of 32 petitions
completed within 2 years or less. 12 Of the remaining 23 completed
petitions, only 13 are currently active, with 10 more petitions waiting. All
but 2 of the 13 currently active petitions have already been active for more
than 2 years— 2 of them longer than 10 years. Of the 10 petitions waiting
active consideration, more than half have been waiting for over 5 years.
Without any effective schedule for the process from the beginning to the
end, it will become increasingly difficult for BIA to complete its assigned
duties in evaluating petitions in a timely manner.
12 Although 32 petitions have completed active consideration, only 29 have been finalized.
The remaining three petitions are pending. 20
20 Page 21 22
Page 18 GAO-02-49 Indian Issues
While timelines have been extended for many reasons, including BIA
resource constraints and requests by petitioners and third parties (upon
showing good cause), BIA has no mechanism to balance the need for a
thorough review of a petition with the need to complete the decision
process. The decision process lacks effective timelines that create a sense
of urgency to offset the desire to consider all information from all
interested parties in the process. BIA has argued that it cannot guarantee
timelines because it cannot predict future workload or behavior of
petitioners and third parties. However, these decisions may be taken away
from BIA as petitioners, frustrated by the length of time to process
petitions, successfully gain court intervention that establishes scheduled
timelines. At least one petitioner filed a lawsuit in federal court just to
maintain its place in line. While each petition differs, BIA may look to the
model offered in one lawsuit where all parties— petitioner, third parties,
and BIA— agreed to a compromise schedule encouraged and endorsed by
the court. On a broader level, BIA recently dropped one mechanism for
creating a sense of urgency. In fiscal year 2000, BIA dropped its long-term
goal to reduce the number of petitions actively being considered from its
annual performance plan because the addition of new petitions would
make this goal impossible to achieve. The Bureau did not replace it with
another, more realistic goal, such as reducing the number of petitions on
ready status or reducing the average time needed to process a petition
once it is placed on active status.
As third parties become more active in the recognition process,
procedures for responding to their increased interest have not kept pace.
Once BIA provides interested third parties the report summarizing the
evidence, reasoning, and analysis behind a proposed finding, the parties
have 180 days to submit arguments and evidence to rebut or support the
proposed finding. However, based on the number of FOIA requests that
BIA has received regarding recognition petitions, it appears that many
parties believe this amount of time is insufficient. Third parties told us
they wanted more detailed information earlier in the process so that they
could fully understand a petition and effectively comment on its merits.
However, there are no procedures for regularly providing third parties
more detailed information. For example, while third parties are allowed to
comment on the merits of a petition prior to a proposed finding, there is
no mechanism to provide any information to third parties prior to the
proposed finding. In contrast, petitioners are provided an opportunity to
respond to any substantive comment received prior to the proposed
finding. As a result, third parties are making FOIA requests for information
on petitions much earlier in the process and often more than once in an
attempt to obtain the latest documentation submitted. BIA has no 21
21 Page 22 23
Page 19 GAO-02-49 Indian Issues
procedures for efficiently responding to FOIA requests. Staff members
hired as historians, genealogists, and anthropologists are pressed into
service to copy the voluminous records of petitions in order to respond to
FOIA requests. In addition, much of the information, particularly the
information related to membership lists and the demonstration of descent,
involves sensitive information subject to the protections of the Privacy
Act. Therefore, all information must be reviewed and redacted, as
appropriate, to ensure that sensitive information is not released. While
additional resources to handle FOIA requests may help, improved
procedures that address the elevated interest of third parties could
alleviate some of the multiple FOIA requests that third parties view as
their only means to meaningful participation in the process.
Although the regulation-based recognition process was never intended to
be the only way groups could receive federal recognition, it was intended
to provide a clear, uniform, and objective approach for the Department of
the Interior that established specific criteria and a process for evaluating
groups seeking federal recognition. It is also the only avenue to federal
recognition that has established criteria and a public process for
determining whether groups meet the criteria. However, weaknesses in
the process create uncertainty about the basis for recognition decisions,
and the amount of time it takes to make those decisions impede the
process from fulfilling its promise as a uniform approach to tribal
recognition. Questions about the level of evidence required to meet the
criteria and the basis for decisions reached will continue without more
transparent guidance. In addition, the increasing amount of time involved
in the process will continue to frustrate petitioners and third parties who
have a great deal at stake in resolving tribal recognition cases. Without
improvements that focus on fixing these problems, confidence in the
regulatory process as an objective and efficient approach will erode. As a
result, parties involved in tribal recognition may look outside of the
regulatory process to the Congress or courts to resolve recognition issues,
which has the potential to undermine the entire regulatory process. The
end result could be that the resolution of tribal recognition cases will have
less to do with the attributes and qualities of a group as an independent
political entity deserving of a government-to-government relationship with
the United States and more to do with the resources that petitioners and
third parties can marshal to develop a successful political and legal
strategy.
Conclusions 22
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Page 20 GAO-02-49 Indian Issues
To ensure more predictable and timely tribal recognition decisions, we
recommend that the Secretary of the Interior direct BIA to:
° provide a clearer understanding of the basis used in recognition decisions
by developing and using transparent guidelines that help interpret key
aspects of the criteria and supporting evidence used in federal recognition
decisions and
° develop a strategy that identifies how to improve the responsiveness of the
process for federal recognition. This strategy should include a systematic
assessment of the resources available and needed that leads to
development of a budget commensurate with workload.
We provided the Department of the Interior with a draft of this report. The
Department generally agreed with our findings and recommendations and
provided a plan for implementing our recommendations. These comments
and the plan are reprinted in appendix IV. The Department also provided
us with technical comments on the draft and we made corrections where
appropriate.
We conducted our work from October 2000 through September 2001 in
accordance with generally accepted government auditing standards.
Appendix V explains our methodology in detail.
We are sending copies of this report to the Secretary of the Interior, the
Assistant Secretary-Indian Affairs, and interested congressional
committees. We will make copies available to others on request.
If you or your staff have any questions on this report, please call me or
Mark Gaffigan on (202) 512-3841. Key contributors are listed in
appendix VI.
Barry T. Hill
Director, Natural Resources
and Environment
Recommendations to
the Secretary of the Interior
Agency Comments 23
23 Page 24 25
Appendix I: How Tribes Have Become Federally Recognized
Page 21 GAO-02-49 Indian Issues
The United States has recognized Indian tribes under a variety of
circumstances. There are 556 tribes on the Bureau of Indian Affairs' (BIA)
most recent list of recognized tribes published in March 2000. 1 Since then,
another five tribes have been recognized, for a total of 561 federally
recognized tribes. Although BIA only published its first list of recognized
tribes in 1979, the federal government has "recognized" tribes since
colonial times— although the term was not used until much later. In early
American history, the government acknowledged such relationships
through treaties and agreements with tribal governments. Recognition
means that a tribe is formally recognized as a sovereign entity with a
government-to-government relationship with the United States. The basic
concept underlying Indian sovereignty is that it is not granted by the
Congress but rather is an inherent status of the tribe that has never been
lost or extinguished. Although all recognized tribes have the same
sovereignty and political relationship with the United States regardless of
the means by which they were recognized, why they are on the list, or how
they got on the list, varies significantly.
About 92 percent of the 561 currently recognized tribes either were part of
the federal effort to reorganize and strengthen tribal governments in the
1930s or were part of a group of Alaskan tribes that were determined to
have existing governmental relations with the United States when BIA's
first list of recognized tribes appeared in 1979. The remaining 8 percent—
47 tribes— were individually recognized between 1960 and the present by
the Congress or the Department of the Interior. Of these, the Congress
recognized 16 tribes and the Department of the Interior recognized 31
tribes. Of the 31 tribes that the Department of the Interior recognized, 14
were recognized through the BIA regulatory process established in 1978,
10 through administrative decisions before the regulatory process was
established, and 7 through administrative decisions after the regulatory
process was established and outside of the process.
There are 292 tribes on the current list of recognized tribes that can trace
their federal recognition at least back to the era of the Indian
Reorganization Act of 1934 (IRA) and related laws. 2 These laws helped
1 65 Fed. Reg. 13298 (Mar. 13, 2000).
2 Although many IRA provisions did not originally apply to the Territory of Alaska or the
state of Oklahoma, the Alaskan Reorganization Act and the Oklahoma Indian Welfare Act included similar provisions and explicitly extended other IRA provisions to Alaska and
Oklahoma in 1936.
Appendix I: How Tribes Have Become Federally Recognized 24
24 Page 25 26
Appendix I: How Tribes Have Become Federally Recognized
Page 22 GAO-02-49 Indian Issues
define and create the tribal governments that exist today. Tribal
governments had been severely weakened by earlier federal Indian policy.
In 1830, the federal government formally established the removal policy of
exchanging federal lands west of the Mississippi for lands held by Indian
tribes in the east and eventually developed a system of reservations to
house them. In the ensuing dispersion, many tribes wound up splintered
among two or more reservations or placed with other tribes on a single
reservation. Then, beginning in the 1880s, federal Indian policy shifted to
emphasize the assimilation of Indians into mainstream cultures by dividing
reservation land into individual allotments, terminating historical tribal
governments, and suppressing Indian customs and tribal laws. In the
1920s, federal Indian policy shifted once more; this time away from
isolationism and assimilation and toward tribal self-governance,
culminating in IRA.
IRA established a process to form stronger tribal governments and
terminated the federal policy of breaking up reservations. Tribes on
reservations were granted authority to reorganize their governments and
adopt a constitution, and groups of tribes residing on the same reservation
could reorganize into a single tribe by adopting a constitution. The act,
however, does not apply to any reservation where the majority of adult
Indians, in a special election called by the Secretary of the Interior, voted
against it. In calling these elections, the Secretary of the Interior made
determinations that, in effect, recognized a particular group of Indians as a
tribe. In making these determinations, the Secretary considered whether
the group
° had existing treaty relations with the United States or had been designated
a tribe by an act of the Congress or an executive order; °
had been treated as having collective rights in tribal lands or funds, even
though not expressly designated as a tribe;
° had been treated as a tribe by other tribes; and
° had exercised political authority over its members by a tribal council or
other form of government.
The Secretary also considered factors of lesser importance, such as the
existence of special appropriation items for the group and the social
solidarity of the group. In addition to these tribes, known as historic tribes,
IRA allowed Indians without a common tribal affiliation to organize into
tribes. Indian residents of a reservation at the time the act was passed
could organize as a tribe by adopting a constitution. Also, groups of
Indians who were not residents of a reservation yet whose members were 25
25 Page 26 27
Appendix I: How Tribes Have Become Federally Recognized
Page 23 GAO-02-49 Indian Issues
one-half or more Indian blood were permitted to organize under the act if
the Secretary of the Interior established a reservation for them.
For a brief period, federal Indian policy reverted to assimilation during the
1950s and 1960s . As a result of legislation during this time, the political
relationship with some tribes was terminated. Termination by the
Congress, however, did not terminate the tribes' existence, but only the
U. S. government's relation with the tribes. While the Congress and federal
courts restored federal recognition to 37 of these terminated tribes— the
most recent in December 2000— relations with many other terminated
tribes were not restored. Because the Congress terminated these tribes,
the tribes are not eligible to be recognized through the regulatory process.
The names of 222 Alaskan tribes now appear on BIA's current list of
recognized tribes. These were determined to have governmental relations
with the United States at the time the first list was published in 1979.
However, these tribes were not included in the first list because they were
not completely identified and their status remained uncertain until 1993.
According to one Department official involved in developing the first list,
Alaskan tribes were not included in the list because of errors in the list
and confusion over the political status of Alaskan tribes created by
provisions of a 1936 amendment to IRA, which instructed most Alaskan
tribes to be brought under the act. In 1993, the Department of the Interior's
Office of the Solicitor issued a comprehensive opinion analyzing the status
of Alaskan tribes and determined that they were tribes in the same sense
as tribes in the contiguous 48 states. BIA then identified 222 Alaskan tribes
and included them on the list of recognized tribes published in October
1993.
The remaining 47 tribes have been individually recognized since 1960 (see
table 3 at the end of this appendix). The Congress has recognized 16 of
these tribes through legislation. Although the Congress's power to
recognize a group as a tribe is not unlimited, it is loosely defined. The
Supreme Court ruled in United States v. Sandoval that the Congress may
not arbitrarily recognize a group or a community as a tribe. 3 However, the
only practical limitations upon congressional decisions as to tribal
existence are the broad requirements that (1) the group have some
ancestors who lived in what is now the United States before discovery by
Europeans and (2) the group be a "people distinct from others." In some
3 231 U. S. 28 (1913). 26
26 Page 27 28
Appendix I: How Tribes Have Become Federally Recognized
Page 24 GAO-02-49 Indian Issues
instances, the Congress recognized tribes as part of a land settlement
claim in New England. In other instances, groups that had been previously
considered part of an already recognized tribe were recognized as a
separate tribe. In still other cases, the Congress simply granted
recognition.
According to Department officials, the underlying position of the
administration has always been that the executive branch can correct
mistakes and oversights regarding which groups the federal government
recognizes as Indian tribes but cannot create new tribes. The essential
prerequisite for recognition is the tribe's continuous existence as a
political entity since a time when the federal government broadly
acknowledged a political relationship with all Indian tribes. The regulatory
process was established to recognize tribes whose relationship with the
United States had either lapsed or never been established. Tribes
recognized through the regulatory process had to provide evidence that
they satisfied the seven criteria, including that the tribe has continually
existed from historical times to the present and that its members
descended from a historic tribe. The Department of the Interior has
individually recognized a total of 31 tribes. Of these, 14 tribes were
recognized through the BIA regulatory process and 17 outside of the
regulatory process through administrative decisions— 10 before the
regulatory process was established and 7 after it was established.
Of the seven tribes recognized outside the regulatory process established
in 1978, one had its continuous existence as a federally recognized tribe
substantiated just months after the regulatory process was established;
one was established as a "half-blood community" as defined under
provisions of IRA; one was reclassified as an independent tribe that
previously had been dealt with as part of another recognized tribe; and one
was recognized because land had been taken in trust on its behalf,
indicating that it had a political relationship with the United States. In the
three other instances, the Assistant Secretary recently "reaffirmed" the
tribes' federal recognition, ruling that their historical political relationship
with the United States had not lapsed, citing a BIA administrative error
that caused the names of the tribes not to be placed on the list of
recognized tribes. Members of the BIA staff responsible for implementing
the BIA regulatory process for recognizing tribes took issue with the
Assistant Secretary's three recent "reaffirmations" because of factual
concerns about the groups that were to be recognized and because the
decisions were recognitions outside of the regulatory process. In
particular, they thought that the groups should have gone through the
regulatory process because the regulations provided for a review of 27
27 Page 28 29
Appendix I: How Tribes Have Become Federally Recognized
Page 25 GAO-02-49 Indian Issues
groups that had previously been unambiguously recognized but whose
present status was now uncertain.
Table 3: Forty-seven Tribes Have Been Individually Recognized Since 1960
Tribe name How the tribe was recognized Date the tribe was recognized
Miccosukee Tribe of Indians of Florida Decision by an Assistant Secretary of the Interior Nov. 17, 1961
Burns Paiute Tribe of the Burns Paiute Indian Colony of Oregon Department of the Interior Solicitor's opinion Nov. 16, 1967
Nooksack Indian Tribe of Washington Department of the Interior Solicitor's opinion Aug. 13, 1971
Upper Skagit Indian Tribe of Washington Decision by the Deputy Commissioner for Indian Affairs June 9, 1972
Sauk-Suiattle Indian Tribe of Washington Decision by the Deputy Commissioner for Indian Affairs June 9, 1972
Passamaquoddy Tribe of Maine Administrative decision a June 29, 1972
Penobscot Tribe of Maine Administrative decision a July 14, 1972
Sault Ste. Marie Tribe of Chippewa Indians of Michigan Decision by the Deputy Commissioner for Indian Affairs/ clarified by Department of the Interior
Solicitor's opinion (2/ 27/ 74)
Sept. 7, 1972
Tonto Apache Tribe of Arizona Congressional recognition (P. L. 92-470) Oct. 6, 1972
Coushatta Tribe of Louisiana Decision by the Assistant to the Secretary of the Interior June 27, 1973
Stillaguamish Tribe of Washington Decision by the Acting Secretary of the Interior responding to Stillaquamish Tribe v. Klepp Oct. 27, 1976
Modoc Tribe of Oklahoma Congressional recognition (P. L. 95-281) May 15, 1978
Pascua Yaqui Tribe of Arizona Congressional recognition (P. L. 95-375) Sept. 18, 1978
Karuk Tribe of California Decision by the Assistant Secretary– Indian Affairs Jan. 15, 1979
Grand Traverse Band of Ottawa & Chippewa Indians of Michigan Administrative recognition under 25 C. F. R. 83 May 27, 1980
Houlton Band of Maliseet Indians of Maine Congressional recognition (P. L. 96-420); land claim settlement Oct. 10, 1980
Jamestown S'Klallam Tribe of Washington Administrative recognition under 25 C. F. R. 83 Feb. 10, 1981
Jamul Indian Village of California Deputy Assistant Secretary-Indian Affairs designation as half-blood community July 7, 1981
Tunica-Biloxi Indian Tribe of Louisiana Administrative recognition under 25 C. F. R. 83 Sept. 25, 1981
Cow Creek Band of Umpqua Indians of Oregon Congressional recognition (P. L. 97-391) Dec. 29, 1982
Death Valley Timbi-Sha Shoshone Band of California Administrative recognition under 25 C. F. R. 83 Jan. 3, 1983
Kickapoo Traditional Tribe of Texas Congressional recognition (P. L. 97-429) as part of Kickapoo Tribe of Oklahoma; organized as a
separate tribe on 7/ 11/ 89
Jan. 8, 1983
Narragansett Indian Tribe of Rhode Island Administrative recognition under 25 C. F. R. 83 Apr. 11, 1983
Mashantucket Pequot Tribe of Connecticut Congressional recognition (P. L. 98-134); land claim settlement Oct. 18, 1983
Poarch Band of Creek Indians of Alabama Administrative recognition under 25 C. F. R. 83 Aug. 10, 1984
Wampanoag Tribe of Gay Head (Aquinnah) of Massachusetts Administrative recognition under 25 C. F. R. 83 Apr. 11, 1987
Ysleta Del Sur Pueblo of Texas Congressional recognition (P. L. 100-89) Aug. 18, 1987 28
28 Page 29 30
Appendix I: How Tribes Have Become Federally Recognized
Page 26 GAO-02-49 Indian Issues
Tribe name How the tribe was recognized Date the tribe was recognized
Lac Vieux Desert Band of Lake Superior Chippewa Indians of Michigan Congressional recognition (P. L. 100-420) Sept. 8, 1988
Coquille Tribe of Oregon Congressional recognition (P. L. 101-42) June 28, 1989
San Juan Southern Paiute Tribe of Arizona Administrative recognition under 25 C. F. R. 83 Mar. 28, 1990
Aroostook Band of Micmac Indians of Maine Congressional recognition (P. L. 102-171); land claim settlement Nov. 26, 1991
Ione Band of Miwok Indians of California Decision by the Assistant Secretary-Indian Affairs Mar. 22, 1994
Mohegan Indian Tribe of Connecticut Administrative recognition under 25 C. F. R. 83 May 14, 1994
Pokagon Band of Potawatomi Indians of Michigan Congressional recognition (P. L. 103-323) Sept. 21, 1994
Little River Band of Ottawa Indians of Michigan Congressional recognition (P. L. 103-324) Sept. 21, 1994
Little Traverse Bay Bands of Odawa Indians of Michigan Congressional recognition (P. L. 103-324) Sept. 21, 1994
Central Council of the Tlingit & Haida Indian Tribes, Alaska Congressional recognition (P. L. 103-454) Nov. 2, 1994
Jena Band of Choctaw Indians, Louisiana Administrative recognition under 25 C. F. R. 83 Aug. 29, 1995
Huron Potawatomi, Inc., Michigan Administrative recognition under 25 C. F. R. 83 Mar. 17, 1996
Samish Indian Tribe, Washington Administrative recognition under 25 C. F. R. 83 Apr. 26, 1996
Delaware Tribe of Indians, Oklahoma Decision by the Assistant Secretary-Indian Affairs; tribe previously dealt with as part of Cherokee
Nation of Oklahoma
Sept. 23, 1996
Match-e-be-nash-she-wish Band of Pottawatomi Indians of Michigan Administrative recognition under 25 C. F. R. 83 Aug. 23, 1999
Snoqualmie Tribe, Washington Administrative recognition under 25 C. F. R. 83 Oct. 6, 1999
Loyal Shawnee Tribe, Oklahoma Congressional recognition (P. L. 106-568); tribe formally part of Cherokee Nation of Oklahoma Dec. 27, 2000
Lower Lake Rancheria, California Decision by the Assistant Secretary-Indian Affairs (reaffirmation of recognition) Dec. 29, 2000
King Salmon Tribe, Alaska Decision by the Assistant Secretary-Indian Affairs (reaffirmation of recognition) Dec. 29, 2000
Shoonaq' Tribe of Kodiak, Alaska Decision by the Assistant Secretary-Indian Affairs (reaffirmation of recognition) Dec. 29, 2000
a
We determined the dates the tribes were recognized based on the Department of the Interior's position that the tribes were recognized on the date the U. S. Attorney's Office filed an action against
the state of Maine on behalf of the Passamaqvoddy and the Penobscot in U. S. v. Maine (Civ. Action No. 1969 N. D.) and U. S. v. Maine (Civ. Action No. 1960 N. D.),
respectively. 29
29 Page 30 31
Appendix II: The BIA Regulatory Tribal Recognition Process
Page 27 GAO-02-49 Indian Issues
The regulatory process used by BIA to determine a group's eligibility for
tribal recognition is listed in the Federal Register. The regulatory process,
which is based on regulations that were originally promulgated in 1978 and
revised in 1994, 1 is summarized in table 4.
Table 4: The Regulatory Process
Steps in the regulatory process Timelines
BIA receives letter of intent to petition from a group wanting to be recognized as an Indian tribe ° BIA acknowledges receipt of petition. ° BIA publishes notices of receipt in the
Federal Register and local newspaper( s) within 60 days from receipt.
° BIA notifies in writing the governor and
attorney general of the state in which the petitioner is located. It also notifies any
other recognized tribe or any other petitioner who appears to have a
historical or present relationship with the petitioner or which may otherwise be
considered to have a potential interest.
30 days from receipt.
60 days from receipt.
No specified time.
Petitioner provides BIA with documents and evidence ° BIA conducts a technical assistance (TA) review— a preliminary review of the
documented petition to provide the petitioner an opportunity to supplement
or revise the petition prior to it being placed on active consideration— when
the petition is considered in full. ° Petitioners have the option of responding
to the TA review or requesting that BIA proceed with the active consideration of
the petition using the materials already submitted.
° After the group responds to the TA
review and before the petition is placed on active consideration, BIA investigates
the petitioner if there is little or no evidence that the group can meet criteria
under (e), (f), or (g). a If the review finds that the evidence clearly establishes that
the group does not meet one or more of these criteria, BIA can issue a proposed
finding declining to recognize the tribe.
No specified time.
No specified time.
No specified time.
Ready, waiting for active consideration ° The order of consideration of petitions is determined by the date of BIA's
notification to the petitioner that it considers the petition ready to be placed
on active consideration.
N/ A
1 59 Fed. Reg. 9280 (Feb. 25, 1994).
Appendix II: The BIA Regulatory Tribal Recognition Process 30
30 Page 31 32
Appendix II: The BIA Regulatory Tribal Recognition Process
Page 28 GAO-02-49 Indian Issues
Steps in the regulatory process Timelines
Active consideration ° BIA notifies the petitioner and interested parties when the petition comes under
active consideration. Interested parties are third parties that can establish a
legal, factual, or property interest in the recognition decision.
° BIA reviews the petition to determine
whether the petitioner is entitled to be recognized. BIA may also initiate other
research for any purpose relative to analyzing the petition and may consider
any evidence submitted by third parties. ° BIA prepares a report summarizing the
evidence, reasoning, and analyses that are the basis for the recommendation it
makes to the Assistant Secretary-Indian Affairs. The Assistant Secretary then
makes a proposed determination regarding the petitioner's status. A
summary of this determination is published in the Federal Register.
Copies of the BIA report are provided to the petitioner and third parties.
No specified time.
N/ A
365 days from the time the petitioner is
placed on active consideration. May
be extended.
Public comment period ° Upon publication of the proposed finding, the petitioner and any third party may
submit arguments and evidence to BIA to rebut or support the proposed finding.
Third parties must provide copies of their submissions to the petitioner.
180 days from the publication of the
proposed finding. May be extended.
Response by the petitioner to public comments ° The petitioner responds to submissions by third parties. 60 days from the close of public
comment period. May be extended.
Consultation period ° At the end of the response to public comments period, BIA consults with the
petitioner and the interested parties to determine an equitable time for
consideration of arguments and evidence submitted during the response
period.
No time specified.
Final determination ° After consideration of the arguments and evidence rebutting or supporting the
proposed finding and the petitioner's response to the comments of third
parties, the BIA technical staff makes a recommendation to the Assistant
Secretary-Indian Affairs, who makes a final determination regarding the
petitioner's status. A summary of this determination is published in the Federal
Register.
60 days from the end of the consultation
period. May be extended. 31
31 Page 32 33
Appendix II: The BIA Regulatory Tribal Recognition Process
Page 29 GAO-02-49 Indian Issues
Steps in the regulatory process Timelines
Effective date ° The determination will become effective 90 days from publication of the final
determination unless the petitioner or a third party files a request for the Interior
Board of Indian Appeals to reconsider the determination.
90 days from the publication of the
final determination.
Requests for reconsideration ° The Board will consider requests that allege that there is new evidence, that
the evidence or research used to make the final determination is faulty, or that
there is a reasonable interpretation of the evidence not previously considered.
Determination on whether a request for
reconsideration alleges any of these
grounds made within 120 days of
publication of the final determination.
Board evaluation of request ° The Board may establish such procedures, as it deems appropriate to
evaluate the request for reconsideration. The Board may either affirm the decision
or remand it to the Assistant Secretary for reconsideration.
No time specified.
Secretary's discretion to request reconsideration ° If the Board affirms decision, but finds request alleges other grounds, the
request is sent to the Secretary of the Interior who has the discretion to request
the Assistant Secretary to reconsider after receiving further comments from
petitioners and interested parties.
In general, 45 days for comments. The
Secretary shall decide whether to
request reconsideration
within 60 days of receipt of all
comments.
Reconsidered determination ° The Assistant Secretary shall issue a reconsidered determination stemming
from either the Board's remand or the Secretary's request for reconsideration.
Within 120 days of the Board's remand
or Secretary's request.
a
Criterion (e) is: the petitioner's membership consists of individuals who descend from a historical Indian tribe, or tribes which combined and functioned as a single autonomous political entity.
Criterion (f) is: the membership of the petitioning group is composed principally of persons who are not members of any acknowledged North American Indian tribe. Criterion (g) is: neither the petitioner
nor its members are the subject of congressional legislation that has expressly terminated or forbidden recognition.
Source: 59 Fed. Reg. 9280 (Feb. 25, 1994).
BIA has received 250 petitions through its regulatory process. Forty of
these petitions were requests for recognition made before the inception of
the process in October 1978. There has been a general increase in the
number of petitions received per year since the passage of the Indian
Gaming Regulatory Act in 1988, which regulates Indian gambling, as
shown in figure 2. 32
32 Page 33 34
Appendix II: The BIA Regulatory Tribal Recognition Process
Page 30 GAO-02-49 Indian Issues
Figure 2: Receipt of Petitions for Recognition by Year
Note: BIA received 40 petitions prior to October 1978, when the regulations became effective. These and the other petitions received during 1978 are included in 1979.
Source: BIA.
BIA classifies petitions for tribal recognition in three categories: not ready
for evaluation (because of incomplete documentation), ready for
evaluation, and resolved. Of the 250 petitions that BIA has received, 175
are not ready to be evaluated, and of these, at least 60 are more than
10 years old. Another 20 have been resolved outside the regulatory
process, either through congressional or Department of the Interior action
or through the action of the petitioner— such as withdrawing from the
process or merging with another petitioner. Of the remaining 55 petitions,
23 petitions are ready to be evaluated or are actively being evaluated, and
32 petitions have completed the process, although the final outcome of
3 of these petitions is pending. The Interior Board of Indian Appeals has
sent two petitions back to the Secretary to determine whether they should
be reconsidered, and a final determination is pending for the third. The
status of all petitions is summarized in table 5. 33
33 Page 34 35
Appendix II: The BIA Regulatory Tribal Recognition Process
Page 31 GAO-02-49 Indian Issues
Table 5: Status of Petitions, as of August 2001
Not ready for evaluation 175
Petitioner has submitted a letter of intent only 105
Petitioner has not submitted a complete petition 55
Petition inactive (petitioner is no longer in touch with BIA or legislative action required) 15
Ready for evaluation 23
Petition is being actively considered 13
Petition is ready, waiting to be actively considered 10
Resolved through regulatory process 32
Petitioner recognized 14
Petitioner denied recognition 15
Decision pending 3
Resolved outside the regulatory process 20
Recognized or status clarified by the Congress or the Department of the Interior 12
Petition withdrawn 8
Total 250
Source: BIA. 34
34 Page 35 36
Appendix III: The Rise of the Indian Gambling Industry
Page 32 GAO-02-49 Indian Issues
The Indian gambling industry, a relatively new phenomenon, traces its
genesis back to the late 1970s when a number of Indian tribes established
bingo operations as a supplemental means of funding tribal operations. At
about the same time, a number of state governments also began exploring
the potential for increasing state revenues through state-sponsored
gambling. By the mid 1980s, a number of states had authorized charitable
gambling and some sponsored state-run lotteries. However, tribal and
state governments soon found themselves at odds over whether tribal
governments had the authority to conduct gambling independently of state
regulation. Although many lower courts upheld the tribal position, the
matter was not resolved until 1987 when the U. S. Supreme Court issued
its decision in California v. Cabazon Band of Mission Indians. 1 That
decision confirmed the authority of tribes to establish gambling operations
on their reservations outside state regulation— provided the affected state
permitted some type of gambling. At about the same time the Cabazon
case was being litigated, there was a widespread increase of Indian bingo
halls in many parts of the country. In response to state concerns that
Indian gambling would present an attractive target for organized crime,
the Congress took up the issue and passed legislation— the Indian Gaming
Regulatory Act (IGRA) in 1988— which was a compromise between Indian
and state interests. Since IGRA, Indian gambling has grown to include 193
tribes with over 300 facilities that generated close to $10 billion in revenue.
With the passage of IGRA in 1988, the Congress established the
jurisdictional framework that would govern Indian gambling. IGRA
established a comprehensive system for regulating gambling activities on
Indian lands. IGRA established the following three classes of gambling to
be regulated by a combination of tribal governments, state governments,
BIA, and the National Indian Gaming Commission (NIGC).
° Class I gambling consists of social gambling for minimal prizes or
ceremonial gambling. It is regulated solely by the tribe, and no financial
reporting to other authorities is required.
° Class II gambling consists of gambling pull-tabs, bingo-like games, and
punch boards. A tribe may conduct, license, and regulate Class II gambling
if (1) the state in which the tribe is located permits such gambling for any
purpose by a person or organization and (2) the tribal governing body
adopts a gambling ordinance that is approved by NIGC.
1 480 U. S. 202 (1987).
Appendix III: The Rise of the Indian Gambling Industry
Indian Gaming
Regulatory Act 35
35 Page 36 37
Appendix III: The Rise of the Indian Gambling Industry
Page 33 GAO-02-49 Indian Issues
° Class III gambling consists of all other forms of gambling, including casino
games, slot machines, and pari-mutuel betting. 2 Generally, Class III
gambling is often referred to as full-scale casino-style gambling. Class III
games are regulated as indicated below.
Class III gambling is only allowed in states that permit similar types of
gambling. However, class III gambling has been broadly defined under
IGRA. For example, the allowance of charitable Las Vegas nights and
state-run lotteries has sufficed to allow tribes to operate casinos. IGRA
also requires that states and tribes negotiate a tribal-state compact to
balance the interests of both the state and the tribe. The tribal-state
compact is an agreement that may include provisions concerning
standards for the operation and maintenance of the gambling facility, the
application of laws and regulations of the tribe or state that are related to
the licensing and regulation of the gambling activity, and the assessment
by the state of amounts necessary to defray the costs of regulating the
gambling activity. The Secretary of the Interior must approve any tribal-state
compact and has delegated this authority to the Assistant Secretary-Indian
Affairs. As of July 6, 2000, 24 states had negotiated 267 compacts
with 212 Indian tribes. Tribes may have compacts with more than one
state, and they may also have more than one compact for different types of
games. Thirty-seven tribes had compacts without any operating gambling
facilities. IGRA also authorizes NIGC to oversee and regulate Indian
gambling activities. NIGC's mission is to provide fair and consistent
enforcement of IGRA requirements to ensure the integrity of Indian
gambling operations. Among its responsibilities, NIGC reviews tribal
investigations of key gambling employees and management officials and
approves tribal gambling ordinances. Additionally, all Class II and Class III
gambling operations are required to submit copies of their annual financial
statement audits to NIGC.
Although the Congress intended regulatory issues to be addressed in
tribal-state compacts, it left a number of key functions in federal hands,
including approval authority over compacts, management contracts, and
tribal ordinances. IGRA specifies that the tribal ordinance concerning the
conduct of Class II or Class III gambling on Indian lands within the tribe's
jurisdiction must provide that the net revenues from any tribal gambling
are not to be used for purposes other than to (1) fund tribal government
2 Pari-mutuel betting is generally considered to include on-track, off-track, and inter-track
betting on horse racing, dog racing, and jai alai. 36
36 Page 37 38
Appendix III: The Rise of the Indian Gambling Industry
Page 34 GAO-02-49 Indian Issues
operations or programs, (2) provide for the general welfare of the Indian
tribe and its members, (3) promote tribal economic development,
(4) donate to charitable organizations, or (5) help fund operations of local
government agencies. A tribe may distribute a portion of its net revenues
directly to tribal members, provided that the tribe has a revenue allocation
plan approved by BIA. This plan should describe how the tribe intends to
allocate net revenues among various governmental, educational, and
charitable projects, including direct payments to tribal members.
Gambling revenues generated by federally recognized tribes and their
federally chartered corporations are not subject to federal income tax. The
Internal Revenue Service (IRS) has determined that tribes are political
agencies that the Congress did not intend to include within the meaning of
the income tax provisions of the Internal Revenue Code. Any income
earned by a tribe is not subject to federal income tax, regardless of
whether the business activity takes place inside or outside of Indian-owned
lands. On the other hand, IRS has found that individual tribal
members, like all U. S. citizens, must pay federal income tax unless a
specific exemption can be found in a treaty or statute. In some cases, an
individual tribal member may receive general welfare payments from the
tribe. Although amounts paid for general welfare may not be taxable,
payments made pro rata to all tribal members are evidence that the
payments are not based on need and, thus, probably will not qualify for the
general welfare exclusion, according to IRS. IGRA provides that net
revenues from gambling may be used to make per capita payments to
members of the Indian tribe, but only if the tribe has prepared a revenue
allocation plan to distribute revenues to uses authorized by IGRA. The
plan must be approved by the Secretary of the Interior as adequate,
especially funding for tribal government operations and promoting tribal
economic development. IGRA also requires the protection and
preservation of the interests of minors who are entitled to receive any of
the payments. Because the payments are per capita distributions of
gambling proceeds, they are generally subject to taxation.
Since the passage of IGRA in 1988, Indian gambling revenues have grown
60 fold— from $171 million in 1988 to $9.8 billion in 1999 (see fig. 3).
However, a few tribes generated most of the revenues. Although 193 tribes
have Class II or Class III gambling facilities, NIGC reports that just 27
tribes are responsible for generating more than $6.4 billion, or more than
65 percent, of the total $9.8 billion in revenues that tribes reported in 1999.
The Indian Gambling
Industry 37
37 Page 38 39
Appendix III: The Rise of the Indian Gambling Industry
Page 35 GAO-02-49 Indian Issues
Figure 3: Indian Gambling Revenues in Constant Dollars, 1988-1999
Note: Conversion to 1999 constant dollars used the Consumer Price Index.
Source: Tax Policy: A Profile of the Indian Gaming Industry (GAO/ GGD-97-91, May 5, 1997) for years 1988 to 1994 and National Indian Gaming Commission data for years 1995 to 1999.
Although Indian gambling is a relatively new phenomenon, most of the 193
tribes with Class II or Class III gambling facilities can trace their existence
back to the era of the Indian Reorganization Act of 1934. (See app. I for
additional information on how tribes were recognized.) Almost all of the
remaining tribes with Class II or Class III facilities had been individually
recognized since 1960. Two tribes were recognized as part of a large group
of Alaskan tribes fully identified in 1993 (see table 6). 38
38 Page 39 40
Appendix III: The Rise of the Indian Gambling Industry
Page 36 GAO-02-49 Indian Issues
Table 6: How Tribes With Class II or Class III Gambling Facilities Were Recognized
Recognition category Total tribes per category Tribes with gambling facilities by category
Percentage of tribes with
gambling facilities by category
IRA era tribes 292 170 59
Tribes individually recognized since
1960
47 21 45
Alaskan tribes identified in 1993 222 2 < 1 percent
Total 561 193 32
As of May 15, 2001, there were about 313 Indian gambling facilities in
operation. Of this number, 234 facilities conducted some form of Class III
gambling, often in conjunction with Class II gambling. The remaining 79
facilities conducted only Class II gambling. Figure 4 shows the distribution
of facilities with Class III gambling by state.
Figure 4: Distribution of Class III Indian Gambling Facilities
Source: GAO's analysis of NIGC data on Indian gambling facilities as of May 2001. 39
39 Page 40 41
Appendix III: The Rise of the Indian Gambling Industry
Page 37 GAO-02-49 Indian Issues
As shown in figure 5, Indian gambling has become a nationwide business,
having operations in 23 states, with the heaviest concentration in the West
and Midwest. In 1999, the Indian gambling industry generated $9.8 billion
while Nevada's and Atlantic City's casinos reported revenues of about
$9 billion and $4.2 billion, respectively, for the same period.
IGRA requires states to negotiate in good faith with Indian tribes when
forming gambling compacts. In cases where a tribe believes that the state
has not negotiated in good faith, IGRA authorizes the tribe to bring suit in
federal district court. If the court finds that the state has indeed failed to
negotiate in good faith, the court may order the state to conclude a
compact in 60 days. However, in a case decided by the U. S. Supreme Court
in March 1996, Seminole Tribe of Florida v. Florida, 3 the Court held that
the Congress did not have the constitutional authority to make the state
subject to suit in federal court and that a state could assert an Eleventh
Amendment immunity defense to avoid a lawsuit brought by the tribe. 4 The
Seminole Tribe decision did not address the issue of whether a state could
effectively prevent casino-type gambling within its borders by refusing to
negotiate in good faith and asserting sovereign immunity if the tribe sues.
Also, the Supreme Court expressed no opinion on a substitute remedy for
a tribe bringing suit.
To prevent a stalemate in tribal-state compacts, the Department of the
Interior issued a regulation on April 12, 1999, for dealing with tribal-state
compacts when states and tribes cannot reach an agreement. The
regulation prescribes alternative procedures to establish Class III gambling
when a state does not waive its Eleventh Amendment immunity from a
lawsuit. The regulation authorizes the tribe to submit a proposal to the
Department to establish gambling procedures. The Department must
notify the state of the tribe's request and solicit the state's comments on
the tribe's proposed procedures, including any comments on the proposed
scope of gambling. The state is invited to submit alternative proposed
procedures. Based on its review of the proposed submissions, the
Assistant Secretary-Indian Affairs may approve the tribe's proposal or
3 517 U. S. 44 (1996).
4 The Eleventh Amendment states: "The Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign
State." A state, however, may choose to waive its Eleventh Amendment immunity from suit.
Current Indian
Gambling Legal Issues 40
40 Page 41 42
Appendix III: The Rise of the Indian Gambling Industry
Page 38 GAO-02-49 Indian Issues
convene an informal conference with the state and the tribe to resolve any
areas of disagreement. The states of Alabama, Florida, and Kansas have
filed suit challenging the new regulation. As of September 2001, these
cases were pending in federal court. 41
41 Page 42 43
Appendix IV: Comments From the Department of the Interior
Page 39 GAO-02-49 Indian Issues
Appendix IV: Comments From the Department of the Interior 42
42 Page 43 44
Appendix IV: Comments From the Department of the Interior
Page 40 GAO-02-49 Indian Issues 43
43 Page 44 45
Appendix IV: Comments From the Department of the Interior
Page 41 GAO-02-49 Indian Issues 44
44 Page 45 46
Appendix IV: Comments From the Department of the Interior
Page 42 GAO-02-49 Indian Issues 45
45 Page 46 47
Appendix IV: Comments From the Department of the Interior
Page 43 GAO-02-49 Indian Issues 46
46 Page 47 48
Appendix IV: Comments From the Department of the Interior
Page 44 GAO-02-49 Indian Issues 47
47 Page 48 49
Appendix IV: Comments From the Department of the Interior
Page 45 GAO-02-49 Indian Issues 48
48 Page 49 50
Appendix IV: Comments From the Department of the Interior
Page 46 GAO-02-49 Indian Issues 49
49 Page 50 51
Appendix IV: Comments From the Department of the Interior
Page 47 GAO-02-49 Indian Issues 50
50 Page 51 52
Appendix V: Scope and Methodology
Page 48 GAO-02-49 Indian Issues
In this report, we describe the significance of federal tribal recognition,
including information on Indian gambling; evaluate the BIA's regulatory
recognition process; and provide a historical overview of how tribes have
been recognized.
In describing the significance of federally recognizing Indian tribes, we
spoke with and obtained documents from BIA, the Department of Health
and Human Service's Indian Health Service, and the National Indian
Gaming Commission. We also analyzed pertinent legislation and other
documents. Because the revenue collected from gambling by Indian tribes
is proprietary information, NIGC did not provide us with any tribe-specific
information. Instead, it summarized the revenue information before
providing it to us.
In evaluating the BIA regulatory process, we spoke with BIA and other
Department of the Interior officials familiar with the process, including the
former Assistant Secretary-Indian Affairs, the former Deputy Assistant
Secretary-Indian Affairs, representatives for the Department's Office of the
Solicitor, and officials from BIA's Branch of Acknowledgment and
Research, who are responsible for implementing the regulatory process.
We also analyzed BIA records on how it processes petitions for
recognition. We did not, however, evaluate the merits of individual tribes'
petitions or the decisions regarding those petitions. We also spoke with
tribal leaders who are current petitioners or who have completed the
process, experts in Indian law and the recognition process, and
representatives of state and local governments affected by tribal
recognition to obtain their views of the recognition process.
In determining how tribes became federally recognized, we analyzed BIA
and Department of the Interior records regarding the implementation of
the Indian Reorganization Act of 1934 to identify tribes recognized at that
point in time or created by that act during the early years of its
implementation. We also analyzed other BIA and Department of the
Interior records, as well as legislation and related documentation, to
determine how other tribes became recognized. In some instances, we
spoke with BIA and Department officials who played a direct role in a
tribe's recognition.
We performed our work from October 2000 through September 2001 in
accordance with generally accepted government auditing standards.
Appendix V: Scope and Methodology 51
51 Page 52 53
Appendix VI: GAO Contact and Staff Acknowledgments
Page 49 GAO-02-49 Indian Issues
Mark Gaffigan (202) 512-3168
In addition to the above named, Charles T. Egan, Robert Crystal, Jeffery
Malcolm, and John Yakaitis made key contributions to this report.
Appendix VI: GAO Contact and Staff Acknowledgments
GAO Contact
Acknowledgments
(360011) 52
52 Page 53 54
53
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