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Federal Focus

Tribal recognition reforms may not create a casino boom

Federal Focus

There are some 55,000 Lumbee Indians in North Carolina, yet the Lumbee are not recognized by the federal government as an American Indian tribe.

Nor are the landless Little Shell Chippewa Indians who once inhabited Canada, Montana and North and South Dakota. Or the Chinook Indians of Washington state, who in the 1800s helped explorers Lewis and Clark navigate the Pacific Northwest.

Seattle, Washington, is named after Chief Seattle of the Duwamish Indians. But that tribe also is not federally recognized.

Conversely, the Pamunkey Indians of Virginia were recognized by the U.S. Department of the Interior just last July, 400 years after encountering English settlers at Jamestown. Pocahontas was a member of the tribe.

And the Mashpee Wampanoag of Massachusetts, whose ancestors greeted the Pilgrims and partook in what many believe was the first Thanksgiving feast, were finally recognized in 2007.

Recognition Renaissance

The complex legal status of indigenous Americans—their ability to maintain their sovereignty and traditions and reacquire and govern ancestral lands lost through European settlement—has long been fraught with federal bureaucratic peril.

It’s not unusual for Indian groups to struggle for decades, spending millions of dollars in legal fees and accumulating thousands of pages of historical and genealogical records, before achieving the recognition necessary to establish governments and place land in federal trust.

The Shinnecock Nation of New York told McClatchy News Service it spent $33 million over 32 years before getting federal recognition in 2010.

The Department of the Interior, at long last, is working to fix what Indian law scholars have long regarded as a “broken” system of federal acknowledgement.

But, not unexpectedly, the effort has been commandeered by Indian casino gambling.

“Indian gaming, unfortunately, is the 800-pound gorilla in every room, in every discussion, on every Indian policy, including recognition. Mostly recognition,” says Washington, D.C. attorney Arlinda Locklear.

Long-awaited reforms to Interior’s Section 83 federal acknowledgement process went into effect July 31. But recalcitrant Congress members may withhold funding the streamlined process, and tribes and anti-gambling groups have threatened legal action to thwart certain revisions.

The new guidelines for Interior’s Office of Federal Acknowledgement (OFA)—established in 1978 to fix the recognition process—underwent thorough scrutiny after a rule-making draft released in May 2014 elicited a flurry of criticism from tribes and anti-gambling proponents.

Although the National Congress of American Indians (NCAI) and other Indian groups applauded the reforms, several tribes challenged the working draft, claiming the guidelines were too lenient and diminished their legal standing as sovereign governments.

Others feared increasing the number of federally recognized tribes would cut into already meager Interior appropriations for Indian programs.

But a major factor in the debate was the notion the reforms would markedly increase both the number of Indian tribes and, consequently, Indian casinos, burgeoning an already tight $28.5 billion market of some 440 gambling facilities in 28 states.

Gaming Generation

Much outcry came from tribes, card rooms and anti-gambling groups in California, the nation’s largest Indian casino market with 60 tribes generating $7 billion a year. A controversial study by the activist group Stand Up California predicted the draft rules would result in 34 new tribes, most of which would operate casinos and swallow up lands now on the tax rolls.

Connecticut officials and California lobbyists for commercial and tribal gambling interests eventually convinced Interior officials to abandon two controversial proposals in the draft. One provision would have required indigenous groups to date their existence to 1934, rather than 1900 as agreed upon in the final rule. Another proposal would have allowed tribes previously denied recognition to re-petition under the new rule. That provision was stricken.

Tribal leaders and anti-gambling advocates are somewhat appeased by the final rule published in the June Federal Register, satisfied the guidelines reflect changes suggested during the yearlong public comment process. But they remain concerned.

“There are a number of substantial improvements in the final rule compared to the initial proposal,” says Tom Brierton, lobbyist for California card rooms and tribes, notably the provision back-dating from 1934 to 1900 the date from which Indian groups need prove continual existence as a tribe.

Prior OFR guidelines required tribes to prove existence from their first contact with Europeans, a difficult documentary challenge for indigenous Americans who for generations were forced to hide or deny their Indian heritage. California Indians for decades were forced to flee murderous militias financed by state and local officials.

“Interior Assistant Secretary for Indian Affairs Kevin Washburn deserves credit for listening to the many concerns voiced about the initial proposed rule,” Brierton says. “Given the complexity of the issue, I think many tribes are still studying the new rule before they issue a final verdict.”

The working draft lowered standards for federal recognition, says attorney George Skibine, a former Interior official. “Now the criteria and the process are not that different,” he says of changes made during the comment period. “The bar for recognition is still set pretty high.”

It remains unclear what impact the new acknowledgement rule will have on the Indian casino industry.

Interior believes the impact will be minimal.

“We have not substantially changed the criteria,” says Washburn, noting that revisions largely speed up the process and make it more transparent. They do not significantly change evidentiary standards needed for federal recognition.

Of the 53 tribes that completed the OFR process since 1978, 35 were rejected and 18 approved. Of the tribes achieving recognition, 11 have had lands placed in trust, nine for casinos.

“I don’t anticipate a change to those ratios” under the new rule, Washburn says. “It’s still a tough process. It’s very rigorous.”

Aside from the Section 83 process, about a dozen tribes have achieved federal recognition through Congress or the federal courts.

Once recognized, acquiring and placing land in trust for casinos under the Indian Gaming Regulatory Act (IGRA) is a separate, expensive and often politicized process that, like federal recognition, can take decades.

“Whether to grant federal recognition and whether a tribe is eligible for Indian gaming are two wholly different processes,” Bureau of Indian Affairs spokeswoman Nedra Darling says.

Cheryl Schmit of Stand Up California says the group’s initial predictions “should probably be scaled back” because of amendments to the Section 83 working draft.

“But there are still a number of issues that we need to evaluate in the final rule to understand how these proceedings will ultimately work,” Schmit says.

Interior, Indian law scholars and financial experts are sharply critical of the Stand Up California report, claiming it grossly exaggerated the impact draft revisions would have had on a stagnant California casino market that has seen no significant growth since before the 2008 recession.

“That’s fear-mongering,” attorney Bryan Newland, who worked on the revisions while serving as counsel for Interior, says of Schmit’s predictions. “The notion these reforms are lowering the bar and a higher percentage of petitioners are going to get recognized is not founded in fact.”

A Burdensome Process

There are 567 federally recognized tribes in the United States, of which about 230 are remote Alaska villages unlikely to get into the casino business. Of the approximately 324 tribes in the lower 48 states, about 240 operate casinos with revenues largely funding government services.

Roughly 350 indigenous groups have sent inquiries to the OFR since the office was established in 1978, but 265 failed to follow up on the initial letters.

Eighty-one of the initial applications were postmarked California, which already has 110 tribes. But only about 14 were followed up and just one California tribe has been recognized through the OFR process.

Michigan and North Carolina each produced 21 letters of inquiry, Connecticut 17, Louisiana 15 and Texas 14. But only about a dozen tribes remain under serious consideration for federal recognition.

Achieving federal recognition has always been difficult. But the process has gotten even more complex with the emergence in the late 1980s of Indian casinos.

Congress, state and local officials have grown suspicious that indigenous groups, often backed by deep-pocketed gambling investors, are seeking recognition solely for the purpose of getting into the casino business.

The OFA process initially lasted about two years and required an administrative record of “200, maybe 300 pages,” Locklear says.

“Every year since then it’s gotten worse, particularly since IGRA was enacted in ’88,” she says. “By the time the BIA process is over it normally will have taken 20 years and tens of thousands of pages.”

A Government Accounting Office study in 2001 concluded: “The basis for BIA’s tribal recognition decisions is not always clear and the length of time involved can be substantial.”

Gambling has impacted not only the recognition process, but efforts by existing tribes to reacquire ancestral lands lost over generations of European settlement.

Congressional efforts to recognize six Virginia indigenous groups failed in the Senate in 2007 because Capitol Hill refused to believe promises the tribes would not pursue casinos.

The infamous Carcieri v. Salazar U.S. Supreme Court ruling in 2009 came about because Rhode Island Governor Robert Carcieri didn’t believe the Narragansett Indians wanted to place 31 acres in trust for a housing development. He feared the tribe wanted to use the land for a casino.

The Carcieri decision limits Interior’s ability to place land in trust for tribes not “under federal jurisdiction” in 1934, when Congress enacted the Indian Reorganization Act.

Efforts to get a congressional fix to the Carcieri decision have predictably been stalled by opposition to Indian gambling. The pushback has come despite the fact that of some 1,900 Interior applications to have land placed in federal trust, only about 20 involved casinos.

Tribes use trust lands for community infrastructure and to provide housing, health care, education and other services to tribal citizens.

Capitol Hill attorney Heather Sibbison in a recent interview said tribes lacking funds to tackle the recognition process are often forced to turn to casino developers.

“The reality in modern times is most tribes don’t make it through the process unless they find developers willing to lend them a bunch of money in exchange for the promise that the tribe will let them run a new gaming facility for them,” Sibbison says.

“People complain tribes are backed by big gaming companies as they go through the recognition process,” Newland says. “Well, it became so costly and took so long to go through the process, tribes couldn’t do it unless they had some investor willing to put up millions of dollars.”

Several recently recognized and restored tribes—notably the Mashpee Wampanoag, Cowlitz Indian Tribe of Washington state (2000) and Federated Indians of Graton Rancheria in California (2000)—have built or are pursuing casino developments.

Senator Richard Blumenthal of Connecticut convinced Interior to excise a provision in the draft regulations to prevent tribes denied recognition from re-petitioning for a second bite of the apple. State officials made no secret of the fact they feared the Eastern Pequots, Golden Hill Paugussetts and Schaghticoke Nation, all denied recognition, would re-petition and, perhaps, build casinos.

Two Connecticut tribes—the Mashantucket Pequot Tribal Nation and Mohegan Tribe—operate casinos struggling in a constrained Northeast gambling market. The two tribes are working with the state to develop a third casino.

The Tribal Alliance of Sovereign Indian Nations (TASIN), a coalition of 10 Southern California tribes, in a July 8, 2014  letter to Washburn said it had “serious concerns with changes that would water down the standards” for recognition.

But tribes and Los Angeles-area card rooms made no secret of the fact they also were concerned urban Indians such as the Juaneño Band of Mission Indians of San Juan Capistrano, the Gabrielino Indians of Covina and others would petition for recognition under the new rule.

“We have seen over the past decade a number of would-be tribes who have made it very clear their objective in federal recognition is a casino in the greater Los Angeles area,” Brierton says.

Urban gambling resorts would seriously impact surrounding tribal casinos and card rooms.

“TASIN has not taken a position on the final rule,” Executive Director Jacob Mejia said in an email.


‘Splinter’ Groups An Issue

Gambling is not an option for many tribes seeking recognition, including the remote Nor Rel Muk Wintu Indians, accessible only by a narrow, winding road through the Klamath Mountains in Northern California.

“Gaming is not where we’re at. We don’t even discuss it,” says Marilyn

Delgado, the third in a succession of tribal chairs seeking federal recognition.

 “It’s all about being able to keep our people together,” she says. “We have a huge substance abuse problem. We have a lot of poverty. We have child welfare cases.

“We’d like to help our people get educated. We’d like to continue as a government. We want to protect our aboriginal lands as best we can. That’s what this is all about.”

The Eastern Band of Cherokee of North Carolina was a major participant in public consultations on the Section 83 revisions. The tribe, which operates the state’s only resort casino, has long opposed recognition of the Lumbee and expresses concern that some 40 Indian groups are also seeking recognition, claiming they are Cherokee descendants.

“To be recognized as a tribe is almost sacred,” says Perry Shell of the Eastern Band, which along with the Cherokee Nation and United Keetoowah Band of Oklahoma makes up one of the two largest Indian nations in the United States. The Cherokee and Navajo Nation each have from 280,000 to more than 300,000 members.

“Federal recognition is what our people fought for. It’s what we bled for. It’s what a core of us died on the Trail of Tears for,” Shell says of the forced removal of Cherokee from the Carolinas in the early 1800s.

“We’re not looking at recognizing splinter groups,” Larry Roberts, Deputy Interior secretary, told attendees at a Section 83 consultation. “We’re not looking at creating tribes. We’re looking at recognizing long-existing tribes.”


Political Face-Off

House Republicans angry that Washburn promulgated the Section 83 revisions against their wishes are threatening to tack a rider onto an Interior appropriations bill to block funding of the reforms.

Washburn in turn issued a policy statement that Interior will not use a reaffirmation process or other administrative procedures to federally recognize Indian groups if the reforms are funded. He declined to term the policy statement a threat.

“I would call it strategy. And I don’t think it’s illegitimate,” Washburn says. “People have been saying the process is broken for decades. The administration in response to this broken system has been using other, informal processes, including reaffirmations. Now we don’t have to use those processes.

“We feel like we now have a fairer, more transparent, more expeditious rule on federal acknowledgement. So we should require people to go through it.”

The prohibition against re-petitioning will likely face a federal court challenge. But with what they viewed as the more egregious elements of the draft Section 83 revisions excised, tribes once opposed to the reforms now believe they are in a “win-win” situation.

“They are satisfied with the reforms, but they won’t be too disappointed if Congress blocks them and recognition guidelines remain as they were,” says a lobbyist who requested anonymity. “So yes, it’s a win-win.”

“Regardless of what verdict tribes ultimately render on the new rule, I don’t think we have heard the last from Congress on this issue,” Brierton says. “Key members still have a number of remaining concerns, so it is not likely this issue will fade from view any time soon.”

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Dave Palermo is an award-winning metropolitan newspaper reporter. He has written about American Indian governments for more than 20 years, working as an advocate for several tribes and tribal associations. He also has co-authored books on gambling and gambling law. He can be reached at dgpalermo1@gmail.com.

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