Attention: Steven Mullen, Federal Register Liaison,
RE: COMMENTS ON FEDERAL ACKNOWLEDGMENT RE-PETITIONING
May 31, 2022
Thank you for the opportunity to comment on the Interior Department’s Consideration of
whether to amend its regulations, at 25 C.F.R. Part 83, to permit re-petitioning to take advantage
of the 2015 reforms to the federal acknowledgment process.
INTRODUCTION:
I am writing this testimony on behalf of the Ma-Chis Lower Creek Indian Tribe of Alabama we were denied federal recognition 1 Our tribe has existed in the current state of Alabama since the arrival of the European. Our first contact was with DeSoto as he crossed the Chattahoochee River near the present-day site of the Farley Nuclear Plant, Houston County, Alabama. Then, with DeSoto camping in the Ischi Providence near present day Macon, Georgia. Then he returned to Alabama and was documented on the Coosa River. Besides DeSoto there are other Anglo-Saxon explorers have been in contact with our people. Tomochichi was the first leader that wanted a Christian Education. As the War of 1812 progressed which resulted in the Creek Civil War and we were defeated at Tohopeka (Horseshoe Bend, Tallapoosa County, Alabama), where many of our ancestors escaped, hid in the swamps, caves of southeast Alabama. Today, we are farmers, educators, nurses, physicians, military, and factory workers located in Alabama, Georgia, Florida, South Carolina, North Carolina, Virgina, Maryland, California, Michigan, Oregon, and Washington.
There has been testimony provided on behalf of the Ma-Chis Lower Creek Indian
Tribe of Alabama. Members have a range of experience with the Federal Acknowledgment Process, The Ma-Chis Lower Creek Indian Tribe of Alabama leadership is committed to assisting the United States to conduct the fairest and most transparent process to ensure that all
sovereign tribal entities, having with the requisite record of governmental and community existence from historic times, are afforded a full and fair opportunity to attain federal recognition.2 We can document numerous errors made by the Office of Federal Acknowledgment in our petition. Also, the main investigator had authored
a book regarding the Poarch Creek Indian Tribe, Poarch, Alabama.3 This should have been a strong ethical violation; this would not have happened under the current Biden and Harris Administration.
THE INTERIOR DEPARTMENT SHOULD PERMIT RE-PETITIONING BY TRIBES
UPON A SHOWING OF HARM RESULTING FROM FLAWS IN THE PREVIOUS
ACKNOWLEDGMENT PROCESS.
Having recognized that prior rules harmed petitioners, the Interior Department must grant
the benefits of the reformed process to those who can show a substantial harm from a negative
determination under the former rules. Denying petitioners who were harmed by BIA regulatory
errors the right to the remedy created for those errors impermissibly violates the federal trust
relationship.
The Federal Acknowledgment process was instituted by the Department of the Interior in
1978 in response to a specific problem: while the United States Government deals with tribal
entities only on a government-to-government basis, the vagaries of the federal relationship with
tribes from the beginning of the Republic created lacunae in the federal awareness of tribes to
whom it owed a duty of trust. Many of the lost relationships can be traced to the
pre-colonialization, colonization, and to the pre-Constitutional domination of the original
colonies over tribes within their territories
Other tribes were displaced from previous federal status by administrative error. In
drawing up a preliminary list of “recognized tribes,” a bureaucrat simply left off a number of
tribes having verifiable treaty relationships with the United States – who have since had to
petition for acknowledgment such as Match-E-Be-Nash-She-Wish (Gun Lake), and/or seek
Congressional affirmation of their tribal status. (Little Traverse Bay Bands of Odawa
Indigenous people, Little Shell). Lumbee Indian Tribe of North Carolina was partially
recognized without the monetary support and trust responsibilities. California tribes have
negotiated detailed treaties but because Congress never ratified those treaties, their tribal status
remains unfairly in doubt.
All those tribes have one thing in common. Like all tribal entities within the United
States and their original territories have been incorporated into the United States. They may
have entered into agreements with colonial powers or with the United States through
treaties, ratified or not. Many tribes lost land through encroachment, theft, and fraud. The United
States now exercise sovereignty over those tribal lands; they must also fulfill their trust
responsibility to the original inhabitants. That responsibility, derived from the wholesale
appropriation and transfer of billions of acres, applies to all tribal nations, not just the ones the
United States has kept government to government relationship. All these years later, some tribes
may no longer exist. It is not the job of the United States to find all original landowners who
have vanished from the historical record, but it is certainly not permissible for the United States
to hide from them when they come forward.4
Federal Acknowledgment has always been a flawed process. It requires a tribal
entity to undertake a massive research project designed to accumulate all record of its
existence – as viewed by outsiders. The tribe’s own oral history and tradition are not sufficient.
As usual, the rules are made by the conqueror, and even those rules have been uncertain. Over
decades of application, fixed rules have had varying application. The petitioners’ burdens have
increased and changed. By 2004, positive decisions were summarily reversed based on arbitrary
reinterpretation and application of evidentiary standards. NCAI Federal Acknowledgment Task
Force Co-Chair Frank Ettawageshik testified about such concerns in 2009.5
Ater the public voiced concerns regarding the criteria and the unfairness, see, e.g.,
Brian Newland testimony6, 2012, John Norwood Testimony7, 2012) the Interior
Department began a regulatory reform proceeding in 2013. The National Congress of American
Indians supported the reform process, calling on the BIA “to ensure that the reform of the Part 83
regulations result in a fair and just process for the acknowledgment of Indian tribes unfairly
omitted off the Federally recognized list.8 After having an extensive consultation and a with a
comment process – including the opportunity for input from the non-recognized tribes – the new
rules, adopted in 2015, stated a goal of increasing “fairness,” including a new requirement for
consistency in evaluation of evidence and a few, but significant, rule changes. 80 Fed. Reg.
37861, July 1, 2015. The rulemaking admitted that the process had gone off the rails,
and that improvements were both necessary and appropriate. Some new provisions were explicit
corrections of previous error (25 C.F.R. 83.10) (clarifying application of substantive and
evidentiary standards) or relief from needlessly oppressive historical documentary burdens. 25
C.F.R. § 83.11 (burden of proof to show continuity from 1900, rather than from 1789).
Even though previous petitioners had been denied acknowledgment because of prior
inconsistencies and unfairness. the Department refused to permit them the opportunity to show
that the updated rules would have resulted in a different outcome.
Two separate federal courts have now determined the Department to have acted
improperly in refusing to permit reconsideration. In January 2020, the United States District
Court for the Western District of Washington granted summary Judgment to the Chinook
Indian Nation, finding that the Department’s barrier to re-petition considering its goal of a
fair and uniform process was arbitrary, capricious, and contrary to law. Chinook Indian
Nation v. Bernhardt, CASE NO. 3:17-cv-05668-RBL (W.D. Wash. Jan. 10, 20209). On March
25, 2020, the United States District Court for the District of Columbia similarly struck down
the ban, finding no rational basis for the rule. Burt Lake Band of Ottawa & Chippewa Indians
- Bernhardt, Civil Action No. 17-0038 (ABJ) (D.D.C. Mar. 25, 202010). Almost ten months
later, Tara Sweeney, then Assistant Secretary for Indian Affairs, announced a listening session to
consider whether to reconsider the ban. When that listening session was convened, participation
was arbitrarily limited to Federally recognized tribes – excluding those having the most direct
interest in theprocess.
INTERIOR MUST EXTEND ITS 2015 REFORMS OF THE FEDERAL ACKNOWLEDGMENT PROCESS TO THOSE HARMED BY ITS PREVIOUS ERRORS.
Federal agency Consultation with tribes, still developing in process and scope in the new
Biden Administration, is an expression of the United States’ trust relationship with tribes – an
acknowledgment of tribal sovereignty predating the Constitution, and of the debt the United
States will always owe to the Nations from whom the United States derived its present land base.
While the Interior Department defines the heart of its customary responsibility as a government
to government relationship with those tribes on the List of Entities Recognized by and Eligible to
Receive Services from the United States Bureau of Indian Affairs, that relationship is not
immutable.8 In past years, Congress has exercised power to terminate such relationship (the
Termination Period), or to revive a previously terminated relationship, including re-affirming
relationships suspended through administrative error. The administrative process is one by
which a tribe may be “acknowledged” – not created, and not thereby fundamentally changed,
except as far as the United States affirms its existence. For the tribes that have
passed the threshold into federal acknowledgment, their inherent sovereignty was present
before, during, and after that process. Those that have prevailed in the process did so by
persuading Interior officials of the continuous truth of that existence, leading to official removal
of impediments to the Tribe’s full exercise of that sovereignty.
Interior undertakes the burden of evaluating a tribe’s petition for acknowledgment as part
of its trust responsibility. The acknowledgment process must regularize that evaluation, and
carry it out fairly. Failing to do so deepens historical wrongs. The Trust responsibility to tribes is
continuous, preceding acknowledgment. Just as federal acknowledgment does not create a tribe,
neither does it create a federal relationship, but confirms that one has always been in
existence, albeit one not currently “recognized” by the federal government. The federal trust
responsibility to Indian tribes cannot lightly be avoided, and the federal government cannot rely
on its own ignorance of a tribe to deny that responsibility. In Joint Tribal Council of
Passamaquoddy Tribe v. Morton, the United States Court of Appeals for the First Circuit held
that the United States could not summarily reject that Tribe’s request of assistance in bringing
suit to recover lands protected under the Nonintercourse Act during a time when the Tribe’s
federal recognition had lapsed. 528 F.2d 370 (1st Cir. 1975). Instead, the court found that the
United States had, through the Nonintercourse Act, assumed a fiduciary relationship with tribes,
a relationship that could be terminated only by Congress. Id. At 379. The court ruled that the
United States has, at least, an inchoate responsibility to such unrecognized tribes, which
responsibility fully vests upon federal acknowledgment.12
After Passamaquoddy, tribes seeking federal assistance with non-intercourse act
litigation was diverted to the new Federal Acknowledgment process, and their requests for the
federal assistance was deemed an attempt to petition the new recognition process.11
This diversion evaded the burden of judicially mandated intervention in further land claims, but
did not eliminate the responsibility the Passamaquoddy court found that the government owed to
non-federal tribes. By converting litigation requests into requests for administrative
acknowledgment, the Interior Department cannot evade the judicially determined trust
responsibility. That responsibility survives into the new process. At best, the federal
acknowledgment process, if fairly implemented, is an expression of continuing fiduciary
responsibility to those tribes. A fair construction of that responsibility requires including non-
recognized tribes in consultation on that process.12
The United States Department of Interior-Bureau of Indian Affairs is now revisiting its
2015 determination to withhold the benefit of remedial regulations from the very parties who had
been harmed by the unfairness of the previous process, following rulings by two federal district
courts that determination had been arbitrary and capricious. The Interior Department cannot
rationally exclude those plaintiffs, and others similarly situated, from the consultation to improve
the previous rules.
The 2015 reform was, itself, the product of a much broader consultation, which included
State recognized tribes alongside the federal tribe commentators. In similar fashion, this
consultation process must be reconfigured to include non-federally recognized tribes, to the
fullest extent possible, in recognition of their inherent sovereignty, the federal trust
responsibility, and the rights of all Indigenous peoples as set forth in the United Nations
Declaration of Rights of Indigenous Peoples (UNDRIP)15.
The federal obligation to the rights of Indigenous people transcends the general trust
responsibility, and should also conform to international law. In endorsing the United Nations
Declaration of Rights of Indigenous Peoples, the United States undertook a moral responsibility
to protect inherent rights of all Indigenous peoples within its borders, including:
- The right to freely determine their political status and freely pursue their economic,
social and cultural development, Article 3:
- The right to autonomy or self-government in matters relating to their internal
and local affairs, Article 4;
- The right to maintain and strengthen their distinct political, legal, economic,
social and cultural institutions, Article 5; and
- The right to lands, territories, and resources they have traditionally owned,
occupied, or otherwise used and acquired – and requires that states give legal
recognition to those territories. Article 26.
All those rights are implicated in the determination to grant or withhold federal
acknowledgement. While UNDRIP rights are not conditioned upon status accorded by the
dominant government (and such requirement would be inconsistent with the terms of UNDRIP),
the United States has failed to accord those rights to state-recognized tribes – even though such
tribes are sometimes treated as governmental entities by the BIA (under Indian Arts and Craft
Act) and by other federal agencies for certain programs (e.g., 8(a) minority business preference
in contracting, and HUD housing assistance). This inconsistency highlights, on an international
scale, the historic and continuing failure of the United States towards Indigenous peoples within
its borders.
Implementing reform to the Federal Acknowledgment process is a crucial step
toward repairing these injustices. Such reform should be available to those who have suffered
from previous failures of the process. Immediately relevant, the United States must listen to
those seeking the remedies that the reform promised – which means that it must include
nonfederal tribes in the current consultation process. In 2021, written comments were submitted
by federally, denied tribes, state governmental agencies. The overwhelming response was for the
tribes to reportion.
CONCLUSION
The Federal Acknowledgment Process is an expression of the federal fiduciary obligation
towards tribes whose lands now comprise the United States. The Government owes a duty of
care to those whose tribal identity it has misplaced, and must implement that duty to the highest
degree of fairness and transparency. It may not ignore those petitioners who have been harmed
by the flaws that Interior itself determined to be harmful to such an existential determination.
Tribes that were wronged by past mistakes deserve the opportunity to establish their identities as
fairly and completely as possible. And all tribes seeking participation in the process must be
permitted to consult on how that process is implemented.
For the reasons set forth above, we respectfully request that the Department grant the
right to re-petition under the 2015 Acknowledgment Regulations, permitting tribes to
demonstrate that they meet the requirements of the reformed process, through consistent
application of prior precedent and an evidentiary burden that is alleviated by the shortened
historical timeline.
Further, we urge that the leaders of the Department of Interior-Bureau of Indian Affairs visit
the tribes that were denied, you will see these tribes are carrying on the traditions, providing care
to the elders, veterans, disabled, and families with small children,
FOOTNOTES
1 Petitioner #087: MaChis Lower AL Creek Indian Tribe, AL | Indian Affairs (bia.gov) last accessed May 31, 2022
2 https://www.govinfo.gov/content/pkg/CHRG-110shrg38917/html/CHRG-110shrg38917.htm
3 Indians of the Southeastern United States in the late 20th Century Edited By Anthony J. Parades Copyright 1992The University of Alabama Press pages 123-127,
4 Federal blindness to tribal existence has broad implications. The Interior Department continues to struggle with Justice Breyer’s admonition that “a tribe may have been ‘under Federal jurisdiction’ in 1934 even though the Federal Government did not believe so at the time.” Carcieri v. Salazar, 555 U.S. 379 (2009) (Breyer, J. concurring, 555 U.S., at 397). That struggle is reflected in conflicting M-Opinions, litigation, and vigorous debate about the Department’s obligation to acquire trust land for a tribe whose federal status was unjustly delayed. See, e.g., Mashpee Wampanoag Tribe v. Bernhardt, Civil Action No. 18-2242 (PLF) (D.D.C. Jun. 5, 2020) (enjoining Interior from utilizing arbitrary M-Opinion to reject trust land eligibility).
5 Fixing the Federal Acknowledgment Process: Hearing Before the Committee on … – United States. Congress. Senate. Committee on Indian Affairs (1993- ) – Google Books (testimony of Frank Ettawageshik) Mr. Ettawageshik serves as cochair of the NCAI Federal Recognition Taskforce (last accessed, May 31, 2022)
6 https://www.doi.gov/ocl/hearings/112/FederalTribalRecognition_071212 (last accessed, May 2021).
7 https://www.indian.senate.gov/sites/default/files/upload/files/John-Norwood-UPDATEDtestimony-071212.pdf (last accessed, May 31, 2022)
8https://www.ncai.org/resources/resolutions/supporting-the-bureau-of-indian-affairs-proposedreform-of-the-federal-recognition-process (last accessed, May 31, 2022)
9 Chinook Indian Nation v. Bernhardt, CASE NO. 3:17-cv-05668-RBL (W.D. Wash. Jan. 10, 2020
10 Burt Lake Band of Ottawa & Chippewa Indians v. Bernhardt, Civil Action No. 17-0038 (ABJ) (D.D.C. Mar. 25, 2020)
11 most recently published at 85 Fed. Reg. 5462 (last accessed, May 31, 2022)
12 The District Court had required the federal filing to preserve the Tribe’s rights. See Passamaquoddy, 528 F.2d at 373. The Tribe’s claim was thereafter resolved, through federal legislation that provided the Maine Tribes with some restored land base and several million dollars in settlement. Maine Land Claims Settlement Act. Pub. L. 96-420; 25 U.S.C. §§ 1721 et seq. (1980)
13 See, e.g., Shinnecock, Petitioner No.4, litigation request posted by OFA as Letter of Intent. https://www.bia.gov/sites/bia.gov/files/assets/as-ia/ofa/petition/004_shinne_NY/004_loi.pdf , last accessed March 30, 2021.)
14 State tribes’ participation in consultation should not be limited to the federal acknowledgment process, but this submission is intended to illuminate the most glaring trust violation. Tribes throughout the acknowledgment process participate in some federal programs already and have expectations of access to the broad range of tribal government programs upon achieving federal status. They share interest in the government’s operation of those programs. Thus, federal tribal consultation should, universally, include participation by sovereign tribal entities, regardless of recognition status