On June 21, 2013 the Assistant Secretary – Indian Affairs (AS-IA) Kevin K. Washburn announced the release of a discussion draft with potential changes to the way the BIA give US tribes’ Federal Recognition status.
This process, is known as “Part 83 -Procedures For Establishing That An American Indian Group Exists As An Indian Tribe” under Chapter 1 - Bureau of Indian Affairs (BIA) of Title 25 - Indians of the Code of Laws of the United States of America (25 CFR. § 83) is the process our own Chinook people began in 1979. 20+ years later, we had a brief Final Determination for Federal Acknowledgement in favor of Chinook federal recognition, ending with a Reconsideration of Final Determination 18 months later in 2002.
“The discussion draft is a starting point in the conversation with federally recognized tribes, petitioners and the public on how to ensure that the process is fair, efficient, and transparent,” Washburn stated in a News Release in June.
“We are starting with an open mind and no fixed agenda, and we’re looking forward to getting input from all stakeholders before we move forward with a proposed rule that will provide additional certainty and timeliness to the process. In many parts of the discussion draft, we have made no fixed recommendations in order to have the benefit of that input in formulating a proposed rule.”
The BIA made the discussion draft available for review at http://www.bia.gov/WhoWeAre/AS-IA/ORM/83revise/index.htm, and allowed the public to send in comments until 25 September 2013. In addition to written comments, the BIA held tribal consultations and public meetings. You can review the comments through the link above.
How is this proposal different?
The BIA’s proposal draft strives to improve timeliness, efficiency, flexibility, transparency, and the integrity of the Federal Recognition process. Many have criticized the process, for being too long burdensome, expensive, unpredictable, and vague.
Under the current BIA rules, unrecognized tribes must provide continuous proof of community and political existence through documentation from 1900, or since last date of unambiguous federal acknowledgement from the US government. If asked to provide this same documentation, many federally recognized tribes would also fall short of recognition criteria. One drastic change to 25 CFR § 83 is decision to establish 1934 as the baseline for the building of evidence. This date puts non-federally recognized tribes on the same playing field of most federally recognized tribes, since this was the year of the Wheeler-Howard Act/Indian Reorganization Act of 1934 (Indian New Deal). This Act created US federal legislation to secure certain rights to Native Americans including the return of self-governance back to tribes.
When the IBIA received an appeal and request for reconsideration for the Final Determination to Acknowledge the Chinook in 2001, it concluded that, “Pursuant to the authority delegated to the Board of Indian Appeals by the Secretary of the Interior, 43 CFR § 4.1, the Assistant Secretary’s Final Determination is affirmed.” However, under the current 83.11(f), the IBIA must refer any requests for reconsideration to the Secretary of Interior, if points listed fall outside its jurisdiction. When it did, Secretary Gale Norton directed AS-IA McCaleb to issue a reconsidered determination based on the appeal, resulting in the reversal of our Federal Acknowledgement. This is just one example of how tribes already in privilege of federal recognition use the BIA process to keep interests in their favor. Eliminating this appeals process will lessen the power of those with a conflict of interest. However, groups can still file challenges to final determinations in Federal court.
Other noticeable differences in 25 CFR § 83 is the elimination of requiring proof from petitioner showing external observers identify group as “Indian” (83.7a), the flexibility at which criteria for the next 2 sections - 83.7b: community, and 83.7c: political influence/authority - must be proven, and allowing historians’ and anthropologists’ conclusions as evidence of descent from historical Indian tribe (83.7e). This eliminates the handicap of anti-Native policies of governments and communities, while being able to look the tribes’ individual histories so the OFA can put documentation (or lack of) into proper context.
The proposed process will require an expedited negative review within 6 months by the Office of Federal Acknowledgement (OFA). The expedited review, based off three criteria (83.7e: descent from historical Indian tribe, 83.7f: membership principally of persons who are not members of another acknowledged tribe; and 83.7g: federal relationship was not terminated or forbidden), will prohibit the OFA from holding on to petitions for years on end. Those who pass these three criteria can petition for a six month expedited favorable decision IF they have held a State reservation since 1934 or IF the US has held land for the petitioner as a group at any time since 1934.
All others must go through the full investigation. This full investigation will require a Proposed Findings within 18 months of active consideration (83.7g), with the finding open to comment for challenge or support from 6 months to a year. The OFA must provide any documents received or obtained during this process to the petitioner, so they may respond within 60 days. In addition, the new draft moves the decision portion of the process out of the OFA and into either the Office of Hearings and Appeals (OHA) or the AS-IA’s office directly. This will eliminate the current situation of the OFA being attached to their version of the Proposed Findings, and should provide integrity and checks and balances to the system. Finally, the petitioner or an interested party can request a hearing on the reasoning, analyses, and factual bases for the proposed finding, comments, and responses. The BIA must comply and do this for the record, with OFA staff available to testify by a petitioner’s cross-examination. This proposal should open up transparency and availability to the petitioner to determine what they need to complete obtain affirmative acknowledgement.
How does this affect the Chinook’s Restoration of Federal Recognition?
In 1979, the Chinook began the process of a Federal Acknowledgement Petition to seek federal acknowledgment as an Indian tribe under this process. The Bureau of Indian Affairs (BIA) received a documented petition for federal acknowledgment from the Chinook on June 12 1981. The Branch of Acknowledgment and Research (BAR) conducted an Obvious Deficiency (OD) review of the petition and sent a letter dated March 18 1982, outlining deficiencies in the petition. The Chinook submitted a revised petition in July 1987. The Chinook received second OD letter dated November 1 1988. The BIA placed the Chinook on active consideration on January 28, 1994. In 1997, the Department of Interior released a Summary Under the Criteria and Evidence for Proposed Finding Against Federal Acknowledgment of the Chinook stating “It has been determined that the petitioner meets criteria 83.7 (d-g) and that it does not meet criteria 83.7(a-e).”
Over the next three years, the Chinook and third parties submitted new evidence to refute the preliminary negative ruling, while Assistant Secretary Kevin Gover hired an independent scholar to assess Chinook history and advise on the tribe’s federal relationship. In addition, the BIA found a drawer full of previously overlooked evidence. In January 2001, the office of the AS-IA, wrote and published the Final Determination For Federal Acknowledgement in favor of Chinook federal recognition, 20+ years after the initial submission.
As mentioned previously, when the IBIA received an appeal to our recognition, this started a new review of our status and ultimately a reversal. In this Reconsideration of Final Determination, AS-IA McCaleb cited that the Chinook, from historical times (1855) to the present (2002), had not been identified as American Indian by outside observers on a continual basis (83.7a); had not lived in distinct Indian communities (83.7b); and had not maintained tribal political influence (83.7c).
Where AS-IA Gover determined that the Quinault Allotment Act of 1911 and the Act of February 12th, 1925 provide sufficient proof of under the 1978 and 1994 criteria for 25 CFR 83, AS-IA McCaleb stated that these were unprecedented as confirmation and therefore not valid. Ironically, with only 17 of 566 tribes/nations approved under the BIA’s criteria, nearly every acknowledgement breaches new standards.
Further, Assistant Secretary McCaleb stated the Chinook evidence was deficient in:
Part 83.7(b) - "The petitioner did not submit evidence, either during the comment period on the Proposed Finding or during the subsequent IBIA appeal, to address effectively the concerns in the Proposed Finding regarding the post-1950 period. For this time period there is an insufficient evidence regarding actual social interaction among a predominant portion of the petitioner's membership."
Part 83.7(c) - "There is also very limited evidence that a claims organization existed in the late 1920's and early 1930's, but no evidence that it had any internal political process which resulted in group decisions. There is almost no evidence of political activities or leadership between the early 1930's and 1951. Thus, there is insufficient evidence that the petitioning group exercised political influence over its members between 1855 and 1951"
In this reconsideration however, Assistant Secretary McCaleb relied heavily on the BAR’s 1997 Proposed Findings to reference this “insufficient/no evidence” and ignored the additional documentation post 1997 that established that Chinook met the 87.3(a) and (b) criteria.
The new 25 CFR § 83 proposal allows that any petitioner denied Federal acknowledgment under previous regulations may re-petition if it proves, by a preponderance of the evidence that 1) change from previous version to new version of regulations and 2) warrants reversal of the final determination (83.10 r). With the new changes, this section certainly seems to apply to the Chinook. In April 2012, a Chinook Council delegation participated in 2012 Roundtable on Federal Recognition: Political and Legal Relationship between Governments. At this meeting of 53 tribal entities seeking Federal Recognition, Chairman Ray Gardner was asked third to testify, and was acknowledged as the tribe to follow in these events.
In visits with Senator Murray, WA and Congressman Doc Hastings, WA-4 (Chair of Indian Affairs and Chair of the Natural Resources Committee, respectively) they have both shown support for the Chinook and would like to see us use the new BIA process. However, we are not closing off any opportunity and are in talks with Congresswoman Jaime Herrera-Beutler’s office (WA-4) to continue the Chinook Restoration Act put forth by retired Congressman Brian Baird (WA-4) in 2008 and 2009.
BIA’s Next Steps
After the closing of the comment period on the discussion draft in September, the BIA began evaluating submitted comments. The office is now moving forward in the development of a proposed rule update.
Once it is finished, the BIA will publish the proposed rule updates in the Federal Register and again seek public comment. In the spirit of transparency, the BIA plans to continue consultations with tribes after formally issuing the proposed rule. As of the date of this article, the BIA’s web sites list no timeline for publishing the proposed rule updates.
How You Can Help
Write to your Senators and Congressional Representatives; let them know how you support Chinook Recognition/Restoration. Tell them your personal stories about what Federal Recognition of the Chinook Indian Nation means to YOU.
Ask them to support AS-IA Washburn in his efforts to revamp 25 CFR § 83 - for which we have a chance for re-review - AND ask them to support and co-sign a bill from Congresswoman Herrera-Beutler’s office - where they can directly vote in our Federal status.
If Congresswoman Herrera-Beutler is your representative, thank her for her work and let her know we will be very grateful when she submits a new Chinook Restoration Act.
Finally, engage your local community and governments and ask them to send letters of support to your representatives, outside support goes a long way to giving our cause legitimacy over in DC.
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