federalrecognition -ahistoricaltwist offatenational indian law library 11 b nill no. 010043/1989...

National Indian Law Library 11 b

NILL No. 010043/1989

Federal Recognition - A Historical Twist of Fateby Faith Roessel

The Wampanoag Tribal Council of GayHead, Massachusetts, after 200 years finallybecame formally acknowledged as an "Indiantribe" in 1987 - an identity they themselvesnever questioned. Long foreclosed from thisdistinct governmental status, it now brings tothem all the rights, privileges, and protectionsaccorded every other "recognized" Indiantribe in the United States.

The Gay Head tribe is not alone. TheAmerican Indian Policy Review Commission(AIPRC) in 1977 identified 133 nonrecognizedIndian communities in the United States.The Report further documented that of these,23 were land owners, although the land wasnot necessarily protected by the federalgovernment. At least 37 communities werefound to have had formal treaty relationshipspredating the United States and at least 29communities have treaty rights that wereeither confirmed by the United States or werenegotiated directly between the historic tribeand the United States. The AIPRC alsofound the Bureau of Indian Affairs (BIA) haddesignated 25 of these 133 Indiancommunities as Indian tribes. So what wentwrong? Why weren't these Indiancommunities ever recognized?

The answer lies in our history books and inmaking sense of our federal Indian policy.Kirke Kickingbird and Karen Ducheneaux,authors of One Hundred Million Acres, (1978),aptly titled a chapter on non-recognizedIndian communities as ''Those Whom Even

Time Forgot." In this chapter, the authorspose the question, "But what of the tribes sosmall, so peaceful, or so isolated that theyposed no threat to white settlement? In mostcases, they were simply forgotten."

The authors detailed several examples ofIndian communities who escaped recognitionbut who qualify as dependent Indiancommunities.

They are people who should have the same rights asother Indian tribes. But they are people who werenever powerful militarily and thus able to force theUnited States to deal with them by Treaty.Consequently, there was no need to recognize themor to move them to Oklahoma. It may seem strangeto realize that Indian legal rights depend upon theease with which the United States can abuse Indiancommunitities but such appears to be the case.Whereas most tribes gained their

recognized status through war and treaty, and

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by lands set aside for them, many by ahistorical twist of fate were denied federalrecognition. These excluded tribes continueto exist, but have been administrativelydenied benefits because they are"non-federally recognized" tribes.

This article will define the nature offederal recognition and describe the historyand present administrative requirements tobecome federally acknowledged. Because theUnited States Senate has pending before ittwo federal acknowledgment bills, these willbe discussed, as well as the respectivepositions of the proponents and opponents ofsuch measures. In conclusion, the article willexplore who benefits from federal recognitionand whether federal recognition contributesto Indian law and policy.

Congressional Recognition andAdministrative Acknowledgment

In 1975 a unanimous federal courtelucidated an astounding principle on behalfof a NARF client. The court held that eventhough the Passamaquoddy Tribe of Mainehad never entered into a treaty with theUnited States, and the Congress had neverspecifically mentioned the Passamaquoddy,the federal government has a trustrelationship based on the federalNonintercourse act with "any tribe of Indians,"including the Passamaquoddy. Joint TribalCouncil of Passamaquoddy Tribe v. Morton.,(1975). This holding went directly against theDepartment of Interior's position thatpredicated the trust relationship as only owedto "recognized" tribes.

Passamaquoddy sets forth the legalprinciple that Congress in 1790 by enactingthe Nonintercourse act had generallyrecognized and assumed a trust responsibiltyto all Indian tribes. Specific acts ofrecognition, however, through treaty,executive order or acts of Congress,conceivably could later take place and didbetween particular tribes and the UnitedStates.

Within this context of general and specificrecognition, questions continued to arise overwhether an Indian group still existed as anIndian tribe to be accorded the trustrelationship. In the absence of specificcongressional guidelines, the Department ofthe Interior derived its own standards todetermine whether specific Indian groups stillmaintained a tribal identity.

In the course of this evolution, theSolicitor's Office of the Department of theInterior distinguished between "recognition,"a prerogative of Congress and"acknowledgment," a secretarial designationthat a government-to-governmentrelationship exists between the United Statesand a particular tribe. Accordingly, a tribenamed in a treaty or receiving benefits froman act of Congress has been recognized, andacknowledging that status is anadministrative, perhaps nondiscretionary act.The Department's 1978 regulations may haveconfused this distinction because it requiresan elaborate anthropological showing butwithout any credence given to prior federal

NARF Legal Review 2 Summer 1989

actions that demonstrate specific recognition.Consequently, the Department still refuses totake into account prior federal acts whenreviewing a petition for acknowledgment.

The concept of recognition remains aviable doctrine defined as a formal politicaldecision to establish agovernment-to-government relationshipbetween an Indian tribe and the UnitedStates. Recognition therefore is similar to theprocess which is found in international law."A state is not required by international law torecognize an entity as a state or a regime asthe government of a state, but this is apolitical question to be determined by theexecutive branch of the government." 45AmJur 2d Section 15. The President usuallyconferred recognition to Indian tribes andforeign governments, with the advice andconsent of the Senate through theconstitutional treaty making power. In 1871,the treaty period ended between the UnitedStates and Indian tribes. Thereafter,recognition was conferred by executive order,legislation, or by other means.

Since the end of the treaty period, whetherto recognize an Indian tribe in the first placehas been one for Congress to make and iswholly discretionary. In U.S. v. Candelaria,(1926), the Supreme Court noted thatCongress cannot arbitrarily call the pueblo an"Indian tribe," but "the questions whether, towhat extent, and for what time they shall berecognized and dealt with as dependent tribesrequiring the guardianship and protection ofthe United States are to be determined byCongress and not by the courts." In UnitedStates v. John, (1978) the Supreme Courtconfirmed the status of the MississippiChoctaw and found that "Neither the fact thatthe Choctaws in Mississippi are merely aremnant of a larger group of Indians, long agoremoved from Mississippi, nor the fact thatfederal supervision over them has not beencontinuous, destroys the federal power to dealwith them."

Once recognition has been confirmed, thisnaturally leads to the question whether it maybe lost or withdrawn. Charles Wilkinson,

noted Indian law professor and author, arguesthat tribes have the "right to change." InAmerican Indians, Time, and the Law, (1987),Wilkinson states:

The permanency of tribal existence, then, givestribes and Congress a continuing option. Tribalexistence, wholly independent of any federal action,is maintained as long as a tribe or subgroup has thewill to maintain it. In turn, Congress retainsauthority to deal with the tribe in order to correctold mistakes. [d. at 78.

Presumably then, once a tribe has beenrecognized, it cannot lose that status based onfederal neglect or on the possibility that thetribe has changed or evolved. Whether atribe ceases its political relationship with theUnited States can only be determined by anexpress act of Congress. A period of federalIndian policy attempted to do just thatthrough termination legislation. Menomineev. United States, (1968). Similarly, it followsthat specific Congressional legislation wouldbe needed to withdraw a tribe's recognitionrather than bureaucratic maleficence.

Proof of Tribal Identity and Existence

In 1978, the Bureau of Indian Affairs(BIA) promulgated administrative proceduresfor establishing that an American Indiangroup exists as an Indian tribe, in large part,as a reaction to the eastern land claims andU.S. v. Washington litigation 25 CFR Part 83.The BIA was also succumbing torecommendations from the AIPRC whichcalled for Congressional standards forrecognition purposes. At the time, SenatorJames Abourezk, Chairman of the SenateSelect Committee on Indian Affairs, hadintroduced S. 2375, in response to the AIPRCrecommendation. This legislation relied onthe "Cohen criteria" and allowed for a primafacie showing of recognition based on atreaty, act of Congress, or executive order,thereby shifting the burden of proof to thegovernment. S. 2375 was never acted uponbecause the Administration assured Congressit had developed its own standards and


procedures, leaving legislation an unnecessaryduplication.

The 1978 regulations departed significantlyfrom what had been prior Bureau practice.Between 1935 and 1974, the Bureau had beenapplying the "Cohen criteria" found in FelixCohen's Handbook of Federal Indian Law(1942 eeL). During this time the Bureau wasdetermining tribal existence in order toascertain eligibility for government servicesunder the Indian Reorganization Act. Tribalexistence questions under study by theSolicitor's office were evaluated under thefollowing: (a) that the group has had treatyrelations with the United States; (b) that thegroup has been denominated a tribe by act ofCongress or executive order; (c) that thegroup has been treated as having collectiverights in tribal lands or funds, even though notexpressly designated a tribe; (d) that thegroup has been treated as a tribe or band byother Indian tribes; or (e) that the Indiangroup has exercised political authority over itsmembers through a tribal councilor othergovernmental forms. Id. 271.

A Solicitor's opinion was often employedutilizing at least one or more of the above toestablish a group as a "tribe" or "band." Otherfactors that were considered, but notconclusive, were the "existence of specialappropriation items for the group and thesocial solidarity of the group."Correspondence from LaFollette Butler,Commissioner of Indian Affairs, to U.S.Senator Henry M Jackson, June 7, 1974.During the mid-1970's the Bureau maintainedthat it lacked the authority to "recognize"Indian tribes, but that it might "acknowledgethe existence" of Indian tribes previouslyrecognized under treaty or acts of Congress.

Remarkably, in this context, the 1978regulations lacked any reference to treaties,acts of Congress, or executive orders as ameans of prior federal recognition whichwould weigh in favor of proving tribalexistence. Instead, the regulations took al"" __:" n.,....+h ...."~,,lArY"; u)l 1)rt..........A¥>,...'h hnf- 'I1C'.orl +l."a."v....iv-aHullvpv1vOi ai appivu....ll, uu. u".... u Ui ....

terminology of "acknowledgment" asconceived by the Solicitor's office.

The regulations, still in use and nevermodified, require a petitioner to meet sevencriteria pursuant to 25 CFR 83.7. A petitionmust: (a) establish that a petitioning Indiangroup has been identified from historicaltimes until the present on a substantiallycontinuous basis as "American Indian" or"aboriginal;" (b) contain evidence that asubstantial portion of the petitioning groupinhabits a specific area or lives in anAmerican Indian community with itsmembers descendants of an Indian tribewhich historically inhabited a specific area;(c) establish that a petitioning group hasmaintained tribal political influence or otherauthority over its members as an autonomousentity throughout history until the present;(d) provide the petitioning group's governingdocument, or in its absence, a description ofmembership criteria and governmentaloperations over its affairs and members; (e)provide a membership list consisting ofmembers who are descended from a historical+...·;h.o """'" .....:h.a.l"'- In r.tol"" .... "l-..l:,..)..... "'tll.l~4-t 'tl.llfOU1U.... Vi UiU....", \11 ...."tauu"u ~ ~

petItIOning group's members are notprincipally members of other North American


Indian tribes; and, (g) show that thepetitioning group has not been subject to atermination statute.

The Assistant Secretary for Indian Affairscarries out the prescribed duties through theBranch of Acknowledgment and Research(BAR) within the Bureau of Indian Affairs.BAR staff conducts the review of all petitions.Each petition is reviewed by one teamconsisting of a historian, an anthropologistand a genealogist. Should there be any"obvious deficiencies or significant omissions"in the petition, staff are to notify and describethem to the petitioner. The petitioner maywithdraw or respond to correct thesedeficiencies; no time limits are specified to doso. Petitions are evaluated on a "first come,first served basis," with priority given to thepetition or letter of intent to petition with theearliest filing date with the BAR office.

A fully documented petition that hasundergone an initial review and any responsesto it may be ready for active consideration,but such a determination remains whollywithin the discretion of the BAR staff. Whena petition comes under active considerationtherefore depends on a variety of factors. Apetition ideally would have an early filingdate, the obvious deficiency stage would havebeen relatively short or none at all, and theBAR staff would be able almost simultaneouswith the readiness of the petition toimmediately begin work on it. The ideal,however, escapes the practice.

Within one year after a petitioner has beennotified that active consideration has begun,the proposed findings are published in theFederal Register, unless extended by anadditional 180 days upon a showing of duecause to the petitioner. All deadlines underthe regulations are unenforceable.

Once the proposed findings are published,any individual or organization may within 120days rebut the findings by submitting its ownfactual, legal, and evidentiary documentation.

If BAR refuses to acknowledge thepetitioning group, the only opportunity tocontest the .adverse finding is through theSecretary of the Interior asking the Assistant

Secretary to reconsider his decision. Whetherthe Secretary will ask the Assistant Secretarto reconsider his decision in practice has beendetermined by the BAR staff themselves,since they ultimately receive thereconsideration request from the Secretary.A denied petition, therefore, goes back to thevery persons who decided against tribalexistence in the first place.

In the end, if a petitioner successfullymakes it through the process, the regulationsprovide it will be eligible for services andbenefits from the federal governmentavailable to other federally recognized tribesand will be able to maintain agovernment-to-government relationship withthe United States. Funding for these newtribes comes under a separate account withintheBIA.

"Lost and Found" Tribes

Included in the 1978 regulations was aprovision directing the Secretary of theInterior to contact "all Indian groups knowto the Department in the continental UniteaStates whose existence has not beenpreviously acknowledged by the Department."25 C.P.R. 83.6. The American Indian PolicyReview Commission list was specificallyrequired to be included.

The BIA reports that about 114 Indiangroups have indicated an interest to petitionfor acknowledgment under the regulations.Forty of the requests were on hand when theacknowledgment office started in 1978 withthe remaining 74 requests received sincethen. In accordance with the regulations, 7groups have been acknowledged and 12 havebeen denied. Congress, in the meantime, hascontinued to exercise its legislative authorityby recognizing, restoring, or clarifying thestatus of 5 Indian groups since 1978.

According to the Bureau's most recentstatistics, April 1989, 28 fully documentedpetitions have been submitted and are atvarious stages of the petitioning process.Four of these petitions are listed as undeactive consideration, but that does not


necessarily mean they are all being reviewedat the same time. BIA admits that only1.5-2.0 petitions are being completed eachyear. Of the 28 completed petitions, 12 areawaiting some form of Bureau action, and 16are awaiting petitioner responses to BAR'sobvious deficiency letters. Furthermore, theBureau documents that 35 additional groupsare currently working on their petitions and26 others are known to exist but who have notresponded to the Bureau's inquiries. Giventhe current rate of 1.5-2.0 petitions beingcompleted each year, the acknowledgmentprocess will easily extend into the twenty-firstcentury.

Petitioners are dependent on theAdministration for Native Americans (ANA),which provides the only source of federalfunding to assist nonrecognized communitiesin the preparation of their petitions. The BIAdoes not provide similiar assistance to apetitioning group. ANA status clarificationgrants began in 1981 with the purpose ofsupporting community applied research andassisting groups by linking them with thosewho would provide technical assistance. AnANA 1982 Issue Paper on Status Clarificationexplained ANA's mission as assisting thesecommunities in overcoming the policies ofnonrecognition and termination which standas barriers to Indian social and economicself-sufficiency. Since 1981, ANA has funded118 grants for status clarification purposes.

Recently, ANA commissioned a study tosurvey their status clarification recipients.Commonly known as the Orbis Report,outside researchers visited 35 Indiancommunities who reside in 15 states. The sizeof the 35 communities ranged from thesmallest with 150 members (lena Band ofChoctaw, Louisiana) to the largest with over30,000 members (Lumbee, North Carolina).Sixty-three percent (22 grantees) of thesecommunities fell below the BIA's "small tribe"definition of 1,500 members. Twenty-eightpercent (10 grantees) ranged between 1,501#).,.,rl " ()()() .,..,...,ornh.o.rC" ".,.,rt ,.,.1r'\C'~ tA n;nJ:). n,01''',.,.ontUJ.J.U ,J,VVV J,J.J.lrrvJ.J.J.U",J..:.l UJ.J.U ""J.V,,;')'V '"''-'" .l.U.l.J.\,,; t"V.l """".I..1L

(3 grantees) had memberships whichexceeded 5,000 members.

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ANA status clarification grants go towardproviding two types of activities: 1) researchand 2) tribal governmental reorganization orstrengthening. NARF currently represents anumber of grantees in their research whichinclude historical, genealogical, ethnographic,and legal. The Orbis Report observed thearduous task of this type of research notingthat since the "groups in question seldomhave documented histories available, theresearcher is forced to spend considerabletime searching state and local archives,private collections, and obscure secondarysources for information. . . .This historicalresearch component is long, tedious, andexpensive."

Regarding the second activity ofstrengthening tribal governments, Orbisunderscored the fact that "[a] stronggovernment with sound and effectiveoperational procedures in place should be thespringboard for advancing a community togreater social and economic self-sufficiency....Furthermore, tribes with developedmanagement capabilities and experience can

Summer 1989

clearly make a smoother transltlOn oncefederal recognition is achieved."

The Orbis Report stated that the statusclarification grants are achieving their goals.To date, 21 grantees have completed andsubmitted documented petitions to BAR.Only 11 have not, and 3 were ineligible to doso, because they had been named in atermination statute and would have to seekrestoration legislation.

Overcoming Congressional Benign Neglect

Over the past twelve years the Senate hasheld three oversight hearings on the federalacknowledgment process, in 1980, 1983 and1988. Following the 1988 hearing, ChairmanDaniel K. Inouye urged witnesses to draftproposed legislation to respond to the illstestified to before the Senate SelectCommittee on Indian Affairs. NARF, at theChairman's request, played a key role inassisting the Committee to develop legislationand in working with other organizations whotook an interest in federal acknowledgmentreform. Subsequently in March 1989, SenatorInouye introduced S. 611, the Indian FederalAcknowledgment Administrative ProceduresAct. Twelve other Senators have joined insupport and are co-sponsors of the bill. S. 611represents the first comprehensiverecognition bill to be introduced in theSenate, since Senator Abourezk's bill in 1977.

S. 611, rather than perpetuating the currentacknowledgment system, attempts to correctthe deficiencies by proposing solutions whichare based on the experience of professionalswho have been involved in the system since1978. In approach, S. 611 distinguishesbetween two different types of petitioners;those who have been previously recognizedand those who have not. For those who havebeen named in a treaty, executive order, oract of Congress, the petitioner need only showsuch a document; that the Indian group andits members are descendants from the historictribe; and, that it has a current governingbody. Once this prima facie showing has beenmade then the Indian group has

demonstrated prior recogrutlOn and thatstatus should be acknowledged. The federalgovernment carries the burden of proving theIndian group no longer exists as an Indiantribe.

Those Indian groups who do not haveevidence of prior federal recognition wouldpetition through the more elaborate processanalogous to the present system. Importantimprovements, however, have been made.Deadlines are built into the process toovercome the years of delays. A newenforcement mechanism is being proposed tocreate a right to mandamus action in federalcourt to enforce the deadlines. Expediencywill also be promoted with additionaldefinitions and thresholds of proof stated sopetitioners will know when they have met arequirement.

Related to what constitutes sufficientproof, S. 611 sets up for the first time uniformstandards to be applied equally to eachpetitioner. Precedent will prevail and with itconceivably less money expended becausepetitioners will know what to provide, and willnot have to repeatedly respond to vagueobvious deficiency letters. An appeal processin S. 611 adds a critical component longoverlooked. Disagreements with the newOffice of Federal Acknowledgment will beresolved by an independent three-personpanel to be named anew in each case. Panelmembers will be selected on the basis ofexpertise in anthropology, history and bynational reputation.

The new Office of FederalAcknowledgment will only handle federalacknowledgment petitions, compared to theBAR office which only expends 40 percent ofits time on active status petitions. Thisexclusive focus to federal acknowledgmentshould increase efficiency and promoteprofessionalism. To address possible conflictsof interest between the acknowledgmentoffice and the BIA, the new office is set upindependent of the BIA, but still within theDepartment of Interior.

Two days before the hearing on S. 611,Ranking Minority Member Senator John


8

McCain introduced his own federalacknowledgment counterpart, S. 912. S. 912has been viewed as legislating the status quo,with a few changes. It maintains the currentBAR office within the BIA It utilizes thecurrent criteria for petitions withoutoperational definitions to assist socialscientists. And, priority consideration goes totribes who have been terminated.

S. 912 further provides that an AssistantSecretary's adverse decision may be appealedto the Office of Hearings and Appeals' withinthe Department of Interior, rather thanundergo expert review as in S. 611. If noaction on a petition takes place within 6 yearseither by the Assistant Secretary or theAppeals Board, the petition will be treated asdenied and may be appealed for de novoreview in federal court. Although the bill isauthorized for 12 years, a petition forrecognition must be submitted within sixyears. The legislation uses the term"recognition" in place of acknowledgment.Whether Senator McCain intends to do awaywith the distinction or not remains unclear.

On May 5, 1989 the Committee heardtestimony on S.611 from the Department ofInterior, legal experts, historians,anthropologists, Indian tribes against and insupport of the acknowledgment process, andIndian communities seekingacknowledgment. Tribal witnesses whotestified against S. 611, interpreted S. 611 asweakening the criteria for federalacknowledgment to such an extent thatanyone may qualify as an Indian tribe. As onetribal witness stated in his written testimony,"We see in S. 611 a threat to our sovereignpowers. Its broad definitions and laxstandards would eventually make a mockeryof the very meaning of 'Indian tribe' and'government-to-government' relationship. "f

Contrasted with that view, the majority ofwitnesses at the hearing focused on theproblems with the system and the need tosubstantially improve it. Academic scholars; .... "'; .. t".." ., .... il ., .... t .....'''nnlnnu t",,,t;f;,,,rl th<>t th",1.1..1 J..1J.., ..V.1) U.u.u UJ...l\,J...lJ.vpV.J.voJ ""'•.;n,.. .1. ............. u '-.l..I."" ".l.......

revised criteria are actually more difficult tomeet than the current criteria and they

NARF Legal Review

supported the operational definitions to assistprofessionals in the field as to what proof isrequired and how much. Petitioning groupstestified in support of S. 611 as a means tobreak the log jam at BAR where petitionshave been languishing for years. At the endof the hearing, Senator Inouye asked theminority and the majority staff of theCommittee to fashion a "compromise" billthat would meet the concerns of all involved.To date, a compromise has yet to beproposed other than drafts of possibleapproaches. The Committee anticipates ahearing on the compromise version once ithas been introduced.

Conclusion

This article in a broad sweep has attemptedto put in some historical, legal, andCongressional perspective the phenomenonof recognizing and acknowledging Indiancommunities that meet certain prescribedcriteria. Over ten years ago, the AmericanIndian Policy Review Commission in its taskforce report concluded that:

The results of 'non-recognition' upon Indiancommunities and individuals has been devastating,and highly similar to the results of termination: thecontinued erosion of tribal lands, or the completeloss thereof; the deterioration of cohesive, effectivetribal governments and social organizations; andthe elimination of special federal services, throughthe continued denial of such services which theIndian communities in general appear todesperately need.It is this community of Indian people that

NARF has served and continues to serve.Tribal existence forms the core of any Indiancommunity's ability to become independentand self-sufficient, and tribal existence is oneof NARF's priority areas. Consequently, thelegislative proposals before Congress are ofparamount importance to our clients who arenot as fortunate as the majority of Indiantribes designated as "recognized."

NARF has built an impressive track recordin its tribal existence area. NARF's clientswho have chosen to proceed through theacknowledgment process have each beensuccessful. In every case in which legislative

Summer 1989

recogrutlOn or restoration has been thevehicle, again, NARF has never failed toachieve either goal.

The politics of "recognition" in Indiancountry cannot be overlooked. Even theAIPRC lamented about the "extremelycontroversial nature of 'recognition andnon-recognition' in the socio-political arenaof Indian affairs." Whereas nonrecognizedIndian communities have faced almostinsurmountable odds in their quest to becomerecognized, they now face even greaterpolitical odds to overcome the perception bysome in Indian country that they areillegitimate and will further diminish alreadyscarce resources. While no one can disputethe decrease in fiscal expenditure since 1980for all domestic programs, including Indianprograms, those who are concerned with asmaller pie need to remind themselves of theorigins of the federal trust relationship.Rather than it being calculated by the Officeof Management and Budget as anappropriation item, the trust relationship isbased on the U.S. Constitution, treaties,statutes, and federal common law.

"Recognition" compels students of Indianlaw and policy to go back to the underlyingprecepts of the relationship between Indiantribes and the United States. Inquiries intothe recognition issue may very well lead to theconclusion that since 1978 the Congress hasabdicated its responsibility of recognizingIndian tribes and has left it to anadministrative procedure that is carrying onwith a life of its own, and now needsCongressional intervention.

"Recognition" also supports the conceptthat Indian law and tribal existence are notstatic concepts. The fact that Congress willcontinue to recognize or restore tribes, andeven legislate to authorize the InteriorDepartment to acknowledge tribessubstantiates a continual trust relationship;not one dependent on or thwarted by fiscalpolicy.

We are further instructed that tribalexistence and identity do not depend on"recognition." Once that equation is made,

any tribe at some point may be in jeopardy oflosing its identity by a mere slip of the federalpen. It has already happened to 33 AlaskaNative villages who testified at the 1988oversight hearing that they had been"inadvertently" de-recognized by the BIA.They have yet to have had their statusresolved.

Perhaps the story of Chief Little Shell, aChippewa leader helps us understand how theaccidents of history are closely allied withrecognition. Facing forced removal, ChiefLittle Shell refused to sign what he believedwas an unscrupulous treaty. His descendants,now NARF clients, are petitioning the BARfor federal acknowledgment. They are asking,and rightfully so, does not the act of refusingto sign a treaty denote an act of a sovereign?The answer should be yes. The BAR will befaced with that question whenever theyactively consider the Little Shell petition.

In sum, the benefits of "recognition" forthose communities who have achieved thatgoal are immeasurable. What these Indiancommunities teach us is an exercise of tribalsovereignty in its purest form; sovereigntynever reliant upon federal services norsubsidies.


NARF Board Elects Two New Members

Lionel Bordeaux, president of Sinte GleskaCollege, and Twila Martin-Kekahbah,chairperson of the Turtle MountainChippewa Tribe, were recently named to theNARF Board of Directors. They replaceout-going board members Gene Gentry andGeorge Kalama who have served out two yearterms, the maximum allowed under NARFby-laws.

Bordeaux, a member of the Rosebud SiouxTribe, has extensive experience in tribalgovernment and in Indian education. Underhis leadership, Sinte Gleska College, locatedon the Rosebud Sioux Reservation, becamethe first fully accredited, reservation-basedinstitution of higher education at thebachelor's degree level. He also institutedthe first reservation-based master's degreeprogram, establishing a degree program inelementary education at Sinte Gleska.

Bordeaux is also the president andexecutive board member of the AmericanIndian Higher Education Consortium (tribalcollege), a board member of the NationalAdvisory Council on Indian Education, and aboard member of Americans for IndianOpportunity and the Phelps-Stokes Fund. Hehas served on the Board of Regents ofHaskell Indian Junior College and aspresident of the National Indian EducationAssociation.

He has received numerous awards thatinclude: 1975 Outstanding Administrator ofthe Year by Black Hills State College,Spearfish, SD; 1976 Outstanding Educator ofthe Year by the South Dakota IndianEducation Association; 1983 NationalCongress of American Indians OutstandingEducator of the Year; and, the 1988 NationalIndian Education Association Educator of theYear.

BordeaLLX has served three terms on theRosebud Sioux Tribal Council, is theChairman of the Rosebud Sioux Tribal

Education Committee and the actingChairman of the United Sioux TribalEducation Board. Bordeaux is presently acandidate for a Ph.D in educationaladministration at the University ofMinnesota.

Twila Martin-Kekahbah is the chairpersonof the Turtle Mountain Band of ChippewaIndians. Martin-Kekahbah has a wide rangeof experience in the areas of Indian educationand health and has traveled extensively in theU.S. and abroad. She has also served onvarious boards particularly in the areas ofeducation and health.

Her past accomplishments include servingon the board of directors for: HaskellCollege Foundation, Lawrence, KS; Centerfor Rural Health Services, Policy andResearch, University of North DakotaMedical School, Grand Forks, ND; DouglasCounty United Fund, Lawrence, KS; NorthDakota Endowment for the Humanities,Bismarck, ND; American Indian HigherEducation Consortium, Denver, CO; CampFire, Inc., Kansas City, MO; and InternationalSchool of Native Ministries, Saint Paul Schoolof Theology, Kansas City, KS. She is also acharter member of the medical programIndians Into Medicine, Grand Forks, ND.

Martin-Kekahbah has received numeroushonors including: Community leaders of theWorld--First Commemorative Issue, 1984,Who's Who of American Indians, 1984;OHOYO-Notable American Indian Women,1981-1983. She also served as a W.K. KelloggLeadership Fellow, 1984-1987. In addition,she has also given numerous presentations ofAmerican Indian women and leadershipstyles. Martin-Kekahbah has an M.Ed inEducational Administration fromPennsylvania State University.


National Support Committee Adds New Member

The Rt. Rev. William C. Wantland wasrecently named to the NARF NationalSupport Committee and is a Seminole Indianfrom Oklahoma, specifically the TusekiaHarjo Band. He has served in the capacity ofBishop at the Diocese of Eau Claire for thelast eight years and is the only NativeAmerican to serve as a bishop in theEpiscopal church. Previously he served inparishes in Oklahoma for almost 20 years.

Rev. Wantland has served as AttorneyGeneral of the Seminole Nation of Oklahomaunder four principal chiefs from 1969 to 1977.He has also served in leadership capacities fornumerous church associations andtribal-related activities, both in Oklahomaand nationwide. They include the SeminoleNation Housing Authority, the OklahomaIndian Rights Association, the Oklahoma BarAssociation Special Committee on Indianrights, the National Committee on IndianWork of the Episcopal church and theAmerican Indian Policy Review Commissionof the United States.

Besides his church related responsibilities,Rev. Wantland has continued his active rolein the areas of combatting racism as well asdrug and alchohol abuse in the State ofWisconsin. In 1986, he received theWisconsin Equal Rights Council Award forcombatting racism against Indians. Rev.Wantland received the Manitou Ikwe Awardof the Anishinaabe Way, an Indian alcohol

and drug abuse program in Wisconsin in 1988.Rev. Wantland is the author of three booksand numerous published articles. On behalfof the Board of Directors, the other membersof the National Support Committee and thestaff, we wish to extend a sincere welcome toRev. Wantland.

NARF Receives Major Contribution FromMashantucket Pequot Tribe

NARF is pleased to have recently receiveda $10,000 gift from the Mashantucket PequotTribe of Ledyard, Connecticut. The checkwas presented at NARF's recent Board ofDirector's meeting by Richard (Skip)Hayward, Chairman of the MashantucketPequot and a new member to NARF's Board.This was the first major bingo benefit in thenation in support of NARF's work.

At the Native American Rights Fund weare especially pleased when tribes like theMashantucket Pequot contribute so that allNative Americans can benefit. We are proudof the fact that more tribes are contributing toNARF than ever before. The increase intribal contributions makes a real impact onthe help we can provide to those tribes whootherwise would not have adequaterepresentation.

We would like to extend a special noteof appreciation to Skip Hayward and theMashantucket Pequot Tribe for theirgenerous contribution.


Case Updates

State of Kansas Enacts Unmarked Burial Sites Preservation Act

On April 24, 1989, Kansas Governor Mike Hayden signed into law House Bill2144, the "Kansas Unmarked Burial Sites Preservation Act." The new law bansunregulated public displays of human remains and protects unmarked graves fromunnecessary disturbance. The measure, which passed the legislature withoverwhelming support in both houses, had been introduced at the request of theKansas State Historical Society. Major supporters of the bill included sevenAmerican Indian tribes who are concerned about protection for tribal burial groundslocated in Kansas. The bill was also supported by the Kansas scientific and historicalcommunity which deplored the loss of valuable cultural resources caused byunregulated "looter's" or disturbances of unmarked graves.

NARF represented the Pawnee Tribe in the matter.

State ofWyoming v. United States ofAmerica

The U.S. Supreme Court upheld the "practicably irrigable acreage" (PIA)standard of quantification of Indian water rights in the case of State of Wyoming v.United States ofAmerica. The PIA standard is used for determining the amount ofwater impliedly reserved for agriculture and related uses on Indian reservations. Thestandard takes into consideration and quantifies amounts for future as well ashistoric and present water uses. Tribes and states in the past have relied upon thePIA standard in water negotiations and quantification of various Indian tribes' waterrights have been determined by the use of this standard. The court was equallydivided (Justice O'Connor did not participate in the decision), therefore, there is nowritten opinion. NARF filed an amicus curiae brief on behalf of a number of tribesand the National Congress of American Indians.

Amendments to American Indian Religious Freedom Act Introduced

HR 1546 to amend the American Indian Religious Freedom Act (AIRFA) hasrecently been introduced in the House. NARF attorneys, together withrepresentatives of the National Congress of American Indians and the Associationon American Indian Affairs, have also been working with the staff of the SenateSelect Committee on Indian Affairs to develop counterpart amendments to AIRFAin the Senate.

The amendments are being proposed to offset the damage done by the disastrousU.S. Supreme Court decision in Lyng v. Northwest Indian Cemetery ProtectiveAssociation. Rendered almost one year ago, that decision stripped Indians of theconstitutional right to safeguard the integrity of their sacred worship sites. Bothiegisiative proposals to amend AIRFA -- which win see activity in Congress in the


Case Updates Continued

upcoming months -- can give the law the "teeth" it now lacks, and thus enable NativeAmericans to take their fight for religious freedom into courtrooms across America.

Nebraska Lawmakers Enact Precedent-Setting Indian Burial Legislation

Nebraska lawmakers have enacted a precedent-setting law which requiresstate-sponsored museums to return Indian skeletal remains and associated burialgoods to tribes for reburial. The law is the first of its kind in the country expresslyrequiring the return of all tribally identifiable skeletal remains and linkable burialgoods to Indian tribes for reburial.

Legislative Bill 340, sponsored by Senator Ernie Chambers of Omaha, alsoprohibits the unnecessary disturbance of unmarked burials and established criminalpenalties for trafficking the contents of burials located within the state. In the eventunmarked Indian graves must be disturbed in instances such as road construction,the legislation requires state authorities to contact identifiable Indian tribes andcomply with their decisions as to reburial or other disposition.

NARF represented the Pawnee and Winnebago Tribes in the matter.

California v. United States

The United States Supreme Court affirmed a decision protecting the boundariesof three Indian reservations along the Colorado River. Determination of thereservation boundaries is a crucial step in Arizona v. California, a related lawsuit toquantify water rights to the river among the tribes and the states. This caseforecloses a separate action by two southern California water districts and the statesin which they argued that the Secretary of the Interior illegally enlarged thereservation boundaries. NARF filed an amicus curiae brief on behalf of severaltribes.

Brendale v. Yakima Indian Nation

The United States Supreme Court largely divested the authority of Indian tribesto zone land owned in fee by non-Indians within the reservation boundaries. Anon-Indian in a portion of the Yakima reservation which is now heavily populated bynon-Indians, due to the late nineteenth century federal policy of allotting Indiantribal lands to individuals, may now build a dense residential subdivision on his land.But a non-member living amidst mostly tribal land may not build a commercialresort on his land. Tribal law would have prohibited the developments of bothlandowners. NARF filed an amicus curiae brief on behalf of several tribes.


NARF RESOURCES AND PUBLICATIONS

THE NATIONALLIBRARY

INDIAN LAW Bibliography on Indian EconomicDevelopment

The National Indian Law Library (NILL)has developed a rich and unique collection oflegal materials relating to Federal Indian lawand the Native American. Since its foundingin 1972, NILL continues to meet the needs ofNARF attorneys and other practitioners ofIndian law. The NILL collection consists ofstandard law library materials, such as lawreview materials, court opinions, and legaltreatises, that are available in well-stockedlaw libraries. The uniqueness andirreplaceable core of the NILL collection iscomprised of trial holdings and appellatematerials of important cases relating to thedevelopment of Indian law. Those materialsin the public domain, that is non-copyrighted,are available from NILL on a per-page-costplus postage. Through NILL's disseminationof information to its patrons, NARFcontinues to meet its commitment to thedevelopment of Indian law.

AVAlLABLE FROM NILL

The NILL Catalogue

One of NILL's major contributions to thefield of Indian law is the creation of theNational Indian Law Library Catalogue: AnIndex to Indian Legal Materials andResources. The NILL Catalog lists all ofNILL's holdings and includes a subject index,an author-title table, a plaintiff-defendanttable and a numerical listing. This referencetool is probably the best current referencetool in this subject area. It is supplementedperiodically and is designed for those whowant to know what is available in anyn"r'tiI'111"r' !'!TP!'! of InAi!'!n l!'!UT (1 nnn 4- nO'cyu.l."'.l.'"-'U-.l.u................ _u '-J'.l. ......... .I._Jl..'-4........ -,"""''f'. \ 'VVV I Yeo.,).

Price: $75).

Designed to provide aid on thedevelopment of essential legal tools for theprotection and regulation of commercialactivities on Indian reservations. Thisbibliography provides a listing of articles,books, memoranda, tribal codes, and othermaterials on Indian economic development.2nd edition (60 pgs. Price: $30.00). (NILLNo.005166)

Indian Claims Commission Decisions

This 43-volume set reports all of the IndianClaims Commission decisions. An indexthrough volume 38 is also available, with anupdate through volume 43 in progress. Theindex contains subject, tribal, and docketnumber listing. (43 volumes. Price $820).(Index price: $25.00). (Available from theIndian Law Support Center).

Prices subject to change

INDIAN RIGHTS MANUAL

A Manual for Protecting Indian NaturalResources. Designed for lawyers whorepresent Indian tribes or tribal members innatural resource protection matters, the focusof this manual is on the protection of fish,game, water, timber, minerals, grazing lands,and archaeological and religious sites. Part Idiscusses the application of federal andcommon law to protect Indian naturalresources. Part II consists of practice pointers:questions to ask when analyzing resourceprotection issues; strategy considerations; andthp pff"'l'tiu", llCP of l!'!uT !'!Auol'"t",c in TPCOllTrp... .1..1."" "".l...1..",,",,,,..a..,,,, "oJ_ V.l.. ..l.U'f'f U.U"V"U.LV~ .1..1..1. ... _...,v __ .... __

protection. (151 pgs. Price $25).


NARF RESOURCES AND PUBLICATIONS

A Manual on Tribal Regulatory Systems.Focusing on the unique problems faced byIndian tribes in designing civil regulatoryordinances which comport with federal andtribal law, this manual provides anintroduction to the law of civil regulation anda checklist of general considerations indeveloping and implementing tribalregulatory schemes. It highlights those laws,legal principles, and unsettled issues whichshould be considered by tribes and theirattorneys in developing civil ordinances,irrespective of the particular subject matter tobe regulated. (110 pgs. Price $25).

A Self Help Manual for Indian EconomicDevelopment. This manual is designed tohelp Indian tribes and organizations onapproaches to economic development whichcan ensure participation, control, ownership,and benefits to Indians. Emphasizing thedifference between tribal economicdevelopment and private businessdevelopment, this manual discusses the taskof developing reservation economies from theIndian perspective. It focuses on some of themajor issues that need to be resolved ineconomic development and identifies optionsavailable to tribes. The manual begins with ageneral economic development perspectivefor Indian reservations: how to identifyopportunities, and how to organize theinternal tribal structure to best plan andpursue economic development of thereservation. Other chapters deal with morespecific issues that relate to the developmentof businesses undertaken by tribalgovernment, tribal members, and by thesegroups with outsiders. (Approx. 300 pgs. Price$35).

Handbook of Federal Indian EducationLaws. This handbook discusses provisions ofmajor federal Indian education programs in

terms of the legislative history, historicproblems in implementation, and currentissues in this radically changing field. (130 pgs.Price $20).

1986 Update to Federal Indian EducationLaw Manual ($30.00) Price for manual andupdate ($45.00).

A Manual On the Indian Child WelfareAct and Law Affecting Indian Juveniles. Thisfifth Indian Law Support Center Manual isnow available. This manual focuses on asection-by-section legal analysis of the Act,its applicability, policies, findings,interpretations, and definitions. Withadditional sections on post-trial matters andthe legislative history, this manual comprisesthe most comprehensive examination of theIndian Child Welfare Act to date. (373 pgs.Price $35).

PUBLICATIONS

ANNUAL REPORT This is NARF's major report on its programsand activities.. The Annual Report is distributed to foundations,major contributors, certain federal and state agencies, tribalclients, Native American organizations, and to others uponrequest.

THE NARF LEGAL REVIEW is published by the Native AmericanRights Fund. Third class postage paid at Boulder, ColoradoSusan Arkeketa, Editor. There is no charge for subscriptions.

Tax Status The Native American Rights Fund is a nonprofit,charitable organization incorporated in 1971 under the laws ofthe District of Columbia. NARF is exempt from federal incometax under the provisions of Section 501 (c) (3) of the InternalRevenue Code, and contributions to NARF are tax deductibleThe Internal Revenue Service has ruled that NARF is not a"private foundation" as defined in Section 509(a) of the InternalRevenue Code.

Main Office: Native American Rights Fund, 1506 Broadway,Boulder, Colorado 80302 (303-447-8760)

DC Office: Native American Rights Fund, 1712 N Street, N w.,Washington,DC 20036 (202-785-4166)

Alaska Office: Native American Rights Fund, 310 K Street, Suite708, Anchorage, Alaska 99501 (907-276-0680).


NATIVE AMERICAN RIGHTS FUND

The Native American Rights Fund is a nonprofitorganization specializing in the protection of Indianrights. The priorities of NARF are: (1) the preservationof tribal existence; (2) the protection of tribal naturalresources; (3) the promotion of human rights; (4) theaccountability of governments of Native Americans; and(5) the development ofIndian law.Our work on behalf of thousands of America's Indiansthroughout the country is supported in large part byyow generous contributions. Your participation makesa big difference in our ability to continue to meetever-increasing needs of impoverished Indian tribes,groups and individuals. The support needed to sustainoW' nationwide program requires your continuedassistance. Requests for legal assistance, contributions,or other inquiries regarding NARFs services may beaddressed to NARFs main office: 1506 Broadway,Boulder, Colorado 80302. Telephone (303) 447-8760.

Board of DirectorsNorman R. Ration, Chairman••••••••••••••••Navajo·LagunaAdaDeer,Vice-Chairman MenomineeLionel Bordeaux Rosebud SiouxRichard A. Ha)Ward Mashuntucket PequotMahealani Ing Native HawaiianDanny LittieAxe .Absentee ShawneeTwila Martin-Kekahbah.••••Turtle Mountain ChippewaCalvin Peters Squaxin IslandCaleb Pungowiyi Siberian YupikAnthony L. Strong T1ingitWilliam Thome PomoEddieTullis Poarch Band of CreeksVerna Williamson Isleta PuebloExecutive Director: John E. Echohawk (Pawnee)Deputy Director: Rick Dauphinais(Turtle Mountain Chippewa)

NARF LEGAL REVIEW1506 BroadwayBoulder, Colorado 80302

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PAIDBoulder, Colorado

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