New rules might recognize more tribes, create new casinos

08/12/2014 11:51 AM

08/12/2014 1:03 PM

As a proud Chinook Indian, Gary Johnson rejects the claim that his tribe in southwestern Washington state is extinct, even though that’s what the Bureau of Indian Affairs declared more than 12 years ago.

“They couldn’t be more wrong,” said Johnson, a former chairman of the tribe that helped Lewis and Clark navigate the Pacific Northwest in the early 1800s.

Rob Jacobs of North Carolina’s Lumbee Tribe said it was silly that he couldn’t legally wear his eagle feathers because his tribe wasn’t among the 566 federally recognized tribes.

“We have to ask for permission to be Indian,” said Jacobs. “Think about it. It’s so sad.”

While no one bothers to count the tribes that have long gone unrecognized by the U.S. government, experts estimate the number at well over 200.

That might change, under new rules proposed by the Obama administration. They would give more tribes a faster track at joining the ranks of the recognized by making it easier for them to prove their legitimacy.

“This opens the door of opportunity,” said Patty Ferguson-Bohnee, the director of the Indian legal program and a professor at the Sandra Day O’Connor College of Law at Arizona State University.

It also opens the door to money. Winning such recognition makes a tribe eligible for more federal benefits and is a prerequisite to apply for the biggest prize of all: the right to run a casino.

While the rules have won backing from large tribal groups, they’re generating lots of controversy. The Bureau of Indian Affairs has set a deadline of Sept. 30 for the public to weigh in and will then decide whether to adopt the rules.

Gambling opponents say the rules are too lenient and should be scrapped. Some smaller tribes say the rules are too onerous, fearing they’ll still be denied the recognition they’ve sought for decades.

In California, which already has 71 tribal gaming facilities, the most in the United States, critics say the new rules would result in nearly two dozen more casinos in high-density areas such as San Francisco and Los Angeles.

“These rules are basically a gaming incentive,” said Cheryl Schmit, the director of Stand Up for California, a statewide organization that’s fighting against more casinos. “You’ll have gaming investors hooking up with these tribes and helping them finance their recognition.”

So far, 81 unrecognized tribes in California have filed petitions with the federal government asking for recognition. Schmit said 34 of them could win recognition under the new rules.

Under the new rules, tribes would be required to document political influence or authority only since 1934, rather than as early as 1789. And they’d no longer be required to demonstrate that third parties have identified them as tribes since 1900.

The National Congress of American Indians, the nation’s largest organization of tribal governments, passed a resolution endorsing the new rules “as a matter of long-overdue justice and fairness.” The group said the current rules, adopted in 1978, had “severely deteriorated,” causing decades-long delays and containing “irrational documentation requirements.”

When the Obama administration published the new rules in May, Kevin Washburn, the head of the Bureau of Indian Affairs, called the changes “long overdue.”

Even if they’re approved, the bureau says it’s uncertain how many more tribes might get recognized, how much it might cost taxpayers or whether any of the newly sanctioned tribes would get to open casinos.

“Whether to grant federal recognition and whether a tribe is eligible for Indian gaming are two wholly separate questions, governed by wholly separate standards and evaluated under wholly different processes,” said Nedra Darling, spokeswoman for the Bureau of Indian Affairs.

She said the new rules would provide uniform standards and that applications would be judged on whether tribes met them. And she said the bureau hadn’t conducted a cost analysis and wouldn’t speculate on any potential costs.

Opponents say that’s a mistake.

“It is astonishing that the federal government would attempt to ram through these rules while providing no impact assessment of the social and economic costs on communities across our state,” Schmit said.

Tribes have long complained that trying to win recognition is too expensive and time-consuming. New York’s Shinnecock Indian Nation said it spent $33 million battling the government for 32 years before winning recognition in 2010.

“Most tribes don’t have those sorts of resources to put together a petition,” said Ferguson-Bohnee, who’s testified before the U.S. Senate on federal recognition issues. “People are turning in 50,000 to 100,000 pages and spending exorbitant amounts of money.”

Other tribes have found that getting recognized may be only a temporary distinction.

After George W. Bush became president in 2001, the Bureau of Indian Affairs withdrew recognition for two Washington state tribes – the Chinooks and Seattle’s Duwamish – which had been approved during Bill Clinton’s presidency. Both encountered opposition from larger neighboring tribes.

Despite the complaints, Ferguson-Bohnee called the new rules a big improvement and said they should eliminate the need for so much paperwork.

“It’s like a hundred times better than what’s currently in place,” she said.

In Washington state, there’s far less enthusiasm among the Chinook Tribe and its backers.

Former Democratic Rep. Brian Baird, who’s now the president of Antioch University Seattle, predicted that neither the Chinooks nor the Duwamish will win federal recognition under the new rules. He said that made little sense since both tribes were so well-known: The Chinooks helped Lewis and Clark, and the Duwamish’s members included Chief Seattle, for whom the state’s largest city is named.

“It’s really hard to find any more iconic tribes,” said Baird, who promoted recognition for the Chinooks during his 12 years in Congress.

Baird criticized a provision that would force tribes whose petitions have already been rejected to get permission from third parties that opposed their applications before reapplying. For the Chinooks, that would mean winning permission from the neighboring Quinault tribe, a longtime opponent. Baird said Congress needed to scrap the provision as a way to aid smaller tribes that faced consistent opposition from larger and more powerful ones.

“It’s rare in your life that you have a chance to right a historical wrong and to restore justice,” he said.

Johnson, 73, of South Bend, Wash., said he got a call in July 2002 informing him that the Chinook Tribe would lose its recognition, only two days after attending a White House luncheon with Bush. Johnson said he’d been invited as part of a celebration to kick off the bicentennial celebration of the Lewis and Clark expedition.

“It’s just all political,” said Johnson, who retired as tribal chairman in 2006.

He said federal recognition would help the tribe survive, but he’s not optimistic, calling the new rules “more of the same, and maybe worse. “

“We’d be very excited if they were fair and could offer us some justice, but right now our work is to get them to reconsider and make some changes,” Johnson said.

Jacobs, a former youth coordinator for the Lumbee Tribe who’s now a gaming executive in Philadelphia, was more nonchalant. He said the new rules might be a good thing but that the Lumbee Tribe had been fighting for federal recognition for more than 100 years, thriving without it.

Jacobs wore his eagle feathers at his wedding this summer, violating the Bald Eagle Protection Act. Under a federal policy announced in 2012, only members of federally recognized tribes can wear the feathers for religious or cultural purposes.

But Jacobs plans to keep wearing them and he’s not expecting to get arrested, whether the Lumbees ever win federal recognition or not.

“It wouldn’t make any difference,” he said.

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