Testimony of Arlinda Locklear on S.479 before the Senate Committee on Indian Affairs.

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United States. Congress. Senate. “Testimony of Arlinda Locklear on S.479 before the Senate Committee on Indian Affairs.” 23 May 1995. 7626 words.


Locklear, who has represented Indian tribes (including her own, the Lumbee) in the administrative process of federal recognition since 1978, testifies regarding a bill which would make the process fairer and more reasonable for tribes seeking recognition.  She favors the bill's proposed creation of a commission to rule on tribal petitions, since a commission would not have the institutional biases of the BIA.  She suggests that the criteria to be employed in determining tribal eligibility be changed, since the bill specifies the same criteria now in use by the BIA.  She states that “as written and applied, the criteria in the present regulations are so burdensome and heavily dependent upon primary documentation that many legitimate Indian tribes simply cannot meet them.”   She enumerates four aspects of the present BIA criteria that she feels do not fit with actual tribal existence:

(1) extreme time depth - requiring that tribes document both political authority over their members and the existence of a cohesive community - continuously - since the time of sustained white contact.  Locklear states, “Discrimination and hostile policies often require that non-federally-recognized tribes purposefully avoid record-keepers for their own protection.  Because of this historic reality, the requirement of continuous proof since sustained white contact means that legitimate Indian tribes may fail to achieve federal recognition.”

(2) the community criterion - the 1994 revisions to the BIA criteria now define “community” not by geographic proximity but by actual interaction among tribe members.  Locklear asserts that this interaction “can only be established through sophisticated field work and social science analysis.”

 (3) the political authority criterion - the 1978 regulations required only the simple identification of a continuous line of political leaders.  The BIA seems to be requiring - without specification in the 1978 or the 1994 revised regulations - proof of “bilateral political relations” between leaders and tribe members.  Locklear notes, “This appears to assume a structure of some sort with a mechanism by which members may express their assent, through voting or otherwise, to representation by the political leadership.  This model of tribal governance simply does not correspond to political authority as exercised by non-federally-recognized Indian communities.”   Rather, this form of political interaction, a formal tribal government, “is a creation of the BIA and not an Indian characteristic.”

(4) Genealogical connection with historic Indian tribe - the requirement that modern day tribal members prove descent from members of the historic tribe “require(s) a near impossibility.”  Locklear explains that to prove genealogical descent from an individual member of the historic tribe, one must have kinship records of the historic tribal members - and these rarely exist in complete form - for unrecognized tribes or for those already federally recognized.  She feels “it is unreasonable to require non-federally-recognized tribes to prove a fact that many federally recognized tribes cannot prove.”

Locklear recommends that the Committee “return to the genesis of the 1978 [BIA] regulations - the so-called Cohen criteria - and put the recognition process back on track conceptually.”   The Cohen criteria (which she lists, as originally stated in 1942) allow groups to prove tribal existence in one of several ways, and do not require great historical depth in proof of tribal existence.

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