Digital Scholarship and Initiatives

Arlinda Locklear notes that although she is speaking as co-counsel with the Native American Rights Fund and with Albert Harker in the Miami Nation's lawsuit over failure to receive federal recognition, she is also speaking as a member of the Lumbee tribe, the nation's largest non-federally-recognized tribe. Her remarks concern S. 611, a bill which would create a commission to process tribal petitions for federal recognition. She explains a number of limitations in the Bureau of Indian Affairs' process for handling petitions, which has been in place since 1978:

• The process is a closed one; other than the initial list of “obvious deficiencies,” the petitioner receives no feedback until the proposed and final determinations are made public. 
• The process has no firm deadlines; petitioners can wait years before work begins on their petition, then more years before the final decision is made. 
• The process has a built-in institutional bias, since the agency which serves federally recognized tribes (the BIA) is also deciding which tribes can become recognized.

Locklear then discusses problems with S. 611, several of which relate to the fact that the bill adopts the same criteria for determining tribal existence that the present process uses. These are some of the problems she outlines:

• The bill unfairly excludes certain groups from submitting petitions, such as those who have previously submitted petitions and been denied recognition. 
• The criterion that a petitioner demonstrate sustained continuous existence as a tribe since first contact with whites is unworkable for petitioners. Non-federally-recognized groups are unlikely to have records to draw on for proof, since they have no common resources (such as land) that would generate records; they did not receive federal programs that would generate records; and they did not have reasons to keep records of their own. Due to discrimination and hostility from whites, they usually avoided record-keepers. 
• The criterion requiring proof that “consistent interactions and significant social relationships exist within its membership and that its members are differentiated from and identified as distinct from nonmembers” can only be proven by sophisticated fieldwork and social science analysis, creating an expensive, time-consuming burden for petitioners--much more so for large groups than for small ones. The “markers” established by the BIA in 1994 to make the community criterion less subjective--including proof that 50% of tribal members reside in a geographic area and a 50% in-marriage rate--could not be met by most federally recognized tribes as well as most petitioners. 
• The criterion requiring proof of political leaders and proof that tribal members have political relationship with leaders of the tribe does not reflect the nature of political authority in aboriginal communities. Native American communities usually exercise political authority through loose alliances of extended family groups which act only when a need arises. The criterion reflects the structures already in place on reservations, rather than the structures petitioners are likely to have in place.

Locklear, for several reasons, favors the modifications of the BIA's criteria that are reflected in H.R. 361. In response to concern by the Department of the Interior, this bill creates--not an independent commission--but a commission that is part of the Department of the Interior. Its process would, however, be open and adjudicatory. The commission would still use seven mandatory criteria, but they would be modified to reduce the burdensome, detailed documentation required and the subjectivity that is now in place. Petitioners would document continuous existence as a tribe since 1934; less subjective indicators of political authority and community are permitted; and information other than direct genealogical connection is permissible as proof of descent from a historic tribe.