When President Obama held the eighth White House Tribal Nations Conference last fall, all 567 federally recognized tribes were invited to attend. As the Standing Rock demonstration continued in North Dakota, participants talked about a variety of issues, including how the United States could more carefully consider indigenous rights and property when planning and permitting future infrastructure projects.
But not all indigenous peoples were represented at the president’s home. Invitations were extended only to leaders of federally recognized tribes. As many as 50 tribes, representing tens of thousands of people, were not part of the event because the United States disputes, denies, or has yet to make a decision on their petition for federal acknowledgement. As the Standing Rock Sioux have fought to assert their federal rights as indigenous people, other tribes remain in the shadows, struggling to be recognized as Native communities in the first place.
“Standing Rock is all about sovereignty,” says Gerald Gray, council chairman for Montana’s landless Little Shell Tribe of Chippewa Indians, “and that’s exactly what we’re fighting for, to have that legitimacy for our people.”
The Little Shell, a multiethnic people primarily of Chippewa, Cree, Assiniboine, and European descent, have never been recognized through the federal acknowledgement process, which outlines the criteria tribes must meet in order to establish a government-to-government relationship with the United States. The state of Montana recognized the tribe in 2003, a decision that gave the Little Shell equal standing with other Montana tribes when negotiating with the state on issues affecting Native people.
The Little Shell’s relatives are constitutionally recognized as Métis in Canada, but the US Office of Federal Acknowledgement at the Bureau of Indian Affairs (BIA) remains undecided on the tribe’s official status — 37 years after the Little Shell first submitted its petition for recognition. The delay has prevented the tribal council from gaining legitimacy as a sovereign political authority in accordance with federal law.
For the Little Shell and other unrecognized tribes, however, there may be hope on the horizon. Last year, indigenous leaders from across the country reached an important milestone when the BIA announced significant revisions to the tribal recognition rule.
“Numerous educated people complained, for years, that the process [was] broken,” says Kevin Washburn, who supervised the revision during his tenure as assistant secretary of the BIA from 2012 to 2015. “Most of the concerns,” he says, “related to lengthy delays, perceived unfairness, and lack of transparency.”
The rule, which addresses each of these concerns, immediately affects 13 tribes from eight states currently seeking recognition through the BIA. For some of these tribes, including the Little Shell, the revision could result in decisions that have been sought for generations.
Since 1978, when the federal acknowledgement process was first created, 87 tribes have petitioned for recognition. Only 51 have received a determination, and about two-thirds of those were denials. Decades-long waits were common under the old rule, in part because petitioning tribes were required to meet seven different criteria, including proof of continuous existence as a distinct community since 1789. Evidence of this existence had to be provided by third parties, such as a local government authority or an anthropologist.
But such historical documentation isn’t easy to come by for tribes like the Little Shell, whose communities were destroyed or dispersed by the US military in the late 19th and early 20th centuries. Moreover, the vast majority of North American tribes did not rely on writing systems for communication or historical documentation.
The old rule did not anticipate these challenges, says Gray, who lives in Billings, Montana. “A lot of tribes are based in the oral tradition,” he explains. “We had council meetings around fires in the lodge. So, how do you document that?”
Gray believes the new rule is “more realistic” because it accepts historical gaps in certain circumstances and allows tribes to present evidence of their own existence. Leaders of other unrecognized tribes appear to agree with Gray’s assessment. Of the 13 tribes seeking federal recognition through the BIA, nine have chosen to supplement their petitions with information that would not have been accepted under the old rule.
For citizens of these communities, a positive determination could have life-changing consequences. Members of recognized tribes can receive federal support for housing, education, and health care, which the US government is legally obligated to provide tribes in accordance with negotiated treaties and federal statute.
These benefits, however, are less consequential than the legal authority obtained by recognized tribes, according to Arlinda Locklear, an expert in Native American law based in Washington DC, and the first Native American woman to argue before the US Supreme Court.
“A federally recognized tribe is a government. It’s not a racial classification,” she explains. “It’s a political classification.” In other words, recognition allows a tribe’s “cultural and social mores [to] become the lodestar” for their political organization. For example, recognized tribes may regulate commerce, such as licensing the operation of a casino or hotel, and enforce tribal laws, according to their societal norms, on lands they own.
As a member of the Lumbee tribe, Locklear is familiar with these legal powers. The Lumbee were recognized by North Carolina in 1885, but the United States never followed suit. In 1970, the federal government shut down a state-sanctioned school system, operated by and for Lumbee families, because a federal judge ruled that it was segregated. If the Lumbee had been recognized as a sovereign nation, its schools would not have been disbanded.
“Recognition has implications across the board, from domestic relations to education,” says Locklear. Unrecognized tribes, she argues, have “second-class status in Indian Country” and remain “vulnerable to the not-so-tender mercies of local and state authorities.”
On Dec. 4, following the White House Tribal Nations Conference, the US Army Corps of Engineers decided to prohibit pipeline construction beneath the Missouri River and upstream from the Standing Rock reservation until further environmental analysis is completed. The decision underscored the importance of sovereignty for Native people.
“That’s exactly what we’re looking for,” says Gray. “We are a sovereign nation too, and there should be open dialogue between us and the United States.”
Whether the Little Shell will finally join the Standing Rock Sioux as a federally recognized tribe remains to be seen. So far, no final determinations have been issued under the new rule. There’s also reason to believe that last month’s election will produce new challenges for unrecognized tribes.
“Republican leadership in the House of Representatives has twice attempted to cut off all funding [for the federal acknowledgement process] through Interior Appropriations bills,” Locklear says. With Republicans now controlling Congress and the White House, efforts to frustrate this process could be renewed. In short, Locklear says, “The new rule is promising, but the devil will be in the application.”
Gray shares Locklear’s apprehension and worries that the Little Shell will become “a political can that gets kicked down the road.” But he also finds reason for optimism in challenging times. “There’s still a lot of hope,” he says. “We really gained some momentum with that new rule.”
He is also pleased that Montana Republican Rep. Ryan Zinke is President-elect Trump’s choice for secretary of interior. Zinke has been a “steadfast friend” of the Little Shell, according to Gray. Last year, Zinke sponsored the House version of a bill, first introduced in 2007 by Montana Democratic Sen. Jon Tester, to congressionally recognize the tribe, essentially circumventing the administrative process. That bill, which may be reintroduced next year, would trigger a process for determining the appropriate level of federal services for tribal members and convey 200 acres of federal land to be governed by the tribal council.
For now, the tribe plans to finish supplementing its petition in the next two years. If its petition is eventually denied, then Congress represents another option. While neither approach is likely to result in a swift conclusion, the tribe is resolved to continue its struggle.
“We’ve been fighting for recognition for 130 years,” says Gray. “We’ve always had hope, and we continue to have hope.”