1. INTRODUCTION This report is the culmination of an evaluation conducted by ORBIS Associates, under contract number 105-87-6000 with the Administration for Native Americans (ANA). The purpose of this project was to examine the progress and project outcomes of 35 American Indian communities which received ANA status clarification grants between FY 1981 and FY 1988. One focus of the evaluation was to examine the major routes available for status clarification in terms of the processes (project objectives and activities) involved and the problems encountered by grantees while pursuing these routes. These routes included Federal legislative restoration and recognition; State recognition; recognition through the Federal Acknowledgement Project (FAP); judicial recognition; and designation as an Indian Reorganization Act (IRA) "half-blood" community. Another focus of the evaluation was to describe the benefits, both financial and otherwise, that the 35 grantees received as an outgrowth of their status clarification activities. This project was designed with two levels of investigative inquiry. First, a review was conducted of the 35 communities' activities and reported accomplishments as direct outcomes of receiving ANA status clarification funding. This review resulted in descriptive profiles (Appendix A) of each grantee's progress. Secondly, site visits were made to nine groups resulting in case studies (Appendix B) representing in-depth examination of issues specific to each case. This report is a summary of the project's data analysis results and the findings of the study as they relate to issues identified in the evaluation schema of the contract. The report also includes recommendations to ANA. A. OVERVIEW OF FEDERAL AND STATE RECOGNITION OF TRIBES Although anthropologists, government officials and attorneys specializing in Indian law, have yet to reach agreement on the precise definition of an "Indian tribe," in large measure, eligibility for Federal Indian services depends on membership in a recognized "tribe." Members of unrecognized tribes are ineligible for most kinds of special Indian services and programs; moreover, their communities enjoy none of the prerogatives of sovereignty. Indian groups that are already recognized are tribes by virtue of their established political relationship with the United States. No, ethnological test of tribal existence is required in such cases. Unrecognized Indians, however, are inevitably placed in the position of "proving" the tribal status of their communities. In the 1930's, Felix Cohen generated criteria for tribal recognition which combined administrative and ethnological considerations, emphasizing legal requirements for a government-to-government relationship. At that time, anthropologists were hired by the Bureau of Indian Affairs (BIA) to make assessments based on field visits. More than twenty tribes gained recognition during the 1930's. Subsequent termination policies, however, quelled official interest in tribal recognition, which was not then rekindled until the early 1970's. By then the BLA was being pressured to reestablish administrative recognition procedures, and in 1976 the American Indian Policy Review Commission urged Congress to address the problem. In 1978 the BIA published formal regulations pertaining to Federal acknowledgement (25 CFR 83, originally 25 CFR 54). In the Executive Branch of the government, the U.S. Department of the Interior (DOI) is the only Federal agency empowered to acknowledge a tribe as eligible for the special services provided by the U.S. government to Indian groups. Congress has the authority to legislatively recognize a tribe or restore Federal recognition of tribal status to terminated tribes. Since the late 1970's, there has been a great deal of activity generated in communities seeking Federal recognition as Indian tribes. Perhaps the easiest task rested with those groups who had once been recognized but had been terminated during the 1950's and 1960's. Seeking restoration appears to have been a far easier and speedier process for many of those groups than seeking initial recognition has been for others. In the 1980's, several States also became particularly active in providing State recognition to resident Indian groups. For example, in 1984, as a result of extensive organizing and lobbying on the part of the Indian community, the Alabama State legislature passed a law establishing a formal Indian Affairs Commission while it simultaneously recognized six Indian groups within the State. Since that time, the State Indian Commission has recognized one other group in accordance with its authorization to provide such recognition under Alabama Law No. 84-257. Four of these seven Alabama State recognized groups have also sought Federal recognition through BIA's Federal Acknowledgement Project (FAP), one of whom has already been successful (namely the Poarch Band of Creek Indians). The North Carolina Indian Commission has recognized one Indian tribe in the past seven years. The State of Virginia passed a resolution in 1983 recognizing six tribes and another resolution in 1985 recognizing one other. Several other States, Michigan for example, have issued various forms of recognition to groups for the express purpose of defining eligibility for Indian tuition waivers for attendance at Michigan State universities and colleges. There are essentially five strategies which an unrecognized group might pursue for clarification of its status as an Indian tribe. These are discussed below. 1. Federal Acknowledgement Petitions The method most frequently used by Indian tribes for status clarification is the Federal Acknowledgement Petition (FAP) process of the Bureau of Indian Affairs. For many groups, however, the FAP process poses challenges that may be insurmountable. Although seemingly broad, the criteria are very strictly interpreted and require extensive documentation, some of which may simply not exist. Expenses associated with conducting the research and preparing a petition can be enormous and well beyond the reach of impoverished communities. Additionally, it often takes several years to compile the evidence needed for a petition. Gaps in funding and departures of key local personnel slow the process and reduce the likelihood of completion. Even if all of these problems are overcome, the subsequent review process itself can take years to complete. Published in 1978, the Federal Acknowledgement regulations established criteria concerning descendance and sociopolitical organization for guiding administrative determination of whether a group is, in fact, an Indian tribe. The regulations require that groups seeking recognition submit a petition detailing the evidence that supports their eligibility under each of seven criteria. The seven criteria, all of which must be met in order to gain acknowledgement as an Indian tribe, are as follows: (a) (b) (c) (d) (e) Establish that they have been identified from historical times establish that a substantial portion of the group inhabits a furnish a statement of facts which establishes that the group furnish a copy of the group's present governing document furnish a list of all known current members... based on the establish that the membership of the group is composed |