[Yale-forests-reading-group] October: Understanding Federal and State Recognition of Native Nations

[Reid L]

Understanding Federal and State Recognition of Native Nations

We hope you are doing as well as possible and enjoying the change of
seasons; the fall foliage is wonderful around Yale-Myers Forest and
starting to turn in New Haven.

In this post we're focusing on the consequences, processes, and
difficulties of government-to-government legal recognition of Native
nations by the federal and state governments of the United States. We'll
start by exploring federal and state recognition generally, and Connecticut
specifically, and then take a closer look at the complexity and difficulty
of legal recognition of the Nipmuc Nation by the United States.

As we look at these topics, it's important to keep in mind that recognition
is not definition. Recognition of a Native nation by the United States
government is a legal pathway to certain opportunities and responsibilities
between the Native nation and the United States; it has no influence on the
existence and identity of the Native nation itself. How a Native nation is
defined is a power that rests solely with that nation, not with any
external government.

Federal Recognition



Federal recognition is the process by which the federal government of the
United States acknowledges the legal legitimacy of Native nations,
according to the federal government's terms and definitions. With federal
recognition, Native nations can establish formal reservations, open casinos
and pursue other economic development, apply for federal grants to provide
tribal members with essential services, and pursue other forms of economic
development.



Native nations can gain federal recognition in one of four ways:



   1.

   Formal recognition at the time of the 1934 Indian Reorganization Act
   (also called the Wheeler–Howard Act)
   2.

   Through a formal appeal through the Bureau of Indian Affairs
   3.

   Through a decision by a United States Court
   4.

   Through an act of Congress



The majority of federally recognized Native nations in the United States
achieved recognition through the first pathway. The Indian Reorganization
Act (IRA) was passed in 1934 by John Collier, President Franklin D.
Roosevelt's Commissioner of the Bureau of Indian Affairs (BIA) from 1933 to
1945. The spirit of the legislation was to reverse the forced assimilation
of Native people into the structures of American society, and to provide
tribes greater legal autonomy and room for self-governance. The Act
"allowed tribes to purchase land, repealed the ban on tribal languages and
customs, and allowed tribes to write constitutions" (
https://www.ndstudies.gov/gr8/content/unit-iv-modern-north-dakota-1921-present/lesson-4-alliances-and-conflicts/topic-1-indian-citizenship-and-indian-reorganization-act/section-2-indian-reorganization-act).
While the IRA represented a positive step forward in U.S.-Tribal
relationships, the legislation was controversial; some tribes saw the
constitutions and majority-rules voting as attempts to end tribal
leadership. Furthermore, the IRA locked in recognition for tribes often
based on rolls conducted nearly a century prior. These rolls, such as the
Earle Report--which we discussed in Week 8
<https://mailman.yale.edu/pipermail/yale-forests-reading-group/2020/000007.html>
of our reading group--used highly questionable methods to determine who
"counted" as Native and who did not. This distinction often came down to
physical appearance and style of dress. Thus, for Native nations that
didn't achieve federal recognition in 1934, the IRA had the effect of
further disenfranchisement by denying them formal recognition and the
benefits that came with it. For these Native nations, achieving federal
recognition would have to happen another way.



Another pathway to recognition is appealing to the BIA. According to the
website of the Bureau of Indian Affairs (BIA), "[t]he Office of Federal
Acknowledgment (OFA) within the Office of the Assistant Secretary - Indian
Affairs of the Department of the Interior (Department) implements Part 83
of Title 25 of the Code of Federal Regulations (25 CFR Part 83), Procedures
for Federal Acknowledgment of Indian Tribes."



If that sounds bureaucratic, that's because it is. And for Native nations
struggling to achieve federal recognition, the process can be tedious and
painful. Writing for Bridge Michigan, reading group  team member Meghanlata
Gupta describes the process of applying for federal recognition as "long,
expensive…and often futile" (
https://www.bridgemi.com/quality-life/despite-legal-battle-michigan-tribe-remains-hopeful-recognition).
Meghan writes that a Native nation "must hire a historian, genealogist and
an attorney to provide proof of their historic and contemporary existence."

This appeal process often results in legal action, on the part of the
Native nation or the United States government. As a result, United States
Courts have the authority to rule on federal recognition with a Native
nation, which is the third pathway for recognition to occur.

Finally, Native nations can gain federal recognition through an Act of
Congress. After over 100 years of petitioning for federal recognition, the
Little Shell Chippewa Tribe in Montana was granted recognition through a
law passed by Congress in 2019. Spearheaded by tribal leaders in
partnership with Montana's senators, recognition for the Tribe was attached
as a rider to the National Defense Authorization Act, signed into law by
President Trump in December 2019
https://www.nytimes.com/2020/02/01/us/little-shell-montana-tribe.html).
Despite achieving recognition themselves, citizens of the Little Shell
Chippewa Tribe described the process for winning federal recognition as
"broken." And for Native nations still being denied recognition and
everything that comes with it, the denial can be seen as a continuation of
a long history of dispossession and marginalization.

State Recognition

In addition to the federal government of the United States engaging in
official affirmation of relationships with Native nations, a number of
state governments also have processes of affirming these relationships
through state recognition.

Who is recognized by the federal and Connecticut state governments?

The State of Connecticut recognizes 5 Native nations, two of which also
have federal recognition, and has established state-level Tribal
reservations. The Mashantucket Pequot Tribe and the Mohegan Tribe of
Indians of Connecticut are officially recognized by both the federal and
Connecticut governments. Connecticut also recognizes the Eastern Pequot
Tribal Nation, The Golden Hill Paugussett, and the Schaghticoke Tribal
Nation, though they are not officially recognized by the federal
government. The Nipmuc Nation is not recognized by Connecticut or the
federal government, but is recognized by Massachusetts.

Citation: (not recommended reading)
https://www.ncsl.org/research/state-tribal-institute/list-of-federal-and-state-recognized-tribes.aspx#State
)

What does state recognition mean?

According to the National Conference of State Legislatures (NCSL), state
recognition:

   -

   Acknowledges the histories and cultures of tribal nations in a
   particular state
   -

   Is usually determined by state legislature
   -

   Creates tribal-state relationships
   -

   Does not automatically grant federal recognition, the primary route of
   recognition
   -

   Does not guarantee funding or benefits from state or federal
   governments, unless required under federal law like the Native American's
   Protection Act (NAPA)
   -

   Can qualify a Native nation for specific support from federal and state
   government agencies, like the U.S. departments of 1) Housing and Urban
   Development, 2) Labor, 3) Education, and 4) Health and Human Services
   -

   Is not necessarily ensured by federal recognition
   -

   Exists in 11 of 50 states. These 11 states have granted state
   recognition to a total of 63 Native nations


Citation: (not recommended reading)
https://www.ncsl.org/research/state-tribal-institute/state-recognition-of-american-indian-tribes.aspx

Connecticut's Recognition of Native Nations

While Connecticut is one of eleven states that recognize Native nations on
the state level, recognition law is complicated. According to Senior
Attorney David L. Keff in his summary of Indian Tribal Sovereignty in
Connecticut from 1994:

"The applicability of tribal sovereignty concepts to Connecticut's
nonfederally recognized tribes has been a matter of much controversy and
has never been finally resolved [our emphasis]. In a case involving the
state's authority to control logging on a reservation and seek recovery of
the value of lost timber the Connecticut Supreme Court held that the state
may lack jurisdiction due to the tribe's inherent sovereignty or because of
federal preemption (Schaghticoke Indians of Kent, Connecticut, Inc v.
Potter, 217 Conn. 612 (1991))."

Reading: https://www.cga.ct.gov/PS94/rpt/olr/htm/94-R-0170.htm David L.
Keff, Senior Attorney, August 24, 1994, The Connecticut General Assembly

In this Connecticut example, the Schaghticoke Tribal Nation, recognized by
Connecticut and granted a reservation in 1736, was asked by the state
government to demonstrate that it is a Native nation as defined as a
distinct and ethnic group with self-government and weighed against the
BIA's recognition criteria. Beyond this, the Schaghticoke Tribal Nation was
asked to define its territory as "Indian country" -- which, in 1994, the
Nation could not do, as it was not federally recognized until 2004.

Since, the Nation has made claims regarding historical logging and land use
by settlers on their traditional territory of Northwest Connecticut.
The Schaghticoke
Tribal Nation argued that the state owed the tribe $600 million for its
illegal seizure of 2,000 out of 2,400 acres of reservation land between the
years 1801 and 1918, citing resolutions from 1736 and 1752 that granted the
Schaghiticoke people continued use of this land, including cutting wood.
The Supreme Court of Connecticut threw out the case, stating that the
Schaghticoke
Tribal Nation does not own mortgages, or property rights, to the land.

Reading:
https://www.norwichbulletin.com/news/20190523/judge-dismisses-schaghticoke-tribal-nations-lawsuit-in-land-seizure-dispute


Nipmuc Nation

At Yale-Myers Forest, we are on Nipmuc land, which stretches across the
colonial boundaries of Connecticut, Massachusetts, and Rhode Island. The
Nipmuc Nation is state-recognized by Massachusetts but currently does not
have federal recognition, despite a 40-year effort in the federal
recognition process. After first filing a letter of intent to seek federal
recognition in 1980, the Hassanamisco and Chaubunagungamaug Bands of the
Nipmuc Nation eventually received a denial of recognition in 2004 that was
upheld in 2018. The BIA found that the Nipmuc Nation didn't meet four of
the seven criteria for federal recognition:

"[1] The petitioning group has been identified as an American Indian entity
on a substantially continuous basis since 1900; [2] a predominate portion
of the petitioning group comprises a distinct community from historical
time until present; [3] the petitioning group has maintained tribal
political influence or authority over its members as an autonomous entity
throughout history; and [4] the petitioning group's membership consists of
individuals who descend from historical tribes which combined and
functioned as a single autonomous entity."

(citation:
https://narf.org/nill/bulletins/federal/documents/nipmuc_nation_v_zinke.html
)

What does it mean for the federal government to determine the political
standing of entire nations, giving more weight to biased outsider accounts
from the past than to Native identities themselves, past or present? We've
learned from Dr. Rae Gould in past installments of the reading group, and
we turn to her again now to contextualize the BIA's denial of recognition
to the Nipmuc Nation within the impacts of the Earle Report and the
"discourse of erasure" that is still present today in the federal
acknowledgement process. You may recall that John Milton Earle's 1861
report about the Native population of Massachusetts relied heavily on
stereotypes and misinformation and is still used as a basis for determining
federal recognition to this day (the denial of Nipmuc recognition hinged
largely on Earle's categorization of Mary Curliss Vickers as
"miscellaneous" despite multiple sources attesting to her Nipmuc and
Narragansett identity). Here, Gould frames these stories within who gets to
determine identity and history:

"Why do historical documents written by outsiders in the past and
interpreted by outsiders in the present continue to influence the rewriting
of tribal history? [our emphasis] What courses of redress to indigenous
groups have following processes that clearly lack integrity and seek to
deny their authenticity? And most important, the inaccurate perceptions
created by flawed processes (such as the U.S. federal acknowledgement
process) must be corrected by indigenous people reappropriating and
redefining our past."

"The Nipmuc Nation, Federal Acknowledgement, and a Case of Mistaken
Identity," Rae Gould (book chapter in Recognition, Sovereignty, Struggles,
& Indigenous Rights in the United States: A Sourcebook, edited by Amy E.
Den & Jean M. O'Brien, 2013)

https://www.academia.edu/34020264/The_Nipmuc_Nation_Federal_Acknowledgement_and_a_Case_of_Mistaken_Identity_pdf


For another optional reading after the book chapter above, look at the
opinion in Nipmuc Nation v. Zinke, the most recent BIA decision that denied
federal recognition to the Nipmuc Nation in 2018. What do you notice about
the history presented in this opinion, in the context of what you've just
learned from the Gould chapter? Whose accounts are prevalent in the facts
of the case, as presented by the BIA? In particular, notice the BIA's
justifications for denying recognition based on the four criteria outlined
above.

Nipmuc Nation v. Zinke, 3/30/2018
https://narf.org/nill/bulletins/federal/documents/nipmuc_nation_v_zinke.html



Further Resources

If you're looking to engage further with this material, we recommend these
two books:

In the Courts of the Conqueror: 10 Worst Indian Law Cases Ever Decided,
Walter Echo-Hawk, 2010

Recognition, Sovereignty, Struggles, & Indigenous Rights in the United
States: A Sourcebook edited by Amy E. Den & Jean M. O'Brien, 2013
https://muse.jhu.edu/book/44092


Questions

Which tribes are recognized by the state and/or federal government in your
home state? Check here:

https://www.ncsl.org/research/state-tribal-institute/list-of-federal-and-state-recognized-tribes.aspx#State



An Evolving Issue

We encourage you to learn about the rapidly evolving crisis of violence by
commercial fishermen against the Mi'kmaq on Canada's Atlantic coastline:
https://www.nytimes.com/2020/10/20/world/canada/nova-scotia-lobster-war.html

These acts can only be described as racial terrorism. Our well wishes for
safety and justice go out to the Mi'kmaq community. If you would like to
support the Sipekne'katik First Nation, the members of the Mi'kmaq people
who have been terrorized, we encourage you to consider a donation here:
http://sipeknekatik.ca/moderate-living-fishery-fleet/

--

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We would like to express our gratitude for those whose knowledge and
experiences we have shared. We would especially like to express our
gratitude to Dr. Rae Gould; her insightful work continues to provide
critical perspectives in understanding the far-reaching, unjust impacts of
non-Indigenous attempts at categorization of Indigenous people. We would
also like to thank you for your willingness to learn about this
complicated, dense, critical issue. Thank you for learning with us.
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