Habits of Our Government - The United States Stance on Federal Acknowledgment by Cannon C. Kearney

Habits of Our Government: The United States Stance on
Federal Acknowledgement
Cannon C. Kearney
Charlotte School of Law
Charlotte, North Carolina
Race Law
Taught by: Professor Christie Matthews
Author Note
Paper Completed and Submitted on May 5, 2014

Cannon C. Kearney
Professor Christie Matthews
Habits of Our Government: The United States Stance on Federal Acknowledgment
May 5, 2014
2
Abstract
Introduction
 The acknowledgment process is the United States administrative procedure by which
petitioning groups that meet the criteria are "acknowledged" as Indian tribes and their members
become eligible to receive services and benefits provided to members of federally recognized
Indian tribes.
 Acknowledgement is vital to Indian tribes, and their members or citizens, because of the
potential economic benefits such as a favorable tax position in relation to federal, state, and
local governments; services and advocacy provided by government agencies; and, the exercise
of treaty rights.
We Take It On
 The Houma Indians, who have inhabited North America and the Gulf Coast for over 300 years,
greeted French Explorer, Commander Lemoyne D'Iberville, well before the Louisiana
Purchase.
 On December 13, 1994, the United Houma Nation learned from the fed gov., they had officially
been declared ineligible for federal acknowledgment under Part 83 of Title 25 of the Code of
Federal Regulations (25 CFR 83).
 Twenty years later, the appeal is currently pending; the Houma associate many of their past
and current economic, social, and healthcare problems to their inability to be federally
recognized.
Policy and Action
 Acknowledged tribes have the benefit of federal, state, and local government tax exemptions
largely because the Commerce Clause of the U.S. Constitution recognizes Native American
tribes as separate nations.
 Federal programs such as the Bureau of Indian Affairs (BIA) and Indian Health Services (IHS)
were specifically tailored as incentives to becoming a recognized tribe.
 Despite legal ambiguity about citizenship status of tribes and their members, many treaties
expressly reserve Indian rights to hunt, fish, and gather traditional subsistence resources.
Appeasement vs. Recognition
 Un-recognized tribes do not have access to the political status of recognized tribes under
federal law and are therefore exposed to serious threats to their self-governance, but they also
do not face the same regulatory intrusions and risks that federally recognized tribes do.
Recommendations
(1) Place time limits, not exceeding, eighteen (18) months on initial applications, and no longer
than thirty-six (36) months on appeals.
(2) Assemble conference of lead historians, professors, politicians, and tribal leaders to identify
current issues and forecast future issues with acknowledgment process.
(3) Create new business initiatives with corporations to hire Native Americans and bring jobs
nearer to Native American reservations and communities.
Conclusion
 Alternatives to cold legislation need to be introduced so Indians may fairly be represented at
the American table.

Cannon C. Kearney
May 5, 2014
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Introduction
"It will be my sincere and constant desire to observe toward the Indian tribes within our limits a
just and liberal policy, and to give that humane and considerate attention to their rights and their
wants which is consistent with the habits of our Government and the feelings of our people." –
President Andrew Jackson1
Currently, about 5.2 million Native Americans and Alaska Natives, including those of more
than one race, live in the United States of America.2
Native American tribes and communities
have historically been economically depressed3
; therefore, the arbitrary, and controversial, process
of federal acknowledgement, or federal recognition, is vital for the distribution of resources and
tribal sovereignty. The acknowledgment process is the Office of the Assistant Secretary – Indian
Affairs of the Department of the Interior’s (DOI) administrative procedure by which petitioning
groups that meet the criteria are "acknowledged" as Indian tribes and their members become
eligible to receive services provided to members of federally recognized Indian tribes.4
Federal acknowledgement of Indian tribes is a formal political act that establishes
government-to-government relationships between Native American tribes and the United States.5
The federal government has set forth standards that must be met for Native American tribal
acknowledgment.6
Standards include: showing a tribe has comprised a distinct community from
1
Various. U.S. Presidential Inaugural Addresses from Washington to Obama. Auckland: Floating. 107-108 (2009).
2
"Facts for Features: American Indian and Alaska Native Heritage Month: November 2013." Census.gov. United
States. October 31, 2013. Web. (2014).
3
Sreenivasan, Jyotsna. Poverty and the Government in America: A Historical Encyclopedia. Santa Barbara:
ABC-CLIO. 312 (2009).
4
"BIA Website." Indian Affairs. Web. (2014).
5
United States. Congress. Senate. Committee on Indian Affairs. Recommendations for Improving the Federal
Acknowledgement Process: Hearing before the Committee on Indian Affairs, United States Senate, One
Hundred Tenth Congress, Second Session, April 24, 2008. 5. Web. (2014).
6
United States. Congress. Senate. United States of America Congressional Record Proceedings and Debates of the
107th Congress First Session Vol. 147 Part 11. Government Printing Office. 16155. Web. (2014).

Cannon C. Kearney
May 5, 2014
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historical times to present, lived together in community before 1830, shown political influence and
authority over members from historical times to present, etc.7
The Bureau of Indian Affairs (BIA), the federal agency in charge of federal
acknowledgement, rulings have been heavily criticized.8
There are numerous opinions on why the
BIA does not grant Indians federal acknowledgment. Critical opinions include: racial and cultural
discrimination, making applicants adhere to ambiguous standards during the recognition process,
and low departmental funding.9
Researchers, universally, greatly feel the acknowledgment
process is burdensome and unpredictable.
Proponents of the process argue acknowledgement is vital to Indian tribes, and their
members or citizens, because of the potential economic benefits such as a favorable tax position
in relation to federal, state, and local governments; services and advocacy provided by government
agencies; and, the exercise of treaty rights.10
The economic benefits that acknowledged tribes
receive has motivated un-recognized tribes, such as The United Houma Nation of Louisiana, to
vigorously fight for their opportunity to receive government resources and territorial sovereignty.
7
Skibine, G. “Skibine Announces Publication of Proposed Finding to Decline Federal Acknowledgment of Group
Known as Pointe-au-Chien Indian Tribe”. 2008. Web. (2014).
8
Glenn, Charles. American Indian/First Nations Schooling: From the Colonial Period to the Present. New York,
Palgrave Macmillan. 120 (2011).
9
Arnold, James. The Encyclopedia of North American Indian Wars, 1607-1890: A Political, Social, and Military
History. Santa Barbara, Calif., ABC-CLIO. 101 (2011).
10
Fletcher, Matthew. "Politics, History, and Semantics: The Federal Recognition of Indian Tribes." North Dakota
Law Review 82 (2006): 490. Web. (2014).

Cannon C. Kearney
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We Take It On
“As a non-federally recognized tribe, we often have the fewest resources and political
support…Despite this bleak outcome, we take it on. We choose to fight this uphill battle because
we believe that one day, the Federal Government will see us for what we are -- a sovereign Indian
nation.” -- Thomas Dardar, Jr., Principal Chief, United Houma Nation11
The Houma Indians have inhabited Louisiana for over 300 years.12
Historical knowledge
of this group's existence places the tribe in what is now the Continental United States before the
Louisiana Purchase in 1803.13
The tribe, now consisting of nearly 17,000 members, has been
historically linked as natives of North America and the Gulf Coast.14
The tribe has long inhabited
the area; even witnessing the advent of Europeans discovering North America. Accordingly, the
tribe greeted French Explorer, Commander Lemoyne D'Iberville, well before the United States
settled Louisiana.15
In 1699, D'Iberville graphically described the Houma's sprawling settlement.16
Their
village is described in the historical account, Margry IV, 177, as placed on a hill-ridge, two and a
half leagues inland, and containing 140 cabins, with about 350 heads of families.17
The majority
of the tribe still inhabits the same coastal area of southern Louisiana in Terrebonne Parrish at their
11
Dardar, Thomas. "Comments on the Preliminary Discussion Draft Concerning the Federal Acknowledgment
Regulations." Letter to U.S. Department of Interior. 25 Sept. 2013. 2-3. Web. (2014).
12
Santoro, Nicholas. Atlas of the Indian Tribes of North America and the Clash of Cultures. New York, iUniverse, Inc.
67 (2009).
13
Fischer, Ann. “History and Current Status of the Houma Indians”. American Studies 6, no. 2. 151 (1965).
14
Fry, Macon. Cajun Country Guide. Gretna, La., Pelican Pub. Co. 172 (1999).
15
Carpenter, Rodger. American Indian History Day by Day: A Reference Guide to Events. Santa Barbara, Calif.,
Greenwood. 111 (2012).
16
Swanton, John. Indian Tribes of the Lower Mississippi Valley and Adjacent Coast of the Gulf of Mexico. Dover
Publications. 286, 289 (2013).
17
Gatschet, A. A Migration Legend of the Creek Indians. New York: Kraus Reprint.(1969).

Cannon C. Kearney
May 5, 2014
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namesake, Houma.18
Despite the oral history of today's Houma linking the tribe with a group of
Native Americans that moved to the bayou country of southeastern LA during the late eighteenth
century; anthropologists and historians from the BIA have concluded that there is no documentary
evidence of this ancestral linkage.19
The Bureau of Indian Affairs ruled the Houma Indians lack evidence proving they are
eligible for vital federal benefits. On December 13, 1994, the United Houma Nation learned they
had officially been declared ineligible for federal recognition under Part 83 of Title 25 of the Code
of Federal Regulations (25 CFR 83); therefore, the Houma were not considered an existing tribe.20
“Part 83 establishes procedures by which unrecognized Indian groups may seek Federal
acknowledgment of an existing government-to-government relationship with the United States.”21
Specifically, BIA found that the group failed the following three criteria; (1) finding that it did not
prove it descended from the historic Houma Tribe; (2) that it was not a community for certain
periods of its history; and, (3) that it was not a functioning political unit for the modern era.22
After the 1994 decision, in 1996, the Houma filed a 548 page rebuttal based on southern
historian evidence; and, the petition is currently pending.23
The United Houma Nation fully
understands that federal acknowledgement is key to their livelihood; in fact, since contact with
18
United States Federal Writers’ Program, Louisiana. Louisiana, A Guide to the State. St. Clair Shores, Mich.,
Somerset Publishers. 390(1973).
19
Davis, D. “A Case of Identity: Ethnogenesis of the New Houma Indians”. Ethnohistory, Vol. 48, No. 3. Duke
University Press. (2001).
20
United States. Department of the Interior. Office of Federal Acknowledgment. Bia.gov. By Ada Deer.
3. Web. (2014).
21
Id.
22
Miller, Mark. Forgotten Tribes: Unrecognized Indians and the Federal Acknowledgment Process. Lincoln,
University of Nebraska Press. 156 (2004).
23
Various. “United Houma Nation: Rebuttal to BIA’s Proposed Findings against Acknowledgment, Submitted
November 13, 1996.” Houma, United Houma Nation. 1996. Web. (2014).

Cannon C. Kearney
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colonial states for trade relationships, “the Houma’s have steadily moved from relations of
economic interdependency toward relationships of economic dependency.”24
Houma tribal members ideally enjoyhunting, trapping and fishing as their primary
occupations; some members also work in the gulf and marsh oil fields.25
Due to hardships the
tribe has encountered, the livelihood of the tribe has been threatened. The Houma associate many
of their past and current economic, social, and healthcare problems to their inability to be federally
recognized.26
Houma hardships include: a high percentage of individuals whom have not obtained
quality education, the devastation of their culture and lands due to Hurricane Katrina and British
Petroleum's (BP) Oil Spill, and poor health conditions.27
Many of these problems could be alleviated with the advocacy of federal
acknowledgement. Without federal acknowledgement, the tribe is not entitled to such benefits
that provide federally funded healthcare, education, and many other social services.28
The Houma
could be aided by the federal government upon receiving recognition because federal assistance
exists for tax exemptions to federal, state, and local governments; services and advocacy provided
by government agencies; and, the exercise of treaty rights.29
24
Ng-A-Fook, Nicholas. An Indigenous Curriculum of Place: The United Houma Nation’s Contentious Relationship
with Louisiana’s Educational Institutions. New York, Peter Lang. Complicated Conversation. v. 25. 132-133
(2007).
25
Native Peoples A to Z: A Reference Guide to Native Peoples of the Western Hemisphere. Hamburg, Mich., Native
American Books. 1097 (2009).
26
Dartmouth Institute (Springfield, Va.). “Indians of North America”. American Indian Report. 318 (2005).
27
Burdeau, Cain. “Spill Reinforces Oil Bad Will for Local American Indians”. Houma Courier. May 18, 2010. Web.
(2014).
28
United States. Congress. Senate. Congressional Record, V. 147, Pt. 9, June 26, 2001 to July 16 2001. 12192. Web.
(2014).
29
Duthu, N. Bruce. “The Houma Indians of Louisiana: The Intersection of Law and History in the Federal
Acknowledgment Process.” Louisiana History: The Journal of the Louisiana Historical Association Vol.38,
No.4. Louisiana Historical Association. (1997). 414. Web. (2014).

Cannon C. Kearney
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Policy and Action
"What we ask of America is not charity, not paternalism, even when benevolent. We ask only that
the nature of our situation be recognized and made the basis of policy and action.” --Declaration
of Indian Purpose30
The United States federal acknowledgement process is vital to Indian tribes, and their
members or citizens. Examples of potential economic benefits that acknowledged tribes are
eligible for include reservation casinos and gaming facilities profits without paying taxes to
federal, state, and local governments; federal government political support and healthcare,
education, and security services; and, the exercise of hunting and fishing treaty rights.
Tax Exemptions
Recognized tribes have the benefit of federal, state, and local government tax exemptions
largely because the Commerce Clause of the United States Constitution recognizes Native
American tribes as separate nations.31
The Supreme Court recognized in Mescalero Apache Tribe
v. Jones, that absent cession of jurisdiction or other federal statutes permitting it, there is no
authority for state taxation of Indian reservation lands or income from activities carried on within
the boundaries of the reservation.32
States cannot apply sales tax to sales by a non-Native
American retailer, or a Native American retailer, on sales made to Native Americans residing on
30
Campisi, Jack. “The Voice of Eastern Indians: The American Indian Chicago Conference of 1961 and the
Movement for Federal Recognition.” American Philosophical Society. v. 132, no. 4, 316 (1988). Web.
(2014).
31
Nielson, Richard. California Sales and Use Tax Answer Book. Chicago, CCH. 9-4 (2008). Web. (2014).
32
Mescalero Apache Tribe v. Jones. Supreme Court of the United States. 411 U.S. 145, 148 (1973).

Cannon C. Kearney
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the reservation.33
For example, Indian tribes have flourished from reservation casinos and gaming
facilities profits not being subject to taxes on their earnings.34
In 2011, Forbes Magazine reported that 236 Native American tribes, operating 422 casinos
and gaming facilities on reservations across twenty-eight states, earned twenty-six billion in
profits.35
Casino profits have helped acknowledged tribes make gambling a powerful institution
of economic growth for their families and has given this impoverished race of people undreamed-
of riches and responsibilities.36
The United States, particularly Congress, allows Native American
tribes this tax privilege because tribes must emphasize using gambling revenues for maintaining
ethnic practices and fortifying tribal bonds.37
The United States allowance of acknowledged tribal
member’s tax exemptions has been well documented by critics and supporters.
Opponents of casinos and gambling facilities on acknowledged tribe’s reservations fear
Native Americans are losing their traditional values; trivializing and cheapening their heritage;
and, saturating the gambling market until eventually tribes will have empty casinos and high
unemployment rates again.38
Critics will undoubtedly point to California’s Pomo Indian’s six day
33
Nielson, pg. 9-4.
34
Thompson, Willam. Native American Issues: A Reference Book. Santa Barbara, CA: ABC-CLIO. 84 (2005). Web.
(2014).
35
Wood, Robert. “Native American Casino and Tax Rules That May Surprise You”. Forbes Magazine. October 11,
2012. Web. (2014).
36
Janda, Kenneth. The Challenge of Democracy: American Government in Global Politics. Boston, MA: Wadsworth.
541 (2012).
37
United States Congress. Committee on Indian Affairs. National Gambling Impact Study Commission Final Report:
Congressional Hearing. 47 June 23, 1999. Web. (2014).
38
Zastrow, Charles. Introduction to Social Work and Social Welfare: Empowering People. Cengage Learning. 401
(2009).

Cannon C. Kearney
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ferocious intertribal gun battle over control of gambling profits as a gory example of Native
American tax exemptions diluting the affairs of tribes.39
Proponents of activities initiated from proceeds of federal, state, and local tax exemptions
are thankful for profits being used for education (K-8 schools, high schools, college scholarships
and stipends, etc.); establishing tribal courthouses and cutting-edge police, fire, and emergency
services departments; and becoming major players in the political arena at the local, state, and
federal levels.40
Supporters can provide evidence, specifically the National Bureau of Economic
Research Working Paper Number 9198, which reports:
"…the effects of casinos after at least four years of operation, find[s] that positive changes include:
young adults moving back to reservations, fueling an 11.5 percent population increase; adult
employment increasing by 26 percent; and a 14 percent decline in the number of working poor. In
counties with or near a casino, the employment- to-population ratio has increased and mortality
has declined."41
Tax exemption benefits to federally recognized tribes is an economic incentive the United
States created to assist Native American communities, and members, with economic stability and
self-sovereignty. Casinos and gambling facilities possess vast amounts of income that can be
exercised to improve the lives of countless tribal members and communities. Despite intertribal
rivalries and historic economic disadvantages, Native Americans will fully realize their tax
exemption benefits upon unification on casino profit appropriation; continued social, government,
39
Paddock, Richard. “Stakes Raised in Old Tribal Feud: Gaming: Money, Control of Reservation Split Impoverished
Pomo Nation, Leading to Gun Battle that has Ceased—For Now”. Los Angeles Times. October 15, 1995.
Web. (2014).
40
Hc Hsu, Cathy. Legalized Casino Gaming in the United States: The Economic and Social Impact. Philadelphia,
Taylor & Francis. (2014).
41
Evans, William. “The Social and Economic Impact of Native American Casinos”. Cambridge, National Bureau of
Economic Research. No. 9198. (2002). Web. (2014).

Cannon C. Kearney
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and residential infrastructure appropriation; and continued growth of political participation and
support at the local, state, and federal levels.
Government Services
Recognized tribes enjoy government services that non-recognized tribes, or non-Native
Americans, do not have access to. Federal programs such as the Bureau of Indian Affairs and
Indian Health Services (IHS) were specifically tailored as incentives to becoming a recognized
tribe.42
Additionally, political support from the President and Congress has brought about
legislation and appropriation specifically to assist acknowledged Indian tribes and members.43
President Barack Obama, in addition to strengthening the self-determination of federally
recognized tribes, has been a staunch supporter of the Native Hawaiian Government
Reorganization Act, which provides a process for forming a Native Hawaiian governing entity that
would be recognized by, and have a government-to-government relationship with, the United
States.44
In Arizona v. Bowen, the Supreme Court reiterated Congress’s power of influence over
states on behalf of Indian relations.45
The federal government wrote to Arizona’s Medicaid
Director, who was not granting eligible Native populations Medicaid services, the following:
The Indian Health Care Improvement Act was designed to ensure access for Native Americans
under federal health care programs, and under federal law the government had the authority to
represent Indians in all suits at law and in equity. These factors, when considered in light of the
traditional trust relationship between the government and Indians, implied that Congress intended
to give the government the duty to protect the equal access rights of Indians.46
42
Nichols, Roger. The American Indian: Past and Present. New York, McGraw-Hill. 300 (1992). Web. (2014).
43
Clarkin, Thomas. Federal Indian Policy in the Kennedy and Johnson Administrations, 1961-1969. Albuquerque,
University of New Mexico Press. 108 (2001). Web. (2014).
44
Wilcox, Elizabeth. Digest of United States Practice in International Law, 2010. Oxford, Oxford University Press.
268 (2012). Web. (2014).
45
Indian and Alaska Native Individuals. (2014) WL 313684.
46
Arizona v. Bowen, Ariz., No. CIV 86-1105 PHX CLH, Nov. 20, 1989. Web. (2014).

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Specifically, the United States has guaranteed to acknowledged tribes by treaty and
clarified throughout the country’s history in court rulings and Congressional Acts the right to
health care services.47
IHS’s mission is to raise American Indians and Alaska Natives “physical,
mental, social, and spiritual health to the highest level possible.”48
In 2014, IHS’s budget, an
estimated $4.4 billion, provided for medical care, public health services, and health professions
training opportunities to acknowledged tribes, and their members.49
Though governmental
services, such as the Indian Health Services, have funds and assistance specifically for the benefit
of acknowledged Indians, opinions have ranged about the United States implementation of these
services.
Supporters of government services, and/or political favor, will show that appropriation and
advocacy of acknowledged tribes has “help[ed] them prosper by expanding education and
employment opportunities for youth and adults, protecting lives and property by strengthening law
enforcement, and building strong, sustainable tribal economies.”50
For example, the Affordable
Care Act included permanent reauthorization of the 1976 Indian Healthcare Improvement Act,
which the Obama Administration stated, “With this bill, we have taken a critical step in fulfilling
that responsibility by modernizing the Indian health care system and improving access to health
care for American Indians and Alaska Natives.”51
47
Kolb, Patricia. Social Work Practice with Ethnically and Racially Diverse Nurse Home Residents and Their Families.
New York, Columbia University Press. 55 (2007). Web. (2014).
48
"Indian Health Service The Federal Health Program for American Indians and Alaska Natives." Indian Health
Service (IHS). United States, Web. (2014).
49
United States. Congress. “Budget of United States Government, Fiscal Year: 2014”. US Government Printing
Office. 96 (2014).
50
"Native American Nations." U.S. Department of the Interior. United States. Web. (2014).
51
Katel, Peter. “American Indians”. Issues in Race and Ethnicity: Selections from CQ Researcher. Washington, D.C.,
Congressional Quarterly, Inc. 121. (2012). Web. (2014).

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Opponents of the United States stance on assisting acknowledged tribes with government
services and political support offer evidence of inconsistent government practices, administrative
fraud and waste, and lack of funding, as reasons why the process should go back to the drawing
board.5253
In 2009, the federal courts concluded in Cobell v. Salazar that acknowledged tribes are
to receive $3.4 billion in compensation because the United States mishandled revenues generated
from Indian land trusts.54
United States government services and advocacy for acknowledged tribes has significantly
touched the lives of millions of American Indians and Alaska Natives. This vital assistance allows
this historically economic depressed race group the opportunity to secure new health care facilities,
and receive political support for legislation narrowly tailoredfor their needs; that otherwise is not
available to un-recognized tribes, or non-Native Americans. Despite egregious and blatant
examples of government fraud, such as Cobell, the United States should continue to provide
government services and political support to acknowledged tribes.
Treaty Rights
“If it be true that the Cherokee Nation have rights, this is not the tribunal in which those rights
are to be asserted. If it be true that wrongs have been inflicted and that still greater are to be
apprehended, this is not the tribunal which can redress the past or prevent the future.” --
Mr. Chief Justice John Marshall55
52
Jarrett, Alfred. The Impact of Macro Social Systems on Ethnic Minorities in the United States. Westport, Praeger.
97 (2000). Web. (2014).
53
Baker, Tamara. Handbook of Minority Aging. New York, Springer. (2014).
54
Kendall, Diana. Sociology in Our Times. Cengage Learning. Web. (2014).
55
Cherokee Nation v. State of Ga., 30 U.S. 1, 20, 8 L. Ed. 25 (1831). Web. (2014).

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Treaties benefit Indian tribes because they offer government-to-government relations with
the United States.56
Acknowledged tribes have been urging the United States to take a stance on
enforcement of treaties since Cherokee Nation v. State of Georgia. In this case, the Supreme Court
rejected the Cherokee Indian’s claim that Georgia was rescinding on previous treaties because “an
Indian tribe or nation within the United States is not a foreign state in the sense of the Constitution,
and cannot maintain an action in the courts of the United States.”57
Despite legal ambiguity about
citizenship status of tribes and their members, many treaties expressly reserve Indian rights to hunt,
fish, and gather traditional subsistence resources free of regulation on and off of reservations;
unless the state regulates for conservation purposes.5859
The United Statesinitiated this firm stance ofstate adherence to Indian treaty rights in
Antoine v. State of Washington.60
In Antoine, Indians were hunting deer during the closed season
in the state of Washington; and the Washington Supreme Court held against the Indians stating the
Supremacy Clause of the Constitution did not require state acceptance of the 1891 agreement
because it was merely a contract between the tribe and the United States to which Washington was
not a party.61
The Supreme Court countered this argument, and reversed the decision, stating:
“[the] supremacy clause precluded application of state game laws to Indians hunting in area ceded
to the United States by an agreement which was executed by the Executive Branch and Indian
tribe, which was ratified and implemented by Congress and which provided that rights of Indians
to hunt and fish on the ceded land in common with other persons would not be taken away or
56
Fixico, Donald. Treaties with American Indians: An Encyclopedia of Rights, Conflicts, and Sovereignty. ABC-CLIO.
Web. (2014).
57
Id. at Cherokee Nation, pg. 20.
58
Taylor, Janelle. "Control of Natural Resources in Indian Country." Legislative Archive. Minnesota House of
Representatives, Feb. 2014. Web. (2014).
59
Case, David. Alaska Natives and American Laws. Fairbanks, University of Alaska Press. 269 (2012). Web. (2014).
60
Wilkinson, Charles. “Judicial Review of Indian Treaty Abrogation: ‘As Long as Water Flows, or Grass Grows Upon
the Earth’—How Long a Time is That?.” California Law Review 63. 601 (1975). Web. (2014).
61
Prucha, Francis. American Indian Treaties: The History of a Political Anomaly. Berkeley, University of California
Press. 325 (1994). Web. (2014).

Cannon C. Kearney
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abridged, even though state was not a party to the agreement and Congress had abolished ‘contract
by treaty’ method of dealing with Indian tribes prior to execution of the agreement.”62
Researchers have varied in their opinions on the validity of acknowledged tribes treaty
rights. Proponents of these reserved rights—implied right to water and the express right to take
off-reservation resources—can provide evidence that treaties are bringing about some success in
claiming a right to environmental, habitat and fisheries, protections.63
For example, although
Congress has given the Army Corps of Engineers the authority to build infrastructure to prevent
rivers from flooding, the Army cannot build a dam on land reserved to acknowledged tribes
without express consent from Congress.64
Opponents of acknowledged tribe’s treaty rights often mention strong concerns over lack
of administrative protection of natural resources, loose construction of pre-existing treaties, and
lack of political support. 65
Notwithstanding, the Onondaga and the Haudenosaunee Confederacy
of New York are filing a petition with the Organization of American States, which seeks solutions
of political, juridical, and economic problems; because they claim “about 4,000 square miles in 11
upstate New York counties stretching from Pennsylvania to Canada w[ere] illegally taken through
a series of bogus treaties.”66
62
Antoine v. Washington, 420 U.S. 194, 95 S. Ct. 944, 43 L. Ed. 2d 129 (1975). Web. (2014).
63
Gerrard, Michael. Law of Environmental Justice: Theories and Procedures to Address Disproportionate Risks.
Chicago, American Bar Association, Section of Environment, Energy, and Resources. 209 (2008). Web.
(2014).
64
Pevar, Stephen. The Rights of Indians and Tribes. Oxford, Oxford University Press. 53 (2012). Web. (2014).
65
Mathes, Matt. “Report of the National Tribal Relations Program Implementation Team”. Washington, United
States Department of Agriculture, Forest Service. 114 (2003). Web. (2014).
66
Holland, Jesse. “Native Americans Say US Violated Human Rights’. The Washington Times. April 14, 2014. Web.
(2014).

Cannon C. Kearney
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Treaty rights allow Native Americans the opportunity to communicate government-to-
government with the United States; therefore, treaties are essential for providing evidence of tribal
sovereignty. Historically, the federal government has promoted an ambiguous stance on treaty
enforcement; however, recently the Supreme Court has been firm in supporting treaties that allow
for Indians to hunt and fish.The United States, specifically Congress, should continue to protect
and improve these arrangements because they preserve the sanctity of traditional Native American
activities.

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May 5, 2014
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Appeasement vs. Recognition
“The transition of recent federal policy from termination to self-determination reflects only a
tactical shift in the fundamental commitment of the society to bring Indians into the mainstream,
not a movement toward a true recognition of a permanent tribal right to exist.” –
Historian Philip Deloria67
Opponents of the federal acknowledgment process will point to retired BIA Director, John
Shappard’s testimony to congressional committees that the process was to slow, costly, and
complicated, and that its decisions were extremely subjective.68
In particular, blood quantum, a
method used to determine Native ancestry, has been criticized because certain tribes require at
least one-half blood quantum, while some require one-eighth, one-sixteenth, or even one-thirty-
second.69
However, proponents of the recognition process undoubtedly will show supporting
evidence that once federally recognized, recognized tribes both can receive and have access to
many benefits and services such as grants-in-aid for housing, tax exemptions, and, matter-of-
factly, decreased dependency on the federal government.70
Accordingly, some acknowledged tribes
pay out profits in per capita disbursements, which can be substantial; the Chumash Indians of
California, for example, reportedly received $428, 969.00 apiece in 2005.71
Currently, self-governance has been hotly debated by both proponents and opponents of
the federal recognition process. Un-recognized tribes do not have access to the political status of
67
Philp, Kenneth. ed. Indian Self Rule. Salt Lake City: Howe Brothers. (1986). Web. (2014).
68
Schultz, Jeffrey. Encyclopedia of Minorities in American Politics. Phoenix, Oryx Press. 615 (2000). Web. (2014).
69
McCubbin, Hamilton. Multiethnicity and Multiethnic Families: Development, Identity, and Resilience. Honolulu,
Le `a Publications. 281 (2010). Web. (2014).
70
United States. Congress. Senate. Select Committee on Indian Affairs. “Federal Acknowledgment Process: Hearing
before the Select Committee on Indian Affairs, United States Senate, One Hundredth Congress, Second
Session, on Oversight Hearing on Federal Acknowledgement Process, May 26, 1988, Washington,
DC.”Washington, U.S. G.P.O. 300 (1988). Web. (2014).
71
Crosley, Sloane. The Best American Travel Writing. Boston, Houghton Mifflin Harcourt. 128 (2011). Web. (2014).

Cannon C. Kearney
May 5, 2014
18
recognized tribes under federal law and are therefore exposed to serious threats to their self-
governance, but they also do not face the same regulatory intrusions and risks that federally
recognized tribes do.72
Notwithstanding, the Shinnecock Indians, the most recent tribe to gain
federal acknowledgement, has experienced both the pros and cons of the federal acknowledgement
process because though the prospect of raking in casino profits has become increasingly bright on
the Shinnecock reservation, an unusual amount of people all of a sudden “want[] to be Shinnecock
now.”73
72
Klopotek, Brian. Recognition Odysseys: Indigeneity, Race, and Federal Tribal Recognition Policy in Three Louisiana
Indian Communities. Durham, Duke University Press, 239 (2011). Web. (2014).
73
Robbins, Catherine. All Indians Do Not Live in Teepees (or Casinos). Lincoln, University of Nebraska Press. 173
(2011). Web. (2014).

Cannon C. Kearney
May 5, 2014
19
Recommendations
Indian tribes for centuries have endured legal oppression and economic depression. Their
livelihood and cultural existence, for appropriation purposes, hinges on the government’s ability
to “acknowledge” tribes, and members. It is recommended that the federal acknowledgment
process implement the following changes:
(1) Place time limits, not exceeding, eighteen (18) months on initial applications, and no
longer than thirty-six (36) months on appeals;
(2) Assemble conference of lead historians, professors, politicians, and tribal leaders to
identify current issues and forecast future solutions with acknowledgment process; and
(3) Create new business initiatives with corporations to hire Native Americans and bring
jobs nearer to Native American reservations and communities.
Time Limits
The acknowledgement process, governed by 25 CFR Part 83, can take a petitioning tribe
up to twenty-four months, or two years, to receive a ruling on their initial application; and, an
indefinite time period for appeals of denials.74
Researchers, universally, greatly feel the
acknowledgment process is burdensome and unpredictable. In fact, the route of federal recognition
through the Bureau of Indian Affairs and Bureau of Acknowledgement and Recognition (BAR) is
a cumbersome and lengthy process, which has taken sometimes over two decades for a decision
to be announced.75
This has led unrecognized groups, such as the United Houma Nation, to label
74
United States Congress. Congressional Record, Vol. 149. 2365 February 4, 2003. Web. (2014).
75
United States Congress. Congressional Record, Vol. 148. 11706 June 27, 2002. (2014).

Cannon C. Kearney
May 5, 2014
20
the federal acknowledgement process as “broken”, “too lengthy”, “too costly”, “without integrity”,
“not transparent” and “inconsistently applied.”76
Many unrecognized tribes are facing pressing economic, social, and political hardships;
therefore, it is recommended that the United States place time limits, not exceeding, eighteen (18)
months on initial applications; and no longer than thirty-six (36) months on appeals. By setting
briefer time limits, and enforcing this change, the United States will ensure due process for
petitioning tribes. Less time allows the tribe more flexibility in researching and pursuing other
government services, subsidies, and assistance; thereby, tribe leadership, depending on their
particular reason for seeking federal acknowledgement, will be able to make more time-sensitive
decisions to positively influence the direction of their tribe.
It may be best for an outside institution to make the final decision for this recommendation
to properly be implemented and executed. Accordingly,in 2001, Congress proposed a bill for an
Independent Commission on Indian Tribal Recognition to ensure promptness by authorizing
adequate funding for the costs of staff and resources in processing petitions.77
Once time lines
become strict and brief, the acknowledgement process will be able to fulfill its purpose of
adequately assisting acknowledged tribes with their economic needs.
Identifying and Forecasting Issues
The United States needs to make revisions and improvements to the acknowledgement
process because the procedure is too strenuous and outdated.The process has been synonymous
76
Id. at Congressional Record, Vol. 149. 2365.
77
United States Congress. Congressional Record, Vol. 147. 3351 March 9, 2001. Web. (2014).

Cannon C. Kearney
May 5, 2014
21
withwords such as, antiquated, ridged, and overly-technical.78
After centuries of declarations and
conferences pushing for administrative changes, federal acknowledgement was standardized in
1978, yet the process is still considered flawed.79
Therefore, over thirty years later, it is
recommended that the United States assemble a commission, or conference, of lead historians,
professors, politicians, and tribal leaders to identify current issues and forecast future solutions for
the acknowledgement process.
The federal government can look to the American Indian Policy Review Commission,
which was established by a Congressional Act in 1975, as an example of an eclectic group unified
for the purpose of investigating American Indian and Alaska Natives affairs and issuing reports on
the management of the BIA.80
Similar to the “excellent professionals” appointed for the previous
Commission, a modern conference is necessary because,
“[Current status of Indian affairs] declares that is timely and essential to conduct a comprehensive
review of the historical and legal developments underlying the Indians’ unique relationship with
the Federal Government in order to determine the nature and scope of necessary revisions in the
formulation of policies and programs for the benefit of Indians.”81
Enacting a body of capable and well-versed experts to study areas such as, trust
responsibility, and federal Indian relationship; federal administration and structure of Indian
affairs; and Indian law revision, consolidation, and codification; will allow the United States to
obtain an accurate picture of current Indian affairs. Most importantly, this conference will promote
an educated discussion of how best to improve the federal acknowledgement process in the future.
78
United States. Office of the Federal Register. “The Code of Federal Regulations of the United States of America”.
Washington, United States Government Press. 20 July 21, 1993. Web. (2014).
79
Collins, James. Understanding Tolowa Histories: Western Hegemonies and Native American Responses. Taylor &
Francis. 168 (1997). Web. (2014).
80
Wilkins, David. American Indian Politics and the American Political System. Lanham, Rowman & Littlefield. 131
(2011). Web. (2014).
81
Rosen, Lawrence. The American Indian and the Law. Raleigh, Duke University Press. 10 (1976). Web. (2014).

Cannon C. Kearney
May 5, 2014
22
Business Initiatives
Many acknowledged tribes endure the same economic hardships that un-recognized tribes
endure; therefore,the United States should ensure that federally acknowledged tribes have the
financial resources to sustain their traditional values and improve their community’s future. It is
recommended that government agencies create new business initiatives with corporations to hire
Native Americans and bring jobs nearer to reservations and Indian communities.
Particularly, the federal government must develop initiatives that will assist Indian small
businesses and economic development in the most disadvantaged tribal areas; and, ensure that
underserved Native American tribes have the opportunity to participate in Small Business
Association’s non-credit and loan programs.82
It would behoove government agencies to meet
American Indians and Alaska Natives at their particular areas of need; and not make blanket
policies.
The National Cooperative Bank (NCB), which specializes in commercial lending to major
cooperatives that range from agriculture, grocery, hardware and lumber, finance, and utility co-
ops, is a fine example of government agencies and resources being used specifically for tribal
business activities.83
NCB has long been a long-term lender to the Alaska Native Corporations,
provider of many services to Native Americans in Alaska.84
82
83
Curl, John. For All the People: Uncovering the Hidden History of Cooperation, Cooperative Movements, and
Communalism in America. Oakland, PM Press. 252 (2012). Web. (2014).
84
United States Rural Business and Cooperative Developmental Service. “Rural Cooperatives”. Washington, D.C.,
U.S. Department of Agriculture. 41 (2011). Web. (2014).

Cannon C. Kearney
May 5, 2014
23
The federal government and Native Americans have co-mingled for centuries and it is up
to today’s generation of policy makers, tribal leaders, and academics to ensure economic prosperity
and growth. Brief and strict time restraints on the acknowledgement application process will allot
tribes the opportunity to explore realistic goals and prepare for economic alternatives. Lastly,
advocacy of business initiatives in Native American reservations and communities will assist in
economic development, specifically, small businesses and low unemployment rates. Combined,
these recommendations will significantly improve the United States stance on federal
acknowledgement.

Cannon C. Kearney
May 5, 2014
24
Conclusion
Federal recognition of Indian tribes is a formal political act that establishes government-
to-government relationships between Native American tribes and the United States. Unrecognized
tribes desire federal recognition due to the vital benefits and services, such as tax exemptions,
government services and advocacy, and treaty rights afforded. This process, arbitrated by the
Department of Interior, Bureau of Indian Affairs, has been heavily criticized for issues including:
racial and cultural discrimination, making applicants adhere to ambiguous standards during the
recognition process, and low departmental funding. The Houma Indians of Louisiana are an
example of a Native American tribe experiencing difficulties with the federal acknowledgment
process.Despite the current burdensome, antiquated, and lengthy process; recommendations such
as brief time limits, identifying current issues and forecasting future solutions, and creating new
business initiatives will greatly improve this institution. Alternatives to cold legislation need to be
introduced so Indians may fairly be represented at the American table.

Cannon C. Kearney
May 5, 2014
25
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