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The Rev. John Norwood is the principal justice of the Tribal Supreme Court of the Nanticoke Lenni-Lenape Tribal Nation, which has yet to be recognized by the U.S. government. Here, he speaks at a conference at Arizona State University this week on how to expedite the process.Michael Ging/Arizona State University
TEMPE, Ariz. — Four centuries ago, the Nanticoke Lenni-Lenape were spread along the coasts of what is now New Jersey and Delaware.
“They encountered John Smith of Jamestown fame,” said the Rev. John Norwood. “We tried to kill him. Didn’t quite work out. So we wound up trading with him, and that ended up being pretty profitable.”
Norwood is the principle justice of the Tribal Supreme Court of the Nanticoke Lenni-Lenape Tribal Nation, a 3,000-plus-member tribe in what is now New Jersey, 40 miles south of Philadelphia.
But the Nanticoke Lenni-Lenape is not recognized as a tribe by the United States government, only by New Jersey. That means that the tribe is often unable to do things like develop housing for tribal members, have access to regulated religious items or even be acknowledged by the federal government as being Indian.
“American Indians, the original people of this continent, have been divided by the United States into several categories,” said Norwood. “You have those that are acknowledged by the federal government, have a treaty relationship with them, have a government-to-government relationship with them and receive government services. They are on a list with the Bureau of Indian Affairs (BIA). Then there are a bunch of tribes that aren’t.”
While the numbers aren’t clear — experts estimate there could be 50 to 100 authentic tribes that aren’t recognized — the complications are thorny enough that more than 100 participants and representatives of more than 20 tribes still seeking federal recognition gathered Thursday and Friday at Arizona State University to meet with members of nearly 30 recognized tribes and government officials to discuss their ongoing struggles as well as changes to the process.
Centuries of federal policies designed to exterminate indigenous peoples and destroy their identities as people and political entities have left a harsh mix of attitudes toward tribes, tribal members and their role in the American political landscape. In some cases, the quest to secure a multilayered, tribal identity in the United States is viewed as a forced adoption of definitions and values imposed by the same government responsible for their near destruction. In other cases, the ability to pursue cultural and political aspirations is seen as an investment in future generations’ ability to thrive, grow and have continued access to the rights earned by their ancestors.
Whatever their reasons, tribes that exist in the United States but are not listed on official rolls maintained by the Bureau of Indian Affairs are alive and active across the country. And despite red tape and obscene amounts of paperwork required by the federal government, proposed changes to federal regulations could open the door for more tribes to become sovereign entities within U.S. borders.
The waiting game
“You have tribes that have been waiting for 30 years to be recognized, and they’ve got all their information in to the federal government, and the federal government turns around and says, ‘No, I’m sorry,’” said Brian Cladoosby, a Swinomish tribal member and president of the National Congress of American Indians (NCAI). “That’s just unacceptable. No one should have to wait 30 years to be told that the federal government is going to recognize them. The process is broken. It needs to be fixed.”
The American Indian Policy Review Commission reported in 1977 that hundreds of tribes in the United States were essentially invisible as entities because the federal government had no formal process to acknowledge their existence. And many had ceased to officially exist because of the government’s policy in the 1950s to legislatively terminate tribes as separate entities.
In 1978 the U.S. established seven criteria for tribes to become recognized, including showing continuous existence since before the birth of the United States, maintenance of tribal leadership over the history of the community and descent of all tribal members from a historical tribe.
“The problem is the process has become so burdensome that no one can meet it without 30 years and millions of dollars of assistance,” said Judith Shapiro, a lawyer based in Washington, D.C., specializing in Indian law. “No one acknowledges that the real problem is the United States lost track and that this should be a remedial process to correct a federal government error, but it’s not treated like that. It’s treated as federal petitioners begging for some sort of benefit, which is not what it is. It’s in fact reinstating a tribe to what its place should have been all along.”
Since 1978, the BIA has received 350 letters of intent to petition for federal recognition. But it’s estimated that many of those are from groups with no tribal heritage, including civic organizations and even Boy Scout troops. Only 17 tribes have been recognized through the process, and in the last 10 years, just two tribes.
“Something is wrong,” said Shapiro. “Those tribes were petitioners as of 1978. So 30-plus years to get to those two, and there are other tribes out there with the same long history.”
Tribes push back
“There’s this pie, and it’s the federal funding that goes to each tribe, so as each additional tribe comes on, that pie gets a little bit smaller for the other tribes,” said Lance Gumbs, former tribal chairman of the Shinnecock Indian Nation. “There’s an economic reason for it, and more often than not right now, it’s really having nothing to do with the cultural value of who we are as a people or the historical value. It’s really turning into the economic value of it now.”
The Shinnecock Indian Nation is the most recent tribe to attain federal recognition. That happened in 2010, after it filed an initial application in 1978, spent more than $33 million and submitted more than 170,000 pages of paperwork to prove its existence. While the Shinnecock received push-back from the federal government, it’s not uncommon for other tribes to mount resistance as well.
“In the past it was natural resources. Today, to an extent, it’s still natural resources, but also gaming has made a big impact, and when tribes seeking federal recognition are close to a tribe that is a big gaming tribe,” said Cladoosby, “I imagine that the gaming tribe that is recognized does feel threatened.”
“Gaming is the big elephant on the table now,” said Gumbs. “The more tribes that get recognized, the more that are eligible to do gaming, the more that it might potentially cut into somebody’s profit margin.”
Gaming has been available to tribes only since 1988. Remember, the Shinnecock put in their application for recognition in 1978. However, with a $33 million tab, there was only one way for them to pay their bill: They took money from an investor interested in developing a casino in Shinnecock territory.
“We contacted the Coast Guard, and we told the Coast Guard that we had sacred sites that were in danger of being invaded and soiled by oil and we wanted to protect them,” said Patty Ferguson-Bohnee, a Pointe-au-Chien tribal member and director of the Indian Legal Clinic at Arizona State University. “At one point throughout the process, the federal government said, ‘We cannot consult with you because you’re not a federally recognized tribe.’”
Then there was a problem when tribal remains were found. Because the Pointe-au-Chien lack federal recognition, the National Park Service prevented the tribe from having a role in what happened to the remains of their own relatives after the oil spill.
“That’s very offensive that your elders know that there are remains and they bring in tribes from other states because they’re federal tribes and they exclude you even though they know those are your ancestors, because you’re not from a federally recognized tribe,” said Ferguson-Bohnee. “It’s ridiculous.”
Without federal recognition, tribes often lack the authority to identify, preserve, protect, occupy and control their territory.
“The tribes directly impacted by the storms in Louisiana are all unrecognized tribes. They’re not on the BIA list,” said Ferguson-Bohnee. “They’re the ones that are on the Gulf Coast, and these tribes, when an issue happens — there’s a hurricane, there’s a flood, our communities get eight feet of water, major damage — FEMA will work directly with the parishes, who do not divert that money to our communities even if our community is the only community that’s flooded in the parish. The parish does not send the money our way. Whereas at the same time, the flood may impact us, may impact New Orleans, FEMA will work directly with other recognized tribes in the state of Louisiana who don’t have land directly impacted but may have members who are living in New Orleans, and that seems a little unbalanced.”
Beyond getting assistance in an emergency, tribes not on the BIA’s list don’t have access to the same services other tribes do: education, health care, regulated religious items like eagle feathers, and other services provided through federal Indian trust responsibility — the legal obligation that the United States must fulfill certain duties in exchange for the cession of land by tribes. For unlisted tribes like the Pointe-au-Chien, survival depends on their ability to continue fighting for what’s theirs.
“We claim our tribal lands,” said Ferguson-Bohnee. “We’ve been living, hunting and fishing on there. We have sacred sites, and this is our land whether or not you recognize that.”
Reforming the system
It’s helpful to note that since the rules were published in 1978, 30 tribes have been recognized by Congress, as opposed to the 17 recognized by the Bureau of Indian Affairs.
In June the BIA began taking comments on how to make its recognition process less expensive, inflexible and burdensome as well as more transparent. This includes expedited review and the ability for tribes previously denied federal acknowledgment to re-petition.
The BIA says it’s committed to moving as quickly as possible to making fixes to the regulations but at this time has no clear date for when those proposed changes could be published, let alone ready for public comment.
That means until the process is streamlined, tribes like the Nanticoke Lenni-Lenape will continue waiting for acknowledgment from the federal government.
“We’re just interested in being able to preserve who we are, and the ability to do that means the ability to continue to govern ourselves in effective ways without constantly being challenged by outside powers,” said the Rev. Norwood. “People like the dead Indians, the Indians of the past, and they like those of us who carry that bloodline to still act like we’re in the past. But to deal with the very real political struggles we have today? Not interested.”