What Criteria Must Be Met for Federal Recognition of Tribal Status? Why Do Some Alleged Tribes Fail to Get Recognition?


What follows is a list of the seven mandatory criteria for Federal recognition ("acknowledgment") of status as an Indian tribe. After that, readers will find two official reports denying recognition to two Indian groups, and explaining the manner in which those groups had failed to meet some of the criteria. The language is verbatim, taken from the internet, at the URLs cited. In particular, I call attention to the fact that the expression "mandatory criteria" is in the regulations, it is not my own creation. All seven criteria are mandatory.

Readers should keep in mind the reason why this technical information is being posted here. The question is whether kanaka maoli can qualify for Federal recognition of tribal status. The answer is NO. Kanaka maoli fail to meet at least three of the mandatory criteria: (a) Native Hawaiians have not been identified as an Indian entity on a continuous basis since 1900, (b) the predominant portion of Native Hawaiians do not comprise a distinct community that has existed as a community from historical times until the present, and (c) Native Hawaiians have not maintained political influence or authority over their members as an autonomous entity from historical times until the present.

Those are the same three criteria by which the Duwamish so-called tribe failed to achieve Federal recognition; and that is why the Duwamish decision is posted after the criteria are listed, so that readers can compare the history and culture of the kanaka maoli with the reasons given for denial of tribal recognition for the Duwamish.


http://www.doi.gov/bia/bar/acknowl.htm#Mandatory criteria for Federal acknowledgment

25 CFR 83.7

§83 .7 Mandatory criteria for Federal acknowledgment.

[ Editorial note: the seven criteria are given the letters a,b,c,d,e,f,g. Some of these criteria have sub-parts, and sub-sub-parts. I have placed lines to separate the seven criteria from each other for greater clarity ]

The mandatory criteria are:

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(a) The petitioner has been identified as an American Indian entity on a substantially continuous basis since 1900. Evidence that the group's character as an Indian entity has from time to time been denied shall not be considered to be conclusive evidence that this criterion has not been met. Evidence to be relied upon in determining a group's Indian identity may include one or a combination of the following, as well as other evidence of identification by other than the petitioner itself or its members.

(1) Identification as an Indian entity by Federal authorities.

(2) Relationships with State governments based on identification of the group as Indian.

(3) Dealings with a county, parish, or other local government in a relationship based on the group's Indian identity.

(4) Identification as an Indian entity by anthropologists, historians, and/or other scholars.

(5) Identification as an Indian entity in newspapers and books.

(6) Identification as an Indian entity in relationships with Indian tribes or with national, regional, or state Indian organizations.

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(b) A predominant portion of the petitioning group comprises a distinct community and has existed as a community from historical times until the present.

(1) This criterion may be demonstrated by some combination of the following evidence and/or other evidence that the petitioner meets the definition of community set forth in § 83.1:

(i) Significant rates of marriage within the group, and/or, as may be culturally required, patterned out-marriages with other Indian populations.

(ii) Significant social relationships connecting individual members.

(iii) Significant rates of informal social interaction which exist broadly among the members of a group.

(iv) A significant degree of shared or cooperative labor or other economic activity among the membership.

(v) Evidence of strong patterns of discrimination or other social distinctions by non-members.

(vi) Shared sacred or secular ritual activity encompassing most of the group.

(vii) Cultural patterns shared among a significant portion of the group that are different from those of the non-Indian populations with whom it interacts. These patterns must function as more than a symbolic identification of the group as Indian. They may include, but are not limited to, language, kinship organization, or religious beliefs and practices.

(viii) The persistence of a named, collective Indian identity continuously over a period of more than 50 years, notwithstanding changes in name.

(ix) A demonstration of historical political influence under the criterion in § 83.7(c) shall be evidence for demonstrating historical community.

(2) A petitioner shall be considered to have provided sufficient evidence of community at a given point in time if evidence is provided to demonstrate any one of the following:

(i) More than 50 percent of the members reside in a geographical area exclusively or almost exclusively composed of members of the group, and the balance of the group maintains consistent interaction with some members of the community;

(ii) At least 50 percent of the marriages in the group are between members of the group;

(iii) At least 50 percent of the group members maintain distinct cultural patterns such as, but not limited to, language, kinship organization, or religious beliefs and practices;

(iv) There are distinct community social institutions encompassing most of the members, such as kinship organizations, formal or informal economic cooperation, or religious organizations; or

(v) The group has met the criterion in § 83.7(c) using evidence described in §83.7(c)(2).

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(c) The petitioner has maintained political influence or authority over its members as an autonomous entity from historical times until the present.

(1) This criterion may be demonstrated by some combination of the evidence listed below and/or by other evidence that the petitioner meets the definition of political influence or authority in § 83.1.

(i) The group is able to mobilize significant numbers of members and significant resources from its members for group purposes.

(ii) Most of the membership considers issues acted upon or actions taken by group leaders or governing bodies to be of importance.

(iii) There is widespread knowledge, communication and involvement in political processes by most of the group's members.

(iv) The group meets the criterion in § 83;.7(b) at more than a minimal level.

(v) There are internal conflicts which show controversy over valued group goals, properties, policies, processes and/or decisions.

(2) A petitioning group shall be considered to have provided sufficient evidence to demonstrate the exercise of political influence or authority at a given point in time by demonstrating that group leaders and/or other mechanisms exist or existed which:

(i) Allocate group resources such as land, residence rights and the like on a consistent basis.

(ii) Settle disputes between members or subgroups by mediation or other means on a regular basis;

(iii) Exert strong influence on the behavior of individual members, such as the establishment or maintenance of norms and the enforcement of sanctions to direct or control behavior;

(iv) Organize or influence economic subsistence activities among the members, including shared or cooperative labor.

(3) A group that has met the requirements in paragraph 83.7(b)(2) at a given point in time shall be considered to have provided sufficient evidence to meet this criterion at that point in time.

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(d) A copy of the group's present governing document including its membership criteria. In the absence of a written document, the petitioner must provide a statement describing in full its membership criteria and current governing procedures.

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(e) The petitioner's membership consists of individuals who descend from a historical Indian tribe or from historical Indian tribes which combined and functioned as a single autonomous political entity.

(1) Evidence acceptable to the Secretary which can be used for this purpose includes but is not limited to:

(i) Rolls prepared by the Secretary on a descendancy basis for purposes of distributing claims money, providing allotments, or other purposes;

(ii) State, Federal, or other official records or evidence identifying present members or ancestors of present members as being descendants of a historical tribe or tribes that combined and functioned as a single autonomous political entity.

(iii) Church, school, and other similar enrollment records identifying present members or ancestors of present members as being descendants of a historical tribe or tribes that combined and functioned as a single autonomous political entity.

(iv) Affidavits of recognition by tribal elders, leaders, or the tribal governing body identifying present members or ancestors of present members as being descendants of a historical tribe or tribes that combined and functioned as a single autonomous political entity.

(v) Other records or evidence identifying present members or ancestors of present members as being descendants of a historical tribe or tribes that combined and functioned as a single autonomous political entity.

(2) The petitioner must provide an official membership list, separately certified by the group's governing body, of all known current members of the group. This list must include each member's full name (including maiden name), date of birth, and current residential address. The petitioner must also provide a copy of each available former list of members based on the group's own defined criteria, as well as a statement describing the circumstances surrounding the preparation of the current list and, insofar as possible, the circumstances surrounding the preparation of former lists.

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(f) The membership of the petitioning group is composed principally of persons who are not members of any acknowledged North American Indian tribe. However, under certain conditions a petitioning group may be acknowledged even if its membership is composed principally of persons whose names have appeared on rolls of, or who have been otherwise associated with, an acknowledged Indian tribe. The conditions are that the group must establish that it has functioned throughout history until the present as a separate and autonomous Indian tribal entity, that its members do not maintain a bilateral political relationship with the acknowledged tribe, and that its members have provided written confirmation of their membership in the petitioning group.

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(g) Neither the petitioner nor its members are the subject of congressional legislation that has expressly terminated or forbidden the Federal relationship.

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On October 12, 2005, the Bureau of Indian Affairs issued a final decision denying federal recognition to two Indian “tribes” in Connecticut who had been seeking recognition for about 25 years. See:
http://www.angelfire.com/hi5/bigfiles3/fedrecdenied2connecticutgroups101205.html

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The following two official denials of Federal recognition are interesting because they clearly illustrate that all seven criteria must be met in order for Federal recognition to be legitimate. The case of the Duwamish is especially interesting, because the denial is for many of the same reasons that would also apply in the case of kanaka maoli (Native Hawaiians)

Duwamish Denied Recognition (Washington State, U.S.)

[Federal Register: June 28, 1996 (Volume 61, Number 126)] [Notices] [Page 33762-33764] From the Federal Register Online via GPO Access [ http://www.access.gpo.gov/su_docs/aces/aces140.html]

DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs Proposed Finding Against Federal Acknowledgment of the Duwamish Tribal Organization

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice of proposed finding.

SUMMARY: Notice is hereby given that the Assistant Secretary--Indian Affairs (Assistant Secretary) proposes to decline to acknowledge that the Duwamish Tribal Organization, 107 Ranier Ave. So., Renton, WA 98055, exists as an Indian tribe within the meaning of Federal law. This notice is based on a determination that the Duwamish Tribal Organization does not satisfy three of the seven criteria set forth in 25 CFR 83.7 and, therefore, does not meet the requirements for a government-to- [[Page 33763]] government relationship with the United States.

DATES: Any individual or organization wishing to challenge the proposed finding may submit factual or legal arguments and evidence to rebut the evidence relied upon. This material must be submitted within 120 calendar days from the date of publication of this notice. Interested and informed parties who submit arguments and evidence to the Assistant Secretary should also provide copies of their submissions to the petitioner.

ADDRESSES: Comments on the proposed finding and requests for a copy of the report which summarizes the evidence and analyses that are the basis for the proposed decision should be addressed to the Office of the Assistant Secretary, 1849 C Street N.W., Washington, DC 20240, Attention: Branch of Acknowledgment and Research, Mailstop: 4641-MIB.

FOR FURTHER INFORMATION CONTACT: Holly Reckord, Chief, Branch of Acknowledgment and Research, (202) 208-3592.

SUPPLEMENTARY INFORMATION: This notice is published in accordance with authority delegated by the Secretary of the Interior to the Assistant Secretary by 209 DM 8 and pursuant to 25 CFR 83.9(f) of the previous acknowledgment regulations. Although revised acknowledgment regulations became effective March 28, 1994, the Duwamish Tribal Organization chose, as provided in 25 CFR 83.3(g) of the revised regulations, to complete their petitioning process under the previous acknowledgment regulations.

The petitioner, the Duwamish Tribal Organization, is an organization of Duwamish descendants that has existed since 1925. While the petitioner's individual members can trace their ancestry back to a historical Duwamish tribe, the petitioner has not existed as a tribal entity continuously since the time of first sustained contact between the historical Duwamish tribe and non-Indians. The petitioner has been identified by external observers as an Indian entity, but only since about 1940. The petitioner does not form, and has not formed, a distinct social or geographical community in western Washington. Its organization has functioned for limited purposes since 1925 and has exercised no meaningful political influence or authority over its members. Of the seven mandatory criteria for Federal acknowledgment as an Indian tribe, the petitioner has met criteria (d), (e), (f), and (g), but has failed to meet criteria (a), (b), and (c).

A historical Duwamish tribe was described as consisting of the Indians living at the confluence of the Black, Cedar, and Duwamish Rivers south of Lake Washington, as well as along the Green and White Rivers, around Lake Washington, and along the eastern shore of Puget Sound in the area of Elliott Bay. Federal negotiators combined the Duwamish with other tribes and bands into confederated ``treaty tribes'' for the purpose of making a treaty in 1855, and continued to deal with treaty-reservation Indians as the ``Duwamish and allied tribes.'' The evidence indicates that a distinct Duwamish community has not existed since about 1900 and that political activity linked to residents of traditional settlements has not occurred since about 1916. The petitioner's organization came into existence in 1925 when eight men announced their ``intention of forming'' an organization. No contemporary evidence indicates that this new organization continued the activities of a previous group, and its membership was substantially different from the membership of a Duwamish organization which had been formed in 1915.

The petitioner has satisfied criterion (e), because the available evidence demonstrates that 386 out of the 390 members on the petitioner's 1992 membership roll clearly descend from historical Duwamish Indians. The petitioner has met criterion (d) by providing copies of the constitution and by-laws of the Duwamish Tribal Organization which were adopted in 1925 and are still in effect today. These governing documents also describe the petitioner's membership criteria. There is no evidence that a significant percentage of the petitioner's members belong to any federally-recognized tribe, or that the petitioner was subject to legislation terminating or forbidding a Federal relationship. Thus, the petitioner has met criteria (f) and (g).

The petitioner's current members do not maintain a community that is distinct from the surrounding non-Indian population. No geographical area of concentrated settlement provides them with a social core. The group's geographical dispersion is consistent with other evidence showing that members do not maintain, and have not maintained, significant social contact with each other. Before 1925, the petitioner's ancestors, primarily descendants of marriages between Duwamish Indians and pioneer settlers, had little or no interaction either with the Indians of the historical Duwamish settlements or with those Duwamish who moved to reservations. Since 1925, the social activities of the petitioner's members with other members, outside the organization's annual meetings, took place within their own extended families, but not with members outside their own family lines. Because the petitioner has not maintained a cohesive community that is socially distinct from other populations in the area, it has not met the requirements of criterion (b).

The Duwamish Tribal Organization has not exercised political influence or authority over its members. Instead, it has limited itself to pursuing Federal acknowledgment and claims against the United States for its dues-paying members. The organization's annual meetings have generally consisted of a presentation by the chairman or chairwoman, a report by the group's claims attorney, and motions only to elect officers, accept new members, or endorse attorney contracts. No evidence shows that members were involved actively in making decisions for the group or resolving disputes among themselves. A decision to intervene in an important fishing rights case was made by a single individual, the chairman. Later, no members participated in completing the paperwork in that case which would have allowed members to utilize fishing rights temporarily. The available evidence shows that this organization has played a very limited role in the lives of its members, and there is no evidence of the existence of informal leadership or political influence within the group outside of the formal organization. Because the petitioner has not maintained tribal political influence or authority over its members throughout history, it has not met the requirements of criterion (c).

The petitioner has been identified intermittently since 1940 as an Indian organization by Federal officials. A historical Duwamish tribe, which existed at the time of first sustained contact with non-Indians, was identified by contemporary Government officials and American settlers, and by later ethnographers, historians, and the Indian Claims Commission. The existence of a Duwamish community at a traditional location near the junction of the Black and Cedar Rivers was identified by external observers as late as 1900. These various identifications of Duwamish entities before 1900 and after 1940, however, do not identify the same entity and do not link the modern petitioner to the historical tribe as an Indian entity which has continued to exist over time. Because the petitioner has not been identified as having a substantially continuous Indian identity from historical times to the present, it [[Page 33764]] has not met the requirements of criterion (a).

Based on these factual determinations, we conclude that the Duwamish Tribal Organization should not be granted Federal acknowledgment under 25 CFR part 83.

After consideration of the comments on this proposed finding, the Assistant Secretary will publish the final determination of the petitioner's status in the Federal Register as provided in 25 CFR 83.9(h) of the previous acknowledgment regulations.

Dated: June 18, 1996. Ada E. Deer, Assistant Secretary--Indian Affairs. [FR Doc. 96-16503 Filed 6-27-96; 8:45 am] BILLING CODE 4310-02-P

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Bureau of Indian Affairs - Press Release

OFFICE OF THE SECRETARY/FOR IMMEDIATE RELEASE/January 18, 1996 Ralph Gonzales (O) 202/219-4150

ASSISTANT SECRETARY - INDIAN AFFAIRS FINDS THE RAMAPOUGH MOUNTAIN INDIANS, INC. - NEW JERSEY DO NOT MEET FEDERAL STANDARDS FOR ACKNOWLEDGMENT

Ada E. Deer, Assistant Secretary - Indian Affairs, issued a notice today declining to acknowledge the Ramapough Mountain Indians Inc., as a Federally recognized tribe.

A Proposed Finding to decline to acknowledge the Ramapough Mountain Indians Inc., was first published in the FEDERAL REGISTER on December 8, 1993 and the original 180-day comment period was extended until May 8, 1995. The 60-day comment period for the Ramapoughs to respond to third-party comments ended on July 10, 1995.

As a result of this publication, the Bureau of Indian Affairs conducted an extensive review of (1) the Ramapough's response to the Proposed Finding, (2) the comments submitted by interested and third parties, (3) the Ramapough's response to the public comments, and (4) researched additional historic records in order to arrive at a final determination regarding their status.

Based on this review, the Bureau of Indian Affairs has determined that the Ramapough Mountain Indians, Inc., do not meet three of the seven mandatory criteria for acknowledgement as an Indian tribe under Federal law. Specifically, the Ramapoughs failed to meet criteria b, c, and e, of the federal regulations (25 CFR 83.7) because they did not exist as a distinct community from historic times to the present, did not maintain political influence or authority over their members from historic contact to present, and their membership does not descend from a tribe of American Indians or from tribes that combined and functioned as a single autonomous entity.

This decision will become effective in 90 days unless the tribe requests a reconsideration before the Interior Board of Indian Appeals.


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