President Bush and members of his Administration like to use the old saw: If it walks like a duck and quacks like a duck, it's a duck. Their criteria for acknowledging Indian tribes, however, are significantly more demanding.
Consider the dilemma faced by 21 tribes in California. The federal government signed 18 treaties with California tribes in the 1800s, but the U.S. Senate caved in to political and economic pressure and refused to ratify them. In the fashion of the times, the Senate then concealed for 50 years the embarrassing fact that the treaties had even been made. For many more years, the federal government continued to abrogate its responsibility to protect Indian groups from the local non-Indian population. As a result, most of the California tribes were driven off their lands, relocated away from populated areas and forced into indentured service. Their culture was brutally repressed and, to escape total destruction, they took to the hills. Some were crowded onto what was left of the Spanish ranchos after statehood, and then left homeless when the lands were sold or lost in tax sales.
Now in a presidentially proclaimed kinder, gentler nation, the descendants of those Indians are asking the federal government to formally acknowledge them as tribes. Such recognition is critical to their economic and cultural survival because only recognized tribes are entitled to participate in federal housing, health and education programs, and to maintain their rightful government-to-government relationship with Washington.
These tribes are now required to prove their existence with genealogical records, historical documentation, anthropological studies, demonstration of uninterrupted political authority and minutiae of detail that are nearly impossible to come by. In an ironic twist, the tribes' documentary records depend almost exclusively on studies by non-Indians.
Contrary to popular opinion, the federal government's inexcusable treatment of Native Americans didn't end in the 1800s. In the 1950s and '60s, Congress "terminated" numerous Indian tribes by liquidating their property and administratively disfranchising them by applying new terms such as "adult Indian communities," or "descendancy groups." In California alone, three termination acts of Congress wiped away at least 37 rancherias and 61 tribes and bands. In more recent years, the Bureau of Indian Affairs has unilaterally "de-recognized" tribes that have participated in federal programs for years simply by stopping their appropriations. In fact, one BIA official testified, an Indian treaty confers recognition on a tribe only "on the day it was made." After that, recognition continues only so long as the BIA decides that the tribe is still Indian enough.
Since 1978, when the Interior Department set up an administrative procedure to "acknowledge" Indian groups, 21 California tribes and 93 others have sought to reassert their rights by petitioning the BIA for formal acknowledgment of their status as Indian tribes. To date, only 19 petitions have been acted on, and 12 of them were rejected. Tribes have spent, on average, more than $250,000 each to meet the BIA's burdens of proof.
Inexcusable delays and unrealistic requirements have further plagued the petitioners. In California, the Ione Band of Miwok Indians have been trying since 1916 to obtain federal approval. The Mono Lake and Antelope Valley Indian communities have been jumping through BIA hoops since 1976.
What's the harm in recognizing a limited number of tribes?
Unfortunately, like most problems in our society, it boils down to money. According to the federal budget office, if the BIA acknowledges more Indian tribes, there won't be enough money to go around. Besides, who wants to open the federal coffers to new claims when the deficit is so bad? This rationale neatly and unfairly pits recognized tribes against unrecognized ones. It also feeds the misguided perception that the federal government is somehow doing a favor for the poor, incapable Indians, as if this were charity and not a matter of treaties signed in good faith. Governmental debts and obligations cannot be ignored just because it suits some to do so.
Fortunately, Sen. Daniel K. Inouye (D-Hawaii) has devised a solution that can and should pass Congress. It would establish uniform criteria for federal recognition, set deadlines for consideration of petitions, provide an independent appeal procedure, and take federal recognition onto a more fair playing field.
This will not be the kinder, gentler country that President Bush envisions until the government rights this moral and legal wrong that has festered for almost two centuries.