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Solutions sought for 'hijacked' recognition
FRIDAY, NOVEMBER 9, 2001

As the Bush administration prepares to revoke the federal status of yet another tribal group and with Congress and the courts taking aim at the controversial process, calls to strip the Bureau of Indian Affairs of its recognition duties have increased in momentum and severity.

Unless action is taken, say critics, recognition will continue to draw complaints from all parties involved. Efforts to reform the system won't have an affect, detractors claim, because problems are so endemic that they have rendered themselves unfixable.

Were it up to Assistant Secretary Neal McCaleb, though, he wouldn't have to face these charges. In testimony to Congress, he said the BIA should be first given a chance to correct its problems before being given the boot.

That position, of course, echoes the administration's position on trust reform. And of course, it flies in the face of documented failures.

Still, McCaleb is intent on doing for recognition what he and others have been unable to do for the trust fund so far. In a letter he sent to Congressional investigators last month, he outlined an action plan that he hopes will resolve some of the deepest doubts about the slow-moving and adversarial game that determines who is and who isn't a legitimate Indian tribe.

Yet the proposals McCaleb has advanced don't immediately speak to lingering questions over who is in charge of recognition at the BIA. Until that is answered, the General Accounting Office says McCaleb's own decisions, no matter how sound or solid, will be shrouded in a cloud of uncertainty.

To hear former BIA Chief Kevin Gover -- the target of much of the blame -- tell it, the problem is simple. The Branch of Acknowledgment and Research (BAR) and their attorneys have "hijacked" the authority of the Assistant Secretary and are intent on being the decision makers.

As a result, Gover said, "the BIA and the Assistant Secretary are institutionally incapable of doing this right."

Dennis Whittlesey, a lawyer who has represented a number of tribes seeking acknowledgment, couldn't agree more. His clients -- the Cowlitz Tribe, the Chinook Nation and the Duwamish Tribe -- seem to clear all the hurdles necessary to obtain federal status, only to face repeated challenges of the Assistant Secretary's decisions.

In all three cases, the Quinault Nation, a federally recognized tribe in Washington, has mounted significant opposition. For Whittlesey, the problem is not necessarily the tribe, whom he successfully fought over the Cowlitz recognition, it's the staff and attorneys who are able to keep the matter open for what seems like an indefinite period of time.

"I think it's corrupt," he said of the the process. "It can go on forever -- they can refer issues back again and we have to wait. It's really insidious."

Whittlesey points out, and bureau officials privately agree, as particularly unnerving the steady flow of pre-decisional documents, internal memoranda and other information to outside parties. Because the system is so adversarial, officials acknowledge the leak contributes to what the GAO has called a test of who is able to donate more time and resources to the fight.

As recently as yesterday, the BIA has met to discuss the problem. But to date, whether corrective action has been taken has not been disclosed and officials continue to scratch their head and prepare for the latest breach.

With litigation of recognition decisions keeping the courts busy, leaks might be the smallest of issues facing the Bush administration. So far, the the staff and attorneys have been mostly shielded from attacks, with political appointees like Gover taking the heat.

But should the decisions, professional background and expertise of the dozen or so researchers, genealogists, anthropologists and historians come into play, Gover believes the result won't be pretty.

"I've been an Indian all my life. I know all about it," said Gover. "What do they know?"

The issue and its potential to wreck the system has already surfaced. Long before Gover and other officials of the Clinton administration were sanctioned for the trust fund, a federal judge held Interior attorney Scott Keep in contempt of court for his handling of the Samish Tribe's federal recognition.

Whether any of these problems can be resolved if Congress enacts a bill to set up a presidential recognition commission is unknown. Whether similar ones won't pop up is not out of the question, either.

But until progress is made on the numerous reforms sought by lawmakers, all sides of the debate are stuck with the current system for all its warts. In the meantime, McCaleb and his top aide Wayne Smith, who has been brought in to help sort out the mess, will have to finalize a set of decisions Gover left open.

They include the Eastern Pequot Tribe and the Paucatuck Eastern Pequot Tribe, both of Connecticut. The Little Shell Chippewa of Montana, whose comment period has been delayed at the rest of the tribe, are also due for final action.

Additionally, McCaleb has to finalize the Nipmuc Nation of Massachusetts petition, which he overturned in September. And unless the Duwamish Tribe of Washington and the Muwekma Tribe of California can convince him otherwise, he is set to deny both groups recognition.

The BAR receives about $900,000 a year in funds. McCaleb has promised to assess future budget and staffing requirements to help improve the process.

Relevant Links:
Branch of Acknowledgment and Research - http://www.doi.gov/bia/ack_res.html

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