The worldwide American Indian Workshop took place on March 25, 2010 and included a video-conference, which I moderated between ethno-historians and attorneys in the Czech Republic, and Indian chiefs at Columbia University in New York City.

The consensus from the conference was to take a radical and new approach to Federal Recognition of Indian tribes. At the conclusion of the conference I asked myself, "Was this conference the genesis of modern Indian law for tribes?

Since 1978, the Bureau of Indian Affairs (BIA) has been charged with determining the credibility of Indian tribes’ request for federal recognition, through its Office of Federal Acknowledgement (OFA). Since the process began in 1978, 45 tribal applications for federal recognition were processed by the OFA, 16 tribes obtained recognition and 29 tribes were denied recognition. There are over 200 tribal applications currently pending with the BIA. The average wait time for a decision from the OFA is 29 years.

There are seven criteria that must be met by a tribe seeking federal recognition through the BIA. The OFA has teams of three professionals to evaluate each tribe. The teams consist of a genealogist (non-degree), historian and anthropologist. The standard applied by the evaluation team is “reasonable likelihood."

The academics in Prague made short work of the seven criteria used by the OFA and focused on the fact that the standards were not consistent with current academic standards and specifically failed to recognize the significance of kinship models. The Ethno-historians deemed emphasis on blood quantum, rather than kinships by the OFA, as a basic flaw that would conclude subjectively excluding tribes that should be recognized. The panel also discussed the need for qualified experts to determine federal recognition rather than bureaucrats with little or no academic qualifications. A formal recommendation will be made by the panel setting forth the basic academic qualifications such as: doctorate degree, peer review publications and expertise in specific tribal history as opposed to general knowledge about Native Americans.

The legal experts on the panel made it clear that the “reasonable likelihood” standard was ill-defined and failed to meet any legal standard such as preponderance of the evidence (51%). The appeal of any decision based on the “reasonable likelihood” standard would result in confusion rather than certainty and allow “to stand” bureaucratic decisions that are arbitrary and capricious.

Present in New York was Chief Harry Wallace of the Unkechauge Indian Nation, Chief Rev. Donald R. Carter of the Coharie Tribal Nation, and Trudie Lamb Richmond from the Schaghticoke Tribal Nation.
After four decades of being involved in Native American issues, Richmond eloquently expressed the tribal experience with the BIA process:

“We submitted our petition for federal recognition in 1994 after spending tens of thousands of dollars, dealing with the almost impossible seven criteria requirements, with an endless line of lawyers, anthropologists, ethno-historians, archaeologists--all of whom advised how to meet the criteria standards; standards which appeared to be devised to set us up to fail," Richmond said.

Professor John Strong expressed the fundamental problem in the process was that Native American culture was non-literate (oral) and the European culture was literate (written). To require an oral culture to produce documents that relate back to the 1600s is unjust and intended to exclude tribes.
The alternate route is legislative or executive, which requires extensive lobbying that is financially prohibited to tribes that are not affiliated with gaming interests.

The panel agreed that tribes seeking federal recognition must use alternative methods and demand a change in the BIA criteria and evaluation of tribes. The legal experts suggested administrative correction of past injustices by the BIA in excluding tribes from federal recognition based on discrimination.

One example used by legal members of the panel was the refusal of federal recognition to tribes because some members were inter-married with blacks. Another example was the failure of tribal members to meet the physical standards (measurement of head, nose, etc.) set by the BIA. These examples are just a few of the discriminatory actions taken in 1934 by John Collier in the implementation of the Indian Reorganization Act.

The new approach seems to be centered around tribal demands for administrative corrections to past injustices, which will be documented by scholars and enforced by legal experts. This confrontational approach is justified by the historical evidence found in the BIA’s inability to treat native tribes fairly.