What makes a native American tribe?

The divide between recognized and unrecognized tribes grew this December when President Obama endorsed the United Nations Declar­ation on the Rights of Indigenous Peoples, but excluded unrecognized tribes in the administration's position paper. Critics say it was an effort to reduce financial commitments.

"It's termination by accountant," says Bruce Granville-Miller, an anthropologist at the University of Brit­ish Columbia in Vancouver who studies unrecognized indigenous peoples around the world. "It's easy for nations to find ways to disqualify them, to make them simply disappear."

The OFA petition process is meant to help tribes gain recognition so they don't disappear. But many petitions languish for decades because of the costly process of documentation.

In the early 2000s, the Government Account­ability Office released several reports critical of the OFA's recognition process, finding it took excessive time to rule on completed applications (the BIA itself estimated in 2001 that it would take 15 years to clear its backlog), and that BIA decisions were often unclear. One case cited by the GAO involved a tribe granted recognition even though it had a 70-year gap in its documentation of continuous existence – a flaw that had doomed other petitions.

In response to the criticism, the BIA hired additional staff, developed a strategic plan, and posted a compilation of prior decisions that petitioning tribes could examine. GAO officials say timeliness and transparency has improved, but note there are still 265 groups that have submitted petitions the BIA deems incomplete.

Fleming says numerous tribes have found ways to complete the petition efficiently through grass-roots volunteerism and other efforts.

"They shouldn't hesitate to begin. Once they start the process they're able to receive technical assistance and advice from us," he says.

But some see that as the fox guarding the henhouse. For example, the Tolowa Nation, another northern California tribe, recently had its petition rejected after a 30-year effort because they didn't have enough evidence that they existed as a "distinct community" from 1903 to 1930.

"[The BIA] had a whole team of PhDs and anthropologists who seemed dedicated to undercutting our petition," says Martha Rice, a Tolowa council member. "For us, that's a tall mountain to climb."

Anthropologists and tribal members also argue that the requirement to show "continuous and distinct community" since 1900 is unrealistic given US history. "These people went through massacres, dislocations, and suffered all these horrible atrocities, and then the government demands, 'Show us your continuous community.' It's absurd," says Les Field, an anthropologist at the University of New Mexico in Albuquerque.

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