By Dennis J. Whittlesey

Over the past week, two proposals have surfaced that could have profound impacts on Indian Country, and they likely would not be for the better.

The first proposal surfaced on October 20 when a Utah congressman introduced legislation to terminate all Interior Department jurisdiction over federal recognition of Indian tribes. The second came a day later when a major candidate for President announced that he wants to relocate the Department of the Interior out of Washington, insuring isolation from both other government agencies and Congress.

Either of these proposals alone should be cause for concern for anyone involved in Indian affairs. Taken together, there should be cause for alarm.

The first event was the introduction of legislation known as the “Tribal Recognition Act,” introduced by Rep. Rob Bishop (R-Utah), who just happens to be Chairman of the House Natural Resources Committee, which has jurisdiction over Indian affairs. The essential element of H.R. 3764 is that Congress would strip the Department of the Interior and the Bureau of Indian Affairs of the ability to recognize Indian tribes. Instead, the only entity that would be able to confer recognition status would be Congress itself.

At this time, Congress already has the power to recognize tribes by virtue of its plenary power over Indian affairs found in the so-called “Indian Commerce Clause” of the United States Constitution. But the Interior Secretary also has tribal recognition authority pursuant to the Indian Reorganization Act of 1934, and in some cases the federal courts can do the same.

The Secretary’s recognition power is exercised through an administrative process within the Interior Department’s Office of Federal Acknowledgement. While the process has been criticized as being unduly cumbersome and time-consuming, the fact remains that a number of tribes have won administrative recognition after demonstrating that they satisfy a multitude of requirements, including continuous tribal existence over an identified period of time. The process is far from perfect and may not always seem fair, but it is designed to assist the Secretary in reaching a reasoned decision as to the applicant tribe’s qualification to be federally recognized.

The legislation ostensibly preserves that administrative process as a vehicle for the Secretary to reach a recommendation for legislative recognition, but Congress would be free to ignore it. Indeed, the actual decisions would be made by Congress without regard to merit. And Congress, lest we forget, is a political body.

The second proposal was made by former Florida Governor Jeb Bush as part of his “Western Land and Resource Management Plan.” His stated rationale was to address the concerns of residents of the Western United States, who “feel the impact of federal decision-making more acutely than those in the rest of the nation.” He added, “Of the 635 million acres owned and managed by the federal government, 582 million acres – 90 percent – are in the West, including Alaska.”

As for the potential location for the Department, the statement highlighted Denver, Salt Lake City, and Reno.

Bush’s official statement did not mention the fact that the overwhelming majority of Bureau of Indian Affairs and Office of Special Trustee employees already are in the West and located in or near Indian Country. And it made no attempt to explain how or why Indian Country would be better served by moving the entire Department of the Interior out of Washington, D.C., or how it would improve the effectiveness of the Department’s senior officials.

At this time, there is little prospect that either of these proposals will become reality, since there is no sign of support from within the current administration. However, the fact that they have even been discussed at such a significant level should be of concern throughout Indian Country.