Why Federal Recognition Is Critical For NC Tribes But Deeply Flawed

This is part one in a two-part series on the complicated process of federal recognition that American Indian tribes must undertake to receive numerous resources and benefits, including the opportunity to conduct tribal gaming.

In 1838, federal troops began forcing Cherokee Indians off North Carolinian lands. Forced to leave for Indian Reservation land in Oklahoma, most of the Cherokee Nation was pushed west of the Mississippi.

One small group of Cherokee had secured a treaty that allowed them to stay. This group and the individuals who avoided federal forces formed the Eastern Band of Cherokee Indians. They are one of three federally recognized Cherokee tribes in the United States. They currently have two NC tribal casinos in the western part of the state: Harrah’s Cherokee in Cherokee and Harrah’s Cherokee Valley River in Murphy.

In contrast, Kentucky has no federally recognized tribes. Native Americans live in Kentucky and can trace their ancestry to tribes who lived within modern-day Kentucky’s borders. However, federal recognition is a specific legal designation that entitles a tribe to state and federal aid. Federal recognition is also a deeply flawed process. It is more effective at keeping new tribes off the federal recognition list than embracing tribes missed by chance.

How federal recognition became so important

In 1934, President Roosevelt signed the Indian Reorganization Act. Before this law was passed, the United States tried to forcibly assimilate tribal communities. After Andrew Jackson’s Indian removal policy in the 1830s and the allotment era in 1887, the U.S. decided to encourage tribal self-sufficiency.

To accomplish this, the federal government visited the known tribes across the United States. U.S. officials asked for tribal constitutions and leadership contacts to develop relationships with them.

Many tribes had oral traditions, which meant they didn’t have written documents. Others had shared leadership models in which significant decisions were made collectively and not by a single leader. This wasn’t the top-down or document-heavy approach that ticked a box for the federal government. Thus, many of these tribes didn’t make it onto the initial federal recognition list.

By 1936, the federal government had an initial list of federally recognized tribes. Tribes on the list received federal and state aid. The aid was vital to working toward economic self-sufficiency. In contrast, unrecognized tribes were unable to secure funds and other forms of aid. Failures to receive federal recognition revealed the need for a process to list unrecognized tribes.

The federal government finalized the recognition process in October 1978. Still, many hurdles for unrecognized tribes remained.

Why federal recognition is so difficult for NC tribes

A new federal recognition process in 1978 set seven criteria for federal recognition that included:

– Indian entity identification.

– Community.

– Political influence or authority.

– Governing document.

– Descent.

– Unique membership.

– Congressional termination.

Among the most challenging steps is proving a continuous presence in an area and proving identification with a tribal group. Many tribal traditions were oral. Thus, documents proving the existence and membership of a tribe often come from church, state or federal documents. For example, a letter between a governor and a group of Native Americans could prove a relationship with American colonists.

However, meeting all of these requirements can be prohibitively difficult. Without written records, establishing genealogy is impossible. Intermarriage and forced removal also broke continuity, complicating efforts to gain recognition.

The high bar tribes must meet and the historical wrongs committed against the tribes make the recognition process untenable for many tribal communities. Many Native Americans have tribal affiliations but cannot access state and federal scholarships. Unrecognized tribal communities can’t get damages from lawsuits that affect a state’s Native American population, like in United States. v. Washington.

The alternative to the federal recognition process doesn’t necessarily solve this problem.

Acts Of Congress and bad compromises

An act of Congress can grant federal recognition for a petitioning tribe. However, an act of Congress can also force concessions from Native Americans.

For example, in 2018, House Resolution 984 became federal law and recognized six tribes in Virginia. HR 984 also prohibited any of those tribes from conducting gaming in Virginia. Those tribes received government assistance but lost access to an economically transformative industry.

Federal recognition is an important process to help tribal communities access the aid they’re entitled to. It is necessary after losing their land to the federal government. These losses came by force from the government, from settlers, or from voluntarily placing their lands in federal trust.

The federal recognition process is arduous and expensive. It often requires expert help to uncover documents substantiating Native American ancestry. The federal government reformed the process in 1994 and 2008, but it’s still untenable for many tribes. The Lumbee Tribe in southeastern North Carolina is currently embroiled in a long-standing campaign for federal recognition. The state of North Carolina appears interested in making the tribe whole by offering them fast access to a casino should they secure recognition.

As long as the process remains unrealistic for unrecognized tribes, the federal government fails in its obligations to tribal communities.


Image Credit: AP Images

About the Author

Chris Gerlacher

Christopher Gerlacher is a contributor for NC Sharp. He is a versatile and experienced writer with an impressive portfolio who has range from political and legislative pieces to sports and sports betting. He's a devout Broncos fan, for better or for worse, living in the foothills of Arvada, Colorado.