Old promises: the judiciary and the future of Native American federal acknowledgment litigation.

• Author: Mather, Alva C.

INTRODUCTION

The United States government has "'moral obligations of the highest responsibility'" (1) to the four million American Indians (2) and Alaska Natives residing in the United States. (3) The federal government, however, presently only honors its fiduciary duty to a portion of the current Indian population.

Today, Native American tribes are divided into two categories: those recognized by the federal government, and those not formally "recognized" by the United States. Tribes that are federally recognized receive the benefits and services exclusively reserved by the federal government for those classified as Indians. As a result of historical circumstances, nonrecognized tribes are excluded from federal assistance because they have not maintained a formal relationship with the United States. Denied their status as "Indians," members of nonrecognized tribes have sought the assistance of the federal judiciary to compel the federal government to comply with its trust obligations to all Native Americans. Courts have struggled to decide "whether and to what extent old promises should be honored" to Indian tribes, (4) a question made more difficult when considered as to tribes not recognized by the federal government.

In Part I, I begin the analysis of federal recognition litigation by examining the historical circumstances surrounding the category of "nonrecognized" tribes and outlining the economic and emotional benefits associated with federal recognition. In Part II, I discuss the administrative process by which nonrecognized tribes may become recognized and the specific hardships associated with the process. In Part III, I examine the federal judiciary's response to the litigation efforts of nonrecognized tribes. Although federal courts have pervasively used procedural barriers to judicial review in order to avoid reaching the substantive claims of nonrecognized tribes, recent successful mandamus suits suggest that there is hope for nonrecognized tribal litigants. (5) Finally, in Part IV, I discuss the possible extrajudicial impact of the mandamus suits and their relevance to the future of federal recognition litigation.

1. FEDERAL RECOGNITION

   "Federal recognition" is the legal term of art used to identify those Native American tribes with which the United States government acknowledges a formal government-to-government relationship. Recognized tribes have access to the rights and privileges reserved exclusively for Indians. (6) Tribes that do not have an official relationship with the United States are called "nonrecognized tribes." To appreciate the particular social situation and legal struggles of nonrecognized tribes, it is important to be familiar with the historical circumstances which led to the creation of these categories and understand the rights and benefits currently associated with recognized status.

   1. The Historical Development of the Nonrecognized Indian Tribe

      Nonrecognized tribes are tellingly referred to as the "forgotten people," (7) or "lost tribes." (8) These tribes, however, were not simply overlooked by federal officials. Instead, they were historically excluded from the federal-Indian relationship because: (1) they hid from United States officials after being forced to leave their homelands; (2) they were expressly excluded from Indian reorganization efforts in the 1930s; or (3) their relationship with the United States was expressly terminated by legislative action.

      1. Indian Removal

         Prior to the 1830s, Native Americans inhabited land across the continental United States. In 1830, President Jackson negotiated the removal of eastern Indian tribes to lands west of the Mississippi River. (9) Through force and coercion, eastern tribes were moved to reservations in Arkansas, Kansas, Illinois, and sometimes as far as the Oklahoma Territory. (10) Known as the "Trail of Tears," the journey west killed many Native Americans through exposure or just "plain heartbreak." (11) Although there was no explicit governmental action to remove Indians on the west coast, when gold and other valuable natural resources were discovered, western tribes were likewise forced to leave their homes and move onto reservations. (12) At the time, the United States government assumed that the majority of Native American families would obey the federal removal effort and amicably displace themselves to the reservations. (13) Many Indians decided not to leave their homes and hid instead.

         Believing that "federal policies would be harmful to their tribes ... [and] that [f]ederal agents were corrupt," these tribes developed communities where the natural conditions provided means of shelter and distance from the outside world. (14) A number of tribes built villages on or near "swamps [or] barren lands" in order to avoid contact with federal officials. (15) In a very real sense, "[s]ecrecy meant survival" for these tribes. (16) For them to have been identified by the federal government as Native Americans "would have been for them to die." (17)

         While in hiding, many of these tribes intermarried with other races in the surrounding area. Intermarriage was necessitated by the tribes' desire to remain hidden from the federal government, as well as a way to compensate for the lack of available marriage partners. (18) Through intermarriage, these tribes were able to retain their Indian customs while appearing as members of other races to governmental officials. For instance, many California Indians were mistakenly identified as Mexicans by census takers. (19) Likewise, eastern Indians were "perceived by Whites as mulattoes, mestizos, mixed-bloods, or tri-racial isolates." (20) The federal government has often used the intermarriage of Indian tribes as evidence of their assimilation into white culture. In reality, intermarriage was an explicit survival tactic which allowed Indian tribes "to maintain their identity." (21)

         Whereas Indian tribes that hid from governmental entities made an affirmative decision to sever their ties with the United States government, other tribes were explicitly denied the opportunity to form a relationship with the United States during the Indian sovereignty efforts of the 1930s.

      2. The indian Reorganization Act

         One of the most significant periods in federal-Indian policy began with the 1934 passage of the Indian Reorganization Act (IRA). (22) The purpose of the IRA was to foster Indian self-sufficiency by rehabilitating their economic status and providing the opportunity to become federally chartered corporations. (23) From 1934 to 1953, Indian land was returned, new land was purchased and developed as reservations, and a ten-million-dollar revolving credit line was established for participating tribes. (24)

         Though the purpose of the IRA was to provide federal assistance to "Indian tribes" generally, many tribes were not asked to participate in the reorganization efforts. While some tribes decided to "opt out" of the IRA in order to escape federal supervision and surveillance, (25) many were intentionally excluded. (26) For example, one tribe was excluded because its members had "radios in their homes"; the federal government reasoned that having radios in one's home suggested that these people were "too civilized" to be legitimate Indians. (27) In the end, ninety-nine tribes were organized under the IRA and ninety-six Indian tribes were excluded. (28) All of the tribes that organized became federally recognized tribes, and those that did not remained nonrecognized tribes.

         The 1930s and 1940s were a time of governmental support for Indian sovereignty. Federal policy, however, took a drastic turn in the 1950s when the federal government terminated its relationship with hundreds of Indian tribes.

      3. The Termination Period

         Historically, treaty negotiations were the "accepted method" for establishing a legal relationship between an Indian tribe and the United States government. (29) By signing a treaty, the United States recognized both the sovereignty of Indian tribes and the government's responsibility to protect federal Indian land and provide needed goods and services. (30) Indian treaties provide the greatest legal protection for tribal rights given that these "treaties have the same force and effect as federal statutes," and thus "[a] violation of an Indian treaty is a violation of federal law." (31) Without a recognized treaty, Indian tribes are vulnerable to the loss of sovereignty recognition and federal services.

         In 1953, Congress adopted House Concurrent Resolution 108, which sought to end the provision of federal services and benefits to Native Americans "at the earliest possible time." (32) The federal government officially terminated its relationship with over one hundred tribes and granted states extensive jurisdiction over Indian territories. (33) Many tribes that were fortunate enough to have signed a treaty with the United States suddenly found themselves unrecognized as Native Americans. In California, for example, forty-one Indian tribes had their relationship with the federal government terminated. (34)

         The historical background of nonrecognized tribes varies from tribe to tribe and region to region. In addition to removal, the IRA, and termination of federal assistance, colonial wars so weakened some groups that they were simply overlooked by United States officials. (35) Whatever the historical circumstances that led to their modern situation, all nonrecognized tribes are denied the federal rights, privileges, protections, and status afforded federally recognized tribes.

   2. Legal Privileges for "Indians"

      Federal recognition provides three main advantages to Native American tribes. The first is the federal government's acknowledgment of Indian sovereignty. The second is the receipt of federal services and protections by eligible tribes. The final advantage is the prestige and honor associated with federally recognized status.

      1. Tribal Sovereignty

         Recognition of...