Trump Memo Delays New Rule Giving Native Tribes Another Shot at US Recognition

Feb. 13: This story was updated to reflect the news that the rule change was being delayed while the Trump administration reviews it.

For decades, Native American tribes that unsuccessfully petitioned for federal recognition have been barred from trying again. The Biden administration, in its final months, moved to lift that ban, but federal officials on Thursday delayed the change a day before it was set to take effect — and some in Indian Country say they’re holding their breath.

“We’re living in somewhat unprecedented times of pushing the boundary of executive authority over a variety of things,” Elizabeth Reese, a Stanford Law School professor and citizen of the Nambé Pueblo, told KQED before the rule change was delayed. “I think we’re all watching to see if the [Trump] administration continues the Biden administration policy on lifting that ban for re-petitioning and know that this is something that a lot of tribes are watching for — and that it means a lot to them to be able to re-petition their federal recognition.”

So far, officials under President Trump have not given any indication whether they will ultimately keep the rule change, but the Bureau of Indian Affairs published a document (PDF) on Thursday in the Federal Register that delayed lifting the ban on re-petitioning until March 21 while the Trump administration reviews it.

Federal recognition designates a tribe as a sovereign nation and gives it access to federal resources it wouldn’t otherwise be eligible for. Petitioning, an administrative process within the Department of the Interior’s Office of Federal Acknowledgement, is the most common of the few ways tribes can presently get recognition — including through a congressional act and a federal court ruling — but it’s also notoriously lengthy and complicated.

Tribes can wait years before their petitions are denied, exhausting appeals, and then — since explicitly being banned in 1994 — being left with no way to petition again.

That’s been the case for the Muwekma Ohlone Tribe in the Bay Area, which was denied in 2002.

Chairwoman Charlene Nijmeh said deciding to re-petition is not so simple.

“It’s not a promise,” she said. “The question I have is: Are these the same people — which I know they are in the [Interior Department’s] Office of Federal Acknowledgement — are those the same people determining our petition again, who determined it the first time when they gave us the denial?”

That doesn’t mean Nijmeh is opposed to removing the ban on re-petitioning, though.

“For too long, the recognition process has been broken and has led to deeply unjust determinations that are not rooted in fairness or even the public interest,” Nijmeh wrote in a letter to Bureau of Indian Affairs administrators ahead of the change that she shared with KQED. “This rule change will make just a little bit fairer, creating a narrow window for justice.”

Another attempt to do away with the ban in a 2015 final rule failed. That was until a 2020 federal court ruling found that the Department of the Interior’s reasons for implementing the ban were “arbitrary and capricious,” leading the Interior Department to reconsider the ban.

Muwekma would be one of more than 30 tribes, including four in California, that would be able to re-petition for recognition if the rule change goes into effect.

Bureau of Indian Affairs Director Bryan Mercier, in Thursday’s Federal Register document, said the rule change was delayed because of a Trump memo on a “regulatory freeze” issued on his first day in office, requiring all executive agencies and departments to consider postponing final rules 60 days from its effective date.

“Whether to allow re-petitioning is a policy determination that falls within the scope of ‘the management of all Indian affairs,’ and the new administration needs time to review the policy determination, consistent with the direction set forth in the [presidential memo],” Mercier wrote in the document.

Representatives from the Department of the Interior and Bureau of Indian Affairs did not respond to requests for comment.

So far, the Trump administration has not given any indication whether it will keep the rule change or otherwise delay it.

Since the process was created in 1978, only 18 of the country’s 574 federally recognized tribes have gained recognition through petitioning. Most came through signing treaties — an option that is no longer available.

The Pamunkey Indian Tribe in Virginia most recently received acknowledgment through the process in 2016. President Donald Trump also signed an executive order on one of his first days asking the Department of the Interior to create a plan for recognizing the Lumbee Tribe of North Carolina, which has long sought the designation but has faced pushback from other tribes over the legitimacy of its claim to Native identity.

Even if the re-petitioning rule change does eventually take effect, Reese, the Stanford law professor, said the Trump administration’s attempts to slash government bureaucracy won’t likely help the complicated federal recognition process.

Meanwhile, questions over the administration’s attempts to freeze federal funding and eliminate diversity initiatives stirred uncertainty among tribal leaders. Last month, however, Secretary of the Interior Doug Burgum signed an order that excludes tribal nations from Trump’s directives targeting “Diversity, Equity and Inclusion and Gender Ideology Extremism.”

Matthew Campbell, deputy director of the Native American Rights Fund and member of the Native Village of Gambell, said it’s still too early to see how Burgum might lead the Department of the Interior, which houses the Bureau of Indian Affairs.

“It’s important that we always remind the administration of the important relationships that tribal nations have with the United States and the unique history and political nature of that relationship,” Campbell said, “and the unique obligation that the United States has to consult with tribal nations before they take action that may harm or affect tribes.”

Trump’s new leadership has a variety of relationships with Indian Country. Homeland Security Secretary Kristi Noem was banned from all tribal lands in her home state of South Dakota until one tribe lifted its order days before her confirmation hearing. Robert F. Kennedy Jr., Trump’s nominee to lead the Health and Human Services Department, was endorsed by some tribal nations during his failed presidential campaign and candidacy for the Cabinet post.

Reese said some of Trump’s policies actually align with Indian Country needs. Shrinking the size of the federal government, for example, “actually does need to happen in Indian Country,” she said, and giving “more freedom and flexibility to tribes in how they spend federal dollars is good policy.”

“The concern is that the dollars themselves are still incredibly vital,” she continued. “I worry that in cutting inefficient bureaucracies, Trump will go beyond that and cut what he thinks are unnecessary programs that are, in fact, very necessary to the health and safety of Native people across the country.”

For the Muwekma, tribal leaders have since turned to trying to gain recognition through an act of Congress, with Nijmeh even unsuccessfully running for a South Bay seat in last year’s March primary. Pushback, including from federally recognized tribes, has stalled their efforts.

Much of the pushback from lawmakers centered on concerns about tribal gaming in the Bay Area and keeping the recognition process fair for all tribes.

“Because other members of the Bay Area congressional delegation share my concerns about gaming, the Tribe’s decision has left us at an impasse,” former Rep. Anna Eshoo wrote in an Aug. 22 letter to the San José City Council, “and prevented us from engaging constructively on the complex underlying issue of whether legislative recognition should be pursued at all.”

Rep. Zoe Lofgren, who Nijmeh ran against in that March primary, also called a San José City Council resolution urging congressional action “misleading.”

Nijmeh told KQED that building a casino is not why the Muwekma want federal recognition, but they also don’t want to give up that right.

“It is our right, as a sovereign, to use that economic tool if we choose to do it. And that is the word: ‘choose,’” Nijmeh said. “Our current administration is not looking at that right now. We’re focusing on keeping our 614 tribal citizens in our homeland, being able to buy or acquire land to build our native village, to keep our children here.”

The resolution in San José ultimately died. A similar Richmond City Council resolution to support the tribe’s bid — brought forward by former Councilmember Gayle McLaughlin, who told KQED ahead of the vote that she had no worries about gaming — was postponed indefinitely last month.

In response to opposition to the tribe’s efforts, Nijmeh said the tribe’s spirit “will never die.”

“I pray this time it will be different,” Nijmeh said in that letter to the Bureau of Indian Affairs. “But either way, Muwekma Ohlone is a Sovereign Nation, and we will continue to be one.”