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Federalism and the State Recognition of Native American Tribes: a Survey Santa Clara Law Review Volume 48 | Number 1 Article 2 1-1-2008 Federalism and the State Recognition of Native American Tribes: A Survey of State-Recognized Tribes and State Recognition Processes across the United States Alexa Koenig Jonathan Stein Follow this and additional works at: http://digitalcommons.law.scu.edu/lawreview Part of the Law Commons Recommended Citation Alexa Koenig and Jonathan Stein, Federalism and the State Recognition of Native American Tribes: A Survey of State-Recognized Tribes and State Recognition Processes across the United States, 48 Santa Clara L. Rev. 79 (2008). Available at: http://digitalcommons.law.scu.edu/lawreview/vol48/iss1/2 This Article is brought to you for free and open access by the Journals at Santa Clara Law Digital Commons. It has been accepted for inclusion in Santa Clara Law Review by an authorized administrator of Santa Clara Law Digital Commons. For more information, please contact [email protected]. FEDERALISM AND THE STATE RECOGNITION OF NATIVE AMERICAN TRIBES: A SURVEY OF STATE-RECOGNIZED TRIBES AND STATE RECOGNITION PROCESSES ACROSS THE UNITED STATES Alexa Koenig* and Jonathan Stein** I. INTRODUCTION The territory that comprises the state of Virginia has been home to Native Americans for hundreds-if not thousands-of years. Documentary and other evidence establishes that Indians were present in the area long before the building of the Jamestown colony. American lore and numerous historic records tell the tale of "Pocahontas," a Native American from present-day Virginia who fascinated London society as early as the 1610s as a tribal member who * Alexa Koenig is an assistant professor at the University of San Francisco School of Law. She earned her B.A. summa cum laude from the University of California, Los Angeles and her J.D. magna cum laude from the University of San Francisco, where she was a Dean's Scholar and Managing Editor of the U.S.F. Law Review. She is currently pursuing her Ph.D. in Jurisprudence and Social Policy at the University of California, Berkeley School of Law. Professor Koenig thanks Professor Peter Jan Honigsberg for his invaluable feedback on earlier drafts of this Article; Rosalie Leung for her research assistance; Don, Alexander and Sophie Mercer for their patience and support; and the Santa Clara Law Review for their careful editing. Any errors within this Article are, of course, the authors' own. ** Jonathan Stein is a trial lawyer in Santa Monica, California. Mr. Stein graduated Harvard College magna cum laude in 1979, and University of Pennsylvania Law School in 1983, where he was an editor of the University of Pennsylvania Law Review. Before beginning his own practice in 1992, Mr. Stein was associated with the New York office of Morgan, Lewis & Bockius, the Los Angeles office of Hughes, Hubbard & Reed, and the Los Angeles office of Brobeck, Phleger & Harrison. More recently, Mr. Stein and the companies he owns have focused on raising development capitol for state-recognized tribes, including $21 million recently obtained for the Gabrielino-Tongva Tribe of Los Angeles County, California. SANTA CLARA LAW REVIEW [Vol:48 circulated among aristocratic society.' Two Virginia tribes, the Mattaponi Indian Nation and the Pamunkey Nation, still live on Indian reservations that have been intact since colonial times.2 Yet, despite the overwhelming evidence of longstanding tribal presence in Virginia, not one of Virginia's tribes is currently recognized by the federal government.' Unfortunately, Virginia's tribes do not have the genealogical records needed to prove their continued, uninterrupted existence-a requirement for federal recognition.4 Their genealogical records were destroyed during the first half of the twentieth century by officials enforcing Virginia's Racial Integrity Act of 1924.1 The Act declared that only "white" and "colored" people existed in Virginia.6 In addition, birth records for Native Americans were changed to indicate individuals were "colored" instead of American Indian, effectively eliminating all documentary evidence of Indians within the state.7 Consequently, even those tribes that have inhabited Virginia's Indian reservations for nearly 400 years have little chance of becoming recognized in the foreseeable future. In New York, adjacent to the well-known Shinnecock Hills PGA Golf Course and the toney residences of 1. Wikipedia, Pocahontas, http://en.wikipedia.org/wiki/Pocahontas (last visited Sept. 22, 2007). 2. Telephone Interview by Alexa Koenig with Deanna Beacham, Va. Council on Indians (July 14, 2006). 3. See National Conference of State Legislatures, State-Tribal Relations: Indian Tribe States, http://vww.ncsl.org/programs/statetribe/tribes.htm (last updated Apr. 2007), for a list of federally recognized tribes. The last list available from the federal government is from 2002, and thus is somewhat outdated. See Notice, Indian Entities Recognized and Eligible to Receive Services from the United States Bureau of Indian Affairs, 67 Fed. Reg. 46,327- 46,333 (July 12, 2002), available at www.census.gov/pubinfo/www/FRN02.pdf (last visited Sept. 22, 2007). 4. 25 C.F.R. § 83.7 (2007) (listing the seven requirements for federal recognition). All seven requirements must be met, or the tribe will not be recognized by the United States, 25 C.F.R. § 83.6 (2007), and thus will not be eligible for the often-critical services and benefits that attend recognition, 25 C.F.R. § 83.2 (2007). 5. For the text of the Act, see Virginia Racial Integrity Act of 1924, An Act to Preserve Racial Integrity, http:://www.vcdh.virginia.edu/lewisandclark/students/projects/monacans/Conte mporary-Monacans/racial.html (last visited July 19, 2006). 6. Telephone Interview with Deanna Beacham, supra note 2. 7. For more information on the Virginia Racial Integrity Act of 1924, see infra Part III.B. 16. 20081 STATE RECOGNITION OF NATIVE AMERICAN TRIBES 81 Southhampton, Long Island, lies the Shinnecock Indian Reservation.8 The reservation was first established in 1703 by lease from the Colony of New York, and is still occupied.' After close to thirty years battling to secure federal recognition through the Bureau of Indian Affairs (BIA), the Shinnecock, like Virginia's tribes, remain unsuccessful." While the United States District Court for the Eastern District of New York recently declared the tribe "recognized" based on overwhelming evidence of its longstanding presence within the state," the BIA argues that the court's judgment does not bind the federal government, and refuses to acknowledge the tribe as eligible for the rights that 12 accompany federal recognition. In Los Angeles County, the Gabrielino-Tongva Indians also remain unrecognized by the federal government, despite a treaty signed with the United States in 1851-one of the famous "18 lost treaties" signed by President Millard Fillmore but never ratified by the Senate" 3- and more than 2800 archeological sites that delineate their history.14 The Gabrielinos cannot realistically expect federal recognition by the BIA any time soon because their petition for recognition submitted two years ago still has not been assigned a number by the BIA's Office of Federal Recognition, indicating any chance of recognition remains decades away. They have yet to even make it onto the list of more than 100 tribes seeking recognition-a line that progresses at a rate of just one or two 8. See Shinnecock Indian Nation, http://www.shinnecocknation.com/history.asp (last visited Sept. 22, 2007) (noting the Shinnecock reservation's location as adjacent to Southhampton). 9. New York v. Shinnecock Indian Nation, 400 F. Supp. 2d 486, 489 (E.D.N.Y. 2005). 10. See, e.g., John Moreno Gonzales, Waiting to be Recognized, NEWSDAY.COM, Jan. 16, 2007, http://www.theverifiabletruth.com/2007/01/newsday-waiting-to-be- recognized.html. 11. Shinnecock Indian Nation, 400 F. Supp. 2d 486 (E.D.N.Y. 2005). 12. See, e.g., Gonzales, supra note 10. 13. See Alexa Koenig & Jonathan Stein, Lost in the Shuffle: State- Recognized Tribes and the Tribal Gaming Industry, 40 U.S.F. L. Rev. 327, 331- 37 (2006). 14. See id.; see also Gabrielino Tongva, Tribal History-Lost Treaty Rights and Current Status, http://www.tongvatribe.org/TribalHistory/tribal-history.cfm (last visited Sept. 22, 2007). SANTA CLARA LAW REVIEW [Vo1:48 tribes per year.15 These are just three examples of the federal intransigence faced by over 200 domestic Indian tribes that seek some form of government-to-government relationship with the United States. The federal government's inability to recognize tribes in a timely manner (or to recognize them at all) increasingly appears to be not so much a policy failure as a policy choice. Following the significant expansion of Indian casinos in the 1990s, tribes have faced increasing opposition to federal recognition due to fears that newly recognized tribes will open Las Vegas-style casinos under authority of the Indian Gaming Regulatory Act (IGRA), 16 a right that comes with federal recognition.' Even federally recognized tribes have begun opposing the recognition of their less fortunate neighbors due to competition based on Indian gaming. For example, in recent cases in Connecticut, gaming tribes have opposed the recognition sought by neighboring Indian groups, presumably because the competition would reduce their casino earnings. i Meanwhile, the Virginia, New York and California tribes mentioned above do belong to a category of tribal governments that is growing in prevalence and importance. These tribes are known as "state-recognized." 11 They are 15. See COHEN'S HANDBOOK OF FEDERAL INDIAN LAW 159 (2005) [hereinafter COHEN TREATISE] (discussing the rate at which tribes have received recognition through the BIA process). 16. Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701-2721 (2000). 17. Id. §§ 2703(5)(A)-(B) (defining Indian tribes able to conduct Las Vegas- style gaming under IGRA as "any Indian tribe .
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