A June 1, 2022, press release from the Grand River Bands of Ottawa Indians claims that internal documents show that federal officials found that the government had found that the tribe meets the necessary requirements for federal recognition, but that the Department of the Interior had failed to act on that finding.
Additional support for this claim comes from Aldo Salerno. He is a historian who worked with the Office of Federal Acknowledgement between 2001 and 2017.
According to these documents, the Grand River Bands of Ottawa Indians met the seven criteria for federal recognition. There was even a favorable vote for granting that recognition at some point in late 2016.
The Department of the Interior has acknowledged the delay and announced that it will issue a decision by October 12, 2022. The Tribe’s pressure on Department of Interior officials has been aided by Michigan’s congressional delegation and the governor herself, Gretchen Whitmer.
What Happened, And Why The Delay?
According to Mr. Salerno’s affidavit, he began in 2012 to conduct research on the Grand River Bands of Ottawa Indians’ eligibility for federal recognition. Mr. Salerno was the head editor and historian of the draft report. He states that he examined thousands of pages of evidence, conducted interviews, and even visited Michigan with a team of anthropologists to dig into other records to determine the Tribe’s eligibility.
In late 2016, the report compiled by Mr. Salerno’s team contained 275 pages of analysis, 375 references, and more than 75 additional pages of biographical references. Following completion of the final proposed finding, it was submitted to the Solicitor’s Office.
There it remained until Mr. Salerno left the Department of the Interior in 2017.
Mr. Salerno’s affidavit states that there were three full drafts of the report, two peer reviews, and a two-thirds majority vote of the staff including the support of the Director, which supported federal recognition of the Tribe.
This amounts to years of work potentially going to waste if the government fails to act on the research.
What Is The Purpose Of Federal Acknowledgment Rules?
Federal recognition is a prerequisite for tribes to receive four things according to the U.S. Code of Regulations. Specifically, it:
- Is necessary to receive the “protection, services, and benefits of the Federal Government” and create a government-to-government relationship with the United States;
- Grants the tribe the same rights as other federally recognized tribes;
- Establishes the same limits as those placed on other federally recognized tribes; and
- Subjects the tribe to the authority of Congress and the United States federal government to the same extent as other federally recognized tribes.
In short, federal recognition effectively allows a tribe to participate in all those programs the federal government has created for other tribes.
The decision to become federally recognized, however, does come with other consequences. It constitutes an acknowledgment and willingness to be placed under Congressional oversight in accordance with federal law.
How Does A Petitioner Obtain Federal Recognition?
The first step for a group looking to obtain federal recognition is to make sure it doesn’t fall into an ineligible category.
This means no associations, organizations, or corporations. It also means it cannot be a splinter group or political faction breaking off from an existing tribe. There are some limited exceptions to both of these rules.
Furthermore, any entity that is banned from engaging in a government-to-government negotiation, or whose rights have been terminated by Congress, is ineligible. Finally, an entity that filed such a petition previously and was denied cannot start the process anew.
Assuming a tribe is eligible under those rules, there are two principal paths to federal acknowledgment:
- It can demonstrate a previous federal acknowledgment. This can be done by showing past treaty relations with the United States, an act of Congress or Executive Order, acts of the federal government which treat the tribe as having collective rights, or showing land held for it or its ancestors by the federal government. The petitioner then needs to establish that it continues to meet community criteria and that it has done so continuously since the previous federal acknowledgment.
- The other option is to meet both the so-called community and political authority criteria.
Thus, the tribe needs to meet the community criteria either way. However, it needs to meet the political authority criteria only if it has never previously received federal acknowledgment.
Community And Political Authority Criteria
The community criteria require a petitioning tribe to show that is a distinct community.
To fulfill the political authority criteria, the group must show an internal power structure whose leaders have had political influence or authority over the community members. It must demonstrate this autonomy and governance via a council, leadership group, or internal process.
In both cases, the group needs to show that it has met the criteria consistently since 1900 or earlier.
The Code of Federal Regulations lays out seven key factors. Mr. Salerno’s affidavit claims that Grand River Bands of Ottawa Indians meets all seven. This would dictate that the tribe should indeed receive federal recognition.
The intent of these seven factors is to demonstrate that the group in question exists as a tribe in practice, and that other groups perceive and interact with it accordingly. Ways of showing this can include:
- Prior relationships with state and local governments
- Identification in historical documents
- Self-identification and internal practices
What Could This Mean For Gaming In Michigan?
Most readers of this site will be interested in the case in terms of what it means for online gaming and sports betting in Michigan.
Federal recognition is a prerequisite for engaging in gaming compacts under the Indian Gaming Regulatory Act.
A favorable decision would permit the tribe to conduct gaming on the same terms as the other 12 already in the state. This would include the right to apply for Michigan online casino and sports betting licenses.
The clock is ticking, however. The federal government has only until October 12 to make its decision.