When a Tribal Entity Becomes a Nation: The Role of Politics in the Shifting Federal Recognition Regulations

Abstract

Before a tribal entity can exercise the privileges and immunities of external sovereign status, they must first be recognized by the United States. For a variety of reasons, some legitimate tribal entities remain unrecognized today. The Department of the Interior has created a federal acknowledgment process under 25 C.F.R. Part 83, providing a procedure for a petitioning Indian entity to establish federal recognition. Reaching beyond a discussion of the overarching federal acknowledgment process this paper delves into the application of politics on the Department of the Interior's administrative actions. This article explores how each presidential administration has both shaped and bent the federal recognition regulations to fulfill its political priorities. By merging a quantitative analysis of each administration's federal recognition record and the political realities that each administration faced, this study provides a rare inquiry into the political nature of the recognition process. First, this article examines the regulatory history of federal recognition, including a detailed discussion of various versions of the regulation and accompanying guidance published by the Department of the Interior (DOI). Then the article provides an overview of how politics play into the regulatory process and the implementation of regulation. Finally, the article revisits each administration's actions related to federal recognition, and considers how each administration has utilized these regulations to serve its own political priorities.