Quest for federal recognition through Congress pits tribes against tribes

California’s Bay Area congressional delegation has a dilemma in the form of a tireless tribal chairwoman named Charlene Nijmeh.

Ms. Nijmeh is waging a high-octane public relations campaign to regain federal recognition for the Muwekma Ohlone, a San Francisco area tribe of about 600 that lost its status in 1927 after erroneously being declared “extinct.”

Ms. Nijmeh is calling on lawmakers to sponsor legislation that would restore the tribe’s standing, but aiding her would alienate other California tribal nations that want such decisions left to the Interior Department’s Office of Federal Acknowledgment, which denied the Muwekma Ohlone’s petition in 2002.

“The tribe has always been in contact with our delegation throughout the decades, and they know our struggles,” Ms. Nijmeh told The Washington Times. “But the problem now is, I believe, they’re being influenced by the gaming tribes not to recognize Muwekma.”

Politicians prefer to steer clear of tribal infighting, but some lawmakers have been caught in the middle as frustrated unrecognized tribes turn to Congress to gain federal status and the recognized tribes push back.

A coalition of 141 of the nation’s 574 federally recognized tribes took the extraordinary step of releasing a video in November opposing two Senate bills that would have granted recognition to the Lumbee Tribe of North Carolina and the MOWA Band of Choctaw Indians.

“All we’re asking is, go through the process, prove who you are, prove your identity,” Richard French, chairman of the Eastern Band of Cherokee Indians Tribal Council, said in the video. “Don’t ask someone to circumvent the process just to put it in there for political gain. That’s not right.”

Both bills died at the end of the last congressional session, but the fight wasn’t over. Last week, North Carolina Republicans reintroduced the Lumbee recognition bill, marking the 31st time the legislation has been filed since 1988.

For U.S. tribes, federal recognition is the golden ticket to legal status, federal support and tax benefits — not to mention the opportunity for generational wealth in the form of casino gambling on Indian reservations.

Gaining federal recognition isn’t easy, but the government offers three paths.

Along the administrative route, tribes petition the BIA’s office of federal acknowledgment. The detailed, time-consuming process is more likely to result in failure than success, but rejection can be appealed in court.

Then there’s Congress. Kathryn Rand, a law professor who works with Steven Light as co-director at the Institute for the Study of Tribal Gaming Law and Policy at the University of North Dakota, said the congressional route has at least two advantages.

“First, although the Interior Department has made improvements to the federal regulations governing the federal tribal recognition process, it can still be a lengthy and burdensome process for a tribal group,” Ms. Rand said. “If a tribal group has support in Congress, it may be that the tribe can achieve federal recognition via federal statute more quickly and with fewer costs.”

The criteria include proving that a tribe has existed as a distinct, continuous community since 1900, that it has maintained political influence or authority, and that its members descend from a historical Indian tribe and don’t belong to other tribes.

The Supreme Court decided in Carcieri v. Salazar in 2009 that the Interior Department may take land into trust for tribes only if it was recognized before the 1934 Indian Reorganization Act, a prerequisite for Indian gambling, unless Congress intervenes.

“Congress, of course, retains authority to take land into trust and can direct the secretary to do so,” Ms. Rand said. “So if a tribe achieves federal recognition via federal statute, Congress can include a provision in that statute that directs the interior secretary to take land into trust, bypassing any Carcieri issue for a newly recognized tribe.”

An estimated 400 tribes are unrecognized, and many of them have organized as 501(c)(3) nonprofits. Some are virtually indistinguishable from recognized tribes because they offer services to their members, hold regular meetings and events, and receive limited federal support.

For established tribes, the unrecognized bands can be headaches at best and threats to tribal sovereignty at worst.

Ben Barnes, chief of the Shawnee Tribe of Oklahoma, said 36 unrecognized Shawnee groups with nonprofit status “pose” as tribal representatives at historic sites, universities and state historical societies, “causing significant harm to our identity, culture, and reputation.”

“Unlike many tribes approved by Congress, these groups do not have clear, documented tribal histories,” Mr. Barnes said in an op-ed in Indianz.com. “The questions about their history of governance as a people extend well beyond Congress’ ability to answer.”

He warned that legislation conferring federal status on tribes unable to satisfy the BIA’s requirements “represents a clear and present danger to every legitimate tribe across the nation.”

“While Congress did the right thing by federally recognizing our tribe, it can do demonstrable harm to all federally recognized native nations if it circumvents the Office of Federal Acknowledgment process and recognizes outside groups with questionable histories through congressional approval,” Mr. Barnes said.

The Muwekma Ohlone’s Ms. Nijmeh chalked up the opposition to self-interest. She said the explosion of casino gambling after the 1988 Indian Gaming Regulatory Act took effect essentially split Indian Country into the haves and have-nots.

“Here we are today, still fighting for our rights to be a sovereign nation,” said Ms. Nijmeh. “And now it’s even worse because we have our own brothers and sisters pushing against us because of economic development.”

After California Sen. Dave Cortese, a Democrat, sponsored a bill last year to give state recognition to the Muwekma, the Tribal Alliance of Sovereign Indian Nations and California Nations Indian Gaming Association countered that the state “lacks the historical record, experience, and trust responsibility” to make such decisions.

“This must remain a question between tribal petitioners and the federal government,” the groups said in an April 2022 letter. “Anything less dilutes and diminishes the sovereignty of all tribal governments across America.”

The state committee declined to vote on the bill, prompting Ms. Nijmeh to accuse lawmakers of ignoring the “overwhelming evidence” and instead bowing to political pressure from established tribes.

“Today we face another injustice,” she told the committee. “Your refusal to vote on our resolution is evidence plain as day that it has never been about our evidence; it’s been about the politics.”

Like her mother, a tribal leader who was jailed for hitting an archaeologist with a shovel in a dispute over burial grounds, Ms. Nijmeh isn’t one to pull her punches.

She lined up a meeting with the Bay Area delegation in Washington after a newsy-looking tribe-supported website called the San Francisco Inquirer began running scathing headlines attacking lawmakers such as U.S. Reps. Anna Eshoo, Ro Khanna and Zoe Lofgren, all California Democrats.

Rep. Eric Swalwell, another California Democrat, advised her to tone down the rhetoric.

“It seems like on a lot of these issues, there’s a lot of support in this room, but there’s going to have to be a reset on your side of the arrows that are being aimed at my colleagues,” Mr. Swalwell said in an audio of the Jan. 11 meeting posted on the tribe’s website.

He said his staff was told “you should take this meeting because if you don’t, you’re going to get the same treatment that Zoe Lofgren got. I’ve never seen anything like that before in a meeting request.”

Ms. Nijmeh ticked off her list of supporters, including university groups and churches, but Ms. Eshoo cut to the chase by asking, “Do you have all the other tribes of California supporting you?”

Ms. Nijmeh replied: “Well, unfortunately, it’s not that way because of special interests. It’s so sad. Let’s put it out there: Gaming has divided our own community.”

The last time Congress passed a recognition bill was in 2019 when six Virginia tribes gained federal status. The catch: All six were prohibited from offering gambling.

Would the Muwekma be willing to forgo gambling? Ms. Nijmeh said she personally opposes gambling and the tribe has no plans to offer it, but such a bargain would tie the hands of future generations and make them “less of a tribe.”

Ms. Nijmeh doesn’t have her bill so far, but she is hopeful. The tribe strengthened its hand last year when researchers at Stanford University and the University of Illinois connected DNA from current members to human remains dating back 1,900 years from an Alameda County ancestral burial site.

“So we know where we come from. We know who we are,” she said. “But it’s not about the evidence. It’s politics here. We need to motivate and get our legislators to do the right thing.”