The Secretary of the Interior established the Federal Acknowledgment regulations in 1978 in order to provide standardized criteria and a systematic process for extending Federal recognition as a tribe to unrecognized Indian groups. Prior to that time, the standards used to make such determinations were often irregular. They were also inconsistently applied in a shuffling of case law, Congressional legislation, and the policies and actions of the Department of the Interior. The Department had before it at that time petitions for recognition from 40 tribal groups. These petitions all became subject to the new Acknowledgment regulations.

There is no Act of Congress that specifically authorized the Secretary of the Interior to recognize tribal groups under the general authority granted that official over Indian Affairs. However, both Congress and the Federal courts have accepted the Secretary's acknowledgment of tribal groups as federally recognized tribes.

Federal acknowledgment entitles previously unrecognized Indian groups to the powers, protections, services, and benefits that the Federal Government extends to or recognizes in tribes. Recognized tribes are entitled to special status under Federal law and procedures by virtue of their existence as sovereign entities that have a government-to-government relationship with the United States. These may include funding for governance, economic development, and health, education, and welfare services. They also often include immunities from some controls by State and local governments and unique Federal privileges for individual tribal members, such as preferential employment, business opportunities, and scholarships.

Federal acknowledgment also places responsibilities, obligations, and limitations on tribal groups. They become subject to the same authority that Congress, various Executive Branch departments, and the Federal courts have over federally recognized tribes.

The Federal Acknowledgment criteria place a heavy, and perhaps excessive, evidentiary burden on tribal groups. At their core the requirements demand that marginalized people who seldom kept good records extensively document their tribal and family histories and describe in detail their social and political relations since first sustained contact with Euro-Americans.

The evidentiary burden for both petitioners and interested parties has increased over the years as the Department has established new precedents for analysis and evaluation in its decisions. One need only compare the size of early documented petitions, interested party submissions, and Departmental findings with those of recent years to measure the escalation of required evidence. The Department's first summary of evidence and recommendations for a Proposed Finding (Grand Traverse Band of Ottawa and Chippewa, 1979) totaled 67 pages. Its summary of evidence and recommendations for a Proposed Finding for the Nipmuc Nation in 2001 ran to approximately 455 pages. Both of these documents were in single-spaced type. In response to this negative Proposed Finding, the Nipmuc petitioner submitted narrative reports that totaled approximately 900 pages (double-spaced) and a digital database containing in excess of 15,000 documents. As interested parties, the Towns of North Stonington, Ledyard, and Preston, Connecticut submitted comments on the Proposed Findings for the Eastern Pequot/Paucatuck Pequot petitions in an August 2001 report that totaled 379 pages (double-spaced). The documents submitted by the towns in support of this report filled several binders.

In addition to establishing a heavy evidentiary burden, the Acknowledgment regulations are complex, convoluted, and beyond the ability of most readers to fully grasp. Above all, they fail to communicate how the Department really interprets the mandatory criteria and the evidence necessary to meet the requirements. To this end, the Department issued Official Guidelines for the Acknowledgment process in September 1997. However, in its attempt to dummy down the regulations, these guidelines oversimplified the criteria and process to the point of being unrealistic. For example, the guidelines suggest that petitioners can easily document a petition through volunteer efforts of their members and that professional help is not necessary. Yet, no petitioner has ever succeeded without professional help and if professional consultation is not necessary in the process, then why does the OFA employ a staff of Ph.D.s to evaluate petitions?

The Acknowledgment regulations establish that the Department must provide technical assistance to petitioners and interested and informed parties, and the Department encourages all parties to request such assistance. However, the reality is that the Department is notoriously unresponsive and unhelpful, and it is difficult to establish any meaningful dialogue on Acknowledgment issues. It is hard to schedule meetings or conference calls and it can take weeks or months for the Department to respond to a letter.

The OFA thinks that it is providing guidance in its Technical Assistance letters to petitioners, but most readers of these TA letters probably also need a weeklong seminar with the authors to understand what the OFA is trying to communicate. Much of the OFA's advice to petitioners and interested and informed parties is neither clear, cooperative, nor realistic. The best opportunity that interested parties have to obtain technical assistance from the Department regarding a particular petition is when they or the petitioner request a formal on-the-record meeting to inquire into a Proposed Finding (see 25 CFR 83.10(j)(2). Such a meeting, held over two days in August 2000, was particularly beneficial for the interested parties in the Eastern Pequot case that requested it and that ultimately succeeded in convincing the Department to decline acknowledgement to the petitioners.

The best way that anyone can begin to gain a realistic comprehension of how the Department interprets and applies the Acknowledgment procedures and requirements today is by thoroughly reviewing the findings and determinations it has issued since 2000, as well as the decisions issued by the IBIA since that time, and the procedural notices that the Department published in the Federal Register in 2000 and in 2005. The questions that remain after such a review should then be directed to the Department. Among the weaknesses of the Juaneno petitioners is the obvious fact that they have not kept abreast of changes in the way that the Department interprets and applies the Acknowledgment regulations.

On top of being burdensome and convoluted, the Acknowledgment regulations created a process that has lacked the personnel, almost since the beginning, to render timely decisions. As is explained in more detail below, the Department's caseload of documented petitions is now incredibly backlogged, to the point that the acknowledgment of tribal groups is probably the slowest administrative process in all of the Federal Government.