In the 1970s, the number of requests for tribal recognition by the Department of the Interior (Department) increased exponentially in the wake of the decisions in United States v. Washington , which recognized tribal treaty fishing rights in the Pacific Northwest, and Joint Tribal Council of Passamaquoddy v. Morton , which recognized a tribal land claim on the East Coast. Faced with many requests for tribal recognition, in 1978, the Department adopted a uniform process and uniform criteria for considering whether a group should be acknowledged as an Indian tribe. One scholar on tribal acknowledgment explains the significance of tribal recognition as follows:
An administrative determination that a group is a tribe (i.e., that it merits federal acknowledgment or recognition) establishes a government-to-government relationship between it and the United States. General prohibitions or limitations also apply to federally recognized tribes. The Acknowledgment Process

The process set forth in 25 C.F.R. Part 83 includes procedures that the Department must follow and establishes the burden of proof for petitioners and the criteria that Indian groups must satisfy in order to be acknowledged as Indian tribes. The acknowledgment process is available to "American Indian groups indigenous to the continental United States." Only "groups that can establish a substantially continuous tribal existence and which have functioned as autonomous entities throughout history until the present" may be acknowledged. The Office of Federal Acknowledgment (OFA) reviews the documented petition and makes recommendations to the Assistant Secretary—Indian Affairs (Assistant Secretary). Section 83.7(a) requires that the group "has been identified as an American Indian entity on a substantially continuous basis since 1900." Section 83.7(c) requires that "[t]he petitioner has maintained political influence or authority over its members as an autonomous entity from historical times to the present." Section 83.7(d) requires the petitioner to provide a copy of the governing document, including membership criteria. Descent from an Indian Tribe

25 C.F.R. 83.7(e) requires that the petitioner's membership consists of individuals who descend from a historical Indian tribe or from historical Indian tribes that combined and operated as a single entity. Second, the petitioner needs to demonstrate only that it is presently a community. Review of the Documented Petition

			Expedited Negative Determinations

After technical assistance but before active consideration of the petition, the team within OFA reviews any petitions that it believes contains little or no evidence that establishes that its members descend from a historical Indian tribe or tribes; its members are not members of a federally recognized tribe; and it has not been the subject of congressional termination. The Assistant Secretary has discretion to extend this period depending on the extent of the comments received in response to the proposed finding. The Department does not defend the final determination during the reconsideration process. Changes to the Criteria

The proposed rule would make several changes to the criteria. First, the proposed rule would change criterion (a) from identification as an Indian entity from 1900 to the present to a narrative explaining, and proof of, tribal existence at some point in 1900 or before. Criterion 83.7(f) requires that the petitioner is composed principally of persons who are not members of federally recognized tribes. Under the current practice, OFA makes recommendations to the Assistant Secretary, whom the current regulations charge with making proposed findings and final determinations. Under the proposed rule, OFA would issue proposed findings and the Assistant Secretary would make final determinations. The Assistant Secretary's decision would be final for Interior, with no consideration by the IBIA. The proposed rule would provide for consideration of the criterion in stages and provide that petitioners receiving a negative proposed finding at any stage could appeal the finding to a judge within the Office of Hearings and Appeals (OHA). The OHA judge could hold a hearing and would issue recommendations for the Assistant Secretary to consider in making the final determination.
In 1978, the Department of the Interior (Department) adopted a final rule setting forth the process by which a group may be recognized (also acknowledged) as an Indian tribe by the Department. Prior to that time, the Department made decisions on an ad hoc basis. However, in the wake of the treaty fishing rights case United States v. Washington and eastern land claims, more groups started seeking recognition as Indian tribes, and the Department could no longer manage the recognition requests on a case-by-case basis. The acknowledgement process, codified in 25 C.F.R. Part 83, sets forth a uniform process and uniform criteria for acknowledging that groups exist as Indian tribes.
The key to federal acknowledgment under the current regulations is continuous political existence of an Indian group from historical times to the present. The federal acknowledgment process does not create tribes, and it does not give groups sovereignty. Rather, it acknowledges a political entity that already exists. To do this, 25 C.F.R. Section 83.7 provides seven mandatory criteria that groups must satisfy in order to establish that they exist and have existed as an autonomous political entity. First, in order to be acknowledged, a group must establish that it has been identified as an Indian entity from 1900 to the present. Second, it must establish that it has existed as a community from historical times to the present. Third, it must establish that it has exercised political control over its members from historical times to the present. Fourth, the group must provide a copy of its governing document, including membership criteria. Fifth, the group must establish that its members descend from a historical Indian tribe or historical Indian tribes that combined and functioned as a single autonomous political entity. Sixth, the membership must be composed principally of persons who are not members of a federally recognized tribe. Finally, the group must establish that it is not the subject of congressional legislation terminating or forbidding the federal-tribal relationship.
The current regulations assign responsibility to the Assistant Secretary—Indian Affairs (Assistant Secretary) to issue initial proposed findings and then final determinations. The Office of Federal Acknowledgment (OFA) makes recommendations to the Assistant Secretary on the proposed findings and the final determinations. A final determination may be appealed on limited grounds to the Interior Board of Indian Appeals.
Acknowledgment as an Indian tribe means that the group becomes a federally recognized tribe with which the United States has a government-to-government relationship. This relationship makes the tribe and its members eligible for certain benefits, as well as subject to certain protections. It also means that the tribe may exercise jurisdiction over its territory and members generally free from state law, subject to limitations of federal law.
After years of criticism of the acknowledgment process, the Department of the Interior has proposed several changes to the acknowledgment regulations. First, the proposed rule would change some of the criteria. Second, the proposed rule would assign responsibility for the proposed findings to OFA but keep responsibility for the final determinations with the Assistant Secretary. In rendering the proposed finding, OFA would consider the criteria in stages. Petitioners could appeal a negative proposed finding at any of the stages. The appeal would be heard by a judge within the Office of Hearings and Appeals (OHA) who would issue a recommended decision for the Assistant Secretary to consider in issuing the final determination. The Assistant Secretary's decision would be final for the Department.