Federal recognition is the formal acknowledgment by the United States that a tribe exists as a sovereign nation with a government-to-government relationship with Washington. For tribes without it, the consequences reach into health care, housing, land, ancestral remains and the right to be consulted. This primer explains how recognition works and why it is so hard to win.
What recognition means
A federally recognized tribe appears on the list of “Indian Entities Recognized by and Eligible to Receive Services from the United States Bureau of Indian Affairs,” which the Interior Department publishes in the Federal Register. More than 570 tribes are on it today. (Bureau of Indian Affairs)
Recognition carries real consequences. A recognized tribe can:
- Receive services from the Indian Health Service and the Bureau of Indian Affairs
- Have land taken into federal trust as a homeland
- Exercise sovereign self-government and be consulted by federal agencies
- Operate gaming under the Indian Gaming Regulatory Act, subject to its rules
- Stand on equal footing with other tribes in matters like the repatriation of ancestors and cultural items
Unrecognized tribes have none of those guarantees, no matter how well documented their history is.
Three roads to recognition
1. Congress. Congress can recognize or restore a tribe by passing a law. In 2018, for example, a single act recognized six Virginia tribes, and Congress recognized the Little Shell Tribe of Chippewa Indians of Montana in 2019. Because it requires both chambers and a presidential signature, this path depends on political support.
2. The Interior Department (Part 83). Since 1978, most tribes have had to petition the Office of Federal Acknowledgment (OFA) under the regulations at 25 C.F.R. Part 83. A petition can take years, sometimes decades, and require thousands of pages of historical, genealogical and anthropological evidence.
3. The courts. Federal courts generally do not recognize tribes themselves. They review whether Interior followed the law and its own rules in reaching a decision, and they can send a decision back for more explanation.
The seven mandatory criteria
Under Part 83, a petitioner must demonstrate all seven criteria, set out at 25 C.F.R. § 83.11:
- (a) Indian entity identification: outside observers have identified the group as an American Indian entity on a substantially continuous basis since 1900.
- (b) Community: the group has formed a distinct community from historical times to the present.
- (c) Political authority: the group has maintained political influence or authority over its members as an autonomous entity throughout that time.
- (d) Governing document: the group has a governing document that describes its membership criteria.
- (e) Descent: its members descend from a historical Indian tribe or from historical tribes that combined.
- (f) Unique membership: its members are not principally members of an already recognized tribe.
- (g) No congressional termination: Congress has not terminated or forbidden a federal relationship with the group.
Since a 2015 overhaul of the rules, OFA reviews petitions in two phases, starting with threshold criteria such as descent before moving on to community and political authority. See, for example, our report on the Fernandeño Tataviam Band’s Phase I finding.
Previously recognized tribes
Tribes that can show “unambiguous previous Federal acknowledgment” are evaluated under modified rules (now at § 83.12). They must prove continuity only from the date of their last federal acknowledgment, not from historical times. That is the framework under which Interior evaluated the Muwekma Ohlone Tribe, which the Department found had been acknowledged as the Verona Band between 1914 and 1927. (Read the Muwekma history)
How a petition moves
- A group files a letter of intent and then a documented petition.
- OFA staff review the petition and identify gaps (technical assistance).
- OFA issues a proposed finding, which opens a public comment period. See our coverage of the Amah Mutsun petition, open for comment until Dec. 21.
- The Assistant Secretary for Indian Affairs issues a final determination, which can be challenged administratively and in federal court.
- For years, a denial was final. Interior now allows some denied petitioners to try again. Read our explainer: How the re-petition door works, and when it closes.
Why California is different
California’s Native peoples were never secured a land base by treaty. The Senate refused to ratify the eighteen treaties negotiated with California tribes in 1851 and 1852. In the early twentieth century, Washington bought small “rancherias” for some landless bands and ignored others. In 1958 the California Rancheria Act terminated dozens of those rancherias, and many were restored only after litigation decades later. The result is a patchwork in which closely related communities can have very different legal status. That history is why so many California tribes, including Ohlone tribes, remain unrecognized today.
Glossary
- OFA: Office of Federal Acknowledgment, the Interior Department office that reviews Part 83 petitions.
- AS-IA: Assistant Secretary for Indian Affairs, who signs final determinations.
- Proposed finding: OFA’s preliminary decision on a petition, published for public comment.
- Final determination: the Department’s decision to acknowledge or decline to acknowledge a petitioner.
- Termination: the ending of a tribe’s federal relationship, usually by act of Congress.
- Restoration: the reinstatement of a terminated or lapsed federal relationship.
Follow every development in our Federal Recognition section.