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Document Type

Article

Publication Date

Spring 2016

Publication Citation

91 Indiana Law Journal 955 (2016)

Abstract

Most descriptions of federal recognition by political scientists, anthropologists, and legal scholars focus on an administrative process run by the Office of Federal Acknowledgment (OFA) within the Bureau of Indian Affairs (BIA). To the extent that scholars discuss the role of Congress in recognizing Indian nations, they suggest that it plays a diminishing one. In fact, this misconception pervades the field. Most scholars assume that Congress has largely ceded control over the recognition of Indian nations to the BIA.

This discrepancy begs the question: Who has it right? Hollywood screenwriters or the academic experts? The answer to this question matters because the stakes of federal recognition are extremely high. The survival of Indian nations depends upon their ability to exercise sovereignty over their territories and peoples. In the United States, such survival is often linked to recognition of the Indian nation by the federal government. Recognition allocates power by confirming the legal status of the Indian nation as a separate sovereign government with legal rights to land, territories, and resources. It also provides the means to economic development through federal grants and loans and funding for cultural programs, educational programs, and social services.

Scholars, policy makers, and American Indian communities deserve a more accurate answer to these questions. The widely-accepted proposition that Congress has relinquished control over recognition merits empirical examination. This Article empirically evaluates this common scholarly wisdom. It contributes to a growing body of empirical research in Indian law and demonstrates the importance of such analyses.

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