Federal Recognition of Tribes: Why it matters

Feb 03, 2020

By Tara Jensen

This December, the Little Shell Tribe of Chippewa Indians became the 574th federally recognized tribe after more than a hundred years of fighting for recognition. Prior to federal recognition, Little Shell was the sole Montana state-recognized tribe. If you want to learn more about the long road to recognition, the Great Falls Tribune wrote an article. The difference between federal and state recognition of tribal nations is important, and the relationship between these governments is best understood in terms of the federal trust responsibility. The federal trust responsibility is the legal obligation of the United States to protect tribal treaty rights, lands, and resources. Once federally recognized, tribal nations have a government-to-government relationship with the United States, have inherent rights of self-government, and are eligible to receive certain federal benefits, services, and protections because of their legal relationship with the United States. Alternative to federal recognition, state recognition acknowledges the political status of a tribal nation and establishes a government-to-government relationship between the state and tribal nation. However, the extent of a state-recognized tribe’s sovereignty and its government-to-government relationship are defined by the state. The rights of state-recognized tribal nations and the procedures to become state-recognized differ by state. Additionally, state tribal recognition does not entail the same benefits as federally recognized tribes, and it does not guarantee funding from the state or federal government. However, tribal nations still seek state recognition because it acknowledges their historical and cultural contributions, and in some cases, state recognition qualifies the tribe for federal and state support. When a tribal nation becomes federally recognized, the U.S. government has legally acknowledged the political status of a tribal nation. Most tribal nations in the United States have received federal recognition through treaties, acts of Congress, Presidential executive orders, or other federal administrative actions or federal court decisions. Through the administrative process, tribal nations may petition the federal government for federal recognition. This process requires applicants to meet seven pieces of criteria to ensure tribal nations are distinct political communities and have existed since before 1900. Despite the process of seeking federal recognition often taking decades, gaining federal recognition is not guaranteed. As domestic dependent nations, tribes are sovereign but remain under the authority of the federal government. The U.S. Constitution’s Commerce Clause is interpreted as granting the federal government, rather than states, plenary power, or complete legal authority to recognize tribal nations as sovereign. The U.S. Supreme Court’s Marshall Trilogy more clearly outlined the relationship between tribal nations and the federal government through the federal trust responsibility. This federal trust responsibility increased federal authority over tribes, situating tribal nations as “domestic dependent nations.” However, tribal nations are outside the jurisdictional scope of states. Although the federal government has plenary power over tribal relations, the Tenth Amendment establishes state sovereignty over any area not preempted by the federal government. Through this legal interpretation of the delegation of federal powers, states have limited authorization to work with tribal nations. The federal government has acknowledged this state authority by providing some benefits to state-recognized tribal nations and by having states decide which tribal nations are recognized within state borders. Tribal nations’ fight for sovereignty and rights is ongoing, and the process of federal recognition continues to be a challenge for many. The federal recognition of the Little Shell Tribe of Chippewa Indians is a significant victory for its tribal citizens and merits acknowledgement from all.