You asked (1) why the Mashantucket Pequot Tribe was federally acknowledged by legislation rather than through the Bureau of Indian Affairs (BIA) administrative process, (2) whether Congress or the courts can rescind acknowledgment, and (3) whether the tribe ever presented genealogical information to Congress or the BIA.

SUMMARY

Congress or the executive branch can grant federal acknowledgment (also known as federal recognition) to Indian tribes. Federal courts have also determined tribal status for purposes of the cases before them, usually involving the applicability of a statute to a tribe or the eligibility for certain government services.

Congress granted federal acknowledgment to the Mashantucket Pequot Tribe through the Mashantucket Pequot Settlement Act. According to the act's legislative history, federal acknowledgment was part of the compromise negotiated by the parties to settle a lawsuit brought by the tribe involving land claims. Congress has acknowledged a number of tribes in recent years as part of legislation resolving land claims by tribes. Attached is OLR report 84-R-0624 which summarizes the federal legislation.

It appears that Congress has the power to rescind acknowledgment of a tribe. Congress did so with a number of tribes in the 1950s and 1960s under an assimilation policy that terminated the federal government's responsibilities for tribes. It is unclear whether federal courts can limit Congress' authority to acknowledge Indian tribes. In an old case, the U.S. Supreme Court stated that Congress cannot arbitrarily acknowledge any group of people who claim to be Indian (U.S. v. Sandoval). But we could not find any cases where a federal court overturned a Congressional or BIA decision to acknowledge a tribe. We found one federal district court in Arizona that considered the issue. The court concluded that it could overturn a determination to acknowledge a tribe if it was "a heedless extension and a manifestly unauthorized exercise of power" (Masayesva v. U.S.).

We are continuing to research whether the tribe presented genealogical information to Congress or the BIA and will provide you with an answer as soon as possible.

ACKNOWLEDGEMENT BY CONGRESS AND THE BIA

Throughout U.S. history, Congress, the executive branch, and federal courts have acknowledged tribes. Tribes were often acknowledged for specific purposes, leaving some tribes acknowledged for some purposes but not for others. Before the adoption of acknowledgment regulations by the BIA in 1978, there was no uniform method for federal acknowledgment of Indian tribes. Under the regulations, acknowledgment is for all purposes.

Congress has "plenary power" concerning Indian affairs, drawn from the U.S. Constitution's grant of authority to Congress to "regulate commerce with foreign nations, among the several states, and with Indian tribes" (U.S. Constitution Art I, § 8). Congress has acknowledged a number of Indian tribes in recent years.

Congress acknowledged the Mashantucket Pequot Tribe in the Mashantucket Pequot Settlement Act (25 USC § 1751 et. seq.). The act's Congressional findings state that:

1. there is a lawsuit in federal court involving claims by the tribe to public and private land in Ledyard, Connecticut;

2. the lawsuit placed a cloud on the titles to much of the land in Ledyard, including land not involved in the suit, that created severe economic hardship for town residents;

3. Congress, the state of Connecticut, and the parties to the lawsuit desire to remove all clouds on titles from Indian claims;

4. the parties and others interested in the settlement of the land claims reached an agreement requiring implementation by Congress and the Connecticut legislature;

5. the Western Pequot Tribe represented by the Mashantucket Pequot Tribal Council is the successor to the entity that claimed aboriginal title to certain lands in Connecticut; and

6. based on Connecticut's contribution of 20 acres of land, road construction and repair, and its provision of past services to the tribe not required by federal law, Connecticut is not required to contribute otherwise to the settlement.

A committee report on the bill states that its purpose is to ratify and implement the settlement of land claims and damages from land transfers that violated federal law. It states that the tribe, the private landowners, and the state of Connecticut negotiated the settlement. It states that the lawsuit placed a cloud on the land titles of private property owners in the claims area and litigation would address a wide variety of new legal issues that could lead to many appeals and take many years. As a result, the report states that property owners would find transactions relating to the land or its natural resources impeded or frustrated by the claim (Senate Report No. 98-222).

Several legislators discussed the need to settle the land claims and the parties' agreement to the settlement. Representative Udall, in House debate on the first version of the act, stated that the act met the Interior Committee's criteria for settlements: the claim was credible, the settlement terms were reasonable, the affected parties generally agreed to the terms, and state and local communities made a significant contribution to the settlement (Congressional Digest-House, March 22, 1983, p. 6443).

Representative Nancy Johnson directly addressed the question of federal recognition in a House debate on the first version of the act:

"Recognition of an Indian tribe by act of Congress is admittedly an unusual procedure but it is essential in the settlement of a claim by Congress. Without this federal recognition, the United States, the State of Connecticut, and innocent landowners would remain vulnerable to future suits raised by groups purporting to be the Pequot Tribe. Whatever the merits of the federal recognition project administered by the Bureau of Indian Affairs, it should not stand as a bar to the designation by Congress of one of the principal parties to the settlement. Federal recognition is essential to a final settlement of the claims." (Congressional Record-House, March 22, 1983, p. 6445).

RESCINDING ACKNOWLEDGMENT

It appears that Congress could rescind acknowledgment. Christopher Ford, in a law review article, states that "there would seem to be no check upon the ability of the political branches of the United States government [Congress or the executive] to recognize, or to de-recognize, Indian tribes (Christopher A. Ford, "Executive Prerogatives in Federal Indian Jurisprudence: The Constitutional Law of Tribal Recognition," 73 Denv. U. L. Rev. 141 (1995)).

In the 1950s and 1960s, Congress terminated the special relationship between the United States and some tribes as part of an assimilation policy. Between 1954 and 1964, Congress passed 14 acts that ended federal acknowledgment for 109 Indian tribes and bands. Congress later restored federal acknowledgment to some of these tribes and repealed the termination of others.

Federal courts may have some power to limit Congress' authority to acknowledge Indian tribes. In an old case, the U.S. Supreme Court stated that Congress cannot confer federal acknowledgment arbitrarily by calling any group of people an Indian tribe (U.S. v. Sandoval, 231 U.S. 28 (1913)). In a 1962 case not involving acknowledgment, the Court discussed this issue and stated that "the courts will strike down any heedless extension of that label. They will not stand impotent before an obvious instance of a manifestly unauthorized exercise of power..." (Baker v. Carr, 369 U.S. 186 (1962)). More recently, in a different context, the Court ruled that there is a limitation on Congress' power to regulate Indian affairs. The Court stated that use of this power must be rationally related to the purposes of the government-to-government relationship (Delaware Tribal Business Committee v. Weeks, 430 U.S. 73 (1977)).

We could not find any cases where a federal court overturned an acknowledgment of an Indian tribe by Congress or the BIA. One federal district court in Arizona considered the validity of the BIA's decision to acknowledge the Paiute Tribe. The court stated that most courts give great deference to congressional and executive determinations of tribal status. The court concluded, citing Sandoval, that it could overturn federal acknowledgment only "if the determination was a heedless extension and a manifestly unauthorized exercise of power" and it upheld the BIA's decision (Masayesva v. U.S., 792 F.Supp. 1178, 1185 (D. Arizona 1992)).

CR:ro