These days, federal recognition of tribal groups is always about gaming.  Here's what we mean by that: Even if the tribal group is not motivated by gaming, outsiders will think it is.  Indian gaming unquestionably has politicized federal recognition.  We think that much of the politics surrounding federal recognition and Indian gaming results from lack of knowledge or understanding of how the federal acknowledgment process actually works.  So, here are some basics on federal acknowledgment of Indian tribes.

First, this is a power that Congress has claimed, relying on the so-called Indian Commerce Clause in the Constitution.  It's an exclusively federal power, meaning that only the federal government has the power to give tribes formal recognition or acknowledgment on behalf of the United States.  Sure, there are state-recognized tribes, but those tribes are not federally recognized as far as the federal government is concerned.  (And state-recognized tribes do not meet the definition of "Indian tribe" under IGRA.)

Second, Congress has delegated this power to the BIA in the Interior Department, though Congress can still exercise it.  That means that tribal groups can be federally recognized through an administrative process in the BIA (now called the BIA's Branch of Acknowledgment and Research or BAR), or through a federal statute passed by Congress.  In a prior post, we set out the administrative process's mandatory criteria in summary fashion.  Those are found in 25 C.F.R. § 83.7.  And they're not easy to meet.  Period.  So, contrary to the polemic that your local Elks club could become an Indian tribe, that's just not the case.

A harder question might be whether outside investors can influence the administrative recognition process.  Because the process requires the tribal group to amass so much information, much of it historical, it is an expensive process, often requiring hiring experts.  In one sense, if the possibility of gaming helps a tribal group to get funding for the research and documentation required by the process, then maybe that's a good thing.  But the danger is the charge that (potential) gaming money inappropriately influences or even corrupts the process, which is something the Office of the Inspector General has investigated.

The fact is that new federal acknowledgments are relatively rare -- a couple dozen since 1978, when Congress delegated authority to the BIA to recognize tribes.  More than 200 groups are awaiting decisions, and some of them have been waiting for a decade or two.

For more on tribal recognition generally, we recommend two books: Miller, Forgotten Tribes: Unrecognized Indians and the Federal Acknowledgment Process (2004) and Cramer, Cash, Color, and Colonialism: The Politics of Tribal Acknowledgment (2005).