Obstacles to Successful Retrocession
According to ICRA, tribes cannot petition directly to the Department of the
Interior for retrocession. Instead, tribes must first petition the state to pass legislation,
which the state then forwards on to the Department of the Interior. The lobbying
necessary at the local level and the state level, as well as the persistence to keep DOI on
the task can be quite a large undertaking with significant political opposition likely to be
met along the way. Because the two tribes included in this analysis had successful
retrocession attempts, the degree to which they experienced obstacles may have been
significantly less than those that have attempted and failed; and therefore this sample
should not be seen as representative of all obstacles that tribes are likely to come across.
Our study asked respondents specifically about whether there was difficulty
securing federal acceptance of retrocession. The number of responses to this question
were limited somewhat by the fact that only a small group of those directly involved in
the retrocession process were knowledgeable about this level of detail. Nevertheless, the
data from our research show that surprisingly, this obstacle to the retrocession process
was not significant to either group and is likely a reason for their successful attempts. We
have identified one additional obstacle from the interviews: the tribal community itself.
Federal Resistance
Two themes emerged from the interviews when discussing obstacles to securing
federal acceptance: the funding problem and lack of knowledge of the retrocession
process. Five of the 16 respondents to this question said that the financial obligations that
retrocession would impose on the federal government proved to be a major obstacle.
Retrocession requires the BIA finding additional funding for law enforcement services to
the retroceded reservation — funding to be provided either directly to the tribe through a
638 contract, or through BIA police officers who would enforce law on the reservation.
449
This document is a research report submitted to the U.S. Department of Justice. This report has not
been published by the Department. Opinions or points of view expressed are those of the author(s)
and do not necessarily reflect the official position or policies of the U.S. Department of Justice.
One tribe in particular had their retrocession held up for four years in the Department of
Interior because of the lack of willingness by the DOI to commit funds to tribal law
enforcement.
Q: Let’s go to the four years with the BIA. What was the hold up there?
IN: They basically didn’t want to fund us. ... That was it. They just didn’t
want to fund us. ..
. Some of them, you get in there talking with them,
“Well, it’s really that we don’t have the money.” Because we were
successful [gaming tribe] and trying to say, “You just give us that chunk
of money, and we’ll worry about the rest. Just let it happen there.” So, we
finally convinced [Head of BIA]. He said OK. It took over four years to
get it done, though.
Besides funding, another obstacle is the lack of any policy on how to deal with
retrocession at the federal level. While only one respondent spoke of a holdup at the
federal level due to a lack of knowledge of the process, this respondent was intimately
involved in the retrocession and his response included some rich detail on the problem,
And then we got it to the governor, and the governor signed it, and then
we sent it off to D.C., and it just sank like a ship in the night. And for
three years we kept trying to get the (presidential) administration to do
something about this, and every time we would broach the subject, they
would call us back or write us back and say, “We don’t have any of the
stuff, where is the bill that the legislature passed? And where’s the
proclamation from the governor?” At least six times we would get
together this package and send it to the Bureau of Indian Affairs. Who
knows where it went? ... Nobody in the Bureau knows what retrocession
is. They don’t understand it; they don’t know how to handle a retrocession
anymore. In the ’80s there were people there, when you went in and
talked about retrocession, they knew what it was. But now there’s nobody
who knows what it’s ... they don’t know (how to) process it, they hardly
know how to spell it.
