August 1, 2006
Commissioners of Indian Affairs:
On Saturday, July 29, 2006, the Advisory Council on Tennessee Indian Affairs (ACTIA) held its regular quarterly meeting which included the agenda item “Review and discuss amendments needed in the recognition criteria passed by the TCIA on June 10, 2006 in Chattanooga TN.” As chairman I addressed the many concerns expressed to me regarding the Recognition Criteria Rules approved by the Commission of Indian Affairs, and outlined the three options that Commissioners are considering:
1. Request a 60-day stay/delay of effective date of Rules (TCA 4-5-215. Stay of effective date of rules).
2. Allow the Rules to stand and go into effect on September 2, 2006, then immediately vote for a new rule-making process to amend the rules.
3. Withdraw the Rules (TCA 4-5-214. Withdrawal of rules).
ACTIA expressed concern that a stay of the rules does not contribute to a solution since it does not allow for amendments to the Rules, and that there were sufficient problems with the Rules to require withdrawal. ACTIA discussed the pros and cons of the options and after considerable discussion agreed that:
1. Concerns regarding the ‘grandfathering’ of previously recognized Individuals are already properly addressed by TCA 4-34-109.(c)(3):
All rules, regulations, policies, orders and decisions promulgated or issued by the Tennessee commission of Indian affairs prior to, and in effect on the effective date of this act shall remain in force and effect and shall be administered and enforced by the Tennessee commission of Indian affairs created by this act until duly amended, repealed, expired, modified or superseded;
2. The “Recognition Criteria For Native American Indian Groups/Organizations” is too open and could allow organizations whose membership did not include Native American Indians to be inappropriately recognized as Native American Indian; and
3. The Commission does not currently have the staff, background and financial resources to effectively verify the genealogy of petitioning Individuals; and
4. Further review and amendments to the criteria are necessary in order not to base Group and Individual Recognition on racially-based classification that lacks a compelling state interest, based on the Attorney General’s informal opinion of December 20, 2000, “Validity of Statute Requiring Tennessee Commission of Indian Affairs to Consist of at Least Three Individuals of Native American Lineage”; and
5. It is significant that the statute governing the “Powers and duties” of the Commission in regards to recognition, TCA 4-34-103(6), uses the word “or” in its listing of entities to be considered for recognition:
Establish appropriate procedures to provide for legal recognition by the state of presently unrecognized tribes, nations, groups, communities or individuals, and to provide for official state recognition by the commission of such;
As a disjunctive rather than the conjunctive “and,” the statute does not require that the Commission establish recognition procedures for all entities listed, rather, it describes the possible set of recognizees: tribes or nations or groups or communities or individuals or any combination thereof. The Commission is therefore not required by statute to recognize “groups” or “individuals,” and can legitimately continue the recognition criteria rulemaking process by addressing tribal recognition criteria alone.
Given these concerns and the inability to correct them by amendment prior to their effective date, it was agreed by the Advisory Council that the Recognition Criteria For Native American Indians of June 10, 2006, do not meet the needs of the Native American Indian community in the State of Tennessee, and therefore it is the Advisory Council’s unanimous recommendation that the Commission withdraw the Recognition Criteria Rules adopted by the Commission on June 10, 2006, as per TCA 4-5-214 - Withdrawal of rules:
A rule may be withdrawn by the agency proposing such rule at any point prior to the effective date of the rule. Such withdrawal shall become effective upon delivery of written notification of such withdrawal to the office of the secretary of state and shall result in the nullification of all procedures undertaken or performed in order to promulgate such rule.
The Advisory Council then considered how best to proceed if the Commission withdrew the Rules, and approved the following recommendations to the Commission to continue with the rulemaking process:
1. Adopt the “Recognition Criteria for Tennessee Native American Indian Nations, Tribes, or Communities” from the Rules adopted on June 10, 2006 (Rule 0785-1-.02).
2. Amend and adopt the definition of ““Nation”, “Tribe” and “Community”” from the Rules adopted on June 10, 2006, to include the terms “band” and “clan” as synonymous with “tribes, nations, groups, communities”, to read:
“Tribe” and “Community” for the purposes of these rules, mean
an assembly of Indian people who are related to each other by blood or kinship,
and includes “band” and “clan”.
3. Initiate the administrative procedures for new rulemaking, to include a public hearing on the new Rule.
4. Solicit nominations of persons, including individuals who are members of federally-recognized tribes and state-recognized tribes, state-recognized individuals, and Native American Indian individuals who are not recognized, to create an independent organization, and to charge it with the purpose and duty to:
(a) Conduct a census of all self-identified Native American Indians residing in the state of Tennessee; and
(b) Create a roll of individuals with verified tribal descendancy, sorted by tribal affiliation; and
(c) Create a roll of individuals with verified tribal descendancy from tribes known to have inhabited Tennessee (“Resolution for the Recognition of the Historic Indian Tribes of Tennessee,” Commission of Indian Affairs, March 4, 2006).
We believe that these recommendations will best address the concerns of both the Commission of Indian Affairs and the Native American Indian community of Tennessee. We hope they meet with your approval.
David Teat, Chairman
attachments: text of Attorney General’s Informal Opinion of December 20, 2000
ACTIA Revised Recognition Criteria Rules
State of Tennessee
Office of the Attorney General
500 Charlotte Avenue
Nashville, Tennessee 37243-0497
To: John M. White
State Representative 70th Legislative District
From: Paul G. Summers
Attorney General and Reporter
Vickie P. Hall
Assistant Attorney General
Date: December 20, 2000
for Informal Opinion - Validity of Statute Requiring Tennessee Commission of
Indian Affairs to Consist of at Least
Three Individuals of Native American Lineage
You have asked this Office to opine informally on whether it is constitutional for Tenn. Code Ann. § 4-34-104 to require at least three members of the Tennessee Commission of Indian Affairs to be of not less that [sic] twenty-five percent (25%) Native American lineage. For the reasons set forth below, this statute is constitutionally suspect.
Tenn. Code Ann. § 4-34-104 sets forth a statutory obligation for the governor to appoint persons of not less than twenty-five percent (25%) Native American lineage to at least three of the five member positions of the Tennessee Commission of Indian Affairs. The language of this statute is similar to two other Tennessee statutes whose constitutionality was determined to be suspect in two separate Attorney General Opinions. Op. Tenn. Atty. Gen. 93-9 (January 28, 1993); Op. Tenn. Atty. Gen. 89-140 (December 8, 1989). (Copies of each attached.)
The 1989 opinion asked whether the reservation of two positions on the Metropolitan Government Charter Commission for persons of “African American descent” was constitutional. Citing _Peters v. Moses_, 613 F. Supp. 1328 (W.D. Va. 1985), concerning reservation of two school board positions for members of the black community, the opinion concluded that to categorically exclude persons from consideration for public office solely on the basis of race was a violation of the Equal Protection Clause, unless it could survive a strict scrutiny analysis. The opinion also cited _City of Richmond v. Croson_, 488 U.S. 469, 109 S.Ct. 706,102 L.Ed.2d 854 (1989) which held that the standard of review under the Equal Protection Clause for race-based classifications is a strict scrutiny analysis. The Court went further to say that even measures purporting to alleviate past discrimination through racial classification are subject to strict scrutiny. Id. at 494, 109 S.Ct. at 722.
The 1993 opinion questioned whether legislation requiring race-based classifications for membership on the Parole Eligibility Review Board would violate the Equal Protection Clause. Relying on _Wygant v. Jackson Bd. of Ed., 476 U.S. 267, 106 S.Ct. 1842, 132 L.Ed. 2d 158 (1986) among other cases, this opinion concluded that, while this legislation was not per se unconstitutional, it was constitutionally suspect because it would be subject to a review under strict scrutiny and must be narrowly tailored to achieve a compelling governmental interest.
Since the issuance of these opinions, the Supreme Court has affirmed that all racial classifications, imposed by any federal, state or local governmental actor, must be analyzed by the reviewing court under strict scrutiny. _Adarand Constructors, Inc. v. Pena_, 515 U.S. 200, 115 S.Ct. 2097 (1995). Further, the Court held that such racial classifications are constitutional only if they are narrowly tailored to further a compelling governmental interest. _Id._ at 227, 115 S.Ct. at 2113.
This Office, of course, is not a fact-finding entity and is not aware of the circumstances that led to the enactment of the racial classification within the statute. However, in reviewing the language of the statute, it does not state any reasons for the requirement of three Native American commission members. Perhaps there are compelling state interests not articulated in the statute which could withstand a court’s review under the very high standard of strict scrutiny required by case law. Absent any compelling state interests to support this race-based classification, however, the statute is unconstitutional.
Criteria for Native American Indians
for the Tennessee Commission of Indian Affairs
Recommendation of the Advisory Council on Tennessee Indian Affairs,
July 29, 2006, Lebanon, Tennessee
Recognition Criteria for Native American Indians
0785-1-.01 through .08 of Rule Chapter 0785-1 Recognition Criteria for Native
American Indians expired
by sunset action of the Legislature  and the following new rules are replacing them to read as follows:
Table of Contents
Rule 0785-1-.01 General
Rule 0785-1-.02 Recognition Criteria For Native American Indian Nations, Tribes
Rule 0785-1-.03 Procedures For Petitioning For Recognition
Rule 0785-1-.04 Changes In Membership Rolls
Rule 0785-1-.05 Administrative Review
To establish criteria and procedures to provide for legal recognition by the state of Tennessee of Native American Indians.
(2) Use of Number and Gender
As used in these Rules:
(a) Words in the masculine gender also include the feminine and neuter genders; and
(b) Words in the singular include the plural; and
(c) Words in the plural include the singular.
When used in Rules 0785-1-.01 through .08, the following terms have the meanings given below unless otherwise specified:
“Act” means Tennessee Code Annotated Section 4-34-101 et seq., Commission of Indian Affairs.
“Applicant” means Native American Indian groups applying for tribal recognition in Tennessee.
“Commission” means the Tennessee Commission of Indian Affairs.
“Disabled person” means any person determined to be in need of partial or full supervision, protection, and assistance by reason of mental illness, physical illness or injury, advanced age, developmental disability or other mental or physical incapacity.
“List” means the updated membership list and updated group purposes and leadership names to be submitted to the Commission by applicants and recognized Tribes.
“Nation”, “Tribe” and “Community” for the purposes of these rules, mean an assembly of Indian people who are related to each other by blood or kinship, and includes “band” and “clan”.
“Recognized” means being acknowledged as Native American Indian Tribe by the state of Tennessee.
“Roll” means the official list of recognized Native American Tribes in Tennessee.
“State” means the state of Tennessee.
Rule 0785-1-.02 Recognition
Criteria For Tennessee Native American Indian
Nations, Tribes, or Communities
(1) Eligibility for recognition shall be determined using the following criteria:
(a) The applicant for recognition is indigenous to Tennessee and has been identified on a substantially continuous basis as Native American Indians throughout the history of their group; and
(b) A majority of the applicant inhabits a particular geographic area in Tennessee or lives in a community in Tennessee viewed as Native American Indian and distinct from all other populations in the geographic area, and a majority of its members consist of individuals who have established verifiable documented descendency from an Indian tribe which has historically inhabited the State of Tennessee; and
(c) The applicant has maintained tribal political influence or other authority over its members, or is able to demonstrate their existence as a continuous, distinct cultural entity capable of self-regulation, throughout their history until the present; and
(d) The membership of the applicant is composed of a majority of persons who are not members of any other North American Indian federal or state recognized tribe.
(2) The following information shall be provided to the Commission for review:
(a) A copy of the applicant’s present governing document is provided and/or a statement describing in full the membership criteria and the procedures through which the group governs its affairs and members; and
(b) A list of all known current members of the group and a copy of any available list of former members, based on the tribe’s own defined criteria; and
(c) A history of the applicant from 1900 to present (maximum of 2000 words) written by a professional historian or anthropologist; and
(d) The applicant shall also submit additional information including one (1) or more of the following:
1. Documented traditions, customs and legends that demonstrate the group’s Native American Indian cultural heritage; and/or
2. Letters, statements, and documents from city, county, state, or federal authorities that document a history of tribal related business and activities that specifically address Native American Indian culture, preservation, and affairs; and/or
3. Letters, statements, and documents from federal or state recognized tribes in and/or outside of Tennessee which attest to the Indian heritage of the group; and/or
4. Other compelling documentation acceptable by the Commission that shows the heritage of the applicant; and
(e) A signed and notarized statement from the officers of the applicant affirming that the information provided is true and accurate.
Authority: T.C.A. §4-34-103.
(1) An Application For Recognition form with appropriate instructions for completion and submission on the back shall be developed and approved by the Commission. It shall be available on request by writing to the Tennessee Commission of Indian Affairs at the address below. Complete applications and supporting documentation are to be sent to:
Tennessee Commission of Indian Affairs
Tennessee Department of Environment and Conservation
Office of General Counsel
401 Church Street
L & C Tower, 20th Floor
Nashville, Tennessee 37243
(2) The Commission shall appoint a Review Committee, consisting of three (3) members of the Commission, to review applications and supporting documentation for completeness and to work with applicants to achieve completeness. A record shall be maintained of all applications and appropriate information, including, but not limited to, the date received, date determined complete, date presented to the Commission and the Commission’s decision. The Review Committee shall review an application within six (6) months of the submittal date.
(3) If the application and required documentation are complete, the Committee will present the information to the Commission for review. Applicant(s) shall be notified in writing of the date, time and location of the Commission meeting at which the application is to be considered.
(4) The Commission will either approve or deny the application within twelve (12) months of the application being determined complete by the Review Committee. The Commission may request additional information from the applicant.
(5) The Commission will notify each applicant in writing of the Commission’s decision.
(6) Applications pending under the former Tennessee Commission of Indian Affairs may be processed using the new criteria following the effective date of these rules. Applicants shall be contacted in writing and advised accordingly. The Commission and/or the Review Committee may request the applicant to provide updated or additional information.
(7) An applicant may, at any time prior to approval, withdraw their application and supporting documentation by writing to the Commission at the address in paragraph (3) above and may request the return of all submitted documents.
(8) An applicant applying for recognition shall specify all submitted documentation that is to be returned to the applicant following the decision of the Commission or withdrawal by the applicant of the submitted application. All documents returned to the applicant shall be at the applicant’s expense.
(9) The roll of all approved for recognition shall be maintained current by the Commission and posted on the Commission’s web site.
Authority: T.C.A. §4-34-103.
(1) Every two (2) years from their date of recognition, Nations, Tribes, or Communities recognized pursuant to the rules herein contained shall notify the Tennessee Commission of Indian Affairs of any changes in membership criteria and subsequent additions or deletions of members at the address in rule 0785-1-.05(3).
(2) Any recognized Nation, Tribe, or Community may terminate its recognition by dissolution or by submitting written notice to the Chairperson of the Commission. The Commission, at its next meeting, shall vote to remove its name from the roll.
Authority: T.C.A. §4-34-103.
Applicants (Nations, Tribes, Communities) who disagree with the denial of their application for recognition may use the following procedure to seek a contested case hearing before the Commission pursuant to Sections 4-5-223 through 225 of the Uniform Administrative Procedures Act.
(1) When an affected applicant disagrees with the denial of an application for recognition based upon the contention that such action is an illegal application of rules and/or statues or such action is based upon invalid rules or statutes, the applicant may petition the Commission for a declaratory order.
(2) Upon receipt of such a petition, the Commission may convene a contested case hearing pursuant to the provisions of T. C. A. Section 4-5-101, et seq.
(3) The Commission may refuse to issue a declaratory order or fail to set a petition for a contested case hearing within 60 days of receipt of the petition. In either case, the affected applicant may apply for a declaratory judgment pursuant to T. C. A. 4-5-225.
Authority: T.C.A. §4-34-103.