The Obama administration, after allowing new rules that water down the process of Indian tribes gaining federal recognition, faces a congressional backlash that could make a bad and unfair situation worse.

We remain convinced the old standard wasn’t broke and didn’t need fixing. At most, it needed tweaking. It required a tribe to prove it was an indigenous community when the U.S. Constitution came into force in 1789 and continued as a tribe thereafter in some form. Determining if a tribe qualified was left to the executive branch, via an evaluation by the Bureau of Indian Affairs, part of the Department of the Interior.

Federal recognition and the sovereign status it enjoins qualifies a tribe for federal aid in education, housing and health care. It can also enable casino operations on reservation land as a means of creating jobs and economic opportunity.

Meeting the former criteria was challenging, but doable. Nationally there are 566 federally recognized tribes, the vast majority qualified by meeting the standards.

Recent rule changes by the BIA lowered the standards. A tribe must now show evidence that it functioned as an Indian community only back to 1900. It reduced the documentary burden of proof, obligating the BIA to “accept any and all evidence” of tribal status.

As noted here before, diluting the recognition standards was unfair to those tribes that had to meet the prior criterion and it increases the chance that an undeserving group of questionable historic viability gains tribal status and the resultant advantages.

In response to complaints raised largely by Connecticut officials, however, the BIA in its new regulations prohibits tribes that tried and failed to gain recognition under the old, more stringent standards from reapplying under the new rules. The politics of this is clear. A small state like Connecticut does not want to deal with the complications that more federally recognized tribes and casinos would create. However, the logic of the reapplication prohibition escapes us. It is unfair and arbitrary.

The rule means the Eastern Pequots of Stonington, Golden Hill Paugussetts of Colchester and Trumbull and the Schaghticottes of Kent, having been denied recognition before, cannot try again.

It’s sort of a mess. Watered down rules that don’t apply to everyone.

Now enters Congress.

A bill introduced by Rep. Bob Bishop, R-Utah, who serves on the Committee on Natural Resources, would reduce the BIA’s role to advisory and going forward give Congress alone the authority to approve federal recognition of an Indian tribe. Incorporating the Connecticut rule, it would also declare ineligible for recognition groups that previously petitioned and were denied.

To gain recognition, an eligible tribe would have to show it “has maintained political influence or authority over its members as an autonomous entity from historical times to the present.”

“Historical” is defined by the bill as “dating from first sustained contact with non-Indians.”

In pushing back against the BIA’s easement of the rules, and trying to usurp the authority of the executive branch, this proposed law creates a situation in which the tribal recognition process could become highly politicized.

Given the money that can be made through tribal casinos, it is not hard to imagine casino developers using large campaign contributions and support for political action committees to buy congressional support for a tribe’s recognition, deserving or not. Conversely, a tribe that poses potential competition for an existing casino may find itself politically targeted and Congress unwilling to give its petition for tribal status a fair hearing.

The bottom line is that putting Congress in charge of federal recognition of tribes is a bad idea.

The Mashantucket Pequot Tribe, which owns and operates the Foxwoods Resort Casino, sidestepped the BIA process and instead gained recognition by an act of Congress. That political process has led some to question the legitimacy of the tribe’s status to this day.

What Congress could do is pass a law that returns the approval process to the old standards, but leaves the evaluation in the hands of the BIA.