Maryland Attorney General Opinion 96 OAG 051

Gen. 51] 51

COMMISSION ON INDIAN AFFAIRS

RECOGNITION OF MARYLAND INDIAN STATUS –
REVISED PETITION FOR RECOGNITION MAY BE
CONSIDERED BY THE COMMISSION

August 8, 2011

E. Keith Colston
Administrator
Maryland Commission on Indian Affairs

On behalf of the Maryland Commission on Indian Affairs
(“Commission”), you asked for our opinion about reconsideration of
a petition for recognition of a group’s “Maryland Indian status”
under State law. The petition was originally filed in 1995, received
a favorable recommendation from the Commission, but was
ultimately denied by the Governor in 2003. The denial expressly left
open the possibility that the group could resubmit its petition with
additional information. You ask whether that petition may now be
resubmitted to the Governor, with or without a further
recommendation by the Commission.

For the reasons explained below, it is our opinion that the
Commission should not simply resubmit the 1995 petition to the
Governor, as the relevant statute contemplates that the Commission
and Governor will have reasonably current sociological information
concerning the applicant group. However, if the petitioning group
wishes to pursue recognition of Maryland Indian status, a revised
petition including current information should be submitted to the
Commission for its consideration. Based on that information, the
Commission may reiterate or revise its recommendation to the
Governor.

I

Background

A. Recognition of Maryland Indian Status

1. Recognition Process

State law establishes a process by which the Governor may
formally recognize, by executive order, the “Maryland Indian status”
52 [96 Op. Att’y

of a Native American community indigenous to the State. Annotated
Code of Maryland, State Government Article (“SG”), §§ 9.5-309
through 9.5-312. The recognition process does not purport to
adjudicate Native American status generally, but rather simply
identifies communities that have existed in Maryland since the
founding of the United States.1 Moreover, the law provides that it
does not create a benefit or entitlement of any kind; nor does it
impair existing rights, benefits or entitlements of Native Americans
living in the State. SG §9.5-309(d).2 Nor does any act or omission
of the Commission create a private cause of action. SG §9.5-
309(c)(3).

Pursuant to the statute, the Commission has adopted
regulations that govern the recognition process. SG §§9.5-309(a),
9.5-311; COMAR 01.06.01.3 Under the regulations, a tribe, band,
group, or clan indigenous to the State that wishes to receive State
recognition must submit to the Commission a petition containing
specified information and documentation. COMAR 01.06.01.05.
The Commission publishes notice of receipt of the petition, and
provides an opportunity for the public to submit comments in
support of or in opposition to the petition. COMAR 01.06.01.07.
The Commission then refers the petition and all comments timely
received to a Recognition Advisory Committee4 for review and

1
For example, many well known Native American groups of the
western United States would not qualify for “Maryland Indian status.”
2
The statute requires that, as a condition of formal recognition of
Maryland Indian status, members of the petitioning group file an affidavit
renouncing all tribal rights to ownership of land in Maryland. SG §9.5-
310. However, such an affidavit is likely without legal effect. See Letter
of Attorney General J. Joseph Curran, Jr. to Governor William Donald
Schaefer, concerning House Bill 126 and Senate Bill 421 (May 23, 1988).
3
The regulations were first adopted in 1992. 19:9 Md. Reg. 878.
Although they have been recodified several times over the past two
decades, their basic requirements and process have remained the same.
4
Pursuant to the regulations, a Recognition Advisory Committee
consists of five persons appointed by the Commission to review a petition.
COMAR 01.06.01.11. The Committee is to have at least two Native
American members, none of whom may be members of the petitioning
group, as well as experts in genealogy, anthropology, and related fields.
Id.
Gen. 51] 53

recommendation for Commission action, based on criteria set out in
the statute and the regulations. COMAR 01.06.01.08D through
01.06.01.08J; COMAR 01.06.01.04; COMAR 01.06.01.05B. The
Commission reviews the Recognition Advisory Committee’s
recommendation and, if the Commission determines that the petition
adequately demonstrates that the group satisfies the criteria in the
regulations, recommends to the Governor that the petitioning group
be formally recognized as a Maryland Indian tribe, band, group, or
clan. COMAR 01.06.01.08K through COMAR 01.06.01.08M.
(Any Commission members who belong to the petitioning group are
barred from participation in the Commission’s deliberations. SG
§9.5-309(b)(2)).

If the Governor concurs in the Commission’s recommendation,
the Governor issues an executive order that recognizes formally the
Maryland Indian status of the petitioning group. The executive order
is submitted to the General Assembly’s Joint Committee on
Administrative, Executive, and Legislative Review and takes effect
30 days after submission. SG §9.5-309(c); COMAR 01.06.01.10A
and C. If the Governor does not concur with a recommendation of
the Commission, the Governor notifies the Commission of the
reasons and the Commission must promptly notify the petitioning
group and all persons requesting notice. COMAR 01.06.01.10B.

Neither the statute nor the regulations address reconsideration
of a petition by the Governor or whether a petitioning group is
precluded from filing a new petition after a petition has been
rejected.

2. Petition Requirements

The regulations set forth the information and documentation
that make up a petition for State recognition. “[T]aking into account
the special circumstances of Native Americans indigenous to
Maryland,” a petition must establish that:

A. The group has been:

(1) Identified as Native American from
before 1790 until the present, and

(2) Part of a continuous Native American
community from before 1790 until the present;
54 [96 Op. Att’y

B. The members of the group are
descendants from a tribe that:
(1) Existed before 1790,

(2) Is indigenous to Maryland, and

(3) Inhabited a specific area in Maryland
before 1790; and

C. The membership of the group is
composed principally of persons who are not
members of any other acknowledged or
recognized Native American tribe, band,
group, or clan.

COMAR 01.06.01.04. To document that the petitioning group
satisfies these criteria, the petitioning group is to submit:

(a) Documents showing, from before
1790 until the present:
(i) Longstanding relationships of the
group with the government of Maryland or the
United States, based on identification of the
group or the group's members as Native
American indigenous to Maryland;

(ii) Repeated dealings of the group
with a county or other local government in a
relationship, based on identification of the
group or the group's members as Native
American indigenous to Maryland;

(iii) Repeated dealings of the group
with other tribes, bands, groups, or clans, or
national Native American organizations, based
on identification of the group as Native
American indigenous to Maryland;

(iv) Identification of the group as
Native American indigenous to Maryland by
anthropologists, historians, genealogists, or
other scholars; or
Gen. 51] 55

(v) Repeated identification of the
group or the group's members as Native
American indigenous to Maryland in official
government records, church or school records,
medical records, bibles and other family
records, newspapers, books, photographs, or
oral histories;

(b) Documents identifying the name of
the group, or other term recognizing the group
as Native American indigenous to Maryland,
with an approximate location in Maryland
from before 1790 until the present;

(c) A list of membership criteria
established by the group;

(d) A statement of the procedures adopted
by the group for applying the group's
membership criteria; and

(e) A list of all individuals included on the
group's current and previous membership rolls
or known by the group to be eligible for
membership, and the county in which each
resides;...

COMAR 01.06.01.05B(1). The petitioners may also submit other
evidence, including affidavits from tribal elders or leaders
recognizing individuals as members of the group. COMAR
01.06.01.05B(2). A petition for formal recognition also must
include:

(1) The name and mailing address of the
petitioning group and of the individual
authorized to act as the petitioning group's
agent for petition purposes;

(2) A statement that the petitioning group
is a Native American tribe, band, group, or
clan indigenous to Maryland;
56 [96 Op. Att’y

(3) A statement that the petitioning group
has verified with its members that the majority
of them are not members of any other tribe,
band, group, or clan acknowledged or
recognized as American Indian by the
Secretary of the Interior or any state; [and]

(4) A copy of the petitioning group's rules
governing the conduct of the petitioning
group's affairs.

COMAR 01.06.01.05A.

B. Piscataway Conoy Tribe Recognition Petition

1. 1995 - Submission of Petition

In 1995, a group organized as the Piscataway Conoy Tribe
(“PCT”) submitted to the Commission a petition for State
recognition of its Maryland Indian status (the “PCT Petition”). The
PCT Petition was referred to a Recognition Advisory Committee. At
the conclusion of the process, on August 26, 1996, the Commission
determined that the PCT Petition satisfied the criteria set forth in the
Commission’s regulations and recommended that the Governor grant
the PCT Petition. However, the petition, and the Commission’s
determination, were not immediately forwarded to the Governor.5

2. 2003 - Denial of Petition

On September 24, 2003, then Governor Ehrlich rejected the
petition. In his denial letter, the Governor indicated that he did not
believe that the petitioning group had adequately documented that
the PCT have been identified as a continuous Native American
community, from before 1790 to the time of the petition, indigenous
to a specific area in the State. In particular, he found that the
documentation did not provide clear and direct proof of lineage prior

5
At the time that the petition was originally submitted, the
Commission’s recommendation was subject to review by the Secretary of
Housing and Community Development. That additional layer of review,
which has since been eliminated from the process, delayed the
transmission of the Commission’s recommendation to the Governor while
the Commission endeavored to answer questions framed by the Secretary.
Gen. 51] 57

to 1850 and stated that additional research was necessary. He
summarized the key questions as follows:

1. Has the PCT established that it or its
members have been identified since before
1790 as descended by blood line from
members of a tribe, band, or clan which is
identified as Native American or Indian in the
historical record? Has the PCT since before
1790 been part of a continuous group
indigenous to Maryland with common cultural
ties and interests which differentiate its
members from others?

2. Has the PCT established that its
members have descended by blood line since
before 1790 from the historic Piscataway
tribe, bonds, or clans in southern Maryland?

He noted that the federal Bureau of Indian Affairs had raised similar
questions when it evaluated the group’s petition for federal
recognition as an Indian tribe.6

The Governor concluded that, in the absence of additional
research, “the State would need to reach unjustified conclusions in
order to determine that the PCT today is a Native American group
indigenous to Maryland and has existed continuously since before
1790.” Accordingly, the Governor denied the petition, but advised
that the group could file a revised petition for review by the
Commission and ultimately by the Governor. We understand that,
consistent with the Commission’s regulations, much of the PCT
petition documentation was returned to the petitioning group after
the PCT petition was denied. See COMAR 01.06.01.06D.

6
The group is not currently recognized by the federal government
as an American Indian entity. See 75 CFR 60810 (October 1, 2010). It
remains listed among the groups petitioning for such status as of April 29,
2 0 1 1 . S e e
http://www.bia.gov/idc/groups/xofa/documents/text/idc013623.pdf
58 [96 Op. Att’y

3. Request for Reconsideration of PCT Petition

We understand that the petitioning group has recently
requested a reconsideration of the petition that it submitted in 1995.
However, it has not submitted the documentation that was returned
to it. Nor has it yet submitted a revised petition that addresses the
issues raised in the Governor’s 2003 letter. Rather, it has argued that
the 1995 petition satisfied the criteria for recognition.

II

Analysis

You are seeking direction on how to obtain reconsideration of
the effort to accord Maryland Indian status to the PCT.7 You have
asked whether the Commission may resubmit to the Governor the
1995 petition that was denied in 2003, with or without a
recommendation from the Commission. Nothing in the statute or
regulations expressly addresses whether a group may resubmit a
petition that has been denied or whether the Commission and
Governor may consider a new or revised petition from a group that
has previously submitted a petition. In the absence of any
prohibition in the statute, it is our view that the Commission and
Governor may do so. This is particularly true where a petition may
be denied because it is inadequately documented rather than from
lack of underlying merit.

One option – as invited by the 2003 denial letter – was for the
petitioning group simply to submit to the Governor additional
information concerning the existence of the group in Maryland as of
1790. However, in our view, subsequent events and the passage of
time have eliminated that option. Some of the original
documentation supporting the petition is apparently no longer in the
possession of the State. Moreover, it has been eight years since the
denial of the petition and nearly a generation since the
documentation supporting the petition was originally assembled.

7
The fact that a new Governor has been elected since the 2003
qualified denial of the petition does not affect the legal analysis, as
“[e]xecutive power is one of continuing effect, never ending, and
unbroken by succession, a principle inherent in and necessary to
government.” Baxter v. State, 214 S.E.2d 578, 582 (Ga. App. 1975).
Gen. 51] 59

There have no doubt been significant changes in the population
encompassed by the petition.

The statute and regulation indicate that the recognition decision
is to be based on findings concerning the current status of the
petitioning group, as well as its history. See, e.g., COMAR
01.06.01.04A(2) (group must be part of a continuous community
“until the present”); .04C (group must be composed principally of
members who are not part of another recognized tribe at time of
submission of petition); .05B(1)(a) (petition information to
demonstrate various facts concerning the group existing “until the
present”); .05B(1)(b) (documentation to show approximate location
of group in Maryland “until the present”); see also SG §9.5-
311(b)(3) (Commission’s petition standards to require information
“from historical times until the present”). The regulations also
require that the petition be accompanied by a list of current
membership criteria established by the group; a statement of the
current procedures adopted by the group for applying the group's
membership criteria; and a list of all individuals included on the
group's current and previous membership rolls or known by the
group to be eligible for membership, and the county in which each
resides. COMAR 01.06.01.05B(1)(c), (d), and (e).

The regulations require that the process proceed expeditiously
in a way that the information does not grow stale. See COMAR
01.06.01.08B (Commission to send notices within 30 days of filing
of petition); .08C (deadline for group to supplement incomplete
petition); .08D (completed petition to be referred to Recognition
Advisory Group “within 15 days”); .08E-H (deadlines for
submission of additional information and review by Recognition
Advisory Group); .08K-M (deadline for Commission
recommendation); .09 (deadlines for Commission reconsideration of
recommendation). While the Commission has retained authority to
waive or extend these various deadlines, COMAR 01.06.01.13, their
evident purpose is to ensure that the information presented to the
Governor is reasonably current, as well as historical in nature.

The 1995 petition presumably included documentation and
information that were current as of the date submitted. There can be
little doubt that, in the intervening 16 years, some of the information
and documentation that accompanied the original petition, even if it
can now be located, is stale and would fail to satisfy the standards in
regulations for submission to the Governor. In our view, a revised
petition should include not only any additional historical information
60 [96 Op. Att’y

concerning the group’s presence in Maryland prior to 1850, but also
updated information concerning the current status and composition
of the petitioning group. Presumably, this could be done
expeditiously as the group already assembled, as part of its 1995
submission, information concerning most of the historical period
from 1790 to the present.

III

Conclusion

In our opinion, the Commission, and the Governor, may
consider a new, or revised petition that seeks recognition of
Maryland Indian status for a group. However, information and
documentation considered by the Commission, and Governor, must
satisfy the requirements in the statute and regulations for current
information concerning the petitioning group. Accordingly, if the
petitioning group wishes to pursue recognition of Maryland Indian
status for the PCT, a revised petition including current information
should be submitted to the Commission for its consideration. Based
on that information, the Commission may reiterate or revise its
recommendation to the Governor.

Douglas F. Gansler
Attorney General

Philip J. Deters
Assistant Attorney General

Robert N. McDonald
Chief Counsel
Opinions and Advice