[Federal Register Volume 59, Number 38 (Friday, February 25, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-3934]
[[Page Unknown]]
[Federal Register: February 25, 1994]
_______________________________________________________________________
Part II
Department of the Interior
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Bureau of Indian Affairs
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25 CFR Part 83
Procedures for Establishing That an American Indian Group Exists as an
Indian Tribe; Final Rule
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 83
RIN 1076-AC46
Procedures for Establishing That an American Indian Group Exists
as an Indian Tribe
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Final rule.
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SUMMARY: This rule makes substantial changes in the administrative
process for Federal acknowledgment of Indian groups as tribes entitled
to a government-to-government relationship with the United States.
Changes are made to clarify requirements for acknowledgment and define
more clearly standards of evidence. Provision is made for a reduced
burden of proof for petitioners demonstrating previous Federal
acknowledgment. Procedural improvements include an independent review
of decisions, revised timeframes for actions, definition of access to
records, and opportunity for a formal hearing on proposed findings.
These changes will improve the quality of materials submitted by
petitioners, as well as reduce the work required to develop petitions.
They are also intended to provide a faster and improved process of
evaluation.
EFFECTIVE DATE: March 28, 1994.
FOR FURTHER INFORMATION CONTACT: Holly Reckord, Chief, Branch of
Acknowledgment and Research, Bureau of Indian Affairs, MS 2611-MIB,
1849 C Street NW., Washington, DC 20240.
SUPPLEMENTARY INFORMATION:
I. Background
This final revised rule is published in the exercise of authority
delegated by the Secretary of the Interior to the Assistant Secretary--
Indian Affairs by 209 DM 8.
Regulations governing the administrative process for Federal
acknowledgment first became effective October 2, 1978. Initially
designated as 25 CFR part 54, they were later redesignated without
change as 25 CFR part 83. Prior to 1978, Federal acknowledgment was
accomplished both by Congressional action and by various forms of
administrative decision. However, there still remained in the 1970's
many acknowledgment claimants whose character and history varied
widely. The regulations established the first detailed, systematic
process for review of petitions from groups seeking Federal
acknowledgment.
Proposed revised regulations were published on September 18, 1991,
at 56 FR 47320. These were published in response to issues raised by
diverse parties concerning interpretation of the regulations and
administration of the review process. The proposed revised regulations
also incorporated changes based on the perspective that had been gained
by the Department from 13 years of experience administrating the
acknowledgment process.
The public comment period of 90 days was extended for an additional
30 days, until January 17, 1992. Public meetings were held at nine
locations around the country. Sixty-one written comments were received
from 59 different individuals. These individuals included
representatives of unrecognized groups, recognized tribes, Indian legal
rights organizations, State governments, and Federal agencies, as well
as individual attorneys, anthropologists, and other scholars. The
issues and concerns raised by commenters are summarized below, followed
by the Department's response and a description of changes made in
response to comments.
II. Review of Public Comments
Overview
These final regulations include changes which make clearer the
meaning of the criteria for acknowledgment and make more explicit the
kinds of evidence which may be used to meet the criteria. The general
standards for interpreting evidence set out in these regulations are
the same as were used to evaluate petitions under the previous
regulations. In some circumstances, the burden of evidence to be
provided is reduced, but the standards of continuity of tribal
existence that a petitioner must meet remain unchanged.
None of the changes made in these final regulations will result in
the acknowledgment of petitioners which would not have been
acknowledged under the previously effective acknowledgment regulations.
Neither will the changes result in the denial of petitioners which
would have been acknowledged under the previous regulations.
Standards of Evidence and Stringency of Requirements
Comments: Several commenters stated that the proposed revisions
represented a major escalation of requirements and/or that they
codified de facto escalations of requirements that had occurred in the
Department's application of the regulations in the 13 years since they
became effective in October 1978. Several other commenters stressed the
importance of maintaining the present standards and the necessity of
stringent standards for Federal acknowledgment.
Response: The Department does not agree that the standards of
evidence have escalated at any time, nor that the proposed revisions
have increased the requirements. The acknowledgment criteria and
definitions were modified on the basis of 13 years experience dealing
with a wide variety of cases. Changes were made to clarify the meaning
of the criteria and intent of the regulations, and make possible
efficient development of evidence specifically focused on the
requirements.
Comments: A number of commenters requested a specific statement of
the general burden of evidence. Most suggested demonstration by a
``preponderance'' of evidence or that a criterion be considered met if
it were more likely true than not.
Response: These comments are based on the incorrect assumption that
the acknowledgment process presently requires proof beyond a doubt. The
process only requires evidence providing a reasonable basis for
demonstrating that a criterion is met or that a particular fact has
been established. ``Preponderance'' is a legal standard focused on
weighing evidence for versus against a position. It is not appropriate
for the present circumstances where the primary question is usually
whether the level of evidence is high enough, even in the absence of
negative evidence, to demonstrate meeting a criterion, for example,
showing that political authority has been exercised. In many cases,
evidence is too fragmentary to reach a conclusion or is absent
entirely. In response to these comments, language has been added to
Sec. 83.6 codifying current practices by stating that facts are
considered established if the available evidence demonstrates a
reasonable likelihood of their validity. The section further indicates
that a criterion is not met if the available evidence is too limited to
establish it, even if there is no evidence contradicting facts asserted
by the petitioner.
Further, because the above standard is so general, additional
language has been added in Sec. 83.6 and Sec. 83.7 to clarify the
standard of proof as it relates to particular circumstances or
criteria. In particular, many commenters interpreted the revised
regulations as requiring a group to demonstrate that it meets the
criteria in historical times by using the same kinds of evidence as for
the present. In fact, actual acknowledgment decisions to date have
clearly recognized the limitations of the historical record and have
utilized standard scholarly requirements for determining the nature of
societies in the past. It has been the Department's experience that
claimed ``gaps'' in the historical record often represent deficiencies
in the petitioner's research even in easily accessible records.
Language has also been added to Sec. 83.6 which explicitly takes
into account the inherent limitations of historical research on
community and political influence. Further, the section allows for
circumstances where evidence is genuinely not available, as opposed to
being available but not developed by appropriate research. This does
not mean, however, that a group can be acknowledged where continuous
existence cannot be reasonably demonstrated, nor where an extant
historical record does not record its presence.
Comment: Extensive comment was received concerning the requirement
to demonstrate continuous existence as a tribe since first sustained
contact. Comments were divided concerning interpretation and/or
modification of the definition of ``continuous.'' Some expressed the
opinion that a stated period of years should be defined as a
permissible ``interval'' during which a group could be presumed to have
continued to exist. A petitioner would only have to demonstrate its
existence before and after the interval. Intervals as long as 50 years
were suggested. The suggestion to establish criteria for ``intervals''
is based on the language ``generation to generation'' which appeared in
the original definition of ``continuous.'' Other commenters felt that
the ``generation to generation'' language was vague and inappropriate
and should be eliminated in favor of a more careful, technical
explanation of the standards required to demonstrate continuity of
existence.
It was also suggested that no demonstration of continuity be
required if a group is presently a tribe and can show ancestry from a
historic tribe. A variant of this was a suggestion that petitioners
only be required to demonstrate continuity since 1934. This date was
suggested because it was the period of initial implementation of the
1934 Indian Reorganization Act.
Response: Language has been added to the regulations to make
explicit the existing standard that criteria (b) and (c) do not have to
be documented at every point in time. The phrase ``generation to
generation'' has been removed from the definition of continuous. The
additional language added to Sec. 83.6 concerning standards of evidence
clarifies the requirements for demonstrating historical existence.
However, in the Department's view it is inappropriate to establish a
specific interval during which tribal existence may be presumed. The
significance of an interval must be considered in light of the
character of the group, its history, and the nature of the available
historical evidence. It has been the Department's experience that
historical evidence of tribal existence is often not available in
clear, unambiguous packets relating to particular points in time. More
often, demonstration of historical existence requires piecing together
various bits of information of differing importance, each relating to a
different historical date.
The purpose of the acknowledgment process is to acknowledge that a
government-to-government relationship exists between the United States
and tribes which have existed since first contact with non-Indians.
Acknowledgment as a historic tribe requires a demonstration of
continuous tribal existence. A demonstration of tribal existence only
since 1934 would provide no basis to assume continuous existence before
that time. Further, the studies of unrecognized groups made by the
Government in the 1930's were often quite limited and inaccurate.
Groups known now to have existed as tribes then, were portrayed as not
maintaining communities or political leadership, or had their Indian
ancestry questioned. Thus, as a practical matter, 1934 would not be a
useful starting point.
Comment: In the proposed revised regulations, the definition of
``continuity'' was revised to require that ``substantially'' rather
than ``essentially'' continuous existence be demonstrated. Some
commenters interpreted this as an escalation of requirements.
Response: The change in wording is a reduction in the stated
requirements to demonstrate tribal existence. The modification in
wording reflects how the previous regulations had always been applied.
``Essentially'' means that there can be almost no interruptions.
``Substantially'' continuous is a lesser requirement which means only
that overall continuity has been maintained, even though there may be
interruptions or periods where evidence is absent or limited.
Comment: The language in Sec. 83.6(d) concerning fluctuations in
tribal activity drew a number of comments. Some commenters approved of
it, some objected to it, and others requested that it be clarified.
Commenters were uncertain about how the language was to be applied to
the criteria. Some objected to the use of the qualifier ``sole'' in the
phrase describing fluctuation as a cause of denial. They felt that
using fluctuation as a cause for denial was inappropriate.
Response: The language regarding fluctuations in activity appears
in the present regulations in Sec. 83.7(a). It was moved to Sec. 83.6,
the section dealing with general provisions, to make clear that it
applied to all the criteria. It is now placed together with the new
language concerning historical continuity, and should be read together
with the new language.
The language concerning fluctuations recognizes that acknowledgment
determinations should take into account that the level of tribal
activity may decrease temporarily for various reasons such as a change
in leadership or a loss of land or resources. These real historical
fluctuations are different from variations in documentation that result
from an incomplete historical record. To clarify the meaning, the
qualifier ``sole'' has been omitted and the sentence rewritten to state
that fluctuations will not in themselves be the cause of denial.
Comments: Commenters stated that the proposed revisions of the
regulations were inadequate because they did not make clear what
evidence was required to meet the criteria in Sec. 83.7 (b) and (c).
Some commenters requested a more explicit specification of the evidence
needed to meet these criteria in order to clarify the petitioner's
burden of proof. One commenter proposed a streamlined approach using
simplified and quantified standards. This individual felt that current
approaches were subjective and overly complicated and that they dealt
with extraneous issues.
Response: To clarify the kinds of evidence needed to demonstrate
the criteria at Sec. 83.7 (b) and (c), the revised regulations now
include a list of evidence that can be used to meet each criterion. To
further simplify and streamline the processes of developing and
reviewing petitions, new language sets forth specific kinds of evidence
considered sufficient in themselves to demonstrate that the criterion
has been met. For example, the revised regulations provide that a high
percentage of residence in a geographical area exclusively or almost
exclusively occupied by group members is sufficient to demonstrate
community. The additions to criteria (b) and (c) are discussed further
below, with the review of comments about specific criteria. The
existing regulations already contained lists of specific evidence for
criteria (a) and (e), and these are carried over into the revised rule.
These changes will provide a more focused and efficient process of
preparation and evaluation of petitions, particularly for strong,
clear-cut cases.
A new paragraph, 83.6(g), has been added to the section on general
provisions which specifies that these lists of specific evidence are
not mandatory requirements or ``tests'' that a petitioner must meet.
Rather, they are explicit statements of evidence that may be used to
demonstrate that a criterion has been met. As in past cases, other
kinds of evidence may be used to meet various criteria. The revised and
expanded guidelines will further help petitioners develop their
evidence by explicating the meaning of the criteria as well as
approaches to demonstrating that a criterion is met.
Previous Federal Acknowledgment
Comments: Extensive comment was received on the proposed provision
allowing petitioners that were federally acknowledged previously to
demonstrate only that they meet the criteria from the point of previous
acknowledgment until the present. Many commenters favored this
provision because they viewed it as remedying a lack in the present
regulations and restoring a policy in effect before the present
regulations were published in 1978. No commenters objected to taking
previous acknowledgment into account.
The strongest objections came from those holding the view that if a
group was acknowledged previously it should be recognized now, without
further requirements. These commenters felt that such a group should be
acknowledged automatically unless the Government could demonstrate that
the group had abandoned tribal relations voluntarily.
A variant of this approach was the suggestion that a petitioner
only be required to show that it was the same as the group acknowledged
previously. This could be done either by demonstrating genealogical
descent or by showing that the present group constitutes a tribe under
the regulations and that its members are genealogically descended from
the tribe acknowledged historically.
Response: The Department's position is, and has always been, that
the essential requirement for acknowledgment is continuity of tribal
existence rather than previous acknowledgment. The Federal court in
United States v. Washington, rejected the argument that ``because their
ancestors belonged to treaty tribes, the appellants benefitted from a
presumption of continuing existence.'' The court further defined as a
single, necessary and sufficient condition for the exercise of treaty
rights, that tribes must have functioned since treaty times as
``continuous separate, distinct Indian cultural or political
communities''(641 F.2d 1374 (9th Circuit 1981)). Thus, simple
demonstration of ancestry is not sufficient.
Petitioning groups may be recently formed associations of
individuals who have common tribal ancestry but whose families have not
been associated with the tribe or each other for many generations.
The Department cannot accord acknowledgment to petitioners claiming
previous acknowledgment without a showing that the group is the same as
one recognized in the past. Several previous petitioners claimed they
were a historical tribe for which previous Federal acknowledgment could
be demonstrated. However, it was later found that their members had no
genealogical connection with the claimed tribe. In addition the present
group did not connect with the previously acknowledged tribe through
the continuous historical existence of a distinct community and
political leadership.
The provisions concerning previously acknowledged tribes have been
further revised and set forth in a new, separate section of the
regulations. The changes reduce the burden of evidence for previously
acknowledged tribes to demonstrate continued tribal existence. The
revisions, however, still maintain the same requirements regarding the
character of the petitioner. For petitioners which were genuinely
acknowledged previously as tribes, the revisions recognize that
evidence concerning their continued existence may be entitled to
greater weight. Such groups, therefore, require only a streamlined
demonstration of criterion (c). Although these changes have been made,
the revisions maintain the essential requirement that to be
acknowledged a petitioner must be tribal in character and demonstrate
historic continuity of tribal existence. Thus, petitioners that were
not recognized under the previous regulations would not be recognized
by these revised regulations.
The revised language requires the previously acknowledged
petitioner as it exists today to meet the criteria for community
(criterion 83.7(b) and political influence (criterion 83.7(c)). The
demonstration of historical continuity of tribal existence, since last
Federal acknowledgment until the present, must meet three requirements.
First, the petitioner must demonstrate that it has been continuously
identified by external sources as the same tribe as the tribe
recognized previously. Second, continuity of political influence must
be established by showing identification of leaders and/or a governing
body exercising political influence on a substantially continuous basis
from last acknowledgment until the present, if supported by
demonstration of one form of evidence listed in Sec. 83.7(c).
Demonstration of historical community would not be required. Thus, the
evidence required is less burdensome. Alternatively, if these
requirements cannot be met, petitioner may demonstrate that it meets
the requirements of criteria 83.7(a)-(c) from last Federal
acknowledgment until the present. Third, ancestry from the historic
tribe (criterion 83.7(e)) must be shown. The requirements of criterion
(g), that the petitioner not be subject to legislation terminating or
forbidding the Federal relationship will still apply. Criterion (f),
which requires that the petitioner's members not be members of a
presently recognized tribe, will also still apply.
Comments: Several commenters raised the practical question of when
and how it would be demonstrated that the petitioner was in fact the
same as the previously acknowledged tribe.
Response: The determination under paragraphs 83.10(b)(3) and
83.10(c)(2) that a group was previously acknowledged will only be a
determination that past government actions constituted unambiguous
Federal acknowledgement as a tribe. It will not be a determination that
the criteria for acknowledgment have been met by the petitioning entity
since the last point in time that the tribe it claims to have evolved
from was acknowledged. If during the preliminary technical assistance
review it becomes apparent that the petitioner cannot be linked with
the previously acknowledged tribe, the petitioner will be advised.
Further explanation of this procedure will be provided in the revised
guidelines.
Language has been added to Sec. 83.10(c) to provide for
circumstances where a petitioner's response to the questions raised
during the technical assistance review are not adequate to establish
unambiguous previous Federal acknowledgment.
Comments: Many commenters felt that the definition of the term
``unambiguous previous federal acknowledgment'' was unclear. They
requested a statement of the specific evidence necessary to demonstrate
Federal acknowledgment.
Response: Section 83.8(c) now lists three forms of evidence for
unambiguous previous Federal acknowledgment. These are derived from the
``Cohen criteria'' used by the Department to recognize tribes between
the mid-1930's and 1978. The section further provides that unambiguous
previous acknowledgment may be demonstrated by other kinds of Federal
action. The guidelines provided for under Sec. 83.5(b) will include
further examples and explanations of how this provision will be
applied.
Comments: Several commenters felt that the regulations did not make
clear whether tribal existence would have to be demonstrated from the
earliest or from the latest date of Federal acknowledgment clearly
identified in records. Thus, for example, a petitioner's last point of
Federal acknowledgment might be when under the terms of a treaty,
services were withdrawn, even though that might have been several
decades after the treaty was signed.
Response: The language in Sec. 83.8(d) has been modified to
indicate that tribal existence need only be demonstrated from the
latest date of Federal acknowledgment.
Comment: One commenter was concerned that the regulations might
allow the isolated actions of individual Federal officials not
authorized to extend acknowledgment to be interpreted as previous
acknowledgment.
Response: Since the regulations require that previous
acknowledgment be unambiguous and clearly premised on acknowledgment of
a government-to-government relationship with the United States, no
change in the definition is necessary. The definition does not apply to
circumstances where services may have been provided to individual
Indians, but the services were not based on their membership in a
recognized tribe. Providing individual services in this way was common
earlier in this century.
Interested Parties
Comments: A definition of ``interested party'' was added to the
proposed revised regulations. Language concerning notification and
participation of interested parties was added to and/or clarified in
Sec. 83.9, Notification, Sec. 83.10, Processing of the documented
petition, and Sec. 83.11, Independent review, reconsideration and final
action (sections renumbered). Some commenters approved of these
changes. Yet, numerous others strongly objected to third parties having
an opportunity to participate in and comment on acknowledgment
petitions. Particular concern was expressed that interested parties
might be able to delay the effective date of an acknowledgment
determination without sufficient reason. Several commenters were
concerned that third party information might be considered in advance
of consideration of a petition. Conversely, several commenters wanted
language to insure that recognized tribes affected potentially by a
petition be notified and have an opportunity to comment.
Response: Interested parties participate fully in the
acknowledgment process under the present regulations. None of the
changes made in the proposed revised regulations reflected an increase
in their role. It is neither necessary nor appropriate, in the
Department's view, to prohibit the participation of third parties. In
particular, the Department's position is that parties which may have a
legal or property interest in a decision, such as recognized tribes or
non-Indian governmental units, must be allowed to participate. Other
parties, such as scholars with a knowledge of the history of a
petitioning group, often are able to contribute valuable information
not otherwise available. It has been our experience that this material
is most often favorable to petitioners. Thus, participation of such
interested parties is both appropriate and useful.
The Department agrees that third parties without a significant
property or legal interest in a determination should not be permitted
to participate without limit. Therefore, the definition of interested
party has been revised to refer to third parties with a significant
property or legal interest. A separate phrase informed party, has been
defined in Sec. 83.1 to refer to all other third parties. Language
throughout the regulations has been revised to reflect this
distinction. The revised and additional definitions should be read
together with the language of Sec. 83.11, on reconsideration, and the
new language in paragraph 83.10(i) concerning a formal meeting after a
proposed finding to review the bases of the determination. These
revisions limit to petitioners and interested parties the right to
initiate requests for a formal meeting or for reconsideration. The
Assistant Secretary and the Interior Board of Indian Appeals (IBIA),
respectively, will determine which third parties qualify as interested
parties in the formal meeting and the process for review of requests
for reconsideration.
Language has been added to Sec. 83.9(b) to provide that recognized
tribes and petitioners that can be identified as being affected by or
having a possible interest in a petition determination will be notified
of the opportunity to comment. Such tribes and petitioners will be
considered interested parties.
A requirement that third parties who comment on a proposed finding
or a final determination must provide copies of their comments to the
petitioner as well as to the Department was already included in the
proposed revised regulations (Sec. 83.10(i) and Sec. 83.11(b) as
renumbered here). In order to extend notification requirements to all
stages of the process, language has been added to Sec. 83.10(f)
requiring the Department to notify petitioners of comments received
from third parties before active consideration begins. Information
received from third parties will not be considered by the Department
until a petition is placed under active consideration.
Section-by-Section Review
Introduction: Comments relating to specific sections, not already
discussed in connection with the general issues reviewed above, are
reviewed below on a section-by-section basis. Because a new section,
83.8, has been added, previous sections 83.8-12 have been renumbered as
Sec. 83.9-13.
Throughout the body of the regulations, minor changes have been
made in the text. These are solely for the purposes of clarity and ease
of reading and have no intended change in meaning. All revisions which
are intended to change the acknowledgment process have been separately
noted.
Section 83.1 Definitions
Introduction: Comments on many of the most important definitions
have been incorporated with the criteria with which they are
associated. These comments are discussed below in Sec. 83.7. Comments
on other definitions are reviewed here.
Continental United States
Comment: A definition of continental United States was added to the
proposed revised regulations to make it clear that the regulations
apply to Alaska. The preamble to the proposed revised regulations
further stated that the Bureau would consider whether it was
appropriate to develop a modified acknowledgment process to apply to
Alaska organizations wishing to be included on the Federal Register
list of recognized tribes. One commenter strongly supported the
establishment of a modified acknowledgment process for Alaska.
Response: Many Federal statutes passed since the Alaska Native
Claims Settlement Act (ANCSA) (43 U.S.C. 1601 et seq.) have defined
Indian ``tribe'' to include the corporations established pursuant to
ANCSA. Thus, the Federal Register list of tribes recognized and
eligible for services was expanded to include ANCSA corporate entities
(see 53 FR 52829, at 52832, December 29, 1988). The ANCSA corporations,
while eligible for services as though they were ``tribes'' because
Congress expressly included them in the statutory definition of
``tribes,'' are not tribes in the historical or political sense.
The inclusion of non-tribal entities on the 1988 Alaska entities
list departed from the intent of 25 CFR 83.6(b) and created a
discontinuity from the list of tribal entities in the contiguous 48
states. On October 21, 1993, a Notice identifying tribal entities in
Alaska as well as the contiguous 48 states was published in the Federal
Register (58 FR 54364) to clarify that the villages and regional tribes
are not simply eligible for services, or recognized as tribes for
certain narrow purposes. Rather, the Alaska villages have the same
governmental status as other federally acknowledged tribes by virtue of
their status as Indian tribes with a government-to-government
relationship with the United States; are entitled to the same
protection, immunities, and privileges as other acknowledged tribes;
have the right, subject to general principles of Federal Indian law, to
exercise the same inherent and delegated authorities available to other
tribes; and are subject to the same limitations imposed by law on other
tribes.1 The publication of the new tribal entities list resolves
the primary questions relating to Alaska which led to the consideration
of adopting a possible modified acknowledgment process for Alaska (see
56 FR 47320, at 47321, September 18, 1991). Accordingly, a modification
now of the acknowledgment process to address the special circumstances
in Alaska is unwarranted.
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\1\Sol. Op. M-36,975 concluded, construing general principles of
Federal Indian law and ANCSA, that ``notwithstanding the potential
that Indian country still exists in Alaska in certain limited cases,
Congress has left little or no room for tribes in Alaska to exercise
governmental authority over land or nonmembers'' M-36,975 at 108.
That portion of the opinion is subject to review, but has not been
withdrawn or modified.
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Continuous and Historical
Comments: Commenters generally approved of the addition of language
providing that petitioners need only trace continuity as a tribe back
to the point where contact with non-Indians was sustained. This
provision was aimed at eliminating possible problems caused by the
often sporadic and poorly documented nature of initial contacts.
Several commenters were concerned that the revised definition might
lead to recognition of recently formed groups. Others felt that the
change would eliminate Eastern groups whose early culture and
government had been destroyed.
Response: A separate definition of sustained contact has been
created by restating language incorporated in the definition of
``historical'' in the proposed revised regulations. The revised and
added definitions concerning ``historical,'' ``continuous'' and
``sustained contact'' reflect the current administrative practice in
implementing the present regulations. They do not increase the burden
of demonstrating historical continuity for Eastern groups. The
definition would not permit recently formed groups in areas with long-
standing non-Indian settlement and/or governmental presence to claim
historical existence as a tribe.
European
Comment: Comments were received that European is an inappropriate
term to describe many of the peoples that Indian societies first came
into contact with.
Response: The term non-Indian has been substituted for European in
the definitions of continuous, historical and sustained contact.
Indian Group
Revision: Because the term ``Indian'' did not clearly cover Alaskan
groups, the term ``Alaska Native'' has been added to this definition.
Indian Tribe
Revision: Because the term ``Indian'' did not clearly cover
acknowledged Alaskan tribal entities, the terms Alaska Native and
villages have been added to this definition.
Indigenous
Revision: For clarity and consistency with portions of the
regulations referring to sustained historical contact, this definition
has been revised to refer to the tribe's ``territory at the time of
sustained contact,'' rather than its ``aboriginal range.''
Tribal Roll
Comments: One commenter objected to the requirement for ``active''
consent to membership while another supported it.
Response: This definition was added in the proposed revised
regulations to provide a specific definition of tribal roll for the
purposes of these regulations only. The intent of the regulations is to
acknowledge tribes that are in fact politically autonomous of other
Indian tribes. We believe that in order to meet this intent, a tribal
roll, which here refers to a roll made by a recognized tribe, must
clearly reflect the existence of a bilateral political relationship
between the individuals listed and their tribe. The definition has been
revised, however, to require that the individual have ``affirmatively
demonstrated'' consent rather than ``actively consented'' to
membership. This will make it clearer that a variety of actions may
constitute evidence that an individual's listing on a roll reflects the
existence of a bilateral political relationship with the tribe.
Undocumented Letter Petition
Comments: Comments indicated some continued confusion between the
status of an undocumented letter petition and a documented petition.
The former was defined in the proposed revised regulations as a letter
or resolution to the Assistant Secretary-Indian Affairs indicating that
an Indian group was requesting acknowledgment as a tribe. The latter
was defined as containing the necessary evidence for such a request to
be evaluated.
Response: The term letter of intent has been substituted for
undocumented letter petition in the definitions section and throughout
the regulations. This change more clearly distinguishes between a group
which has merely requested acknowledgment and one which has provided
the evidence necessary to review such a request. Hopefully, the change
will eliminate confusion concerning the status of groups seeking
acknowledgment.
Section 83.3 Scope
Section 83.3(a)
Comment: The meaning of the phrase ``ethnically identifiable'' was
questioned. The exclusion from the proposed revised regulations of the
phrase ``culturally identifiable'' was also questioned.
Response: The phrase ``ethnically identifiable'' has been
eliminated because it caused some confusion and does not contribute to
the implementation of the regulations. ``Culturally identifiable'' was
previously eliminated because the regulations do not require that a
successful petitioner be culturally different from non-Indians.
Section 83.3(g)
Comments: This section provides that petitioners under active
consideration when revised regulations become effective may choose
either to continue under the present regulations or come under the
revised regulations. One commenter objected to allowing a shift if a
proposed finding had already been issued and another objected to
allowing any choice at all. Most of the comments concerned providing
access to the Interior Board of Indian Appeals (IBIA) review process in
Sec. 83.11. Commenters argued that even if the petitioner chose to be
reviewed under the present regulations, they should have access to the
new appeal process. It was also suggested that petitioners whose cases
were already decided under the existing regulations be allowed access
to the IBIA process.
Response: The Department thinks it unlikely that the old
regulations will be chosen by petitioners under active consideration.
However, the comments underscored some procedural complications. Thus,
language has been added to specify that the transition rules apply at
any stage of active consideration, including reconsideration. Language
has also been added to allow petitioners presently under active
consideration to request a suspension of consideration in order to
modify their petition. In addition, the regulations have been revised
to allow groups choosing the original regulations to nonetheless use
the IBIA process, since the Department's policy is presently to utilize
the IBIA to conduct an independent review of requests for
reconsideration.
No provision is being made, however, to allow already completed
decisions to be reopened, since this would constitute repetitioning.
Repetitioning by petitioners for which a final decision has become
effective is prohibited by Sec. 83.10(p).
It is anticipated that groups ready for active consideration but
not yet being considered may wish to withdraw their petitions for
further work. Such petitions would be removed from the priority
register established under Sec. 83.10(d).
Comment: Two commenters requested clarification on what procedures
would apply if a court were to vacate or otherwise return a decision
for reconsideration.
Response: Provisions would be made regarding what procedures should
be followed on an individual basis depending on the specific court
ruling. Because the court would be expected to provide guidance for
each case of this type, no general provisions can be included in the
regulations.
New Issues
Comment: One commenter requested that the regulations bar
consideration of petitioners declared by a Federal court not to exist
as tribes, if the United States and a recognized tribe were a party to
the decision.
Response: It would be inappropriate to put a blanket prohibition in
the regulations. Whether the United States is barred by past court
decisions from acknowledging a petitioner would depend on the
particular circumstances of a given decision. In such cases, the
Department would undertake a legal review which would not require
regulatory language to be effective.
Section 83.4 Filing a Letter of Intent
Revision: Language has been added to clarify that even though in
most instances a letter of intent will be filed first, a petitioner's
letter of intent may be filed at the same time and as part of its
documented petition.
In addition, the language requiring that a letter of intent be
signed, dated, and produced by a petitioner's governing body has been
moved from the definition in Sec. 83.1 to this section as paragraph
83.4(c).
Section 83.5 Duties of the Department
Section 83.5(a)
Comments: The proposed revised regulations changed the requirement
for publication of a list of recognized tribes in the Federal Register
from annually to periodically, as deemed necessary. Commenters objected
that this change made the requirement too indefinite and that regular
publication was necessary so that other Federal agencies would clearly
know the status of tribes.
Response: While the Department believes annual publication is
unnecessary, we agree that some regular schedule is appropriate.
Consequently this section has been revised to provide for publication
at least every three years, and more frequently if deemed necessary.
Comments: Comments were received requesting that the Department
specify as part of the publication of the list of recognized tribes
that Alaska Native villages have the status of historic tribes. This
would include both those villages on lists published under the previous
regulations and on the lists published in the future under the current
regulations.
Response: As already indicated, on October 21, 1993, the Assistant
Secretary--Indian Affairs published a Notice in the Federal Register
(58 FR 54364) listing the recognized tribal entities in the contiguous
48 states and Alaska and clarifying the status of Alaska Native
villages.
Comments: Many comments stated that the revised regulations could
be used, or were intended to be used, to review tribes already on the
list of recognized tribes to determine whether they should continue to
be recognized.
Response: This is an erroneous and unwarranted interpretation of
the proposed revised regulations. The Department has no authority to
use these regulations to review the status of already recognized tribes
and no intention of doing so. Both the current and the proposed revised
regulations declare under Sec. 83.3(b) that presently acknowledged
tribes cannot be acknowledged under these regulations. The intent of
this is that presently acknowledged tribes not be reviewed under the
acknowledgment process.
Section 83.5(b)
Comments: Comments generally approved of the issuance of revised
guidelines, as a way to clarify the requirements for preparation and
evaluation of petitions. Some commenters were afraid that, because of
the provision for periodic updating, the guidelines would be used as a
way to modify the regulations without public comment. Some comments on
definitions wanted key terms such as ``significant'' and
``substantial'' defined in the regulations rather than in the
guidelines.
Response: The purpose of the guidelines is to clarify and explain
more precisely the kinds of evidence necessary for petitions as well as
the administrative procedures for reviewing petitions. It is not
possible to include in the regulations a definition of all of its terms
or a complete exposition of all forms of possible evidence to
demonstrate that the acknowledgment criteria have been met. The
provision for updating guidelines reflects the desire of the Department
to continue to improve its technical assistance to petitioners. The
revised guidelines will allow for response to petitioner's questions
and provide advice on cases or problems which have not been dealt with
previously. The guidelines cannot be used to modify the regulations.
Language has been added to clarify the nature of the guidelines, by
stating explicitly that they will include an explanation of the meaning
of the criteria and the types of evidence necessary to meet them.
New Provision
Comments: Several commenters objected to the deletion of a
provision to notify unrecognized groups of the opportunity to petition.
It was recommended that because the proposed changes in the regulations
are so extensive, the Department should notify petitioners and/or
potential petitioners of the revised regulations.
Response: A new section, 83.5(f), has been added to provide for the
notification of petitioners when the revised regulations become
effective. It is our view that it is not necessary to further notify
groups which have not petitioned that the regulations have been
modified even if they may be aware of the acknowledgment process. That
information can be provided when a letter of intent is submitted.
Section 83.6 General Provisions for the Documented Petition
Section 83.6(a)
Comment: Several commenters interpreted the word ``comprehensive''
in characterizing petitions as a requirement that all possible evidence
be supplied.
Response: The term ``comprehensive'' was used to mean that the
petition should contain evidence concerning all necessary aspects of
the regulations. Because of objections to this term, the language was
changed to require ``detailed, specific'' evidence.
Revision: The paragraph previously numbered 83.6(e) concerning
previous Federal acknowledgment, has been reorganized and augmented and
now appears as a separate section, Sec. 83.8.
Section 83.6(f)
This is a new paragraph which makes explicit that the regulations
apply not only to tribes which have existed historically as a single
entity, but also to tribes which are the result of the historical
combination of several tribes or subunits into a single political
entity. Language to this effect was added to criterion (b) in the
proposed revised regulations. That language in criterion (b) has been
replaced by this general provision. Similar language appears in
criterion (e) of the present regulations and, for reasons of clarity,
has been left in that criterion statement.
Section 83.7 Mandatory Criteria for Federal Acknowledgment
Section 83.7(a)
Comments: There were many comments that this criterion was unfair,
burdensome and unnecessary. Strong concerns were raised, particularly
regarding historical identification of groups in the South, that racial
prejudice, poverty, and isolation have resulted in either a lack of
adequate records or records which unfairly characterized Indian groups
as not being Indian. One commenter considered the criterion unnecessary
because the Indian character of a group should be established
adequately by the requirement under criterion 83.7(e) to show Indian
ancestry, and under criteria 83.7(b) and (c) to show continuity of
tribal community and political influence.
Response: The requirement for continued identification complements
criteria (b), community, (c), political influence, and (e), descent
from a historical tribe. The criterion is intended to exclude from
acknowledgment those entities which have only recently been identified
as being Indian or whose Indian identity is based solely on self-
identification.
The criterion for continued identification has been revised to
reduce the burden of preparing petitions, as well as to address
problems in the historical record in some areas of the country. The
requirement for substantially continuous external identification has
been reduced to require that it only be demonstrated since 1900. This
avoids some of the problems with historical records in earlier periods
while retaining the requirement for substantially continuous
identification as Indian. To further address the question of use of
historical records, language has been added to this criterion to make
explicit that the existence of historical records denying the Indian
character of a group will not be considered definitive evidence that
the group does not meet this criterion. In applying the present
acknowledgment regulations, records denying the Indian character of a
group have not been considered definitive, particularly where there is
evidence that the records have been influenced by racial bias, and
where other, reliable records affirming the group's Indian identity
have also been available.
Comments: Few changes were made in this paragraph in the proposed
revised regulations. For consistency, the word ``repeated'' was added
to several of the descriptions of specific evidence to be used to meet
the criterion. While most commenters viewed these descriptions as
useful, they felt that addition of the term ``repeated'' might be taken
to mean that repeated demonstration over time was required for each
kind of external identification.
Response: The intent of the paragraph is to outline the kinds of
evidence which may be used in combination to demonstrate substantially
continuous identification. In response to the comments, the term
``repeated'' has been taken out of the descriptions, since the basic
criterion language clearly indicates that consistent identification by
outsiders is required.
State and regional organizations have been added to Sec. 83.7(a)(7)
to better reflect the range of Indian organizations which may provide
external identification.
The criterion language has been revised to state that the kinds of
evidence specified ``may'' rather than ``shall'' be used to demonstrate
substantially continuous Indian identity. This has been done to reflect
explicitly how this criterion has been applied under the present
regulations, as well as to maintain consistency with the lists of
evidence provided for other criteria, which are not mandatory.
Comment: One commenter stated that the criterion should require
identification as an Indian tribe, not just as an Indian entity.
Response: The Department feels there is no need to revise the
criterion in this manner. The criterion serves to establish the Indian
identification as a group, but does not determine the character of that
group. Tribal character is determined by the other criteria.
Section 83.7(b)
Introduction: A list of specific evidence that can be used to
demonstrate this criterion, including evidence considered sufficient in
itself, has been added to this criterion. This provides a clearer
explanation of the meaning of the criterion and associated definitions,
and of the burden required to demonstrate this criterion.
Comments: Criterion (b), demonstration of community, and the
associated definition of community in Sec. 83.1, were substantially
revised in the proposed revised rule. The revision omitted an
apparently implied requirement that a group live in a geographical
community in order to demonstrate that this criterion was met. The
revised definition effectively requires a showing that substantial
social relationships and/or social interaction are maintained widely
within the membership, i.e., that members are more than simply a
collection of Indian descendants, and that the membership is socially
distinct from non-Indians.
Several commenters applauded the omission of a geographical or
territorial requirement as better reflecting the circumstances of
unrecognized tribes in some parts of the country. Two commenters
objected on the grounds that a tribe cannot exist without a territorial
basis.
Response: The omission of a geographical requirement reflects
current practices in interpreting the regulations and recognizes that
tribal social relations may be maintained even though members are not
in close geographical proximity. It focuses on the essential
requirement that such relationships exist to a significant degree. The
change has been made so that the definition of community could
encompass all forms of social interaction and not just the traditional
circumstances where a tribe lived on a separate landbase. It also takes
into account the historical difficulties and limitations which may have
made it impossible for unrecognized groups to maintain a separate
geographical community. The revised criterion does not eliminate the
possibility that geographical concentrations may provide direct or
supporting evidence concerning the existence of a community. The
statements of specific evidence added to the criterion state explicitly
that the existence of an exclusive territorial area is strong evidence
that a community exists, because it indicates that significant social
relationships are being maintained. Thus, the use of geographical
evidence remains an option, but not a requirement.
Comment: Several commenters maintained that the existing
regulations only required a showing that members were sufficiently
concentrated geographically to allow the possibility that they could
maintain social and political relationships, without having to show
that such relationships actually existed. They maintained that a
requirement to demonstrate that social relationships actually exists
represents a change in the regulations.
Response: This view misinterprets the definition of community in
the present regulations. The revision does not constitute a change in
meaning. It is consistent with the intent of the regulations and with
the legal precedents underlying the regulations, which require
demonstration of the social solidarity of the tribe. It is also
consistent with all acknowledgment decisions made under the existing
regulations. These determinations have required evidence that
significant social interaction and/or social relationships are actually
maintained within the petitioner's membership.
Comments: Two commenters maintained that the revised definition
adds a new requirement that ``social boundaries'' be shown.
Response: Distinctness is an essential requirement for the
acknowledgment of tribes which are separate social and political
entities. The existing criterion, and the revised one, both call for
the community to be distinct from non-Indians. It is thus not a new
requirement. The definition of ``community'' in the present regulations
does not provide a definition of ``distinct.'' The definition in the
revised regulations merely adds language that defines ``distinct.''
Further, sharp social distinctions have been treated under the
present regulations as strong evidence of cohesion within a community,
since they have the effect of strengthening social interaction and
relations within a group. Language to this effect has been added to
criterion (b), as part of the examples of evidence which may be used to
demonstrate the criterion. Sharp social distinctions include patterns
of discrimination where members of a group are excluded or limited in
their participation in the institutions of the larger society. While
the acknowledgment regulations do not require that such sharp
distinctions exist, they do require that some distinction be shown.
Distinctions may also be maintained by the group itself, and not
imposed by outsiders. In order to clarify the intent of the definition
of community it has been modified to indicate that social distinction
is the key element in the second part of the definition.
Comments: The proposed revised regulations added language to
criterion (b) making it explicit that community must be demonstrated
historically as well as presently. This language reflects the
interpretation of the original regulations used in previous
acknowledgment decisions.
Demonstration of continuity of a historical community is necessary
in order to meet the intent of the regulations that continuity of
tribal existence is the essential requirement for acknowledgment. In
addition, political authority cannot be demonstrated without showing
that there is a community within which political influence is
exercised.
Some comments approved the inclusion of this language. Others
opposed it as an escalation of requirements. These latter commenters
further saw this revision and the revised definition of community as
requiring a demonstration of specific details of interactions in the
historical past, and thus as creating an impossible burden. They also
viewed the requirement to demonstrate historical distinctness of
community as adding a new research burden, that of ``reconstructing
social boundaries.''
Response: A detailed description of individual social relationships
has not been required in past acknowledgment decisions where historical
community has been demonstrated successfully and it is not required
here. The descriptions of specific kinds of evidence to demonstrate
community make clear that detailed sociological reconstructions are not
required. That is, historical community may be demonstrated by other
means such as by showing distinct territorial areas occupied by the
group, strong patterns of intermarriage within the group, etc. Further,
the language added to Sec. 83.6 clarifies that the nature and
limitations of the historical record will be taken into account.
No requirement is intended, nor has one been imposed in past
decisions, to demonstrate ``social boundaries'' in the sense of a
detailed description of social interaction. In fact, however, since
much of the historical data on unacknowledged groups is provided by
outsiders to a group, information on social distinction is often more
readily available in historical sources than is information on the
internal workings of a group.
Comment: Several commenters objected to the use of the word
``predominant'' in the definition of community, rather than the term
``substantial'' as used in the previous definition. However, at least
one commenter viewed the use of ``predominant'' as essential to insure
that most of the group had significant social contact with each other.
Response: The two terms appear in the contexts of two different
definitions of community. The old definition implied a geographic
community, while the revised one focuses on the social character of the
community. The term ``predominant'' is used to state a requirement that
at least half of the membership maintains significant social contact
with each other. The Department considers this is a reasonable standard
for defining an Indian community eligible for acknowledgment.
Therefore, the term has been retained.
Comment: Several individuals pointed out that retention of the
language ``distinct from other populations in the area'' implied a
geographical requirement, even though this was eliminated elsewhere.
Response: We agree, so this language has been eliminated.
Comments: Some commenters felt that having both criteria (b) and
(c) was redundant, at least for the historical periods, since, in their
view, one implied the other.
Response: While the two criteria are interlinked, they are not
identical. Previous acknowledgment decisions have delineated the
relationship between these two criteria. Rather than eliminate one of
the criteria, a description of how one can be used in some
circumstances as evidence to demonstrate the other is included in the
new descriptions of specific evidence which may be used to demonstrate
these criteria. Contrary to the comments received, community is often
easier to demonstrate historically than is political influence.
Revision: To conform with the changes in criterion (a), the
language ``viewed as American Indian'' has been eliminated. The
language was essentially redundant with the requirement of criterion
(a) for identification of the group as an Indian entity.
Section 83.7(c)
Introduction: A list of specific evidence that can be used to
demonstrate this criterion, including evidence considered sufficient in
itself, has been added to this criterion. This addition provides a
clearer explanation of the meaning of the criterion and associated
definitions, and of the burden required to demonstrate this key
criterion.
Comment: The present regulations do not provide a definition of the
key phrase ``tribal political influence or other authority.'' While
some commenters approved of the definition added in Sec. 83.1 of the
proposed revised regulations, others interpreted it as establishing new
requirements. Commenters specifically objected to the language
specifying that influence on members be ``in significant respects,''
that decisions ``substantially affect members,'' and that outside
dealings be in ``matters of consequence.'' Several commenters suggested
that the clauses in the definition be linked by ``and/or'' rather than
``and'' to indicate that these were alternatives that could be used in
combination.
Response: The definition is not a change from present requirements.
It reflects the legal and policy precedents underlying the regulations.
These precedents have been used to interpret the existing regulations
in all previous acknowledgment decisions. It is essential that more
than a trivial degree of political influence be demonstrated.
Petitioners should show that the leaders act in some matters of
consequence to members or affect their behavior in more than a minimal
way. They need not demonstrate the ability to require action or enforce
decisions over strong opposition. It is also not necessary that
political influence be exercised in all or most areas of members' lives
or their relationships with other members. The definition provides for
taking into account the history of the group, including the
difficulties faced by unacknowledged groups in maintaining political
influence. Yet it maintains the fundamental requirements of the
regulations that political influence must not be so diminished as to be
of no consequence or of minimal effect. The qualifying language is
essential to the demonstration of political influence. Thus, it has
been retained in the final regulations. However, the suggestion of
linking the clauses with ``and/or'' has been adopted since it is more
consistent with the intent of the definition.
Comments: Two commenters wanted stronger requirements for criterion
(c). One requested that demonstration of authority over a specific area
be required. The other wanted the criterion to specify ``governmental''
authority, meaning the demonstration of extensive, often coercive
powers similar to those of recognized tribes.
Response: The requested changes would be an unwarranted escalation
of the present requirements and entirely unreasonable, given the
historical difficulties faced by many unacknowledged groups.
Comment: Several commenters questioned the use of the term
``tribal'' to qualify political influence or authority. The commenters
felt that this implied some specialized type of political influence
specific to Indians.
Response: The term ``tribal'' has been eliminated as unnecessary.
It's use merely suggested that the scope of influence was over the
tribal membership. It was not intended to imply a distinct type of
political influence.
Comment: The significance of the word ``other'' in criterion
83.7(c) and the related definitions was questioned. It's inclusion was
interpreted as implying an alternative definition of political
processes than that actually addressed in the definition.
Response: To eliminate confusion, ``other'' has been removed. Now
the basic phrase is ``political influence or authority'' rather than
``political influence or other authority.'' ``Authority'' refers to
exercise of political processes more directly and powerfully than is
the case with ``influence.''
Section 83.7(d)
Comments: Two commenters supported the inclusion of this criteria,
which was only slightly revised. Another concluded that it was
unnecessary because its requirements could be included in criteria (c)
and (e), respectively.
Response: This criterion is largely a technical requirement to
provide information essential to evaluation of a petition. Since it
does not constitute a significant burden on petitioners, it is being
kept separate as a matter of convenience.
Section 83.7(e)
Revisions: The order in which the requirements are presented has
been reversed, in order to state the most fundamental requirement
first. The paragraphs describing evidence which may be used to
demonstrate ancestry have been revised to be consistent with each other
and to state clearly that they should provide evidence demonstrating
that the present membership of a petitioner is descended from a
historic tribe.
Comment: Two commenters questioned the adequacy of the language
allowing ancestry to be derived from historic tribes which combined
into one autonomous political entity. They interpreted it as requiring
a formal union, even though tribal mergers more often occur informally.
They also thought allowance should be made for the movement of families
among tribes.
Response: The present language does not require a formal union, and
past acknowledgment decisions have not required it. The previous
decisions have also allowed for the movement of families between
tribes. Thus, we believe any elaboration on this issue can best be
provided in the revised guidelines.
Comment: Commenters generally supported the requirement of
demonstrating tribal ancestry, but questioned whether it needed to be
traced as far back as is currently required. They also questioned
whether standards of proof were too strict and whether insufficient
weight was given to oral history and tribal records, as opposed to
governmental records.
Response: The regulations have not been interpreted to require
tracing ancestry to the earliest history of a group. For most groups,
ancestry need only to be traced to rolls and/or other documents created
when their ancestors can be identified clearly as affiliated with the
historical tribe. Unfortunately such rolls and/or documents may not
exist for some groups or where they do, individuals may not be
identified as Indians. In such instances, the petitioner's task is more
difficult as they must find other reliable evidence to establish the
necessary link to the historical tribe.
Weight is given to oral history, but it should be substantiated by
documentary evidence wherever possible. Past decisions have utilized
oral history extensively, often using it to point the way to critical
documents. Tribal records are also given weight. In fact, all available
materials and sources are used and their importance weighed by taking
into account the context in which they were created.
Comment: One commenter considered it unreasonable to require a
description of the circumstances under which historical membership
lists were prepared. The commenter pointed out that such information
might not be available in the historical record. The commenter
interpreted the wording of the regulations as requiring this
information and was concerned that, therefore, a petitioner could be
denied for not meeting this requirement.
Response: Language has been added to indicate that information
regarding the creation of past membership lists is required only if it
can be obtained readily. Inability to provide it would not block a
group's ability to meet this criterion. Such information is often vital
to understanding the history of the group, and often helpful to
demonstrating that the group meets this or other criteria.
Comment: Two commenters wanted the criterion to state a specific
percentage of the modern membership, such as 60 percent, that would
have to demonstrate ancestry from the historic tribe.
Response: The Department has intentionally avoided establishing a
specific percentage to demonstrate required ancestry under criterion
(e). This is because the significance of the percentage varies with the
history and nature of a group and the particular reasons why a portion
of the membership may not meet the requirements of the criterion.
Section 83.7(f)
Comments: Several commenters supported the revisions made to this
section and the related definitions of tribal roll, membership in a
recognized tribe and tribal relations. The primary concern was that the
meaning of ``associated with'' was unclear. One commenter objected to
the definition of ``tribal roll'' associated with this criterion.
Another objected to prohibiting dual enrollment, because members of
unacknowledged groups often enroll themselves or their children in
recognized tribes. This may be done in order to receive essential
benefits, and not with the intent of changing tribal affiliation.
Response: The phrase ``associated with'' is meant as a general term
to encompass any situation where a petitioner may have had some
relationship with a recognized tribe but is not legally incorporated
with nor governed by that tribe and is not part of the same community.
No better substitute term was found. The language in this section
specifically prohibits use of the regulations to acknowledge portions
of already recognized tribes. However, it allows for acknowledgment of
rare cases where the petitioner has been regarded, erroneously, as part
of or associated with another tribe, but has been a separate,
autonomous group throughout history.
Section 83.7(g)
No significant comments were received on this paragraph.
Section 83.8 Previous Federal Acknowledgment
All comments relating to this section were dealt with above in the
responses concerning general issues.
Section 83.9 Notice of Receipt of Petition (Formerly 83.8)
This section was renumbered from Sec. 83.8, to permit insertion of
the new, separate section concerning previous Federal acknowledgment.
All comments relating to this section were dealt with above in the
section concerning interested parties.
Section 83.10 Processing the Documented Petition
Introduction: This section was renumbered from Sec. 83.9, to permit
insertion of the new, separate section concerning previous Federal
acknowledgment. Some paragraphs have been divided or combined, and
renumbered, to group together related ideas.
Comments: Numerous comments were received objecting to the fact
that no deadlines were required for Departmental action on technical
assistance reviews nor to commence active consideration of a case. In
contrast, it was pointed out that there were deadlines for petitioners
to respond to proposed findings and final determinations.
Response: The regulations do not provide deadlines for certain
Departmental actions nor for petitioners to submit documented petitions
or to respond to technical assistance reviews. Deadlines only apply to
the active consideration process, where both petitioners and the
Department have specific timelines in which to act. The Department is
committed to as timely and rapid consideration of petitions as
possible. Yet, it finds it cannot guarantee deadlines for technical
assistance reviews or initiation of active consideration, because it
cannot predict the number size, content, or time of submission of
documented petitions.
Section 83.10(a)
Comments: Several commenters objected to the deletion of the phrase
``by his staff'' in reference to research conducted for the Assistant
Secretary. Commenters interpreted this as allowing for the use of
contract researchers and felt strongly that contracting was not
desirable or effective in hastening petition reviews. If contract
research is to be allowed, provision was requested to enable
petitioners to be fully informed about the contracting process.
Commenters also asked to allow petitioners to decline to be reviewed by
contractors, and to have the right to challenge the credentials of
contract researchers.
Response: No change is necessary in this section. While the
Department has the obligation to perform its review using qualified
personnel, it is not obligated to allow petitioners to determine the
personnel reviewing petitions, whether under contract or not.
Contracting can play a useful role in expanding the Department's
resources and providing flexibility, thereby facilitating and
expediting the review of petitions. Furthermore, contracting is used
only for research purposes. Evaluation and determinations of whether a
petitioner meets the mandatory criteria for acknowledgment are only
carried out by Departmental staff.
Section 83.10(d)
Comments: Some commenters approved of the change this section makes
from basing priority of consideration on the date of submission of the
letter of intent to the order in which petitions are ready for active
consideration. Others opposed it as unfair or subject to manipulation.
Response: The Department's position is that the revised priority
register is the most equitable approach. In the past, petitions which
were ready for active consideration but had low priority numbers based
on the initial letter of intent were ``bumped'' by petitions completed
much later but with a higher priority number. This wait and uncertainty
is detrimental to the petitioning and review process.
Section 83.10(e)
Comments: Commenters generally approved of the addition of this
section, which provides for a limited, speedy review of petitions which
cannot, upon examination, meet the requirements of certain
acknowledgment criteria. The primary concern was whether sufficient
review and due process would be accorded.
Response: The section requires clear evidence, apparent on a
preliminary review, that one of the three named criteria are not met.
The section provides that, absent such clear evidence, the petition
will be reviewed under the regular process. This limited evaluation
will only occur after the petitioner has had the opportunity to respond
to the technical assistance review. A proposed finding under this
section would still be subject to the comment process before a final
determination was issued. The petitioner would also have the
opportunity to request reconsideration under Sec. 83.11.
Section 83.10(f)
Comments: Several commenters were concerned that this section did
not give the petitioner sufficient information about which personnel
were responsible for the reviewing of their petition.
Response: The language in this section has been modified to make
clear that the petitioner will be notified of the personnel actually
conducting the review of their petition, as well as the supervisor in
charge of the review.
Section 83.10(g)
Comments: Many commenters objected to the fact that while the
Assistant Secretary can suspend review of a petition under provisions
of this section, petitioners do not have the right to withdraw their
petition or suspend its consideration. Some commenters suggested that
the section should at least specify that the Assistant Secretary will
consider such requests from a petitioner. Several commenters objected
to the prohibition against withdrawal of a petition once active
consideration was begun.
Response: While the present section does not prohibit consideration
of petitioner requests for suspension of consideration, language has
been added to specify that the Assistant Secretary will consider such
requests.
The requirement for the Department to complete the review of any
petition upon which work has begun has been retained. This is because
of the considerable staff time and resources committed to a petition
review which are wasted if the petition is subsequently withdrawn.
Petitioners will have ample time to withdraw before active
consideration is begun. They also will receive extensive preliminary
review and advice concerning their petition. In addition, if
petitioners could choose to withdraw solely because they anticipated a
negative finding, this would create numerous administrative
difficulties which would, in turn, slow down the reviewing process.
Section 83.10(h)
Comments: Two commenters requested that the language in this
section describing the requirements for the Assistant Secretary's
report to accompany the proposed finding be expanded to require that
the bases for the decision be made clear.
Response: The current language calls for the report to summarize
the ``evidence and reasoning'' for the proposed decision. Revised
language has been added to further insure that the report provides a
detailed discussion of the basis for the decision.
In addition, language has been added in a new section,
Sec. 83.10(j), to provide access to all records used in the finding, as
well as for technical advice concerning the bases for the decision.
Further, provision has been made for a formal meeting on the proposed
finding which would be transcribed. This will allow a thorough
exploration of the bases for the proposed finding which will be on the
record, as well as an exchange of views and information between the
Bureau, the petitioner and any interested parties. These changes accord
with the Department's view that a proposed finding is a proposal
subject to change based on additional analyses and evidence. Since new
data and analysis may affect the conclusions proposed in the finding,
it is important to make the petitioner clearly aware of the evidence
and reasoning behind the proposed decision.
Section 83.10(i)
Comments: Several commenters observed that, based on experience to
date, the 120-day response period, even with a potential 120-day
extension, is greatly insufficient. Given the limitations of petitioner
resources and the extent and complexity of the documentation usually
involved, they felt that additional time was needed to prepare an
adequate response.
Response: The Department agrees with these conclusions. The time
periods in this section have been lengthened to provide for an initial
180-day response period and for an extension of up to an additional 180
days at the discretion of the Assistant Secretary. In addition, for
consistency with other sections, the language of the section has been
modified to make clear that comments to the Assistant Secretary may
address any aspect of the proposed finding, not simply the ``evidence
relied upon'', as the section currently provides.
Section 83.10(k)
Comments: Five commenters stated that the 60-day period for
petitioners to respond to the comments of interested parties regarding
a proposed finding was insufficient.
Response: The section allows for an extension of the 60-day period
if warranted by the extent and nature of the comments. No limits are
placed on this extension. We feel that this provision is adequate to
address the needs of petitioners who may need additional time to
address comments of any nature from third parties.
Comments: Two commenters requested that interested parties be
allowed an opportunity to respond in turn to petitioner's comments on
their submissions.
Response: Because the purpose of the response period is to address
the proposed finding, there is no reason to provide for an extended
exchange of comments between parties. However, because of the
importance of the acknowledgment decision to petitioning groups and
their future existence, opportunity is provided for petitioners to
comment both on the proposed finding and on any comments received from
other parties.
Section 83.10(l)
Clarification: Language has been added to this section to make it
clear that the Assistant Secretary's research for the purpose of
analyzing the petition and obtaining information concerning the
petitioner's status, which is stated in Sec. 83.10(a), extends through
the period for preparation of a final determination.
Language has also been added to make it explicit that the Assistant
Secretary may request that a petitioner or third party supplement or
support their comments on a proposed finding with additional
information and explanation. Comments on proposed findings are
sometimes submitted without adequate supporting documentation or
explanation. The absence of this information makes evaluation of the
comments and preparation of the final determination difficult. These
supplementary submissions would not be required and would not require
additional research on the part of the petitioner or commenting party.
These revisions do not provide for a reopening of the response period
and would not allow for the consideration of unsolicited comments
submitted after the close of the response period.
Section 83.10(m)
Revisions: This paragraph, numbered 83.10(l) in the proposed
revised regulations, has been combined with the initial sentence in
Sec. 83.10(m) (as renumbered in the proposed revised regulations), and
designated together as Sec. 83.10(m). The other paragraphs from
Sec. 83.10(m) (as renumbered), have been redesignated as separate
sections.
Sections 83.10 (o) and (p) (Renumbered, Formerly 83.9(m)(2))
Comments: Twenty comments were received on this section and the
related section, Sec. 83.3(f). These sections set forth the prohibition
against repetitioning by groups denied acknowledgment under the
existing regulations. The present regulations are silent on the
question of repetitioning. All but one of the commenters opposed this
change in the regulations. The primary objections were that
undiscovered evidence which might change the outcome of decisions could
come to light in the future. There was also some concern that petitions
could be denied because the petitioner's research was inadequate.
Some felt that proposed changes in the regulations might affect the
outcome if a petition decided under the existing regulations was
reevaluated under the revised rules. These commenters wanted the
revised reconsideration process made available to petitioners denied in
the past under the present regulations.
Response: The Department's position is that there should be an
eventual end to the present administrative process. Those petitioners
who were denied went through several stages of review with multiple
opportunities to develop and submit evidence. Allowing such groups to
return to the process with new evidence would burden the process for
the numerous remaining petitioners. The changes in the regulations are
not so fundamental that they can be expected to result in different
outcomes for cases previously decided. Denied petitioners still have
the opportunity to seek legislative recognition if substantial new
evidence develops.
Section 83.11 Independent Review, Reconsideration and Final Action
Introduction: This section has been reorganized to clarify the
steps in the process and to group together as far as possible the
actions required of each party. This section was formerly numbered
Sec. 83.10. To better reflect the nature of this process, the words
``Independent Review'' have been added to the title of the section.
General Comments: Many commenters supported the provision for
review of reconsideration requests by an independent body. Some
commenters objected to review by the IBIA, however, stating incorrectly
that it was part of the Bureau of Indian Affairs. Other commenters felt
that a review body outside of the Department would provide the fairest,
most independent review.
Commenters also questioned whether the IBIA has the technical
expertise necessary to adequately review acknowledgment decisions.
These observers requested that an ad hoc, independent panel of
professionals be utilized to review appeals.
Response: The IBIA is an independent administrative review body
within the Department. Its decisions are not reviewable by agency
officials. The Department does not believe that an independent panel of
experts would be an appropriate body to make the actual decision for
the Secretary whether to request reconsideration.
The proposed revised regulations included general provisions
intended to address the need for technical input and advice to the
IBIA. Section 83.11(e)(4) provides for a hearing before an
administrative law judge and Sec. 83.11(e)(3) provides for technical
comment by the Bureau at the Board's request, although the Bureau is
not otherwise involved in the independent review process. However, we
believe there is some merit to the concern whether adequate provision
has been made to address technical aspects of acknowledgment decisions
in the independent review process as set forth in the proposed revised
regulations. Therefore, the language of Sec. 83.11(e)(3) has been
modified to allow the Board to obtain independent expert comment if it
deems this appropriate. Additional language has been added to
Sec. 83.11(e)(4) to strengthen the role of the discretionary hearing
before an administrative law judge provided for in this paragraph.
Comments: Many commenters objected to the additional grounds for
reconsideration set forth in Sec. 83.11(d)(4). This paragraph provides
that alternative interpretations of evidence, not previously reviewed,
may be considered. Commenters interpreted this solely in terms of
allowing reversal of positive acknowledgment decisions. One commenter
approved of the additional grounds but questioned the competence of the
IBIA to utilize them because of its lack of technical expertise.
Another commenter wanted this provision limited to expert opinion, with
legal opinions barred with regard to this specific ground for
reconsideration.
Response: The additional grounds are neutral. They allow equally
for a positive or a negative decision to be vacated and returned to the
Assistant Secretary for reconsideration on the basis that the
interpretation used was incorrect or that there are valid, credible
alternative interpretations of the evidence. We believe these
additional grounds further guarantee fairness and flexibility
appropriate to the complexity of these decisions. We do not believe it
would be practical or appropriate to attempt to limit in advance the
kinds of alternative interpretations offered for consideration.
Comment: Some commenters wanted to omit all but the ``new
evidence'' grounds for reconsideration. Others objected to any
opportunity to present new evidence at all, on the grounds that ``due
diligence'' to develop such evidence should have been exercised by the
petitioner, who has the burden of proof under the regulations.
Response: The administrative process is predicated on providing a
maximum opportunity to develop and provide evidence, as well as further
analysis of existing evidence, free of as many procedural
technicalities as possible. We believe this opportunity should extend
to the reconsideration process. In addition, as the response to the
previous set of comments indicates, we believe that the most thorough
and equitable process requires consideration of more than just new
evidence.
Comments: Two commenters objected to the provisions of
Sec. 83.11(e)(8) calling for the Assistant Secretary to designate the
portions of the record to be sent to the IBIA. They felt that this
would allow withholding of vital documents or manipulation of the
decision.
Response: The section makes explicit that the entire record is
available to the Board. The limited initial transmission is called for
because of the extensive nature of the record, which often runs in
excess of 20,000 pages. Thus, it is merely a convenience for the
initial stages of the process of considering requests for
reconsideration. The filings of petitioners and interested parties will
require, in all likelihood, an examination of more of the record.
Comment: Several commenters pointed out that there was no
provision for petitioners or interested parties to comment on materials
submitted to the Secretary which result in a request for
reconsideration under based on grounds other than those in
Sec. 83.11(d)(1-4). One commenter wanted all parties to have an
opportunity to comment before the Secretary made a decision whether to
request reconsideration.
Response: We believe there is merit in having an opportunity to
comment in such circumstances, parallel to that provided in the review
by the IBIA. We also agree that it is most appropriate that such
comments be received before the decision is made by the Secretary.
Therefore, provision has been made for submission to the Secretary of
comments on requests for the Secretary to ask the Assistant Secretary
to reconsider the determination. Where comments are from interested
parties, provision has been made for a reply by the petitioner. The
revised language establishes timeframes for receipt of comment.
Revision: To simplify the reconsideration process, it has been
reorganized to provide that requests for reconsideration be made
directly to the Board. The initial determination of the nature of the
request is a straightforward one that can be more quickly made by the
Board.
As another means of simplifying the reconsideration process, the
Secretary will only review requests for reconsideration made on other
than the four basic grounds set forth in Sec. 83.11(b) if the Board
does not remand the determination to the Assistant Secretary on one or
more of the basic grounds. The Assistant Secretary, in the event of a
remand, would be authorized to also consider any other grounds alleged
for reconsideration besides the four basic ones.
Comments: One commenter wanted all parties to have an opportunity
to comment on any technical comments provided by the Bureau under
Sec. 83.11(e)(3).
Response: It is not necessary to provide for such a comment
opportunity. The Bureau under the regulations does not participate as
an active party opposing or supporting the submissions of petitioner or
interested parties or defending the determination. It is intended only
that the Board have the opportunity to obtain the technical comment
that it may need to make its decision. Further, the Board has authority
under Sec. 83.11(e)(2) to allow the active participants to respond to
such technical comments if it deems this necessary and appropriate.
Section 83.12 Implementation of Decisions
Section 83.12(a)
Comments: Several commenters objected to the change made in this
section identifying tribes acknowledged through this process as
``historic'' tribes. The commenters objected to the distinction that
has been made by the Department for many years between historical
tribes and other organized Indian communities. The political authority
of historical tribes is derived from aboriginal sovereignty because
they have existed historically as distinct tribes since first
acknowledgment. In contrast, the political authority of other organized
Indian communities is considered to be based solely on powers derived
from Federal statutes.
Response: This language is included to make clear that tribes
acknowledged through the process are historical tribes by virtue of the
requirements of the regulations. Removing the language would serve no
purpose in resolving current objections to the distinction between
historic tribes and other organized Indian communities.
The language of this section has been edited to state more directly
that tribes acknowledged through this process are historic tribes and
to clarify that all federally recognized tribes are considered to have
a government-to-government relationship with the United States.
Section 83.12(b)
Comments: Several commenters approved of the limitations
prescribed by this section on the base membership roll of a newly
acknowledged tribe. Others considered the limitation an infringement on
tribal sovereignty.
Response: The provision was included to clearly define tribal
membership prior to acknowledgment. It was also included so that
membership for purposes of Federal funding cannot later be so greatly
expanded that the petitioner becomes, in effect, a different group than
the one acknowledged. The acknowledgment decision rests on a
determination that members of the petitioner form a cohesive social
community and exercise tribal political influence. If the membership
after acknowledgment expands so substantially that it changes the
character of the group, then the validity of the acknowledgment
decision may become questionable. The language of this section does
allow for the addition to the base roll of these individuals who are
politically and socially part of the tribe and who meet its membership
requirements.
Section 83.13 Information Collection
Comment: Only one comment was received which concern the burden of
work stated in the information collection statement. This commenter
felt that the actual burden was much higher than the stated one.
Response: The Department does not agree that the stated burden is
unrealistic, if the research is focused on the information actually
needed to demonstrate tribal existence. Considerable scarce research
resources are wasted on materials which are not relevant to the
criteria. The stated burden hours have been reduced, to reflect the
revisions in the criteria and their application to petitioners which
can demonstrate tribal continuity with previously acknowledged tribes.
The reduction also reflects correction of an error in calculating the
number of genealogical forms which need to be filled out for a
petition. The explanation of the purpose of the information collection
has been revised slightly to more clearly reflect all seven of the
criteria in section 83.7(a-g).
III. Findings and Certifications
The Department has certified to the Office of Management and Budget
(OMB) that these final regulations meet the applicable standards
provided in Sections 2(a) and 2(b)(2) of Executive Order 12778. These
regulations have no preemptive or retroactive effect. A major purpose
of the revisions has been to address the clarity of language and
general draftsmanship of the regulations. Major efforts have been made
to reduce the burden on petitioners.
This rule has been reviewed under Executive Order 12866. In
accordance with E.O. 12630, the Department has determined that this
rule does not have significant takings implications.
The Department has determined that this rule does not have
significant federalism effects on States. This rule concerns the
establishment by the Federal Government of a government-to-government
relationship between the United States and Indian tribes not presently
accorded that relationship. It does not affect State laws or powers,
but may change the extent of their exercise or applicability to a tribe
which becomes federally acknowledged. Costs or burdens to the States
would not be significantly increased. Provision is made for State
comment during the review of petitions for acknowledgment.
The Department has determined that this rulemaking does not
constitute a major Federal action significantly affecting the quality
of the human environment and that no detailed statement is required
pursuant to the National Environmental Policy Act of 1969.
The information collection requirements contained in Sec. 83.7 have
been approved by the Office of Management and Budget (OMB) under 44
U.S.C. 3501 et seq. and assigned clearance number OMB 1076-0104.
The primary author of this document is George Roth, Cultural
Anthropologist, Branch of Acknowledgment and Research, Bureau of Indian
Affairs.
List of Subjects in 25 CFR Part 83
Administrative practice and procedure, Indians-tribal government.
For the reasons set out in the preamble, Title 25, Chapter 1 of the
Code of Federal Regulations is amended by revising part 83 to read as
follows:
PART 83--PROCEDURES FOR ESTABLISHING THAT AN AMERICAN INDIAN GROUP
EXISTS AS AN INDIAN TRIBE
Sec.
83.1 Definitions.
83.2 Purpose.
83.3 Scope.
83.4 Filing a letter of intent.
83.5 Duties of the Department.
83.6 General provisions for the documented petition.
83.7 Mandatory criteria for Federal acknowledgment.
83.8 Previous Federal acknowledgment
83.9 Notice of receipt of a petition.
83.10 Processing of the documented petition.
83.11 Independent review, reconsideration and final action.
83.12 Implementation of decisions.
83.13 Information collection.
Authority: 5 U.S.C. 301; 25 U.S.C. 2 and 9; 43 U.S.C. 1457; and
209 Departmental Manual 8.
Sec. 83.1 Definitions.
As used in this part:
Area Office means a Bureau of Indian Affairs Area Office.
Assistant Secretary means the Assistant Secretary--Indian Affairs,
or that officer's authorized representative.
Autonomous means the exercise of political influence or authority
independent of the control of any other Indian governing entity.
Autonomous must be understood in the context of the history, geography,
culture and social organization of the petitioning group.
Board means the Interior Board of Indian Appeals.
Bureau means the Bureau of Indian Affairs.
Community means any group of people which can demonstrate that
consistent interactions and significant social relationships exist
within its membership and that its members are differentiated from and
identified as distinct from nonmembers. Community must be understood in
the context of the history, geography, culture and social organization
of the group.
Continental United States means the contiguous 48 states and
Alaska.
Continuously or continuous means extending from first sustained
contact with non-Indians throughout the group's history to the present
substantially without interruption.
Department means the Department of the Interior.
Documented petition means the detailed arguments made by a
petitioner to substantiate its claim to continuous existence as an
Indian tribe, together with the factual exposition and all documentary
evidence necessary to demonstrate that these arguments address the
mandatory criteria in Sec. 83.7(a) through (g).
Historically, historical or history means dating from first
sustained contact with non-Indians.
Indian group or group means any Indian or Alaska Native aggregation
within the continental United States that the Secretary of the Interior
does not acknowledge to be an Indian tribe.
Indian tribe, also referred to herein as tribe, means any Indian or
Alaska Native tribe, band, pueblo, village, or community within the
continental United States that the Secretary of the Interior presently
acknowledges to exist as an Indian tribe.
Indigenous means native to the continental United States in that at
least part of the petitioner's territory at the time of sustained
contact extended into what is now the continental United States.
Informed party means any person or organization, other than an
interested party, who requests an opportunity to submit comments or
evidence or to be kept informed of general actions regarding a specific
petitioner.
Interested party means any person, organization or other entity who
can establish a legal, factual or property interest in an
acknowledgment determination and who requests an opportunity to submit
comments or evidence or to be kept informed of general actions
regarding a specific petitioner. ``Interested party'' includes the
governor and attorney general of the state in which a petitioner is
located, and may include, but is not limited to, local governmental
units, and any recognized Indian tribes and unrecognized Indian groups
that might be affected by an acknowledgment determination.
Letter of intent means an undocumented letter or resolution by
which an Indian group requests Federal acknowledgment as an Indian
tribe and expresses its intent to submit a documented petition.
Member of an Indian group means an individual who is recognized by
an Indian group as meeting its membership criteria and who consents to
being listed as a member of that group.
Member of an Indian tribe means an individual who meets the
membership requirements of the tribe as set forth in its governing
document or, absent such a document, has been recognized as a member
collectively by those persons comprising the tribal governing body, and
has consistently maintained tribal relations with the tribe or is
listed on the tribal rolls of that tribe as a member, if such rolls are
kept.
Petitioner means any entity that has submitted a letter of intent
to the Secretary requesting acknowledgment that it is an Indian tribe.
Political influence or authority means a tribal council,
leadership, internal process or other mechanism which the group has
used as a means of influencing or controlling the behavior of its
members in significant respects, and/or making decisions for the group
which substantially affect its members, and/or representing the group
in dealing with outsiders in matters of consequence. This process is to
be understood in the context of the history, culture and social
organization of the group.
Previous Federal acknowledgment means action by the Federal
government clearly premised on identification of a tribal political
entity and indicating clearly the recognition of a relationship between
that entity and the United States.
Secretary means the Secretary of the Interior or that officer's
authorized representative.
Sustained contact means the period of earliest sustained non-Indian
settlement and/or governmental presence in the local area in which the
historical tribe or tribes from which the petitioner descends was
located historically.
Tribal relations means participation by an individual in a
political and social relationship with an Indian tribe.
Tribal roll, for purposes of these regulations, means a list
exclusively of those individuals who have been determined by the tribe
to meet the tribe's membership requirements as set forth in its
governing document. In the absence of such a document, a tribal roll
means a list of those recognized as members by the tribe's governing
body. In either case, those individuals on a tribal roll must have
affirmatively demonstrated consent to being listed as members.
Sec. 83.2 Purpose.
The purpose of this part is to establish a departmental procedure
and policy for acknowledging that certain American Indian groups exist
as tribes. Acknowledgment of tribal existence by the Department is a
prerequisite to the protection, services, and benefits of the Federal
government available to Indian tribes by virtue of their status as
tribes. Acknowledgment shall also mean that the tribe is entitled to
the immunities and privileges available to other federally acknowledged
Indian tribes by virtue of their government-to-government relationship
with the United States as well as the responsibilities, powers,
limitations and obligations of such tribes. Acknowledgment shall
subject the Indian tribe to the same authority of Congress and the
United States to which other federally acknowledged tribes are
subjected.
Sec. 83.3 Scope.
(a) This part applies only to those American Indian groups
indigenous to the continental United States which are not currently
acknowledged as Indian tribes by the Department. It is intended to
apply to groups that can establish a substantially continuous tribal
existence and which have functioned as autonomous entities throughout
history until the present.
(b) Indian tribes, organized bands, pueblos, Alaska Native
villages, or communities which are already acknowledged as such and are
receiving services from the Bureau of Indian Affairs may not be
reviewed under the procedures established by these regulations.
(c) Associations, organizations, corporations or groups of any
character that have been formed in recent times may not be acknowledged
under these regulations. The fact that a group that meets the criteria
in Sec. 83.7 (a) through (g) has recently incorporated or otherwise
formalized its existing autonomous political process will be viewed as
a change in form and have no bearing on the Assistant Secretary's final
decision.
(d) Splinter groups, political factions, communities or groups of
any character that separate from the main body of a currently
acknowledged tribe may not be acknowledged under these regulations.
However, groups that can establish clearly that they have functioned
throughout history until the present as an autonomous tribal entity may
be acknowledged under this part, even though they have been regarded by
some as part of or have been associated in some manner with an
acknowledged North American Indian tribe.
(e) Further, groups which are, or the members of which are, subject
to congressional legislation terminating or forbidding the Federal
relationship may not be acknowledged under this part.
(f) Finally, groups that previously petitioned and were denied
Federal acknowledgment under these regulations or under previous
regulations in part 83 of this title, may not be acknowledged under
these regulations. This includes reorganized or reconstituted
petitioners previously denied, or splinter groups, spin-offs, or
component groups of any type that were once part of petitioners
previously denied.
(g) Indian groups whose documented petitions are under active
consideration at the effective date of these revised regulations may
choose to complete their petitioning process either under these
regulations or under the previous acknowledgment regulations in part 83
of this title. This choice must be made by April 26, 1994. This option
shall apply to any petition for which a determination is not final and
effective. Such petitioners may request a suspension of consideration
under Sec. 83.10(g) of not more than 180 days in order to provide
additional information or argument.
Sec. 83.4 Filing a letter of intent.
(a) Any Indian group in the continental United States that believes
it should be acknowledged as an Indian tribe and that it can satisfy
the criteria in Sec. 83.7 may submit a letter of intent.
(b) Letters of intent requesting acknowledgment that an Indian
group exists as an Indian tribe shall be filed with the Assistant
Secretary--Indian Affairs, Department of the Interior, 1849 C Street,
NW., Washington, DC 20240. Attention: Branch of Acknowledgment and
Research, Mail Stop 2611-MIB. A letter of intent may be filed in
advance of, or at the same time as, a group's documented petition.
(c) A letter of intent must be produced, dated and signed by the
governing body of an Indian group and submitted to the Assistant
Secretary.
Sec. 83.5 Duties of the Department.
(a) The Department shall publish in the Federal Register, no less
frequently than every three years, a list of all Indian tribes entitled
to receive services from the Bureau by virtue of their status as Indian
tribes. The list may be published more frequently, if the Assistant
Secretary deems it necessary.
(b) The Assistant Secretary shall make available revised and
expanded guidelines for the preparation of documented petitions by
September 23, 1994. These guidelines will include an explanation of the
criteria and other provisions of the regulations, a discussion of the
types of evidence which may be used to demonstrate particular criteria
or other provisions of the regulations, and general suggestions and
guidelines on how and where to conduct research. The guidelines may be
supplemented or updated as necessary. The Department's example of a
documented petition format, while preferable, shall not preclude the
use of any other format.
(c) The Department shall, upon request, provide petitioners with
suggestions and advice regarding preparation of the documented
petition. The Department shall not be responsible for the actual
research on behalf of the petitioner.
(d) Any notice which by the terms of these regulations must be
published in the Federal Register, shall also be mailed to the
petitioner, the governor of the state where the group is located, and
to other interested parties.
(e) After an Indian group has filed a letter of intent requesting
Federal acknowledgment as an Indian tribe and until that group has
actually submitted a documented petition, the Assistant Secretary may
contact the group periodically and request clarification, in writing,
of its intent to continue with the petitioning process.
(f) All petitioners under active consideration shall be notified,
by April 16, 1994 of the opportunity under Sec. 83.3(g) to choose
whether to complete their petitioning process under the provisions of
these revised regulations or the previous regulations as published, on
September 5, 1978, at 43 FR 39361.
(g) All other groups that have submitted documented petitions or
letters of intent shall be notified of and provided with a copy of
these regulations by July 25, 1994.
Sec. 83.6 General provisions for the documented petition.
(a) The documented petition may be in any readable form that
contains detailed, specific evidence in support of a request to the
Secretary to acknowledge tribal existence.
(b) The documented petition must include a certification, signed
and dated by members of the group's governing body, stating that it is
the group's official documented petition.
(c) A petitioner must satisfy all of the criteria in paragraphs (a)
through (g) of Sec. 83.7 in order for tribal existence to be
acknowledged. Therefore, the documented petition must include thorough
explanations and supporting documentation in response to all of the
criteria. The definitions in Sec. 83.1 are an integral part of the
regulations, and the criteria should be read carefully together with
these definitions.
(d) A petitioner may be denied acknowledgment if the evidence
available demonstrates that it does not meet one or more criteria. A
petitioner may also be denied if there is insufficient evidence that it
meets one or more of the criteria. A criterion shall be considered met
if the available evidence establishes a reasonable likelihood of the
validity of the facts relating to that criterion. Conclusive proof of
the facts relating to a criterion shall not be required in order for
the criterion to be considered met.
(e) Evaluation of petitions shall take into account historical
situations and time periods for which evidence is demonstrably limited
or not available. The limitations inherent in demonstrating the
historical existence of community and political influence or authority
shall also be taken into account. Existence of community and political
influence or authority shall be demonstrated on a substantially
continuous basis, but this demonstration does not require meeting these
criteria at every point in time. Fluctuations in tribal activity during
various years shall not in themselves be a cause for denial of
acknowledgment under these criteria.
(f) The criteria in Sec. 83.7 (a) through (g) shall be interpreted
as applying to tribes or groups that have historically combined and
functioned as a single autonomous political entity.
(g) The specific forms of evidence stated in the criteria in
Sec. 83.7 (a) through (c) and Sec. 83.7(e) are not mandatory
requirements. The criteria may be met alternatively by any suitable
evidence that demonstrates that the petitioner meets the requirements
of the criterion statement and related definitions.
Sec. 83.7 Mandatory criteria for Federal acknowledgment.
The mandatory criteria are:
(a) The petitioner has been identified as an American Indian entity
on a substantially continuous basis since 1900. Evidence that the
group's character as an Indian entity has from time to time been denied
shall not be considered to be conclusive evidence that this criterion
has not been met. Evidence to be relied upon in determining a group's
Indian identity may include one or a combination of the following, as
well as other evidence of identification by other than the petitioner
itself or its members.
(1) Identification as an Indian entity by Federal authorities.
(2) Relationships with State governments based on identification of
the group as Indian.
(3) Dealings with a county, parish, or other local government in a
relationship based on the group's Indian identity.
(4) Identification as an Indian entity by anthropologists,
historians, and/or other scholars.
(5) Identification as an Indian entity in newspapers and books.
(6) Identification as an Indian entity in relationships with Indian
tribes or with national, regional, or state Indian organizations.
(b) A predominant portion of the petitioning group comprises a
distinct community and has existed as a community from historical times
until the present.
(1) This criterion may be demonstrated by some combination of the
following evidence and/or other evidence that the petitioner meets the
definition of community set forth in Sec. 83.1:
(i) Significant rates of marriage within the group, and/or, as may
be culturally required, patterned out-marriages with other Indian
populations.
(ii) Significant social relationships connecting individual
members.
(iii) Significant rates of informal social interaction which exist
broadly among the members of a group.
(iv) A significant degree of shared or cooperative labor or other
economic activity among the membership.
(v) Evidence of strong patterns of discrimination or other social
distinctions by non-members.
(vi) Shared sacred or secular ritual activity encompassing most of
the group.
(vii) Cultural patterns shared among a significant portion of the
group that are different from those of the non-Indian populations with
whom it interacts. These patterns must function as more than a symbolic
identification of the group as Indian. They may include, but are not
limited to, language, kinship organization, or religious beliefs and
practices.
(viii) The persistence of a named, collective Indian identity
continuously over a period of more than 50 years, notwithstanding
changes in name.
(ix) A demonstration of historical political influence under the
criterion in Sec. 83.7(c) shall be evidence for demonstrating
historical community.
(2) A petitioner shall be considered to have provided sufficient
evidence of community at a given point in time if evidence is provided
to demonstrate any one of the following:
(i) More than 50 percent of the members reside in a geographical
area exclusively or almost exclusively composed of members of the
group, and the balance of the group maintains consistent interaction
with some members of the community;
(ii) At least 50 percent of the marriages in the group are between
members of the group;
(iii) At least 50 percent of the group members maintain distinct
cultural patterns such as, but not limited to, language, kinship
organization, or religious beliefs and practices;
(iv) There are distinct community social institutions encompassing
most of the members, such as kinship organizations, formal or informal
economic cooperation, or religious organizations; or
(v) The group has met the criterion in Sec. 83.7(c) using evidence
described in Sec. 83.7(c)(2).
(c) The petitioner has maintained political influence or authority
over its members as an autonomous entity from historical times until
the present.
(1) This criterion may be demonstrated by some combination of the
evidence listed below and/or by other evidence that the petitioner
meets the definition of political influence or authority in Sec. 83.1.
(i) The group is able to mobilize significant numbers of members
and significant resources from its members for group purposes.
(ii) Most of the membership considers issues acted upon or actions
taken by group leaders or governing bodies to be of importance.
(iii) There is widespread knowledge, communication and involvement
in political processes by most of the group's members.
(iv) The group meets the criterion in Sec. 83.7(b) at more than a
minimal level.
(v) There are internal conflicts which show controversy over valued
group goals, properties, policies, processes and/or decisions.
(2) A petitioning group shall be considered to have provided
sufficient evidence to demonstrate the exercise of political influence
or authority at a given point in time by demonstrating that group
leaders and/or other mechanisms exist or existed which:
(i) Allocate group resources such as land, residence rights and the
like on a consistent basis.
(ii) Settle disputes between members or subgroups by mediation or
other means on a regular basis;
(iii) Exert strong influence on the behavior of individual members,
such as the establishment or maintenance of norms and the enforcement
of sanctions to direct or control behavior;
(iv) Organize or influence economic subsistence activities among
the members, including shared or cooperative labor.
(3) A group that has met the requirements in paragraph 83.7(b)(2)
at a given point in time shall be considered to have provided
sufficient evidence to meet this criterion at that point in time.
(d) A copy of the group's present governing document including its
membership criteria. In the absence of a written document, the
petitioner must provide a statement describing in full its membership
criteria and current governing procedures.
(e) The petitioner's membership consists of individuals who descend
from a historical Indian tribe or from historical Indian tribes which
combined and functioned as a single autonomous political entity.
(1) Evidence acceptable to the Secretary which can be used for this
purpose includes but is not limited to:
(i) Rolls prepared by the Secretary on a descendancy basis for
purposes of distributing claims money, providing allotments, or other
purposes;
(ii) State, Federal, or other official records or evidence
identifying present members or ancestors of present members as being
descendants of a historical tribe or tribes that combined and
functioned as a single autonomous political entity.
(iii) Church, school, and other similar enrollment records
identifying present members or ancestors of present members as being
descendants of a historical tribe or tribes that combined and
functioned as a single autonomous political entity.
(iv) Affidavits of recognition by tribal elders, leaders, or the
tribal governing body identifying present members or ancestors of
present members as being descendants of a historical tribe or tribes
that combined and functioned as a single autonomous political entity.
(v) Other records or evidence identifying present members or
ancestors of present members as being descendants of a historical tribe
or tribes that combined and functioned as a single autonomous political
entity.
(2) The petitioner must provide an official membership list,
separately certified by the group's governing body, of all known
current members of the group. This list must include each member's full
name (including maiden name), date of birth, and current residential
address. The petitioner must also provide a copy of each available
former list of members based on the group's own defined criteria, as
well as a statement describing the circumstances surrounding the
preparation of the current list and, insofar as possible, the
circumstances surrounding the preparation of former lists.
(f) The membership of the petitioning group is composed principally
of persons who are not members of any acknowledged North American
Indian tribe. However, under certain conditions a petitioning group may
be acknowledged even if its membership is composed principally of
persons whose names have appeared on rolls of, or who have been
otherwise associated with, an acknowledged Indian tribe. The conditions
are that the group must establish that it has functioned throughout
history until the present as a separate and autonomous Indian tribal
entity, that its members do not maintain a bilateral political
relationship with the acknowledged tribe, and that its members have
provided written confirmation of their membership in the petitioning
group.
(g) Neither the petitioner nor its members are the subject of
congressional legislation that has expressly terminated or forbidden
the Federal relationship.
Sec. 83.8 Previous Federal acknowledgment.
(a) Unambiguous previous Federal acknowledgment is acceptable
evidence of the tribal character of a petitioner to the date of the
last such previous acknowledgment. If a petitioner provides substantial
evidence of unambiguous Federal acknowledgment, the petitioner will
then only be required to demonstrate that it meets the requirements of
Sec. 83.7 to the extent required by this section.
(b) A determination of the adequacy of the evidence of previous
Federal action acknowledging tribal status shall be made during the
technical assistance review of the documented petition conducted
pursuant to Sec. 83.10(b). If a petition is awaiting active
consideration at the time of adoption of these regulations, this review
will be conducted while the petition is under active consideration
unless the petitioner requests in writing that this review be made in
advance.
(c) Evidence to demonstrate previous Federal acknowledgment
includes, but is not limited to:
(1) Evidence that the group has had treaty relations with the
United States.
(2) Evidence that the group has been denominated a tribe by act of
Congress or Executive Order.
(3) Evidence that the group has been treated by the Federal
Government as having collective rights in tribal lands or funds.
(d) To be acknowledged, a petitioner that can demonstrate previous
Federal acknowledgment must show that:
(1) The group meets the requirements of the criterion in
Sec. 83.7(a), except that such identification shall be demonstrated
since the point of last Federal acknowledgment. The group must further
have been identified by such sources as the same tribal entity that was
previously acknowledged or as a portion that has evolved from that
entity.
(2) The group meets the requirements of the criterion in
Sec. 83.7(b) to demonstrate that it comprises a distinct community at
present. However, it need not provide evidence to demonstrate existence
as a community historically.
(3) The group meets the requirements of the criterion in
Sec. 83.7(c) to demonstrate that political influence or authority is
exercised within the group at present. Sufficient evidence to meet the
criterion in Sec. 83.7(c) from the point of last Federal acknowledgment
to the present may be provided by demonstration of substantially
continuous historical identification, by authoritative, knowledgeable
external sources, of leaders and/or a governing body who exercise
political influence or authority, together with demonstration of one
form of evidence listed in Sec. 83.7(c).
(4) The group meets the requirements of the criteria in paragraphs
83.7 (d) through (g).
(5) If a petitioner which has demonstrated previous Federal
acknowledgment cannot meet the requirements in paragraphs (d) (1) and
(3), the petitioner may demonstrate alternatively that it meets the
requirements of the criteria in Sec. 83.7 (a) through (c) from last
Federal acknowledgment until the present.
Sec. 83.9 Notice of receipt of a petition.
(a) Within 30 days after receiving a letter of intent, or a
documented petition if a letter of intent has not previously been
received and noticed, the Assistant Secretary shall acknowledge such
receipt in writing and shall have published within 60 days in the
Federal Register a notice of such receipt. This notice must include the
name, location, and mailing address of the petitioner and such other
information as will identify the entity submitting the letter of intent
or documented petition and the date it was received. This notice shall
also serve to announce the opportunity for interested parties and
informed parties to submit factual or legal arguments in support of or
in opposition to the petitioner's request for acknowledgment and/or to
request to be kept informed of all general actions affecting the
petition. The notice shall also indicate where a copy of the letter of
intent and the documented petition may be examined.
(b) The Assistant Secretary shall notify, in writing, the governor
and attorney general of the state in which a petitioner is located. The
Assistant Secretary shall also notify any recognized tribe and any
other petitioner which appears to have a historical or present
relationship with the petitioner or which may otherwise be considered
to have a potential interest in the acknowledgment determination.
(c) The Assistant Secretary shall also publish the notice of
receipt of the letter of intent, or documented petition if a letter of
intent has not been previously received, in a major newspaper or
newspapers of general circulation in the town or city nearest to the
petitioner. The notice will include all of the information in paragraph
(a) of this section.
Sec. 83.10 Processing of the documented petition.
(a) Upon receipt of a documented petition, the Assistant Secretary
shall cause a review to be conducted to determine whether the
petitioner is entitled to be acknowledged as an Indian tribe. The
review shall include consideration of the documented petition and the
factual statements contained therein. The Assistant Secretary may also
initiate other research for any purpose relative to analyzing the
documented petition and obtaining additional information about the
petitioner's status. The Assistant Secretary may likewise consider any
evidence which may be submitted by interested parties or informed
parties.
(b) Prior to active consideration of the documented petition, the
Assistant Secretary shall conduct a preliminary review of the petition
for purposes of technical assistance.
(1) This technical assistance review does not constitute the
Assistant Secretary's review to determine if the petitioner is entitled
to be acknowledged as an Indian tribe. It is a preliminary review for
the purpose of providing the petitioner an opportunity to supplement or
revise the documented petition prior to active consideration. Insofar
as possible, technical assistance reviews under this paragraph will be
conducted in the order of receipt of documented petitions. However,
technical assistance reviews will not have priority over active
consideration of documented petitions.
(2) After the technical assistance review, the Assistant Secretary
shall notify the petitioner by letter of any obvious deficiencies or
significant omissions apparent in the documented petition and provide
the petitioner with an opportunity to withdraw the documented petition
for further work or to submit additional information and/or
clarification.
(3) If a petitioner's documented petition claims previous Federal
acknowledgment and/or includes evidence of previous Federal
acknowledgment, the technical assistance review will also include a
review to determine whether that evidence is sufficient to meet the
requirements of previous Federal acknowledgment as defined in
Sec. 83.1.
(c) Petitioners have the option of responding in part or in full to
the technical assistance review letter or of requesting, in writing,
that the Assistant Secretary proceed with the active consideration of
the documented petition using the materials already submitted.
(1) If the petitioner requests that the materials submitted in
response to the technical assistance review letter be again reviewed
for adequacy, the Assistant Secretary will provide the additional
review. However, this additional review will not be automatic and will
be conducted only at the request of the petitioner.
(2) If the assertion of previous Federal acknowledgment under
Sec. 83.8 cannot be substantiated during the technical assistance
review, the petitioner must respond by providing additional evidence. A
petitioner claiming previous Federal acknowledgment who fails to
respond to a technical assistance review letter under this paragraph,
or whose response fails to establish the claim, shall have its
documented petition considered on the same basis as documented
petitions submitted by groups not claiming previous Federal
acknowledgment. Petitioners that fail to demonstrate previous Federal
acknowledgment after a review of materials submitted in response to the
technical assistance review shall be so notified. Such petitioners may
submit additional materials concerning previous acknowledgment during
the course of active consideration.
(d) The order of consideration of documented petitions shall be
determined by the date of the Bureau's notification to the petitioner
that it considers that the documented petition is ready to be placed on
active consideration. The Assistant Secretary shall establish and
maintain a numbered register of documented petitions which have been
determined ready for active consideration. The Assistant Secretary
shall also maintain a numbered register of letters of intent or
incomplete petitions based on the original date of filing with the
Bureau. In the event that two or more documented petitions are
determined ready for active consideration on the same date, the
register of letters of intent or incomplete petitions shall determine
the order of consideration by the Assistant Secretary.
(e) Prior to active consideration, the Assistant Secretary shall
investigate any petitioner whose documented petition and response to
the technical assistance review letter indicates that there is little
or no evidence that establishes that the group can meet the mandatory
criteria in paragraphs (e), (f) or (g) of Sec. 83.7.
(1) If this review finds that the evidence clearly establishes that
the group does not meet the mandatory criteria in paragraphs (e), (f)
or (g) of Sec. 83.7, a full consideration of the documented petition
under all seven of the mandatory criteria will not be undertaken
pursuant to paragraph (a) of this section. Rather, the Assistant
Secretary shall instead decline to acknowledge that the petitioner is
an Indian tribe and publish a proposed finding to that effect in the
Federal Register. The periods for receipt of comments on the proposed
finding from petitioners, interested parties and informed parties, for
consideration of comments received, and for publication of a final
determination regarding the petitioner's status shall follow the
timetables established in paragraphs (h) through (l) of this section.
(2) If the review cannot clearly demonstrate that the group does
not meet one or more of the mandatory criteria in paragraphs (e), (f)
or (g) of Sec. 83.7, a full evaluation of the documented petition under
all seven of the mandatory criteria shall be undertaken during active
consideration of the documented petition pursuant to paragraph (g) of
this section.
(f) The petitioner and interested parties shall be notified when
the documented petition comes under active consideration.
(1) They shall also be provided with the name, office address, and
telephone number of the staff member with primary administrative
responsibility for the petition; the names of the researchers
conducting the evaluation of the petition; and the name of their
supervisor.
(2) The petitioner shall be notified of any substantive comment on
its petition received prior to the beginning of active consideration or
during the preparation of the proposed finding, and shall be provided
an opportunity to respond to such comments.
(g) Once active consideration of the documented petition has begun,
the Assistant Secretary shall continue the review and publish proposed
findings and a final determination in the Federal Register pursuant to
these regulations, notwithstanding any requests by the petitioner or
interested parties to cease consideration. The Assistant Secretary has
the discretion, however, to suspend active consideration of a
documented petition, either conditionally or for a stated period of
time, upon a showing to the petitioner that there are technical
problems with the documented petition or administrative problems that
temporarily preclude continuing active consideration. The Assistant
Secretary shall also consider requests by petitioners for suspension of
consideration and has the discretion to grant such requests for good
cause. Upon resolution of the technical or administrative problems that
are the basis for the suspension, the documented petition will have
priority on the numbered register of documented petitions insofar as
possible. The Assistant Secretary shall notify the petitioner and
interested parties when active consideration of the documented petition
is resumed. The timetables in succeeding paragraphs shall begin anew
upon the resumption of active consideration.
(h) Within one year after notifying the petitioner that active
consideration of the documented petition has begun, the Assistant
Secretary shall publish proposed findings in the Federal Register. The
Assistant Secretary has the discretion to extend that period up to an
additional 180 days. The petitioner and interested parties shall be
notified of the time extension. In addition to the proposed findings,
the Assistant Secretary shall prepare a report summarizing the
evidence, reasoning, and analyses that are the basis for the proposed
decision. Copies of the report shall be provided to the petitioner,
interested parties, and informed parties and made available to others
upon written request.
(i) Upon publication of the proposed findings, the petitioner or
any individual or organization wishing to challenge or support the
proposed findings shall have 180 days to submit arguments and evidence
to the Assistant Secretary to rebut or support the proposed finding.
The period for comment on a proposed finding may be extended for up to
an additional 180 days at the Assistant Secretary's discretion upon a
finding of good cause. The petitioner and interested parties shall be
notified of the time extension. Interested and informed parties who
submit arguments and evidence to the Assistant Secretary must provide
copies of their submissions to the petitioner.
(j)(1) During the response period, the Assistant Secretary shall
provide technical advice concerning the factual basis for the proposed
finding, the reasoning used in preparing it, and suggestions regarding
the preparation of materials in response to the proposed finding. The
Assistant Secretary shall make available to the petitioner in a timely
fashion any records used for the proposed finding not already held by
the petitioner, to the extent allowable by Federal law.
(2) In addition, the Assistant Secretary shall, if requested by the
petitioner or any interested party, hold a formal meeting for the
purpose of inquiring into the reasoning, analyses, and factual bases
for the proposed finding. The proceedings of this meeting shall be on
the record. The meeting record shall be available to any participating
party and become part of the record considered by the Assistant
Secretary in reaching a final determination.
(k) The petitioner shall have a minimum of 60 days to respond to
any submissions by interested and informed parties during the response
period. This may be extended at the Assistant Secretary's discretion if
warranted by the extent and nature of the comments. The petitioner and
interested parties shall be notified by letter of any extension. No
further comments from interested or informed parties will be accepted
after the end of the regular response period.
(l) At the end of the period for comment on a proposed finding, the
Assistant Secretary shall consult with the petitioner and interested
parties to determine an equitable timeframe for consideration of
written arguments and evidence submitted during the response period.
The petitioner and interested parties shall be notified of the date
such consideration begins.
(1) Unsolicited comments submitted after the close of the response
period established in Sec. 83.10(i) and Sec. 83.10(k), will not be
considered in preparation of a final determination. The Assistant
Secretary has the discretion during the preparation of the proposed
finding, however, to request additional explanations and information
from the petitioner or from commenting parties to support or supplement
their comments on a proposed finding. The Assistant Secretary may also
conduct such additional research as is necessary to evaluate and
supplement the record. In either case, the additional materials will
become part of the petition record.
(2) After consideration of the written arguments and evidence
rebutting or supporting the proposed finding and the petitioner's
response to the comments of interested parties and informed parties,
the Assistant Secretary shall make a final determination regarding the
petitioner's status. A summary of this determination shall be published
in the Federal Register within 60 days from the date on which the
consideration of the written arguments and evidence rebutting or
supporting the proposed finding begins.
(3) The Assistant Secretary has the discretion to extend the period
for the preparation of a final determination if warranted by the extent
and nature of evidence and arguments received during the response
period. The petitioner and interested parties shall be notified of the
time extension.
(4) The determination will become effective 90 days from
publication unless a request for reconsideration is filed pursuant to
Sec. 83.11.
(m) The Assistant Secretary shall acknowledge the existence of the
petitioner as an Indian tribe when it is determined that the group
satisfies all of the criteria in Sec. 83.7. The Assistant Secretary
shall decline to acknowledge that a petitioner is an Indian tribe if it
fails to satisfy any one of the criteria in Sec. 83.7.
(n) If the Assistant Secretary declines to acknowledge that a
petitioner is an Indian tribe, the petitioner shall be informed of
alternatives, if any, to acknowledgment under these procedures. These
alternatives may include other means through which the petitioning
group may achieve the status of an acknowledged Indian tribe or through
which any of its members may become eligible for services and benefits
from the Department as Indians, or become members of an acknowledged
Indian tribe.
(o) The determination to decline to acknowledge that the petitioner
is an Indian tribe shall be final for the Department.
(p) A petitioner that has petitioned under this part or under the
acknowledgment regulations previously effective and that has been
denied Federal acknowledgment may not re-petition under this part. The
term ``petitioner'' here includes previously denied petitioners that
have reorganized or been renamed or that are wholly or primarily
portions of groups that have previously been denied under these or
previous acknowledgment regulations.
Sec. 83.11 Independent review, reconsideration and final action
(a) (1) Upon publication of the Assistant Secretary's determination
in the Federal Register, the petitioner or any interested party may
file a request for reconsideration with the Interior Board of Indian
Appeals. Petitioners which choose under Sec. 83.3(g) to be considered
under previously effective acknowledgment regulations may nonetheless
request reconsideration under this section.
(2) A petitioner's or interested party's request for
reconsideration must be received by the Board no later than 90 days
after the date of publication of the Assistant Secretary's
determination in the Federal Register. If no request for
reconsideration has been received, the Assistant Secretary's decision
shall be final for the Department 90 days after publication of the
final determination in the Federal Register.
(b) The petitioner's or interested party's request for
reconsideration shall contain a detailed statement of the grounds for
the request, and shall include any new evidence to be considered.
(1) The detailed statement of grounds for reconsideration filed by
a petitioner or interested parties shall be considered the appellant's
opening brief provided for in 43 CFR 4.311(a).
(2) The party or parties requesting the reconsideration shall mail
copies of the request to the petitioner and all other interested
parties.
(c)(1) The Board shall dismiss a request for reconsideration that
is not filed by the deadline specified in paragraph (a) of this
section.
(2) If a petitioner's or interested party's request for
reconsideration is filed on time, the Board shall determine, within 120
days after publication of the Assistant Secretary's final determination
in the Federal Register, whether the request alleges any of the grounds
in paragraph (d) of this section and shall notify the petitioner and
interested parties of this determination.
(d) The Board shall have the authority to review all requests for
reconsideration that are timely and that allege any of the following:
(1) That there is new evidence that could affect the determination;
or
(2) That a substantial portion of the evidence relied upon in the
Assistant Secretary's determination was unreliable or was of little
probative value; or
(3) That petitioner's or the Bureau's research appears inadequate
or incomplete in some material respect; or
(4) That there are reasonable alternative interpretations, not
previously considered, of the evidence used for the final
determination, that would substantially affect the determination that
the petitioner meets or does not meet one or more of the criteria in
Sec. 83.7 (a) through (g).
(e) The Board shall have administrative authority to review
determinations of the Assistant Secretary made pursuant to
Sec. 83.10(m) to the extent authorized by this section.
(1) The regulations at 43 CFR 4.310-4.318 and 4.331-4.340 shall
apply to proceedings before the Board except when they are inconsistent
with these regulations.
(2) The Board may establish such procedures as it deems appropriate
to provide a full and fair evaluation of a request for reconsideration
under this section to the extent they are not inconsistent with these
regulations.
(3) The Board, at its discretion, may request experts not
associated with the Bureau, the petitioner, or interested parties to
provide comments, recommendations, or technical advice concerning the
determination, the administrative record, or materials filed by the
petitioner or interested parties. The Board may also request, at its
discretion, comments or technical assistance from the Assistant
Secretary concerning the final determination or, pursuant to paragraph
(e)(8) of this section, the record used for the determination.
(4) Pursuant to 43 CFR 4.337(a), the Board may require, at its
discretion, a hearing conducted by an administrative law judge of the
Office of Hearings and Appeals if the Board determines that further
inquiry is necessary to resolve a genuine issue of material fact or to
otherwise augment the record before it concerning the grounds for
reconsideration.
(5) The detailed statement of grounds for reconsideration filed by
a petitioner or interested parties pursuant to paragraph (b)(1) of this
section shall be considered the appellant's opening brief provided for
in 43 CFR 4.311(a).
(6) An appellant's reply to an opposing party's answer brief,
provided for in 43 CFR 4.311(b), shall not apply to proceedings under
this section, except that a petitioner shall have the opportunity to
reply to an answer brief filed by any party that opposes a petitioner's
request for reconsideration.
(7) The opportunity for reconsideration of a Board decision
provided for in 43 CFR 4.315 shall not apply to proceedings under this
section.
(8) For purposes of review by the Board, the administrative record
shall consist of all appropriate documents in the Branch of
Acknowledgment and Research relevant to the determination involved in
the request for reconsideration. The Assistant Secretary shall
designate and transmit to the Board copies of critical documents
central to the portions of the determination under a request for
reconsideration. The Branch of Acknowledgment and Research shall retain
custody of the remainder of the administrative record, to which the
Board shall have unrestricted access.
(9) The Board shall affirm the Assistant Secretary's determination
if the Board finds that the petitioner or interested party has failed
to establish, by a preponderance of the evidence, at least one of the
grounds under paragraph (d)(1-4) of this section.
(10) The Board shall vacate the Assistant Secretary's determination
and remand it to the Assistant Secretary for further work and
reconsideration if the Board finds that the petitioner or an interested
party has established, by a preponderance of the evidence, one or more
of the grounds under paragraph (d)(1-4) of this section.
(f)(1) The Board, in addition to making its determination to affirm
or remand, shall describe in its decision any grounds for
reconsideration other than those in paragraphs (d)(1-4) of this section
alleged by a petitioner's or interested party's request for
reconsideration.
(2) If the Board affirms the Assistant Secretary's decision under
Sec. 83.11(e)(9) but finds that the petitioner or interested parties
have alleged other grounds for reconsideration, the Board shall send
the requests for reconsideration to the Secretary. The Secretary shall
have the discretion to request that the Assistant Secretary reconsider
the final determination on those grounds.
(3) The Secretary, in reviewing the Assistant Secretary's decision,
may review any information available, whether formally part of the
record or not. Where the Secretary's review relies upon information
that is not formally part of the record, the Secretary shall insert the
information relied upon into the record, together with an
identification of its source and nature.
(4) Where the Board has sent the Secretary a request for
reconsideration under paragraph (f)(2), the petitioner and interested
parties shall have 30 days from receiving notice of the Board's
decision to submit comments to the Secretary. Where materials are
submitted to the Secretary opposing a petitioner's request for
reconsideration, the interested party shall provide copies to the
petitioner and the petitioner shall have 15 days from their receipt of
the information to file a response with the Secretary.
(5) The Secretary shall make a determination whether to request a
reconsideration of the Assistant Secretary's determination within 60
days of receipt of all comments and shall notify all parties of the
decision.
(g) (1) The Assistant Secretary shall issue a reconsidered
determination within 120 days of receipt of the Board's decision to
remand a determination or the Secretary's request for reconsideration.
(2) The Assistant Secretary's reconsideration shall address all
grounds determined to be valid grounds for reconsideration in a remand
by the Board, other grounds described by the Board pursuant to
paragraph (f)(1), and all grounds specified in any Secretarial request.
The Assistant Secretary's reconsideration may address any issues and
evidence consistent with the Board's decision or the Secretary's
request.
(h) (1) If the Board finds that no petitioner's or interested
party's request for reconsideration is timely, the Assistant
Secretary's determination shall become effective and final for the
Department 120 days from the publication of the final determination in
the Federal Register.
(2) If the Secretary declines to request reconsideration under
paragraph (f)(2) of this section, the Assistant Secretary's decision
shall become effective and final for the Department as of the date of
notification to all parties of the Secretary's decision.
(3) If a determination is reconsidered by the Assistant Secretary
because of action by the Board remanding a decision or because the
Secretary has requested reconsideration, the reconsidered determination
shall be final and effective upon publication of the notice of this
reconsidered determination in the Federal Register.
Sec. 83.12 Implementation of decisions.
(a) Upon final determination that the petitioner exists as an
Indian tribe, it shall be considered eligible for the services and
benefits from the Federal government that are available to other
federally recognized tribes. The newly acknowledged tribe shall be
considered a historic tribe and shall be entitled to the privileges and
immunities available to other federally recognized historic tribes by
virtue of their government-to-government relationship with the United
States. It shall also have the responsibilities and obligations of such
tribes. Newly acknowledged Indian tribes shall likewise be subject to
the same authority of Congress and the United States as are other
federally acknowledged tribes.
(b) Upon acknowledgment as an Indian tribe, the list of members
submitted as part of the petitioners documented petition shall be the
tribe's complete base roll for purposes of Federal funding and other
administrative purposes. For Bureau purposes, any additions made to the
roll, other than individuals who are descendants of those on the roll
and who meet the tribe's membership criteria, shall be limited to those
meeting the requirements of Sec. 83.7(e) and maintaining significant
social and political ties with the tribe (i.e., maintaining the same
relationship with the tribe as those on the list submitted with the
group's documented petition).
(c) While the newly acknowledged tribe shall be considered eligible
for benefits and services available to federally recognized tribes
because of their status as Indian tribes, acknowledgment of tribal
existence shall not create immediate access to existing programs. The
tribe may participate in existing programs after it meets the specific
program requirements, if any, and upon appropriation of funds by
Congress. Requests for appropriations shall follow a determination of
the needs of the newly acknowledged tribe.
(d) Within six months after acknowledgment, the appropriate Area
Office shall consult with the newly acknowledged tribe and develop, in
cooperation with the tribe, a determination of needs and a recommended
budget. These shall be forwarded to the Assistant Secretary. The
recommended budget will then be considered along with other
recommendations by the Assistant Secretary in the usual budget request
process.
Sec. 83.13 Information collection.
(a) The collections of information contained in Sec. 83.7 have been
approved by the Office of Management and Budget under 44 U.S.C. 3501 et
seq. and assigned clearance number 1076-0104. The information will be
used to establish historical existence as a tribe, verify family
relationships and the group's claim that its members are Indian and
descend from a historical tribe or tribes which combined, that members
are not substantially enrolled in other Indian tribes, and that they
have not individually or as a group been terminated or otherwise
forbidden the Federal relationship. Response is required to obtain a
benefit in accordance with 25 U.S.C. 2.
(b) Public reporting burden for this information is estimated to
average 1,968 hours per petition, including the time for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information. Send comments regarding this collection of
information, including suggestions for reducing the burden, to both the
Information Collection Clearance Officer, Bureau of Indian Affairs,
Mail Stop 336-SIB, 1849 C Street, NW., Washington, DC 20240; and to the
Office of Information and Regulatory Affairs, Office of Management and
Budget, Washington, DC 20503.
Dated: December 28, 1993.
Ada E. Deer,
Assistant Secretary--Indian Affairs.
[FR Doc. 94-3934 Filed 2-24-94; 8:45 am]
BILLING CODE 4310-02-P
