Federal Acknowledgment of American Indian Tribes, 30766-30781 [2014-12342]

Agencies

• DEPARTMENT OF THE INTERIOR
• Bureau of Indian Affairs

[Federal Register Volume 79, Number 103 (Thursday, May 29, 2014)]
[Proposed Rules]
[Pages 30766-30781]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-12342]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 83

[K00103 12/13 A3A10; 134D0102DR-DS5A300000-DR.5A311.IA000113; Docket 
ID: BIA-2013-0007]
RIN 1076-AF18


Federal Acknowledgment of American Indian Tribes

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Proposed rule.

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SUMMARY: This proposed rule would revise regulations governing the 
process and criteria by which the Secretary acknowledges an Indian 
tribe. The revisions seek to make the process and criteria more 
transparent, promote consistent implementation, and increase timeliness 
and efficiency, while maintaining the integrity of the process. The 
current process has been criticized as ``broken'' or in need of reform. 
Specifically, the process has been criticized as too slow (a petition 
can take decades to be decided), expensive, burdensome, inefficient, 
intrusive, less than transparent and unpredictable. The proposed rule 
would reform the process by, among other things, institutionalizing a 
phased review that allows for faster decisions; reducing the 
documentary burden; allowing for a hearing on the proposed finding to 
promote transparency and process integrity; establishing the Assistant 
Secretary's final determination as final for the Department to promote 
efficiency; and establishing objective standards, where appropriate, to 
ensure transparency and predictability. This publication also announces 
the dates and locations for tribal consultation sessions and public 
meetings on this proposed rule.

DATES: Comments on this rule must be received by August 1, 2014. 
Comments on the information collections contained in this proposed 
regulation are separate from those on the substance of the rule. 
Comments on the information collection burden should be received by 
June 30, 2014 to ensure consideration, but must be received no later 
than August 1, 2014. Please see the SUPPLEMENTARY INFORMATION section 
of this notice for dates of tribal consultation sessions and public 
meetings.

ADDRESSES: You may submit comments by any of the following methods:

--Federal rulemaking portal: https://www.regulations.gov. The rule is 
listed under the agency name ``Bureau of Indian Affairs.'' The rule has 
been assigned Docket ID: BIA-2013-0007.
--Email: consultation@bia.gov. Include the number 1076-AF18 in the 
subject line.
--Mail or hand delivery: Elizabeth Appel, Office of Regulatory Affairs 
& Collaborative Action, U.S. Department of the Interior, 1849 C Street 
NW., MS 4141, Washington, DC 20240. Include the number 1076-AF18 on the 
envelope.

    Please note that none of the following will be considered or 
included in the docket for this rulemaking: comments received after the 
close of the comment period (see DATES); comments sent to an address 
other than those listed above; or anonymous comments.
    Comments on the information collections contained in this proposed 
regulation are separate from those on the substance of the rule. Send 
comments on the information collection burden to OMB by facsimile to 
(202) 395-5806 or email to the OMB Desk Officer for the Department of 
the Interior at OIRA_Submission@omb.eop.gov. Please send a copy of 
your comments to the person listed in the FOR FURTHER INFORMATION 
CONTACT section of this notice.
    Please see the SUPPLEMENTARY INFORMATION section of this notice for 
locations of tribal consultation sessions and public meetings.

FOR FURTHER INFORMATION CONTACT: Elizabeth Appel, Director, Office of 
Regulatory Affairs & Collaborative Action, (202) 273-4680; 
elizabeth.appel@bia.gov. You may review the information collection 
request online at https://www.reginfo.gov. Follow the instructions to 
review Department of the Interior collections under review by OMB.

SUPPLEMENTARY INFORMATION: 

I. Executive Summary

    This proposed rule would comprehensively revise part 83 to comply 
with plain language standards, using a question-and-answer format. The 
proposed rule would update the Part 83 criteria to include objective 
standards and improve the processing of petitions for Federal 
acknowledgment of Indian tribes. The proposed rule is limited to Part 
83 and does not affect federal acknowledgment under any other statutory 
or administrative authorities. Primary revisions to the process would:
     Provide for a series of reviews that may result in the 
issuance of proposed findings and final determinations earlier in the 
process;
     Separate the Departmental review into three main steps 
whereby:
    [cir] The Office of Federal Acknowledgment (OFA) first reviews the 
petition and issues a proposed finding;
    [cir] If the proposed finding is negative and the petitioner elects 
to have a hearing before a judge with the Office of Hearings and 
Appeals (OHA), the OHA judge issues a recommended decision to the 
Assistant Secretary-Indian Affairs;
    [cir] The Assistant Secretary reviews the record, including (if 
applicable) an OHA judge's recommended decision, and issues a final 
determination. The final determination is final for the Department and 
any challenges to the final determination would be pursued in United 
States District Court.
     Remove the Interior Board of Indian Appeals (IBIA) process 
by which a final determination can be reconsidered on certain grounds.
     Allow, in limited circumstances, a petitioner previously 
denied under the regulations to re-petition under the revised rules.
    Revisions to the criteria for acknowledgement would eliminate the 
need for a petitioner to demonstrate that third parties identified the 
petitioner as a tribe (although this evidence may be submitted in 
support of other criteria, including (b) (Community) and (c) (Political 
authority)). The proposed rule would require petitioners to provide a 
brief narrative with evidence of the group's existence at some point 
during historical times. The revisions would also define ``historical'' 
to be prior to, but as late as, 1900, and require evidence of criteria 
(b) (Community) and (c) (Political Authority) from 1934 to the present.
    The Department is defining historical as 1900 or earlier based in 
part on the Department's experience over its nearly 40 years in 
implementing the regulations that any group that has proven its 
existence in 1900 has proven its existence prior to that time. 
Accordingly, the Department seeks comment on easing the documentary and 
administrative burdens and providing flexibility by defining historical 
as 1900 or earlier rather than

[[Page 30767]]

requiring the documentation from as early as 1789 to the present.
    Updating the review period for criteria (b) and (c) to 1934 
reflects the United States' enactment of the Indian Reorganization Act 
(IRA), which reversed the Federal Indian policy of allotment and 
assimilation that was aimed at destroying tribal governments and their 
communities. The IRA expressly repudiated the failed allotment and 
assimilation policy and provided a statutory framework to promote and 
foster tribal governments. Consistent with the existing policies of the 
IRA, utilizing 1934 as the starting year to satisfy the community and 
political authority criteria will reduce the documentary burden on 
petitioners and the administrative burden on the Department, and avoid 
potential problems with locating historical records while maintaining 
the integrity of the process. This is more fully explained below in 
section II, Explanation of Rule, under the heading ``Criteria.''
    Other revisions would clarify ``substantial interruption'' and 
clarify the existing burden of proof to reflect case law; provide that 
the Department will strive to abide by page limits for the proposed 
finding and final determination; and require the Department to post on 
the Internet those parts of the petition, proposed finding, recommended 
decision, and final determination that the Department is publically 
releasing in accordance with Federal law.

II. Explanation of Rule

    The following summarizes revisions this proposed rule would make to 
part 83.

Definitions

    The proposed rule consolidates definitions, where possible, deletes 
unnecessary definitions, and adds appropriate definitions.

Scope and Applicability

    The proposed rule would refer to petitioners as such, rather than 
as ``Indian groups''--a term that some have objected to as offensive 
and that presumes Indian ancestry. The proposed rule would allow, in 
very limited circumstances, a petitioner previously denied under the 
regulations to re-petition under the revised rules. If a third party 
individual or entity has participated in an IBIA or Secretarial 
reconsideration or an Administrative Procedure Act appeal in Federal 
court and ultimately prevailed, the denied petitioner may seek to re-
petition only with the consent of the individual or organization. If 
the individual or organization consents, or a third party did not 
participate in a reconsideration or appeal, an OHA judge will determine 
whether the changes to the regulations warrant a reconsideration of 
that particular final determination or whether the wrong standard of 
proof was applied to the final determination. This determination will 
be made based on whether the petitioner proves, by a preponderance of 
the evidence, that re-petitioning is appropriate. Because the changes 
to the regulations are generally intended to provide uniformity based 
on previous decisions, re-petitioning would be appropriate only in 
those limited circumstances where changes to the regulations would 
likely change the previous final determination. Having an OHA judge 
review re-petitioning requests promotes consistency, integrity, and 
transparency in resolving re-petition requests. Requiring third-party 
consent recognizes the equitable interests of third parties that 
expended sometimes significant resources to participate in the 
adjudication and have since developed reliance interests in the outcome 
of such adjudication. Having weighed these equity considerations, the 
Department has determined that the proposed rule must acknowledge these 
third-party interests in adjudicated decisions.

Process

    The proposed rule would eliminate the requirement to file a letter 
of intent. The letter of intent is merely a statement of intent to 
petition and does not trigger any review by the Department; as such, it 
is unnecessary as a separate step. Under the proposed rule, the filing 
of a documented petition would begin the review process.
    For transparency, the proposed rule would require that the 
Department post to the Internet those portions of the petition and the 
proposed finding and reports throughout the process that the Department 
is publically releasing in accordance with Federal law. (``Federal 
law'' in this context refers to the Freedom of Information Act, Privacy 
Act, and any other Federal laws that may limit information the 
Department publicly releases). The proposed rule would also add a 
provision to provide the petitioner with the opportunity to respond to 
comments received during preparation of the proposed finding, before 
the proposed finding is issued.
    The proposed rule would delineate the roles of OFA and the 
Assistant Secretary in furtherance of transparency, and would revise 
the process to promote more timely decisions. Specifically, the 
proposed rule would allow for a Phase I review of criteria (e) 
(Descent), then (a) (Tribal Existence), (d) (Governing Document), (f) 
(Membership), and (g) (Congressional Termination) to allow for issuance 
of a negative proposed finding if any of these criteria are not met. A 
petitioner who satisfies these criteria, may obtain a review of whether 
the petitioner satisfies criteria (b) (Community) and (c) (Political 
Authority). A petitioner may satisfy criteria (b) and (c) through a 
number of ways, including if it has maintained a State reservation 
since 1934 or if the United States has held land at any point in time 
since 1934 for the petitioner. These criteria are appropriate for 
favorable determinations based on the Department's particular reliance 
on collective rights in tribal lands to conclude that an entity 
constitutes a tribe as explained in Felix Cohen's 1945 Handbook of 
Federal Indian Law. This is more fully explained under the heading 
``Criteria.''
    If the proposed finding is negative, the proposed rule changes the 
process by providing the petitioner the right to a hearing before an 
OHA judge (who may be an administrative law judge with OHA, 
administrative judge with OHA, or an attorney designated by the OHA 
Director to serve as the OHA judge). If a hearing is held, individuals 
and organizations that can make a proper showing of interest or other 
factors for intervention may participate in the hearing, OFA staff 
shall be made available for testimony and the OHA judge shall issue a 
recommended decision to the Assistant Secretary. The rule does not 
require deference to OFA during the hearing process, but the 
Department's final determination would continue to be entitled to 
Chevron deference given that the Assistant Secretary would continue to 
issue the final determination. The goals of the hearing process are to 
promote transparency and efficiency and to focus the potential issues 
for the Assistant Secretary's consideration. Following the comment and 
response periods, and (if applicable) receipt of an OHA judge's 
recommended decision, the Assistant Secretary would then consider the 
evidence and publish a final determination. The final determination 
would be final for the Department.
    The proposed rule would delete the IBIA reconsideration process 
because this process is the only instance in which the Assistant 
Secretary's decision is subject to IBIA review, the IBIA's jurisdiction 
for ordering reconsideration is limited, it has been exceedingly rare 
that IBIA has granted petitions for reconsideration, and the IBIA's 
heavy caseload has resulted in even further

[[Page 30768]]

delays in the acknowledgment process. The finality of the Assistant 
Secretary's decision will allow parties to challenge the decision in 
United States District Court where all appropriate grounds may be 
considered.
    The Department specifically requests comments on the proposed 
hearing process and the following questions: (1) Who is an appropriate 
OHA judge to preside over the hearing and issue a recommended 
decision--an administrative law judge appointed under 5 U.S.C. 3105, an 
administrative judge with OHA, or an attorney designated by the OHA 
Director to serve as the OHA judge (the proposed rule defines ``OHA 
judge'' broadly to include all three); (2) whether the factual basis 
for the OHA judge's decision should be limited to the hearing record; 
and (3) whether the hearing record should include all evidence in OFA's 
administrative record for the petition or be limited to testimony and 
exhibits specifically identified by the petitioner and OFA. Indian 
Affairs is working with the Office of Hearings and Appeals (OHA) on a 
new rule at 43 CFR 4, subpart K, that would establish procedures for 
such hearings including procedures and limitations on expert testimony.
    To promote efficiency, the proposed rule would allow the Assistant 
Secretary to automatically issue final determinations in those 
instances in which a positive proposed finding is issued and no timely 
comments or evidence challenging the proposed finding are received from 
the State or local government where the petitioner's headquarters is 
located or any federally recognized tribe within 25 miles of the 
petitioner's headquarters. This 25-mile radius is intended to include 
federally recognized tribes that may be across State lines but still be 
close enough to have evidence about the petitioner.
    Other process changes the proposed rule would make are: Allowing 
petitioners to withdraw their petitions after active consideration, to 
provide the petitioner with flexibility if time and resources are not 
available at that time; limiting the comment periods for proposed 
findings to 90 days and any potential extensions to 60 days; providing 
that the Department will strive to abide by page limits in proposed 
findings and final determinations; and lengthening the Assistant 
Secretary's review time from 60 to 90 days because the Assistant 
Secretary is not involved in the decision-making until the final 
determination stage. If the Department does not meet its deadlines, 
parties may file a motion to compel action, as appropriate.

Burden of Proof

    The proposed rule would not change the burden of proof set forth in 
the existing regulations. In the acknowledgment context, courts have 
examined whether the Department correctly applied the ``reasonable 
likelihood'' standard but have not articulated what the standard 
actually requires. Muwekma Ohlone Tribe v. Salazar, 708 F.3d 209, 220-
21 (D.C. Cir. 2013). Instead, they have only stated that ``conclusive 
proof'' or ``conclusive evidence'' is not required. Muwekma Ohlone 
Tribe v. Salazar, 708 F.3d 209, 212 (D.C. Cir. 2013). The proposed rule 
would incorporate the Supreme Court's clarification--arising from 
criminal cases in which jury instructions are challenged--that the 
``reasonable likelihood'' burden of proof standard does not require 
``more likely than not.'' Boyde v. California, 494 U.S. 370, 380 (1990) 
(explaining that the ``reasonable likelihood'' standard does not 
require something to be ``more likely than not'').

Criteria

    Prior to the enactment of the Federal recognition regulations in 
1978, the Department utilized an ad hoc approach to recognize tribes. 
The Department's longstanding ad hoc approach recognized tribes 
utilizing criteria developed by Felix Cohen. Cohen has since been 
recognized as the most important Federal Indian law scholar in American 
history, sometimes known as the ``Blackstone of Federal Indian law.'' 
As explained in his 1945 Handbook of Federal Indian Law, the passage of 
the IRA in 1934 prompted ``extensive'' analysis by the Commissioner of 
Indian Affairs or the Solicitor's Office of what groups or bands 
constituted Indian tribes for purposes of federal law. Cohen then 
summarized that analysis as follows.

    The considerations which, singly or jointly, have been 
particularly relied upon in reaching the conclusion that a group 
constitutes a ``tribe'' or ``band'' have been:
    (1) That the group has had treaty relations with the United 
States.
    (2) That the group has been denominated a tribe by act of 
Congress or Executive order.
    (3) That the group has been treated as having collective rights 
in tribal lands or funds, even though not expressly designated a 
tribe.
    (4) That the group has been treated as a tribe or band by other 
Indian tribes.
    (5) That the group has exercised political authority over its 
members, through a tribal council or other governmental forms.
    Other factors considered, though not conclusive, are the 
existence of special appropriation items for the group and social 
solidarity of the group. Ethnological and historical considerations, 
although not conclusive, are entitled to great weight[.]

    Handbook of Federal Indian Law at 271 (1945) (emphasis added). The 
proposed rule would adhere to these foundational legal principles while 
substantially reducing the documentary burden on petitioners and the 
public and review time by the Department.
    The changes proposed in the proposed rule remain true to these 
fundamental standards and depart only in very modest ways from our 
existing Part 83 criteria. Consistent with the Federal policy of the 
IRA, the proposed rule would evaluate the community and political 
authority criteria from 1934 to the present. The starting year 
coincides with the 1934 passage of the IRA, which was a turning point 
in the Federal government's relationship with Indian tribes, 
recognizing and promoting tribal sovereignty. When Congress enacted the 
IRA, it also provided an avenue for tribes to reorganize as political 
entities with a political structure that facilitated the government-to-
government relationship with the Federal Government. In other words, 
the IRA represented a sea change in Federal policy that promoted tribal 
governments by providing a framework that would make it easier for the 
Federal Government to interact with the tribe as an independent 
sovereign nation. The passage of the IRA in 1934 was a communication to 
tribes that the Federal Government would no longer pursue destruction 
of tribal governments and communities. Prior to this date, tribes had 
little to gain, and much to lose, by making themselves known to the 
Federal Government. To the contrary, Federal governmental policies 
prior to the IRA were aimed at dissolving tribes. While tribes existed 
as communities governed by political structures prior to 1934, the IRA 
encouraged tribes to document this framework through a constitution or 
otherwise. Further, the Department recognizes the limitations inherent 
in documenting community and political authority prior to 1934 and 
maintains that it is logical to deduce that a tribe in existence when 
the IRA was passed was in existence historically. Tribes that survived 
decades of harsh government policies and treatment leading up to the 
passage of the IRA should not be required to show documentation of 
their continuous existence, in spite of such harsh policies and 
treatment, up to that point.
    Criteria (b) and (c) examine the internal community and the 
political authority of the petitioner. Consistent

[[Page 30769]]

with the current regulations, the primary focus is on the petitioner 
and not the nature of the petitioner's relationship, if any, with the 
Federal Government. By utilizing 1934 as a starting point of 
evaluation, this proposed rule does not intend to change current 
practice regarding the types of evidence that may be submitted to 
establish criteria (b) and (c). Consistent with previous decisions, 
petitioner's may continue to submit evidence of interactions with 
Federal and other officials to the extent it illustrates community or 
political authority. While the Department previously considered 
utilizing the 1934 date but did not adopt it in the 1994 rulemaking, 
the Department's 20 years of experience since then suggests that the 
heavy administrative burden both on the petitioner and the Department 
of submitting and reviewing documentation back to 1789 is not 
justified.
    The proposed rule would replace the existing criterion (a), 
currently at Section 83.7(a). Currently, criterion (a) requires parties 
external to the petitioner to identify the petitioner as an Indian 
entity from 1900 to the present. This requirement is being eliminated 
because the absence of such external identifications does not mean a 
tribe did not exist. Tribes may have insulated themselves from the 
outside world for protection, for example. While external 
identifications may provide evidence of the other criteria, the absence 
of external identifications alone is not appropriate for determining a 
tribe does not exist. The proposed rule would require the petitioner to 
provide a brief narrative, and evidence supporting the narrative, of 
its existence as an Indian tribe, band, nation, pueblo, village or 
community generally identified at some point in time during the 
historical period (prior to and including 1900). The proposed rule 
would continue to allow the submittal of evidence that would have been 
provided under the existing criterion (a) in support of criteria (a) 
(tribal existence), (b) (distinct community), and/or (c) (political 
influence or authority).
    The proposed rule would modify criterion (b) (distinct community) 
to include objective standards for clarity to petitioners and the 
public. For example, the proposed rule would clarify that the existing 
``predominant portion'' standard in (b) is satisfied if 30 percent of 
the petitioner's members constitute a distinct community. This 30 
percent standard follows the percentage of a tribe's eligible voters 
that Congress, in the IRA, required to vote on the tribe's governing 
document. With this percentage requirement, Congress signaled that this 
is a sufficient percentage of a tribe's membership to convene as a 
community to represent, and fulfill an official act on behalf of, the 
entire community. While the term ``predominant portion'' may be 
understood in common usage to be a majority, here it can mean as low as 
30 percent in accordance with this standard established by Congress.
    Consistent with earlier decisions, the proposed rule would clarify 
that the Department may utilize statistically significant sampling, 
rather than examining every individual relationship for petitioners 
with large memberships. This sampling promotes efficiency in review of 
petitions.
    The proposed rule would add an example of evidence that may be 
submitted in support of criteria (b), particularly, placement of 
petitioners' children at an Indian boarding school or other Indian 
educational institution. In the past, the Department may have accepted 
such evidence only when the child was identified as a member of a 
specific tribe in school enrollment records. Allowing for this evidence 
even where a specific tribe may not be identified reflects that the 
Federal Government identified those children as Indian, and where there 
are children from one area placed at an Indian boarding school, this is 
indicative of an Indian community in that area.
    The proposed rule would also add that a petitioner may satisfy 
criteria (b) and (c) if it has maintained a State reservation since 
1934 or if the United States has held land at any point in time since 
1934 for the petitioner. Regardless of what a State's process or 
criteria are for acknowledging a tribe, if a State recognizes land as a 
reservation for a petitioner for nearly the past 80 years continuously, 
it indicates the existence of a community possessing the requisite 
political cohesiveness to maintain the tribal land base. Maintenance of 
a State reservation since 1934 until present indicates a high 
likelihood that the community actually interacted throughout this time 
period by providing a physical location for such interactions. 
Likewise, maintenance of a State reservation since 1934 also indicates 
the petitioner had political authority/influence during this time 
period because some governing structure was necessary to address 
activities on the land and interact with the State regarding the 
reservation. In short, a State reservation is a formalization of 
``collective rights in Indian land'' that the Department identified as 
a dispositive indicator of an Indian tribe. Nevertheless, the proposed 
rule would require that the petitioner still meet the other criteria 
(e.g., criteria (a), (d), (e), (f) and (g)).
    The proposed rule would retain the current rule's provisions that 
allow certain evidence of criterion (b) to serve as evidence of 
criterion (c) and vice versa (Sec.  83.7(b)(2)(v) and (c)(3) of the 
current rule). These cross-over provisions reflect that evidence of 
criteria (b) and (c) may combine to show the existence of a tribe.
    The proposed rule would define ``substantial interruption'' in 
criteria (b) and (c) to mean generally more than 20 years. This 
definition is intended to provide some clarity and uniformity with past 
practice in early Departmental acknowledgment decisions. Additionally, 
the proposed rule would allow petitioners to submit evidence for pre-
1934 periods as relevant to (b) and (c), but would not require it. This 
is meant to provide flexibility in those instances where documentary 
evidence around 1934 may be lacking but pre-1934 evidence is relevant 
to the criteria.
    We received several comments on the Discussion Draft that a 
bilateral political relationship should not be required for criterion 
(c) (Political Authority). The existing text of criterion (c) does not 
include such a requirement, and therefore the proposed rule makes no 
revision on this point. Political influence or authority does not mean 
that petitioner's members must have actively participated in the 
political process or mechanism. Just as there are various levels of 
engagement in Federal and State government by Federal and State 
citizens, engagement by tribal members will vary throughout the tribe 
and active reciprocating political action is not required.
    The proposed rule would establish that 80 percent of the 
petitioner's members must descend from a tribe that existed in 
historical times (prior to 1900, as discussed above) to meet criterion 
(e). This quantification would make the standard more objective and is 
consistent with earlier decisions. Additionally, the proposed rule 
would clarify that criterion (e) may be satisfied by a roll prepared by 
the Department or at the direction of Congress, and the Department will 
rely on that roll as an accurate roll of descendants of the tribe that 
existed in historical times; otherwise, the petitioner may satisfy 
criterion (e) through the most recent evidence available for the 
historical time period (prior to 1900). The Department will not require 
evidence from years prior to that most recent evidence. The submission 
of a current membership list in support of this criterion has been 
moved to the section

[[Page 30770]]

on what a documented petition must include.
    In criterion (f), requiring the petitioner to be composed 
principally of persons who are not members of already acknowledged 
tribes, the proposed rule would add that members of petitioners who 
filed a petition by a certain date (2010) and then joined a federally 
recognized tribe would not be counted against the petitioner. The 
reason for this addition is to ensure that petitioners are not 
penalized if their members choose to affiliate with a federally 
recognized tribe in order to obtain needed services because of the time 
the petitioning process takes. The reason 2010 was chosen as the date 
is because four years have passed since then, and ideally, a final 
decision would be issued within at least four years. For all other 
purposes, criterion (f) remains unchanged.
    The proposed rule would shift the burden of proof for criterion (g) 
to the Department to show that Congress has terminated or forbidden a 
relationship with the petitioner.

 Previous Federal Acknowledgment

    To align with current practice, the proposed rule would clarify the 
criteria a petitioner must meet after it has established that it was 
previously federally acknowledged. It would also delete the provision 
regarding petitions that seek to show previous Federal acknowledgment 
but are awaiting active consideration as of the date the regulations 
are adopted because this provision applied only at the adoption of the 
last version of the regulations in 1994 when consideration of previous 
Federal acknowledgment was codified.

III. Tribal Consultation Sessions and Public Meetings

    We will be hosting several tribal consultation sessions and public 
meetings throughout the country to discuss this proposed rule. Tribal 
consultations are for representatives of currently federally recognized 
tribes only, to discuss the rule on a government-to-government basis 
with us. These sessions may be closed to the public. The dates and 
locations for the tribal consultations are as follows:

----------------------------------------------------------------------------------------------------------------
              Date                         Time                                  Location
----------------------------------------------------------------------------------------------------------------
Tuesday 7/1/2014................  1:00 p.m.--4:30 p.m...  Paragon Casino & Resort, 711 Paragon Pl, Marksville,
                                                           LA 71351.
Tuesday 7/15/2014...............  1:00 p.m.--4:30 p.m...  BIA Regional Office, 911 NE 11th Ave, Portland, OR
                                                           97232.*
Thursday 7/17/2014..............  1:00 p.m.--4:30 p.m...  Menominee Casino Resort, N277 Hwy. 47/55, P.O. Box
                                                           760, Keshena, WI 54135.
Tuesday 7/22/2014...............  1:00 p.m.--4:30 p.m...  Cache Creek Casino Resort, 14455 California 16,
                                                           Brooks, CA 95606.
Thursday 7/24/2014..............  8:30 a.m.--12:00 p.m..  Crowne Plaza Billings, 27 N 27th St, Billings, MT
                                                           59101.
Tuesday 7/29/14.................  1:00 p.m.--4:30 p.m...  Mashpee Wampanoag Tribe Community & Government Center
                                                           Gymnasium, 483 Great Neck Road--South, Mashpee, MA
                                                           02649.
----------------------------------------------------------------------------------------------------------------
* Please RSVP for the Portland consultation to consultation@bia.gov, bring photo identification, and arrive
  early to allow for time to get through security, as this is a Federal building. No RSVP is necessary for the
  other consultation locations.

    Public meetings will be held on the following dates and locations:

----------------------------------------------------------------------------------------------------------------
              Date                         Time                                  Location
----------------------------------------------------------------------------------------------------------------
Tuesday 7/1/2014................  8:30 a.m.--12:00 p.m..  Paragon Casino & Resort, 711 Paragon Pl, Marksville,
                                                           LA 71351.
Tuesday 7/15/2014...............  8:30 a.m.--12:00 p.m..  BIA Regional Office, 911 NE 11th Ave, Portland, OR
                                                           97232.*
Thursday 7/17/2014..............  8:30 a.m.--12:00 p.m..  Menominee Casino Resort, N277 Hwy. 47/55, P.O. Box
                                                           760, Keshena, WI 54135.
Tuesday 7/22/2014...............  8:30 a.m.--12:00 p.m..  Cache Creek Casino Resort, 14455 California 16,
                                                           Brooks, CA 95606.
Thursday 7/24/2014..............  1:00 p.m.--4:30 p.m...  Crowne Plaza Billings, 27 N 27th St, Billings, MT
                                                           59101.
Tuesday 7/29/14.................  8:30 a.m.--12:00 p.m..  Mashpee Wampanoag Tribe Community & Government Center
                                                           Gymnasium, 483 Great Neck Road--South, Mashpee, MA
                                                           02649.
----------------------------------------------------------------------------------------------------------------
* Please RSVP for the Portland meeting to consultation@bia.gov, bring photo identification, and arrive early to
  allow for time to get through security, as this is a Federal building. No RSVP is necessary for the other
  meeting locations.

IV. Procedural Requirements

A. Regulatory Planning and Review (E.O. 12866 and 13563)

    Executive Order (E.O.) 12866 provides that the Office of 
Information and Regulatory Affairs (OIRA) at the Office of Management 
and Budget (OMB) will review all significant rules. OIRA has determined 
that this rule is significant.
    E.O. 13563 reaffirms the principles of E.O. 12866 while calling for 
improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The E.O. directs agencies to consider regulatory approaches that reduce 
burdens and maintain flexibility and freedom of choice for the public 
where these approaches are relevant, feasible, and consistent with 
regulatory objectives. E.O. 13563 emphasizes further that regulations 
must be based on the best available science and that the rulemaking 
process must allow for public participation and an open exchange of 
ideas. We have developed this rule in a manner consistent with these 
requirements.

B. Regulatory Flexibility Act

    The Department of the Interior certifies that this rule will not 
have a significant economic effect on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

C. Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. It will not result in the 
expenditure by State, local, or tribal governments, in the aggregate, 
or by the private sector of $100 million or more in any one year. The 
rule's requirements will not result in a major increase in costs or 
prices for consumers, individual industries, Federal, State, or local 
government agencies, or geographic regions. Nor will this rule have 
significant adverse effects on competition, employment,

[[Page 30771]]

investment, productivity, innovation, or the ability of the U.S.-based 
enterprises to compete with foreign-based enterprises because the rule 
is limited to Federal acknowledgment of Indian tribes.

D. Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local, or tribal governments or the private sector. A statement 
containing the information required by the Unfunded Mandates Reform Act 
(2 U.S.C. 1531 et seq.) is not required.

E. Takings (E.O. 12630)

    Under the criteria in Executive Order 12630, this rule does not 
affect individual property rights protected by the Fifth Amendment nor 
does it involves a compensable ``taking.'' A takings implication 
assessment is therefore not required.

F. Federalism (E.O. 13132)

    Under the criteria in Executive Order 13132, this rule has no 
substantial direct effect on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government.

G. Civil Justice Reform (E.O. 12988)

    This rule complies with the requirements of Executive Order 12988. 
Specifically, this rule has been reviewed to eliminate errors and 
ambiguity and written to minimize litigation; and is written in clear 
language and contains clear legal standards.

H. Consultation with Indian Tribes (E.O. 13175)

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments,'' Executive Order 13175 (59 FR 22951, November 6, 2000), 
and 512 DM 2, we have evaluated the potential effects on federally 
recognized Indian tribes and Indian trust assets. The Department 
distributed a ``Discussion Draft'' of this rule to federally recognized 
Indian tribes in June 2013, and hosted five consultation sessions with 
federally recognized Indian tribes throughout the country in July and 
August 2013. Several federally recognized Indian tribes submitted 
written comments; some strongly supportive of revising the regulations 
and others strongly opposed to revisions. We considered each tribe's 
comments and concerns and have addressed them, where possible, in the 
proposed rule.

I. Paperwork Reduction Act

    OMB Control Number: 1076-0104.
    Title: Federal Acknowledgment as an Indian Tribe, 25 CFR 83.
    Brief Description of Collection: This information collection 
requires entities seeking Federal recognition as an Indian tribe to 
collect and provide information in a documented petition evidencing 
that the entities meet the criteria set out in the rule.
    Type of Review: Revision of currently approved collection.
    Respondents: Entities petitioning for Federal acknowledgment.
    Number of Respondents: 10 on average (each year).
    Number of Responses: 10 on average (each year).
    Frequency of Response: On occasion.
    Estimated Time per Response: (See table below).
    Estimated Total Annual Hour Burden: 12,240 hours.
    Estimated Total Annual Non-Hour Cost: $21,000,000
    OMB Control No. 1076-0104 currently authorizes the collections of 
information contained in 25 CFR part 83. If this proposed rule is 
finalized, DOI estimates that the annual burden hours for respondents 
(entities petitioning for Federal acknowledgment) will decrease by a 
minimum of 8,510 hours, for a total of 12,240 hours. Because the 
proposed rule would change sections where the information collections 
occur, we are including a table showing the section changes.

----------------------------------------------------------------------------------------------------------------
                                                                                   Burden hours    Annual burden
           Current sec.                  New sec.            Description of       on respondents     hours (10
                                                               requirement         per response    respondents)
----------------------------------------------------------------------------------------------------------------
83.7 (b)-(d).....................  83.21 (referring to  Conduct the                          869           8,690
                                    83.11 (b)-(d).       anthropological and
                                                         historical research
                                                         relating to the
                                                         criteria (b)-(d) and
                                                         (f)-(g).
83.7 (f)-(g).....................  83.11 (f)-(g));....  Conduct the genealogical
                                                         work to demonstrate
                                                         tribal descent.
83.7 (e).........................  83.21 (referring to
                                    83.11 (e)).
83.7 (e).........................  83.21..............  Provide past membership               38             380
                                                         rolls and complete a
                                                         membership roll of
                                                         about 333** members
                                                         (BIA Form 8306).
83.7 (e).........................  83.21 (referring to  Complete Individual                   11             110
                                    83.11 (e)).          History Chart (BIA Form
                                                         8304). On average, it
                                                         takes 2 minutes per
                                                         chart X 333** charts.
83.7 (e).........................  83.21 (referring to  Complete the Ancestry                166           1,660
                                    83.11 (e)).          Chart (BIA Form 8305).
                                                         On average, it takes
                                                         about 30 minutes per
                                                         chart X 333** charts.
83.10(b).........................  83.27..............  Respond to the technical             140           1,400
                                                         assistance letters
                                                         which may require
                                                         revising or adding to
                                                         the above existing
                                                         forms and overall
                                                         petition.
----------------------------------------------------------------------------------------------------------------

    We invite comments on the information collection requirements in 
the proposed rule. You may submit comments to OMB by facsimile to (202) 
395-5806 or you may send an email to the attention of the OMB Desk 
Officer for the Department of the Interior: OIRA_Submission@omb.eop.gov. Please send a copy of your comments to the 
person listed in the FOR FURTHER INFORMATION CONTACT section of this 
notice. Note that the request for comments on the rule and the request 
for comments on the information collection are separate. To best ensure

[[Page 30772]]

consideration of your comments on the information collection, we 
encourage you to submit them by June 30, 2014; while OMB has 60 days 
from the date of publication to act on the information collection 
request, OMB may choose to act on or after 30 days. Comments on the 
information collection should address: (a) The necessity of this 
information collection for the proper performance of the functions of 
the agency, including whether the information will have practical 
utility; (b) the accuracy of the agency's estimate of the burden (hours 
and cost) of the collection of information, including the validity of 
the methodology and assumptions used; (c) ways we could enhance the 
quality, utility and clarity of the information to be collected; and 
(d) ways we could minimize the burden of the collection of the 
information on the respondents, such as through the use of automated 
collection techniques or other forms of information technology. Please 
note that an agency may not sponsor or request, and an individual need 
not respond to, a collection of information unless it displays a valid 
OMB Control Number.

J. National Environmental Policy Act

    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment because it is of an 
administrative, technical, and procedural nature. See, 43 CFR 
46.210(i). No extraordinary circumstances exist that would require 
greater review under the National Environmental Policy Act.

K. Effects on the Energy Supply (E.O. 13211)

    This rule is not a significant energy action under the definition 
in Executive Order 13211. A Statement of Energy Effects is not 
required.

L. Clarity of This Regulation

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ``COMMENTS'' section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you believe lists or tables would be 
useful, etc.

M. Public Availability of Comments

    Before including your address, phone number, email address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

List of Subjects in 25 CFR Part 83

    Administrative practice and procedure, Indians-tribal government.


0
For the reasons stated in the preamble, the Department of the Interior, 
Bureau of Indian Affairs, proposes to amend chapter I in Title 25 of 
the Code of Federal Regulations by revising part 83 to read as follows:

PART 83--PROCEDURES FOR ACKNOWLEDGMENT OF FEDERALLY RECOGNIZED 
INDIAN TRIBES

Subpart A--General Provisions
Sec.
83.1 What terms are used in this part?
83.2 What is the purpose of these regulations?
83.3 Who does this part apply to?
83.4 Who cannot be acknowledged under this part?
83.5 How does a petitioner obtain Federal acknowledgment under this 
part?
83.6 What are the Department's duties?
83.7 How does this part apply to documented petitions submitted 
before [INSERT EFFECTIVE DATE OF FINAL RULE]?
83.8 How does the Paperwork Reduction Act affect the information 
collections in this part?
Subpart B--Criteria for Federal Acknowledgment
83.10 How will the Department evaluate each of the criteria?
83.11 What are the criteria for acknowledgment as a federally 
recognized Indian tribe?
83.12 What are the criteria for previously federally acknowledged 
petitioners?
Subpart C--Process for Federal Acknowledgment

Documented Petition Submission

83.20 How does an entity request Federal acknowledgment?
83.21 What must a documented petition include?
83.22 What notice will OFA provide upon receipt of a documented 
petition?

Review of Documented Petition

83.23 How will OFA determine which documented petition to consider 
first?
83.24 What opportunity will the petitioner have to respond to 
comments before OFA reviews the petition?
83.25 Who will OFA notify when it begins review of a documented 
petition?
83.26 How will OFA review a documented petition?
83.27 What are technical assistance reviews?
83.28 When does OFA review for previous Federal acknowledgment?
83.29 What will OFA consider in its review?
83.30 Can a petitioner withdraw its documented petition once review 
has begun?
83.31 Can OFA suspend review of a documented petition?

Proposed Finding

83.32 When will OFA issue a proposed finding?
83.33 What will the proposed finding include?
83.34 What notice of the proposed finding will OFA provide?

Comment and Response Periods, Hearing

83.35 What opportunity will there be to comment after OFA issues the 
proposed finding?
83.36 Can the Assistant Secretary extend the proposed finding 
comment period?
83.37 What procedure follows the end of the comment period for a 
favorable proposed finding?
83.38 What options are available to the petitioner at the end of the 
comment period for a negative proposed finding?
83.39 What are the procedures if the petitioner elects to have a 
hearing before an OHA judge?

Final Determination

83.40 When will the Assistant Secretary begin review?
83.41 What will the Assistant Secretary consider in his/her review?
83.42 When will the Assistant Secretary issue a final determination?
83.43 How will the Assistant Secretary make the final determination 
decision?
83.44 Is the Assistant Secretary's final determination final for the 
Department?
83.45 When will the final determination be effective?
83.46 How is a petitioner with a positive final determination 
integrated into Federal programs as a federally recognized Indian 
tribe?

    Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 479a-1; and 43 U.S.C. 
1457.

Subpart A--General Provisions


Sec.  83.1  What terms are used in this part?

    As used in this part:
    Assistant Secretary or AS-IA means the Assistant Secretary--Indian 
Affairs

[[Page 30773]]

within the Department of the Interior, or that officer's authorized 
representative, but does not include representatives of the Office of 
Federal Acknowledgment.
    Bureau means the Bureau of Indian Affairs within the Department of 
the Interior.
    Continental United States means the contiguous 48 states and 
Alaska.
    Department means the Department of the Interior, including the 
Assistant Secretary and OFA.
    Documented Petition means the detailed arguments and supporting 
documentary evidence submitted by a petitioner to substantiate its 
claim that it meets the Tribal Existence (Sec.  83.11(a)), Governing 
Document (Sec.  83.11(d)), Descent (Sec.  83.11(e)), Membership (Sec.  
83.11(f)), and Congressional Termination (Sec.  83.11(g)) Criteria and:
    (1) Demonstrates previous Federal acknowledgment under Sec.  
83.12(a) and meets the criteria in Sec.  83.12(b); or
    (2) Meets the Community (Sec.  83.11(b)) and Political Authority 
(Sec.  83.11(c) Criteria.
    Federally recognized Indian tribe means an entity listed on the 
Secretary's list of federally recognized tribes, which the Secretary 
currently acknowledges as an Indian tribe for purposes of Federal law 
and with which he/she maintains a government-to-government 
relationship.
    OHA judge means an administrative law judge appointed under 5 
U.S.C. 3105, an administrative judge with the Office of Hearings and 
Appeals, or an attorney with the Office of Hearings and Appeals 
assigned to preside over the hearing process by the Office of Hearings 
Appeals.
    Historical means 1900 or earlier.
    Informed party means any person or organization who submits 
comments or evidence or requests to be kept informed of general actions 
regarding a specific petitioner.
    Member of a petitioner means an individual who is recognized by the 
petitioner as meeting its membership criteria and who consents to being 
listed as a member of the petitioner.
    Office of Federal Acknowledgment or OFA means the Office of Federal 
Acknowledgment within the Office of the Assistant Secretary--Indian 
Affairs, Department of the Interior.
    Pages means pages containing 1-inch margins and type that is 
double-spaced and 12-point Times New Roman font.
    Petitioner means any entity that has submitted a documented 
petition to OFA requesting Federal acknowledgment as a federally 
recognized Indian tribe.
    Previous Federal acknowledgment means action by the Federal 
government clearly premised on identification of an entity that 
qualified as an Indian tribe for purposes of Federal law and indicating 
clearly the recognition of a government-to-government relationship 
between that entity and the United States.
    Secretary means the Secretary of the Interior within the Department 
of the Interior or that officer's authorized representative.
    Tribal roll 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.
    Tribe means any Indian tribe, band, nation, pueblo, village or 
community.


Sec.  83.2  What is the purpose of these regulations?

    These regulations implement Federal statutes for the benefit of 
Indian tribes by establishing procedures and criteria for the 
Department to use to determine whether a petitioner is an Indian tribe 
for purposes of Federal law and is therefore entitled to a government-
to-government relationship with the United States. A positive 
determination will result in Federal recognition status and the 
petitioner's addition to the Department's list of federally recognized 
Indian tribes. An entity may consider itself an Indian tribe and be 
considered an Indian tribe by other entities, but it does not possess 
federally recognized status and a government-to-government relationship 
with the United States unless it is placed on the Department's list of 
federally recognized Indian tribes. Failure to be included on the list 
does not deny that the entity is an Indian tribe for purposes other 
than Federal law. It means only that the entity is not a federally 
recognized Indian tribe. Federal recognition:
    (a) Is a prerequisite to the protection, services, and benefits of 
the Federal Government available to those that qualify as Indian tribes 
for purposes of Federal law and possess a government-to-government 
relationship with the United States;
    (b) Means the tribe is entitled to the immunities and privileges 
available to other federally recognized Indian tribes;
    (c) Means the tribe has the responsibilities, powers, limitations, 
and obligations of other federally recognized Indian tribes; and
    (d) Subjects the Indian tribe to the same authority of Congress and 
the United States as other federally recognized Indian tribes.


Sec.  83.3  Who does this part apply to?

    This part applies only to entities that self-identify as Indian 
tribes, are located in the continental United States, and believe they 
meet the criteria for Federal acknowledgment in this part. This part 
does not apply to Indian or Alaska Native tribes, bands, pueblos, 
villages, or communities that are federally recognized.


Sec.  83.4  Who cannot be acknowledged under this part?

    (a) The entities listed in the following table cannot be 
acknowledged under this part unless they meet the requirement in the 
second column.

------------------------------------------------------------------------
The Department will not acknowledge
               . . .                             Unless . . .
------------------------------------------------------------------------
(1) An association, organization,    the entity has only changed form by
 corporation, or entity of any        recently incorporating or
 character formed in recent times.    otherwise formalizing its existing
                                      politically autonomous community.
(2) A splinter group, political      the entity can clearly demonstrate
 faction, community, or entity of     it has functioned from 1934 until
 any character that separates from    the present as a politically
 the main body of a currently         autonomous community under this
 federally recognized Indian tribe,   part, even though some have
 petitioner, or previous petitioner.  regarded them as part of or
                                      associated in some manner with a
                                      federally recognized Indian tribe.
(3) An entity that is, or an entity  N/A.
 whose members are, subject to
 congressional legislation
 terminating or forbidding the
 government-to-government
 relationship.

[[Page 30774]]

 
(4) An entity that previously        the entity meets the requirements
 petitioned and was denied Federal    of paragraph (b) of this section.
 acknowledgment under these
 regulations or under previous
 regulations in part 83 of this
 title (including reconstituted,
 splinter, spin-off, or component
 groups that were once part of
 previously denied petitioners).
------------------------------------------------------------------------

    (b) A petitioner that has been denied Federal acknowledgment after 
petitioning under a previous version of the acknowledgment regulations 
at part 54 or part 83 of this title may re-petition if it meets the 
requirements of this paragraph.
    (1) A petitioner may re-petition only if:
    (i) Any third parties that participated as a party in an 
administrative reconsideration or Federal Court appeal concerning the 
petitioner has consented in writing to the re-petitioning; and
    (ii) The petitioner proves, by a preponderance of the evidence, 
that either:
    (A) A change from the previous version of the regulations to the 
current version of the regulations warrants reconsideration of the 
final determination; or
    (B) The ``reasonable likelihood'' standard was misapplied in the 
final determination.
    (2) To initiate the re-petitioning process, the petitioner must 
submit to the Office of Hearings and Appeals a certification, signed 
and dated by the petitioner's governing body, stating that it is the 
petitioner's official request for re-petitioning and explaining how it 
meets the conditions of paragraph (b)(1) of this section.
    (i) The petitioner need not re-submit materials previously 
submitted to the Department but may supplement the petition.
    (ii) The OHA judge may receive pleadings, hold hearings, and 
request evidence from OFA and the petitioner, and will issue a decision 
regarding whether the petitioner may re-petition.
    (3) The OHA judge's decision whether to allow re-petitioning is 
final for the Department and is a final agency action under the 
Administrative Procedure Act, 5 U.S.C. 704.


Sec.  83.5  How does a petitioner obtain Federal acknowledgment under 
this part?

    To be acknowledged as a federally recognized Indian tribe under 
this part, a petitioner must meet the Tribal Existence (Sec.  
83.11(a)), Governing Document (Sec.  83.11(d)), Descent (Sec.  
83.11(e)), Membership (Sec.  83.11(f)), and Congressional Termination 
(Sec.  83.11(g)) Criteria and must:
    (a) Demonstrate previous Federal acknowledgment under Sec.  
83.12(a) and meet the criteria in Sec.  83.12(b); or
    (b) Meet the Community (Sec.  83.11(b)) and Political Authority 
(Sec.  83.11(c)) Criteria.


Sec.  83.6  What are the Department's duties?

    (a) The Department will publish in the Federal Register, by January 
30 each year, a list of all Indian tribes which the Secretary 
recognizes to be eligible for the special programs and services 
provided by the United States to Indians because of their status as 
Indians. The list may be published more frequently, if the Assistant 
Secretary deems it necessary.
    (b) OFA will maintain guidelines limited to general suggestions on 
how and where to conduct research. The guidelines may be supplemented 
or updated as necessary. OFA will also make available an example of a 
documented petition in the preferred format, though other formats are 
acceptable.
    (c) OFA will, upon request, give prospective petitioners 
suggestions and advice on how to prepare the documented petition. OFA 
will not be responsible for the actual research on behalf of the 
petitioner.


Sec.  83.7  How does this part apply to documented petitions submitted 
before [INSERT EFFECTIVE DATE OF FINAL RULE]?

    (a) Petitioners whose have not submitted complete documented 
petitions as of [INSERT EFFECTIVE DATE OF FINAL RULE] must proceed 
under these revised regulations. We will notify these petitioners and 
provide them with a copy of the revised regulations by [INSERT 
EFFECTIVE DATE OF FINAL RULE].
    (b) By [INSERT EFFECTIVE DATE OF FINAL RULE + 30 DAYS], OFA will 
notify the following petitioners that they must choose by [INSERT DATE 
60 DAYS AFTER PUBLICATION OF FINAL RULE] to complete the petitioning 
process under these regulations. Otherwise, the following petitioners 
will proceed under the previous version of the acknowledgment 
regulations as published on February 25, 1994, 59 FR 19293.
    (1) Petitioners who have submitted complete petitions or those 
petitioners that are under active consideration, including those that 
have received a proposed finding, as of [INSERT EFFECTIVE DATE OF FINAL 
RULE]; and
    (2) Petitioners who have not received a final agency decision as of 
[INSERT EFFECTIVE DATE OF FINAL RULE].
    (c) Petitioners who have submitted a documented petition under the 
previous version of the acknowledgment regulations and who choose to 
proceed under these revised regulations do not need to submit a new 
documented petition.


Sec.  83.8  How does the Paperwork Reduction Act affect the information 
collections in this part?

    The collections of information contained in this part have been 
approved by the Office of Management and Budget under 44 U.S.C. 3501 et 
seq. and assigned OMB Control Number 1076-0104. Response is required to 
obtain a benefit. A Federal agency may not conduct or sponsor, and you 
are not required to respond to, a collection of information unless the 
form or regulation requesting the information displays a currently 
valid OMB Control Number. Send comments regarding this collection of 
information, including suggestions for reducing the burden, to the 
Information Collection Clearance Officer--Indian Affairs, 1849 C Street 
NW., Washington, DC 20240.

Subpart B--Criteria for Federal Acknowledgment


Sec.  83.10  How will the Department evaluate each of the criteria?

    (a) The Department will consider a criterion to be met if the 
available evidence establishes a reasonable likelihood that the facts 
claimed by the petitioner are valid and that the facts demonstrate that 
the petitioner meets the criterion.
    (1) ``Reasonable likelihood'' means there must be more than a mere 
possibility, but does not require ``more likely than not.''
    (2) The Department will not require conclusive proof of the facts 
relating to a criterion in order to consider the criterion met.
    (3) The petitioner may use the same evidence to establish more than 
one criterion.

[[Page 30775]]

    (b) The Department will evaluate petitions:
    (1) Allowing criteria to be met by any suitable evidence, rather 
than requiring the specific forms of evidence stated in the criteria;
    (2) Taking into account situations and time periods for which 
evidence is limited or not available;
    (3) Taking into account the limitations inherent in demonstrating 
historical existence;
    (4) Requiring demonstration that these criteria are met on a 
substantially continuous basis, meaning without substantial 
interruption;
    (5) Interpreting ``substantial interruption'' to mean a gap, either 
as a fluctuation in tribal activity or a gap in evidence, of 20 years 
or less, unless a 20-year or longer gap is reasonable given the history 
and the petitioner's circumstances;
    (6) Applying these criteria consistently with threshold standards 
utilized to recognize other tribes under this Part; and
    (7) Applying these criteria in context with the history, geography, 
culture, and social organization of the petitioner.


Sec.  83.11  What are the criteria for acknowledgment as a federally 
recognized Indian tribe?

    (a) Tribal Existence. The petitioner must describe its existence as 
an Indian tribe, band, nation, pueblo, village, or community at a point 
in time during the historical period. The petitioner must provide a 
brief narrative, and evidence supporting the narrative, of its 
existence as an Indian tribe, band, nation, pueblo, village or 
community generally identified at a point in time during the historical 
period. Such evidence can include, but is not limited to, types of 
evidence used to satisfy the remaining criteria in this section or 
types of evidence relied on by the Department prior to the promulgation 
of the Federal acknowledgment regulations.
    (b) Community. The petitioner must now constitute a distinct 
community and must demonstrate that it existed as a distinct community 
from 1934 until the present without substantial interruption. Distinct 
community means an entity with consistent interactions and significant 
social relationships within its membership and whose members are 
differentiated from and distinct from nonmembers. The petitioner may 
demonstrate that it meets this criterion by providing evidence for 
known adult members or by providing evidence of relationships of a 
random, statistically significant sample of known adult members.
    (1) The petitioner may demonstrate that it meets this criterion by 
some combination of two or more of the following forms of evidence or 
by other evidence to show that at least 30 percent of the petitioner's 
members constituted a distinct community at a given point in time.
    (i) Rates of known marriages within the entity, or, as may be 
culturally required, known patterned out-marriages;
    (ii) Social relationships connecting individual members;
    (iii) Rates or patterns of informal social interaction that exist 
broadly among the members of the entity;
    (iv) Shared or cooperative labor or other economic activity among 
members;
    (v) Strong patterns of discrimination or other social distinctions 
by non-members;
    (vi) Shared sacred or secular ritual activity;
    (vii) Cultural patterns shared among a portion of the entity 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 entity. They may include, but are not limited to, 
language, kinship organization or system, religious beliefs or 
practices, and ceremonies;
    (viii) The persistence of a collective identity continuously over a 
period of more than 50 years, notwithstanding any absence of or changes 
in name;
    (ix) Children of members from a geographic area were placed in 
Indian boarding schools or other Indian educational institutions;
    (x) A demonstration of political influence under the criterion in 
Sec.  83.11(c)(1), which is a form of evidence for demonstrating 
distinct community for that same time period; or
    (xi) Evidence that it has been identified as a community by 
individuals and entities external to the petitioner.
    (2) The petitioner will be considered to have provided sufficient 
evidence to demonstrate distinct community and political authority at a 
given point in time if the evidence demonstrates 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 
entity, and the balance of the entity maintains consistent interaction 
with some members residing in that area;
    (ii) At least 50 percent of the known marriages in the entity are 
between members of the entity;
    (iii) At least 50 percent of the entity members maintain distinct 
cultural patterns such as, but not limited to, language, kinship 
system, religious beliefs and practices, or ceremonies;
    (iv) There are distinct community social institutions encompassing 
at least 50 percent of the members, such as kinship organizations, 
formal or informal economic cooperation, or religious organizations; or
    (v) The petitioner has met the criterion in Sec.  83.11(c) using 
evidence described in Sec.  83.11(c)(2).
    (3) The petitioner will be considered to have provided sufficient 
evidence to demonstrate distinct community if it demonstrates either of 
the following factors:
    (i) The petitioner has maintained since 1934 to the present a State 
reservation; or
    (ii) The United States has held land for the petitioner or 
collective ancestors of the petitioner at any point in time from 1934 
to the present.
    (c) Political Influence or Authority. The petitioner must have 
maintained political influence or authority from 1934 until the present 
without substantial interruption. Political influence or authority 
means a council, leadership, internal process, or other mechanism which 
the entity has used as a means of influencing or controlling the 
behavior of its members in significant respects, making decisions for 
the entity which substantially affect its members, and/or representing 
the entity 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 entity.
    (1) The petitioner may demonstrate that it meets this criterion by 
some combination of two or more of the following evidence or by other 
evidence that the petitioner meets the definition of political 
influence or authority in Sec.  83.1:
    (i) The entity is able to mobilize significant numbers of members 
and significant resources from its members for entity purposes.
    (ii) Most of the membership considers issues acted upon or actions 
taken by entity leaders or governing bodies to be of importance.
    (iii) There is widespread knowledge, communication, or involvement 
in political processes by most of the entity's members.
    (iv) The entity meets the criterion in Sec.  83.11(b) at greater 
than or equal to the percentages set forth under Sec.  83.11(b)(2).
    (v) There are internal conflicts that show controversy over valued 
entity

[[Page 30776]]

goals, properties, policies, processes, or decisions.
    (vi) A federally recognized Indian tribe has a government-to-
government relationship with the petitioner.
    (vii) Evidence that it has been identified as politically 
autonomous by individuals and entities external to the petitioner.
    (viii) Show a continuous line of entity leaders and a means of 
selection or acquiescence by a majority of the entity's members.
    (2) The petitioner will be considered to have provided sufficient 
evidence of political influence or authority at a given point in time 
if the evidence demonstrates any one of the following.
    (i) Entity leaders or other internal mechanisms exist or existed 
that:
    (A) Allocate entity resources such as land, residence rights, and 
the like on a consistent basis;
    (B) Settle disputes between members or subgroups by mediation or 
other means on a regular basis;
    (C) Exert strong influence on the behavior of individual members, 
such as the establishment or maintenance of norms or the enforcement of 
sanctions to direct or control behavior; or
    (D) Organize or influence economic subsistence activities among the 
members, including shared or cooperative labor.
    (ii) The petitioner has met the requirements in Sec.  83.11(b)(2) 
at a given time.
    (3) The petitioner will be considered to have provided sufficient 
evidence to demonstrate political influence and authority if it 
demonstrates either of the following factors:
    (i) The petitioner has maintained since 1934 to the present a State 
reservation; or
    (ii) The United States has held land for the petitioner or the 
collective ancestors of the petitioner at any point in time from 1934 
to the present.
    (d) Governing Document. The petitioner must submit a copy of the 
entity's present governing document, including its membership criteria. 
In the absence of a governing document, the petitioner must provide a 
written statement describing in full its membership criteria and 
current governing procedures.
    (e) Descent. At least 80 percent of the petitioner's membership 
must consist of individuals who can demonstrate that they descend from 
a tribe that existed in historical times or tribes that combined and 
functioned in historical times.
    (1) The petitioner satisfies this criterion by demonstrating 
descent from a roll directed by Congress or prepared by the Secretary 
on a descendancy basis for purposes of distributing claims money, 
providing allotments, providing a tribal census, or other purposes.
    (2) If no roll was directed by Congress or prepared by the 
Secretary, the petitioner satisfies this criterion with the most recent 
evidence available for the historical time period, including, but not 
limited to:
    (i) Federal, State, or other official records or evidence 
identifying present members or ancestors of present members as being 
descendants of a tribe or tribes that existed in historical times;
    (ii) Church, school, or other similar enrollment records 
identifying the petitioner's present members or ancestors of present 
members as being descendants of a tribe or tribes that existed in 
historical times;
    (iii) Historical records created by historians and anthropologists 
identifying the tribe in historical times or historians and 
anthropologists' conclusions drawn from historical records identifying 
the petitioner's present members or ancestors of present members as 
being descendants of a tribe or tribes existing in historical times;
    (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 tribe or tribes existing in 
historical times; and
    (v) Other records or evidence identifying present members or 
ancestors of present members as descendants of a tribe or tribes 
existing in historical times.
    (f) Membership. The petitioner's membership must be composed 
principally of persons who are not members of any federally recognized 
Indian tribe.
    (1) However, a petitioner 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, a federally 
recognized Indian tribe, if the petitioner demonstrates that:
    (i) It has functioned as a separate politically autonomous 
community by satisfying criteria (b) and (c); and
    (ii) Its members have provided written confirmation of their 
membership in the petitioner.
    (2) If a petitioner filed a letter of intent (under a previous 
version of the regulations) or filed a documented petition prior to 
2010, the petitioner's members who were not members of a federally 
recognized Indian tribe at the time the petitioner filed the documented 
petition, but who subsequently became members of a federally recognized 
Indian tribe, will not be considered as members of the federally 
recognized Indian tribe for purposes of this criterion.
    (g) Congressional Termination. Neither the petitioner nor its 
members are the subject of congressional legislation that has expressly 
terminated or forbidden the government-to-government relationship. The 
Department must determine whether the petitioner meets this criterion, 
and the petitioner is not required to submit evidence to meet it.


Sec.  83.12  What are the criteria for previously federally 
acknowledged petitioners?

    (a) If the petitioner meets the criteria in Sec.  83.11(a) and (d) 
through (g), the petitioner may prove it was previously acknowledged as 
a federally recognized Indian tribe by providing unambiguous evidence 
that the United States Government recognized the petitioner as an 
Indian tribe for purposes of Federal law with which it carried on a 
government-to-government relationship at some prior date, including, 
but not limited to evidence that the petitioner had:
    (1) Treaty relations with the United States;
    (2) Been denominated a tribe by act of Congress or Executive Order; 
or
    (3) Been treated by the Federal Government as having collective 
rights in tribal lands or funds.
    (b) Once the petitioner establishes that it was previously 
acknowledged, it must:
    (1) Demonstrate that it meets the Community Criterion at present 
and Political Authority Criterion since the time of previous Federal 
acknowledgment to the present by demonstration of substantially 
continuous historical identification by authoritative, knowledgeable 
external sources of leaders and/or a governing body that exercises 
political influence or authority, together with demonstration of one 
form of evidence listed in Sec.  83.11(c), or
    (2) Demonstrate that it meets the Community and Political Authority 
Criteria since the time of previous Federal acknowledgment.

Subpart C--Process for Federal Acknowledgment

Documented Petition Submission and Review


Sec.  83.20  How does an entity request Federal acknowledgment?

    Any entity that believes it can satisfy the criteria in this part 
may submit a documented petition under this part to: Office of Federal 
Acknowledgement, Assistant Secretary--Indian Affairs,

[[Page 30777]]

Department of the Interior, 1849 C Street NW., Washington, DC 20240.


Sec.  83.21  What must a documented petition include?

    (a) The documented petition may be in any readable form and must 
include the following:
    (1) A certification, signed and dated by the petitioner's governing 
body, stating that it is the petitioner's official documented petition;
    (2) A concise written narrative, with thorough explanations of, and 
citations to supporting documentation for how the petitioner meets each 
of the applicable criteria, except the Congressional Termination 
Criterion (Sec.  83.11 (g))--
    (i) If the petitioner chooses to provide explanations of and 
supporting documentation for the Congressional Termination Criterion 
(Sec.  83.11 (g)), the Department will accept it; but
    (ii) The Department will conduct the research necessary to 
determine whether the petitioner meets the Congressional Termination 
Criterion (Sec.  83.11 (g)).
    (3) Supporting documentation cited in the written narrative and 
containing specific, detailed evidence that the petitioner meets each 
of the criteria at Sec.  83.11;
    (4) Membership lists and explanations, including:
    (i) An official current membership list, separately certified by 
the petitioner's governing body, of all known current members of the 
petitioner, including each member's full name (including maiden name), 
date of birth, and current residential address;
    (ii) A statement describing the circumstances surrounding the 
preparation of the current membership list;
    (iii) A copy of each available former list of members based on the 
petitioner's own defined criteria; and
    (iv) A statement describing the circumstances surrounding the 
preparation of the former membership lists, insofar as possible.
    (b) Petitioners should exclude from the narrative portion of the 
documented petition any information that is protectable under Federal 
law such as the Privacy Act and Freedom of Information Act, as it will 
be published on the OFA Web site. If it is necessary to include this 
information, the petitioner must clearly identify, in writing, the 
specific information that should be redacted prior to publication on 
the OFA Web site and the basis for redacting. The Department will 
determine whether the redaction is appropriate under Federal law.


Sec.  83.22  What notice will OFA provide upon receipt of a documented 
petition?

    When OFA receives a documented petition, it will do all of the 
following:
    (a) Within 30 days of receipt, acknowledge receipt in writing to 
the petitioner.
    (b) Within 60 days of receipt:
    (1) Publish notice of receipt of the documented petition in the 
Federal Register and publish the following on the OFA Web site:
    (i) The narrative portion of the documented petition, as submitted 
by the petitioner (with any redactions appropriate under Sec.  
83.21(b));
    (ii) The name, location, and mailing address of the petitioner and 
other information to identify the entity;
    (iii) The date of receipt;
    (iv) The opportunity for individuals and organizations to submit 
comments supporting or opposing the petitioner's request for 
acknowledgment within 90 days of the date of the Web site posting; and
    (v) The opportunity for individuals and organizations to request to 
become informed parties.
    (2) Notify, in writing, the governor and attorney general of the 
State in which the petitioner is located and any federally recognized 
tribe within the State or within a 25-mile radius.
    (3) Notify any other recognized tribe and any petitioner that 
appears to have a historical or present relationship with the 
petitioner or that may otherwise be considered to have a potential 
interest in the acknowledgment determination.
    (c) Publish other portions of the documented petition to the OFA 
Web site, to the extent allowable under Federal law.

Review of Documented Petition


Sec.  83.23  How will OFA determine which documented petition to 
consider first?

    (a) OFA will begin reviews of documented petitions in the order of 
receipt of documented petitions. Petitioners whose documented petitions 
OFA has not yet begun to review may request that OFA estimate when 
review will begin.
    (1) At each successive review stage, there may be points at which 
OFA is waiting on additional information or clarification from the 
petitioner. Upon receipt of the additional information or 
clarification, OFA will return to its review of the documented petition 
as soon as possible.
    (2) To the extent possible, OFA will make completing reviews of 
documented petitions it has already begun to review the highest 
priority.
    (b) OFA will maintain a numbered register of documented petitions 
that have been received.
    (c) OFA will maintain a numbered register of any letters of intent, 
which were allowable prior to [INSERT EFFECTIVE DATE OF RULE], or 
incomplete petitions and the original dates of their filing with the 
Department. If two or more documented petitions are ready for review on 
the same date, this register will determine the order of consideration.


Sec.  83.24  What opportunity will the petitioner have to respond to 
comments before OFA reviews the petition?

    Before beginning review of a documented petition, OFA will provide 
the petitioner with any comments on the petition received from 
individuals or organizations under Sec.  83.22(b) and provide the 
petitioner with at least 60 days to respond to such comments. OFA will 
not begin review until it receives the petitioner's response to the 
comments or the petitioner requests that OFA proceed without its 
response.


Sec.  83.25  Who will OFA notify when it begins review of a documented 
petition?

    OFA will notify the petitioner and informed parties when it begins 
review of a documented petition and will provide the petitioner and 
informed parties with:
    (a) The name, office address, and telephone number of the staff 
member with primary administrative responsibility for the petition;
    (b) The names of the researchers conducting the evaluation of the 
petition; and
    (c) The name of their supervisor.


Sec.  83.26  How will OFA review a documented petition?

    (a) Phase I.
    (1) OFA will first determine if the petitioner meets the Descent 
Criterion (Sec.  83.11(e)).
    (i) OFA will conduct a technical assistance review and notify the 
petitioner by technical assistance letter of any deficiencies that 
would prevent the petitioner from meeting the Descent Criterion. Upon 
receipt of the letter, the petitioner may:
    (A) Withdraw the documented petition to further prepare the 
petition;
    (B) Submit additional information and/or clarification within an 
agreed-upon timeframe; or
    (C) Ask OFA in writing to proceed with the review.
    (ii) OFA will publish a negative proposed finding if it issues a 
deficiency letter under paragraph (a)(1)(i) of this section and the 
petitioner:

[[Page 30778]]

    (A) Does not withdraw the documented petition or does not respond 
with information or clarification sufficient to address the 
deficiencies within the agreed-upon timeframe; or
    (B) Asks OFA in writing to proceed with the review.
    (2) If the petitioner meets the Descent Criterion, OFA will next 
review whether the petitioner meets the Tribal Existence Criterion 
(Sec.  83.11(a)), Governing Document Criterion (Sec.  83.11(d)), the 
Membership Criterion (Sec.  83.11(f)), and the Congressional 
Termination Criterion (Sec.  83.11(g)).
    (i) OFA will conduct a technical assistance review and notify the 
petitioner by technical assistance letter of any deficiencies that 
would prevent the petitioner from meeting these criteria. Upon receipt 
of the letter, the petitioner may:
    (A) Withdraw the documented petition to further prepare the 
petition;
    (B) Submit additional information and/or clarification within an 
agreed-upon timeframe; or
    (C) Ask OFA in writing to proceed with the review.
    (ii) OFA will publish a negative proposed finding if it issues a 
deficiency letter under paragraph (a)(2)(i) of this section and the 
petitioner:
    (A) Does not withdraw the documented petition;
    (B) Does not respond with information or clarification sufficient 
to address the deficiencies within the agreed-upon timeframe; or
    (C) Asks OFA in writing to proceed with the review.
    (iii) If the petitioner meets the Descent (Sec.  83.11(e)), Tribal 
Existence (Sec.  83.11(a)), Governing Document (Sec.  83.11(g)), 
Membership (Sec.  83.11(f)), and Congressional Termination (Sec.  
83.11(g)) Criteria, OFA will either:
    (A) Proceed to Phase II-A, if the petitioner asserts that it meets 
either of the factors in Sec.  83.11(b)(3) and (c)(3); or
    (B) Proceed to Phase II-B, if the petitioner does not assert that 
it meets the factors in Sec.  83.11(b)(3) and (c)(3).
    (b) Phase II-A.
    (1) OFA will review whether the petitioner meets either of the 
factors in Sec.  83.11(b)(3) and (c)(3), if the petitioner asserts that 
it does.
    (2) If the petitioner meets either of the factors in Sec.  
83.11(b)(3) and (c)(3), OFA will publish a favorable proposed finding 
in the Federal Register.
    (3) If the petitioner does not meet either of the factors in Sec.  
83.11(b)(3) and (c)(3), OFA will proceed to Phase II-B.
    (c) Phase II-B.
    (1) If the petitioner does not meet either of the factors in Sec.  
83.11(b)(3) and (c)(3), or the petitioner does not assert that it meets 
those factors, OFA will conduct the technical assistance review for the 
Community (Sec.  83.11(b)) and Political Authority (Sec.  83.11(c)) 
Criteria (and for previous Federal acknowledgment, if asserted).
    (i) OFA will notify the petitioner by technical assistance 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.
    (A) Petitioners can either respond in part or in full to the 
technical assistance review letter or ask OFA in writing to proceed 
with review of the documented petition using the materials already 
submitted.
    (B) If the petitioner requests that materials submitted in response 
to the technical assistance review letter be again reviewed for 
adequacy, OFA will provide the additional review. However, this 
additional review will occur only at the request of the petitioner and 
is available only once.
    (ii) If the documented petition claims previous Federal 
acknowledgment and/or includes evidence of previous Federal 
acknowledgment, the technical assistance review will include a review 
to determine whether that evidence is sufficient to meet the 
requirements of previous Federal acknowledgment (Sec.  83.12).
    (2) Following the technical assistance review, OFA will provide the 
petitioner with:
    (i) Any comments and evidence OFA may consider in preparing the 
proposed finding that the petitioner does not already hold, to the 
extent allowable by Federal law; and
    (ii) The opportunity to respond in writing to the comments and 
evidence petitioner did not already hold.
    (3) OFA will then review the record to determine:
    (i) For petitioners with previous Federal acknowledgment, whether 
the criteria at Sec.  83.12(b) are met; or
    (ii) For petitioners without previous Federal acknowledgment, 
whether the Community (Sec.  83.11(b)) and Political Authority (Sec.  
83.11(c)) Criteria are met.
    (4) OFA will then proceed with publication of a proposed finding.


Sec.  83.27  What are technical assistance reviews?

    Technical assistance reviews are preliminary reviews for OFA to 
tell the petitioner where there appear to be documentary gaps for the 
criteria that will be under review in that phase and to provide the 
petitioner with an opportunity to supplement or revise the documented 
petition.


Sec.  83.28  When does OFA review for previous Federal acknowledgment?

    (a) OFA reviews the documented petition for previous Federal 
acknowledgment during the technical assistance review of the documented 
petition for the Community (Sec.  83.11(b)) and Political Authority 
(Sec.  83.11(c)) Criteria.
    (b) If OFA cannot verify previous Federal acknowledgment during 
this technical assistance review, the petitioner must provide 
additional evidence. If a petitioner claiming previous Federal 
acknowledgment does not respond or does not demonstrate the claim of 
previous Federal acknowledgment, OFA will consider its documented 
petition on the same basis as documented petitions submitted by 
petitioners not claiming previous Federal acknowledgment.
    (c) OFA will notify petitioners that fail to demonstrate previous 
Federal acknowledgment after a review of any materials submitted in 
response to the technical assistance review.


Sec.  83.29  What will OFA consider in its reviews?

    (a) In any review, OFA will consider the documented petition and 
evidence submitted by the petitioner, any comments received on the 
petition, and petitioners' responses to comments.
    (b) OFA may also:
    (1) Initiate and consider other research for any purpose relative 
to analyzing the documented petition and obtaining additional 
information about the petitioner's status; and
    (2) Request and consider additional explanations and information 
from commenting parties to support or supplement their comments on the 
proposed finding and from the petitioner to support or supplement their 
responses to comments.
    (c) OFA must provide the petitioner with the additional material 
obtained in paragraph (b) of this section, and provide the petitioner 
with the opportunity to respond to the additional material. The 
additional material and any response by the petitioner will become part 
of the record.


Sec.  83.30  Can a petitioner withdraw its documented petition?

    A petitioner can withdraw its documented petition at any point in 
the process but the petition will be placed at the bottom of the 
numbered register of documented petitions upon re-submission and may 
not regain its initial priority number.

[[Page 30779]]

Sec.  83.31  Can OFA suspend review of a documented petition?

    (a) OFA can suspend review of a documented petition, either 
conditionally or for a stated period, upon:
    (1) A showing to the petitioner that there are technical or 
administrative problems with the documented petition that temporarily 
preclude continuing review; and
    (2) Approval by the Assistant Secretary of the suspension.
    (b) Upon resolving the technical or administrative problems that 
led to the suspension, the documented petition will have the same 
priority on the numbered register of documented petitions to the extent 
possible.
    (1) OFA will notify the petitioner and informed parties when it 
resumes review of the documented petition.
    (2) Upon the resumption of review, the time period for OFA to issue 
a proposed finding will begin anew.

Proposed Finding


Sec.  83.32  When will OFA issue a proposed finding?

    (a) OFA will issue a proposed finding as shown in the following 
table:

----------------------------------------------------------------------------------------------------------------
                             OFA must                                               within . . .
----------------------------------------------------------------------------------------------------------------
(1) Complete its review under Phase I and either issue a negative  six months after notifying the petitioner
 proposed finding and publish a notice of availability in the       under Sec.   83.25 that OFA has begun review
 Federal Register, or proceed to review under Phase II-A, if        of the petition.
 applicable, or Phase II-B.
(2) Complete its review under Phase II-A and either issue a        two months after the deadline in paragraph
 favorable proposed finding and publish a notice of availability    (a)(1) of this section.
 in the Federal Register, or proceed to Phase II-B.
(3) Complete its review under Phase II-B and issue a proposed      six months after the deadline in paragraph
 finding and publish a notice of availability in the Federal        (a)(1) of this section.
 Register.
----------------------------------------------------------------------------------------------------------------

    (b) AS-IA may extend these deadlines only if it has approved a 
suspension under Sec.  83.31(a).
    (c) OFA will strive to limit the proposed finding and any reports 
to no more than 100 pages, cumulatively, excluding source documents.


Sec.  83.33  What will the proposed finding include?

    The proposed finding will summarize the evidence, reasoning, and 
analyses that are the basis for OFA's proposed finding regarding 
whether the petitioner meets the applicable criteria.
    (a) A Phase I negative proposed finding will address that the 
petitioner fails to meet any one or more of the following criteria: 
Descent (Sec.  83.11(e)), Tribal Existence (Sec.  83.11(a)), Governing 
Document (Sec.  83.11(d)), Membership (Sec.  83.11(f)), or 
Congressional Termination (Sec.  83.11(g)).
    (b) A Phase II-A favorable proposed finding will address that the 
petitioner meets one of the factors in Sec.  83.11(b)(3) and (c)(3) and 
that the petitioner meets all of the following criteria: the Descent 
(Sec.  83.11(e)), Tribal Existence (Sec.  83.11(a)), Governing Document 
(Sec.  83.11(d)), Membership (Sec.  83.11(f)), and Congressional 
Termination (Sec.  83.11(g)) Criteria.
    (c) A Phase II-B proposed finding will address whether the 
petitioner meets either the Community (Sec.  83.11(b)) and Political 
Authority (Sec.  83.11(c)) Criteria or the previous Federal 
acknowledgment criteria (Sec.  83.12(b)) and whether the petitioner 
meets all of the following criteria: Descent (Sec.  83.11(e)), Tribal 
Existence (Sec.  83.11(a)), Governing Document (Sec.  83.11(d)), 
Membership (Sec.  83.11(f)), and Congressional Termination (Sec.  
83.11(g)) Criteria.


Sec.  83.34  What notice of the proposed finding will OFA provide?

    In addition to publishing notice of the proposed finding in the 
Federal Register, OFA will:
    (a) Provide copies of the proposed finding and any supporting 
reports to the petitioner and informed parties; and
    (b) Publish the proposed finding and reports available on the OFA 
Web site.

Proposed Finding--Comment and Response Periods, Hearing


Sec.  83.35  What opportunity to comment will there be after OFA issues 
the proposed finding?

    (a) Publication of notice of the proposed finding will be followed 
by a 90-day comment period. During this comment period, the petitioner 
or any individual or organization may submit the following to AS-IA to 
rebut or support the proposed finding:
    (1) Comments, with citations to and explanations of supporting 
evidence; and
    (2) Evidence cited and explained in the comments.
    (b) Any parties that submit comments and evidence must provide the 
petitioner with a copy of their submission.


Sec.  83.36  Can the Assistant Secretary extend the comment period on 
the proposed finding?

    (a) AS-IA can extend the comment period for a proposed finding for 
up to an additional 60 days upon a finding of good cause.
    (b) If AS-IA grants a time extension, it will notify the petitioner 
and informed parties.


Sec.  83.37  What procedure follows the end of the comment period on a 
favorable proposed finding?

    (a) At the end of the comment period for a favorable proposed 
finding, AS-IA will automatically issue a final determination 
acknowledging the petitioner as a federally recognized Indian tribe if 
AS-IA does not receive timely comments or evidence challenging the 
proposed finding from either:
    (1) The State or local government where the petitioner's office is 
located; or
    (2) Any federally recognized Indian tribe within the State or 
within a 25-mile radius of the petitioner's headquarters.
    (b) If AS-IA has received timely comments and evidence challenging 
the proposed finding from any of the parties listed in paragraph (a) of 
this section, then the petitioner will have 60 days to respond with 
responses, with citations to and explanations of supporting evidence, 
and supporting evidence cited and explained in the responses. AS-IA can 
extend the comment response period if warranted by the extent and 
nature of the submitted comments and evidence and will notify the 
petitioner and informed parties by letter of any extension. AS-IA will 
not consider further comments or evidence on the proposed finding 
submitted by individuals or organizations during this period.


Sec.  83.38  What options does the petitioner have at the end of the 
comment period on a negative proposed finding?

    (a) At the end of the comment period for a negative proposed 
finding, the petitioner will have 60 days to:
    (1) Elect to challenge the proposed finding in a hearing before an 
OHA

[[Page 30780]]

judge by sending a written election of hearing to OFA that lists:
    (i) The issues of material fact; and
    (ii) The witnesses and exhibits the petitioner intends to present 
at the hearing, other than solely for impeachment purposes, including:
    (A) For each witness listed, his or her name, address, telephone 
number, and qualifications and a brief narrative summary of his or her 
expected testimony; and
    (B) For each exhibit listed, a statement specifying whether the 
exhibit is in the administrative record reviewed by OFA; and/or
    (2) Respond to any comments and evidence made during the comment 
period with responses, with citations to and explanations of supporting 
evidence, and evidence cited and explained in the responses.
    (b) AS-IA can extend the comment response period if warranted by 
the extent and nature of the comments and will notify the petitioner 
and informed parties by letter of any extension. AS-IA will not 
consider further comments or evidence on the proposed finding submitted 
by individuals or organizations during this period.


Sec.  83.39  What is the procedure if the petitioner elects to have a 
hearing before an OHA judge?

    (a) Case referral.
    (1) If the petitioner elects to challenge the proposed finding in a 
hearing before an OHA judge, OFA will refer the case to the Office of 
Hearings and Appeals.
    (2) The case referral will consist of the entire record, including 
any comments and evidence and responses sent to AS-IA, and a notice of 
referral containing:
    (i) The name, address, telephone number, and facsimile number of 
the Office of Hearings and Appeals;
    (ii) The name, address, and other contact information for the 
representatives of the petitioner and OFA; and
    (iii) The date on which OFA is referring the case.
    (3) Within 5 business days after receipt of the petitioner's 
hearing election, OFA will send the case referral to the Office of 
Hearings and Appeals and the notice of referral to the petitioner and 
each informed party by express mail or courier service for delivery on 
the next business day.
    (b) Hearing Process. The Office of Hearings and Appeals will 
conduct the hearing process in accordance with 43 CFR part 4, subpart 
K.
    (c) Hearing record. The hearing will be on the record before an OHA 
judge. The hearing record will become part of the record considered by 
AS-IA in reaching a final determination.
    (d) Recommended decision. The OHA judge will issue a recommended 
decision and forward it along with the rest of the record to the AS-IA 
in accordance with the timeline and procedures in 43 CFR part 4, 
subpart K.

AS-IA Evaluation and Preparation of Final Determination


Sec.  83.40  When will the Assistant Secretary begin review?

    (a) AS-IA will begin his/her review:
    (1) Upon expiration of the period for the petitioner to respond to 
comments or upon expiration of the comment period for a positive 
proposed finding if no comments were submitted; or
    (2) If a hearing is held, upon receipt of the OHA judge's 
recommended decision.
    (b) AS-IA will notify the petitioner and informed parties of the 
date he/she begins consideration.


Sec.  83.41  What will the Assistant Secretary consider in his/her 
review?

    (a) AS-IA will consider all the evidence in the administrative 
record.
    (b) AS-IA will not consider comments submitted after the close of 
the response period established in Sec.  83.35 and Sec.  83.38.


Sec.  83.42  When will the Assistant Secretary issue a final 
determination?

    (a) AS-IA will issue a final determination and publish a notice of 
availability in the Federal Register within 90 days from the date on 
which he/she begins its review. AS-IA will also
    (1) Provide copies of the final determination to the petitioner and 
informed parties; and
    (2) Make copies of the final determination available to others upon 
written request.
    (b) If the proposed finding was positive, AS-IA may not issue a 
negative final determination unless and until AS-IA remands the matter 
to OFA for the petitioner to receive technical assistance addressing 
new evidence that would be the basis for the negative final 
determination.
    (1) If OFA concludes that the technical assistance does not resolve 
the issue presented by the new evidence, OFA will issue a negative 
proposed finding and individuals and organizations will have the 
opportunity to comment, and the petitioner will have the opportunity to 
respond to comments and elect to have a hearing, under the procedures 
in Sec. Sec.  83.35 to 83.38;
    (2) If the technical assistance resolves the issue presented by the 
new evidence, then the Assistant Secretary will proceed with Sec.  
83.41, and incorporate resolution of the new evidence in the final 
determination.
    (c) AS-IA will strive to limit the final determination and any 
reports to no more than 100 pages, cumulatively, excluding source 
documents.


Sec.  83.43  How will the Assistant Secretary make the determination 
decision?

    (a) AS-IA will issue a final determination granting acknowledgment 
as a federally recognized Indian tribe when AS-IA finds that the 
petitioner meets the Tribal Existence (Sec.  83.11(a)), Governing 
Document (Sec.  83.11(d)), Descent (Sec.  83.11(e)), Membership (Sec.  
83.11(f)), and Congressional Termination (Sec.  83.11(g)) Criteria and:
    (1) Demonstrates previous Federal acknowledgment under Sec.  
83.12(a) and meets the criteria in Sec.  83.12(b); or
    (2) Meets the Community (Sec.  83.11(b)) and Political Authority 
(Sec.  83.11(c)) Criteria.
    (b) AS-IA will issue a final determination declining 
acknowledgement as a federally recognized Indian tribe when he/she 
finds that the petitioner does not meet the criteria in paragraph (a) 
of this section.


Sec.  83.44  Is the Assistant Secretary's final determination final for 
the Department?

    Yes. The final determination is final for the Department and is a 
final agency action under the Administrative Procedure Act (5 U.S.C. 
704).


Sec.  83.45  When will the final determination be effective?

    The final determination will become immediately effective. Within 
10 business days of the decision, the Assistant Secretary shall submit 
to the Federal Register a notice of the final determination to be 
published in the Federal Register.


Sec.  83.46  How is a petitioner with a positive final determination 
integrated into Federal programs as a federally recognized Indian 
tribe?

    (a) Upon acknowledgment, the petitioner will be a federally 
recognized Indian tribe entitled to the privileges and immunities 
available to federally recognized Indian tribes. It will be included on 
the list of federally recognized Indian tribes in the next scheduled 
publication.
    (b) Within six months after acknowledgment, the appropriate Bureau 
of Indian Affairs Regional Office will consult with the newly federally 
recognized Indian tribe and develop, in cooperation with the federally 
recognized Indian tribe, a determination of needs and a recommended 
budget.

[[Page 30781]]

These will be forwarded to the Assistant Secretary. The recommended 
budget will then be considered with other recommendations by the 
Assistant Secretary in the usual budget request process.
    (c) While the newly federally recognized Indian tribe is eligible 
for benefits and services available to federally recognized Indian 
tribes, acknowledgment as a federally recognized Indian tribe does not 
create immediate access to existing programs. The federally recognized 
Indian 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 will follow a determination of 
the needs of the newly federally recognized Indian tribe.

    Dated: May 22, 2014.
Kevin K. Washburn,
Assistant Secretary--Indian Affairs.
[FR Doc. 2014-12342 Filed 5-28-14; 8:45 am]
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