Federal Acknowledgment of American Indian Tribes, 37861-37895 [2015-16193]

Download as PDF Vol. 80 Wednesday, No. 126 July 1, 2015 Part IV Department of the Interior tkelley on DSK3SPTVN1PROD with RULES2 Bureau of Indian Affairs 25 CFR Part 83 Federal Acknowledgment of American Indian Tribes; Final Rule VerDate Sep<11>2014 19:58 Jun 30, 2015 Jkt 235001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\01JYR2.SGM 01JYR2 37862 Federal Register / Vol. 80, No. 126 / Wednesday, July 1, 2015 / Rules and Regulations DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs 25 CFR Part 83 [156A2100DD/AAKC001030/ A0A501010.999900 253G] RIN 1076–AF18 Federal Acknowledgment of American Indian Tribes Bureau of Indian Affairs, Interior. ACTION: Final rule. AGENCY: This rule revises 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 and substantive rigor of the process. For decades, the current process has been criticized as ‘‘broken’’ and 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. This rule reforms the process by, among other things, institutionalizing a phased review that allows for faster decisions; reducing the documentary burden while maintaining the existing rigor of the process; allowing for a hearing on a negative proposed finding to promote transparency and integrity; enhancing notice to tribes and local governments and enhancing transparency by posting all publicly available petition documents on the Department’s Web site; establishing the Assistant Secretary’s final determination as final for the Department to promote efficiency; and codifying and improving upon past Departmental implementation of standards, where appropriate, to ensure consistency, transparency, predictability and fairness. DATES: This rule is effective July 31, 2015. SUMMARY: tkelley on DSK3SPTVN1PROD with RULES2 FOR FURTHER INFORMATION CONTACT: Elizabeth Appel, Director, Office of Regulatory Affairs & Collaborative Action—Indian Affairs, (202) 273–4680; elizabeth.appel@bia.gov. SUPPLEMENTARY INFORMATION: I. Executive Summary of Rule II. History and Development of the Rule III. Comments on the Proposed Rule and the Department’s Responses A. Criteria 1. Criteria, Generally 2. Criterion (a) VerDate Sep<11>2014 19:58 Jun 30, 2015 Jkt 235001 a. Proposed Elimination of Current ‘‘Criterion (a)’’ and Requirement for External Observer as an Independent Criterion b. Proposed Criterion (a), Requiring Narrative of Pre-1900 Existence 3. Criterion (e) (Descent) a. Requirement for 80 percent Descent b. Descent as a Race-Based Criterion c. Defining ‘‘historical’’ to be 1900 or earlier d. Evidence in Support of Descent e. Review of Descent 4. 1934 Starting Date for Evaluating Criteria (b) (Community) and (c) (Political Influence/Authority) 5. State Reservations and U.S.-Held Land in Criteria (b) and (c) 6. Criterion (b) (Community) a. Using 30 percent as a Baseline b. Allowing Sampling for Criterion (b) c. Deletion of ‘‘Significant’’ in Criterion (b) d. Marriages/Endogamy as Evidence of Community e. Indian Schools as Evidence of Community f. Language as Evidence of Community g. Nomenclature as Evidence of Community h. Other Evidence of Community 7. Criterion (c) (Political Influence/ Authority) a. Bilateral Political Relationship b. ‘‘Show a continuous line of entity leaders and a means of selection or acquiescence by a majority of the entity’s members’’ c. Evidence 8. ‘‘Substantially Continuous Basis, Without Substantial Interruption’’ 9. Criterion (f) (Unique Membership) a. Criterion (f), In General b. Deletion of previous rule’s provision prohibiting members from maintaining a ‘‘bilateral political relationship’’ with the federally recognized tribe c. Exception for Members of Petitioners Who Filed Prior to 2010 10. Criterion (g) (Termination) 11. Splinter Groups B. Re-Petitioning C. Standard of Proof D. Third-Party Participation in the Acknowledgment Process 1. Who Receives Notice of the Receipt of the Petition 2. Deletion of Interested Party Status 3. Comment Periods E. Process—Approach 1. Letter of Intent 2. Phased Review 3. Technical Assistance 4. Providing Petitioner With Opportunities to Respond 5. Suspensions (proposed 83.31) and Withdrawals (proposed 83.30) 6. Decision-Maker 7. Automatic Final Determination 8 Prioritizing Reviews 9. Proceeding under the New or Old Version of the Regulations 10. Precedent and Other Comments F. Petitioning Process Timelines 1. Timelines—Overall 2. Timelines—Notice of Receipt of Documented Petition PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 3. Timelines—Petitioner Response to Comments Prior to PF 4. Timelines—Issuance of a PF 5. Timelines—Comment Period on PF 6. Timelines—Period for Petitioner’s Response to Comments on a Positive PF 7. Timelines—Petitioner Response to Comments and/or Election of Hearing 8. Timelines—Issuance of FD G. Hearings 1. Deleting the IBIA Reconsideration Process, and Adding a Hearing on the PF 2. Opportunity for Third Parties to Request a Hearing and Intervene in Hearings 3. Hearing Process Timelines 4. Scope of Record 5. Presiding Judge Over Hearings 6. Conduct of the Hearing 7. Miscellaneous Hearing Process Comments H. Previous Federal Acknowledgment I. Automatic Disclosure of Documents J. Elimination of Enrollment Limitations K. Purpose (Proposed 83.2) L. Definitions 1. ‘‘Historical’’ 2. ‘‘Indigenous’’ 3. ‘‘Tribe’’ 4. Other Definitions IV. Legislative Authority V. Procedural Requirements A. Regulatory Planning and Review (E.O. 12866 and 13563) B. Regulatory Flexibility Act C. Small Business Regulatory Enforcement Fairness Act D. Unfunded Mandates Reform Act E. Takings (E.O. 12630) F. Federalism (E.O. 13132) G. Civil Justice Reform (E.O. 12988) H. Consultation with Indian Tribes (E.O. 13175) I. Paperwork Reduction Act J. National Environmental Policy Act K. Effects on the Energy Supply (E.O. 13211) I. Executive Summary of Rule This rule updates Part 83 to improve the processing of petitions for Federal acknowledgment of Indian tribes, with an aim of making the process more transparent, promoting fairness and consistent implementation, and increasing timeliness and efficiency, while maintaining the integrity and substantive rigor of the process. Primary revisions to the process would: • Increase timeliness and efficiency by providing for a two-phased review of petitions that establishes certain criteria as threshold criteria, potentially resulting in the issuance of proposed findings and final determinations earlier in the process and thereby expediting negative decisions (e.g., if a petitioner’s membership does not consist of individuals who descend from a historical Indian tribe); • Increase timeliness and efficiency while maintaining the substantive rigor and integrity of the process by providing a uniform start date of 1900 for criteria E:\FR\FM\01JYR2.SGM 01JYR2 tkelley on DSK3SPTVN1PROD with RULES2 Federal Register / Vol. 80, No. 126 / Wednesday, July 1, 2015 / Rules and Regulations (a) Identification, (b) Community and (c) Political Influence/Authority; • Promote fairness and consistent implementation by providing that if a prior decision finding evidence or methodology was sufficient to satisfy any particular criterion, the Department will find that evidence or methodology sufficient to satisfy the criterion for a present petitioner; • Promote transparency by providing that the Office of Federal Acknowledgment (OFA), rather than the Assistant Secretary, will issue the proposed finding (PF); • Promote fairness, objectivity, transparency and consistent implementation by offering petitioners who receive a negative PF the opportunity for a hearing, in which third parties may intervene, to address their objections to the PF before an administrative law judge (ALJ) who will then provide a recommended decision to the Assistant Secretary; • Promote transparency by requiring all publicly available documents relating to a petition be posted on the Department’s Web site and providing broader notice to local governments; • Promote fairness, transparency and efficiency by providing that the Assistant Secretary will review the PF and the record, including an ALJ’s recommended decision, and issue a final determination that is final for the Department, such that any challenges to the final determination would be pursued in United States District Court rather than in an administrative forum; and • Promote efficiency by eliminating the process before the Interior Board of Indian Appeals (IBIA) providing for limited reconsideration of final determinations. This rule clarifies the criteria by codifying past Departmental practice in implementing the criteria. An overriding purpose for codification is to address assertions of arbitrariness and ensure consistency. If methodology or evidence was sufficient to satisfy a particular criterion in a decision for a previous petitioner, such evidence or methodology is sufficient to satisfy the particular criterion for a current petitioner. This clarification ensures that a criterion is not applied in a manner that raises the bar for each subsequent petitioner. Evidence or methodology that was sufficient to satisfy a criterion at any point since 1978 remains sufficient to satisfy the criterion today. The rule does not substantively change the Part 83 criteria, except in two instances. VerDate Sep<11>2014 19:58 Jun 30, 2015 Jkt 235001 • One instance is that the final rule retains the current criterion (a), requiring identification of the petitioner as an Indian entity, but does not limit the evidence in support of this criterion to observations by those external to the petitioner. In other words, the final rule allows the Department to accept any and all evidence, such as the petitioner’s own contemporaneous records, as evidence that the petitioner has been an Indian entity since 1900. • The other instance in which the criteria is changed is in the review of the number of marriages in support of criterion (b) (community)—past Departmental practice has been to count the number of marriages within a petitioner; this rule instead provides that the Department count the number of petitioner members who are married to others in the petitioning group. The final rule differs from the proposed rule in a number of important respects. First, the final rule does not adopt the proposed evaluation start date for criteria (b) (Community) and (c) (Political Authority) of 1934. See the response to comments below. Rather, the final rule starts this evaluation at 1900. The Department does not classify the start date change, from 1789 or the time of first sustained contact to 1900, as a substantive change to the existing criteria because: (1) 1900 is squarely during a particularly difficult Federal policy era for tribes—there were strong forces encouraging allotment of Indian lands and assimilation of Indian people and the federal government discouraged tribes from maintaining community and political authority during that time period; (2) depending on the history of an area, first sustained contact for some petitioners was as late as the mid-1800s; (3) the regulations currently provide for a 1900 start date for criterion (a) and utilization of that start date for over 20 years has demonstrated that the date maintains the rigor of the criteria; (4) records are generally more available beginning in 1900, making the lack thereof more compelling too; and (5) a consistent start date will apply the same documentary burden to every petitioner uniformly across the country. Further, based on its experience in nearly 40 years of implementing the regulations, every group that has proven its existence from 1900 forward has successfully proven its existence prior to that time as well, making 1900 to the present a reliable proxy for all of history but at less expense. Further, in 1994 the Department implemented 1900 as a start date for evaluation of criterion (a) to reduce the documentary burden of this criterion while retaining the requirement for substantially PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 37863 continuous identification as an Indian entity. In other words, the time since 1900 has been shown to be an effective and reliable demonstration for historical times for criterion (a). Starting the evaluation of the community and political authority criteria will promote uniformity for criteria (a), (b) and (c). Relying upon 1900 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, all while maintaining the integrity and rigor of the process. Second, the final rule defines ‘‘historical’’ as prior to 1900. Using pre1900 for the end date of ‘‘historical’’ and 1900 for the start date for analysis of community and political influence/ authority allows for a rigorous and seamless examination of each petitioner, requiring evidence of descent from a historical Indian tribe that existed prior to 1900 and requiring an evaluation of identification, community, and political influence/authority for more than a century from 1900 to the present. The final rule also retains the current requirement that a criterion be met ‘‘without substantial interruption.’’ The final rule does not incorporate the proposed definition of this phrase, instead allowing for the Department’s continued interpretation consistent with any past positive finding on a criterion made as part of, or incorporated in, a final agency decision. Consistent with the Department’s previous final decisions, documentary gaps longer than 10 years may be justified in certain historical situations and context. Third, the final rule maintains the current standard of proof as ‘‘reasonable likelihood’’ without the proposed incorporation of judicial explanations of the phrase. Fourth, the final rule does not incorporate the proposal for limited repetitioning, as explained in the response to comments below. To encourage conciseness, which improves transparency and facilitates public understanding of our decisions, the revisions provide that the Department will strive to abide by page limits for the proposed finding and final determination. To ensure transparency, the revisions require the Department to make available on the Internet the narrative of the petition, other parts of the petition, comments or materials submitted by third parties to OFA relating to the documented petition, and any letter, proposed finding, recommended decision, and final determination issued by the Department E:\FR\FM\01JYR2.SGM 01JYR2 37864 Federal Register / Vol. 80, No. 126 / Wednesday, July 1, 2015 / Rules and Regulations tkelley on DSK3SPTVN1PROD with RULES2 that the Department is publicly releasing in accordance with Federal law. This rule also comprehensively revises part 83 to comply with plain language standards, using a questionand-answer format. II. History and Development of the Rule For many years, the process for acknowledgment of American Indian and Alaska Native tribes has been criticized as broken. Since the establishment of the Part 83 process, multiple Congressional hearings have been held to address its failings. Some members of Congress, such as Chairman John Barrasso of the Senate Committee on Indian Affairs, have stated that the process simply takes too long. S. Hrg. 112–684 (July 12, 2012). Previous Chairs of the Senate Committee on Indian Affairs, such as Byron Dorgan, have raised similar critiques. S. Hrg. 110–189 (September 19, 2007). Congressional leaders in the House have raised other concerns. For example, Congressman Tom Cole has said that the process is ‘‘complex,’’ ‘‘controversial,’’ and ‘‘frankly, has not worked well.’’ H. Hrg. No. 110–47 (October 3, 2007). Chairman Don Young has said that ‘‘reforms to expedite the process and to upgrade the fairness, consistency, and transparency are warranted.’’ H. Hrg. No. 110–47 (October 3, 2007). Others have supported the Department’s efforts to reform Part 83. For example, Senator Tim Kaine stated he is ‘‘encouraged by BIA’s efforts to improve its federal recognition process’’ and ‘‘support[s] the Department’s efforts to expedite the federal recognition process, add transparency, and provide multiple opportunities for petitioners to engage the Department during the decisionmaking process.’’ September 30, 2014, letter from Senator Tim Kaine to Assistant Secretary—Indian Affairs Kevin K. Washburn. Members of Congress are joined by others in criticism of the current regulation. A 2001 GAO Report entitled ‘‘Improvements Needed in Tribal Recognition Process’’ (Nov. 2001), is an example. The political nature of this work has also drawn scrutiny from the Department’s Office of Inspector General (‘‘Allegations Involving Irregularities in the Tribal Recognition Process,’’ Report No. 01–I–00329, Feb. 2002). Despite wide agreement by the public that this process is broken, solutions are not obvious because members of the public have differing perspectives on the exact nature of the problems. Some reforms are as controversial as the broken process. Individual decisions are highly contested. Of the 51 petitions VerDate Sep<11>2014 19:58 Jun 30, 2015 Jkt 235001 resolved since this process began, only 17 petitions have been approved for acknowledgment and 34 have been denied. Far more tribes have been recognized by Congress during this time period, and Congress unquestionably has the power, in the first instance, to speak for the United States on recognition of groups as Indian tribes. Some think that the acknowledgment process is strongly related to gaming. The facts do not bear this out. Many of the petitioning groups came forward a long time ago. As the late Senator Daniel K. Inouye observed, if gaming were the driving force, ‘‘we would have to attribute to many of the petitioning tribal groups a clairvoyance that they knew that one day in the distant future there was going to be a Supreme Court decision and thereafter the Congress was going to enact a law authorizing and regulating the conduct of gaming. . . .’’ S. Hrg 109–91 at 3. Of the 17 tribes that have been recognized since this process began 37 years ago, only 11 have obtained land in trust, a process regulated by an additional, separate set of regulations (25 CFR part 151), and only 9 of these currently engage in Indian gaming. Of course, Congress has enacted a detailed law establishing whether trust land is eligible for gaming. It is set forth in the Indian Gaming Regulatory Act of 1988 (IGRA) and the Department has promulgated separate regulations implementing IGRA (25 CFR part 292). For those 9 tribes that successfully navigated acknowledgment and obtained land in trust, it took, on average, nearly 10 years after acknowledgment to engage in Indian gaming. The Department sought wide input in reforming Part 83 and used extraordinary process. It formed an internal workgroup in 2009 to reform the process through rulemaking. At a hearing before the House Subcommittee on Indian and Alaska Native Affairs in March of 2013, the Department explained the process it would follow in pursuing reform and set forth goals. After publicly identifying goals of reform of the regulations, the Department distributed a ‘‘Discussion Draft’’ of revisions to Part 83 in June 2013. In July and August 2013, the Department hosted five consultation sessions with federally recognized Indian tribes and five public meetings at various locations across the country. The Department received approximately 350 written comment submissions on the Discussion Draft, which were made available on its Web site with the transcripts of each consultation and public meeting. After considering all PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 written comments as well as comments received at consultation sessions and public meetings, the Department developed and published a proposed rule. See 79 FR 30766 (May 29, 2014). III. Comments on the Proposed Rule and the Department’s Responses The proposed rule was published on May 29, 2014. See 79 FR 30766. In response to requests, the Department then extended the initial comment deadline of August 1, 2014, to September 30, 2014. See 79 FR 44149. Throughout July 2014, the Department held public meetings and separate consultation sessions with federally recognized Indian tribes at regional locations across the country. In response to requests for additional meetings and consultations, the Department added two teleconference consultation sessions for federally recognized Indian tribes and two teleconference sessions for the public, which were held in August 2014. During the public comment period, the Department received over 330 written comment submissions plus several form letters, one of which included hundreds of signatories. Federally recognized tribes from across the country weighed in on the proposed rule. Tribes such as the Crow Nation, the Stockbridge-Munsee Band of Mohican Indians, the Seminole Tribe of Florida, the San Juan Southern Paiute Tribe, the Mashantucket Pequot Tribal Nation, and the Mashpee Wampanoag Tribe expressed support for the proposed rule. Other tribes such as the Eastern Band of Cherokee, the Confederated Tribes of the Grand Ronde Community of Oregon, the Muckleshoot Indian Tribe, and the Temecula Band of Luiseno Mission Indians expressed opposition to and concerns with certain proposed changes. State and local governments also commented on the proposed rule. States such as Connecticut and numerous counties and local governments, such as Sonoma County in California, strongly opposed the proposed rule. In contrast, Governor Bullock of Montana strongly supported the proposed rule. The Department reviewed each of the comments received and has made several changes to the proposed rule in response to these comments. The following is a summary of comments received and the Department’s responses. A. Criteria 1. Criteria, Generally The criteria in the proposed and final rule are set out at § 83.11. Many E:\FR\FM\01JYR2.SGM 01JYR2 tkelley on DSK3SPTVN1PROD with RULES2 Federal Register / Vol. 80, No. 126 / Wednesday, July 1, 2015 / Rules and Regulations commenters stated that the proposed rule would ‘‘weaken’’ the criteria. These commenters stated that the criteria would be weakened by: Allowing for a presumption of continuous existence from 1789/first sustained contact to 1934; weakening listed items of evidence and adding new, potentially invalid forms of evidence; increasing allowable gaps in evidence; and deleting the requirement for external identifications. Further, these commenters asserted that the changes would: Exceed the Department’s authority; be inconsistent with longstanding precedent; redefine tribes as racial, rather than political, entities; allow appropriation of tribes’ identities; violate the trust responsibility; and fail to meet the stated goals for efficiency or transparency. Commenters also specifically argued for and against reliance on different types of evidence, including: The California Indian judgment rolls; oral history; and recognition by courts under criteria derived from Montoya v. United States, 180 U.S. 261 (1900). Some requested the addition of language that evaluation of the criteria will be based on the totality of the circumstances and evidence and/or consideration of specific circumstances. Some commented that while the basic criteria have not changed, the criteria are continually being reinterpreted in a way that makes them more onerous. Other commenters described the impacts to localities and others of weakening the criteria and argued that the ‘‘broken’’ parts of the acknowledgment process could be fixed through better staffing and clearer guidelines, rather than changing the criteria. Response: In light of comments expressing concern that the proposed rule would weaken the criteria, the final rule minimizes changes to the criteria, as described below. Instead, and in light of comments about the increasingly burdensome application of the criteria, it works to ensure consistent application across time. Given that the criteria have remained substantively unchanged since 1978, the amount and type of evidence that was sufficient to satisfy a particular criterion in 1980 remains sufficient today. Our review of the Department’s prior decisions confirms that, as a matter of both logic and fairness, evidence that has supported positive findings as to particular criteria in the past should support similar findings for present petitioners. Any other petitioning group that meets the same rigorous criteria should be recognized. Petitioning groups ought not face criteria that are interpreted more narrowly. VerDate Sep<11>2014 19:58 Jun 30, 2015 Jkt 235001 The proposed rule would have provided that the Department will apply the criteria ‘‘consistently with threshold standards utilized to acknowledge other tribes under this part.’’ The final rule at § 83.10(a)(4) adopts a modified version of this provision, to better ensure consistency with precedent, which expressly provides that if there is a prior decision finding that evidence or methodology was sufficient to satisfy any particular criterion in a previous petition, the Department will find that evidence or methodology sufficient to satisfy the criterion for a present petitioner. In other words, a petitioner today satisfies the standards of evidence or baseline requirements of a criterion if that type or amount of evidence was sufficient in a previous decision. These prior decisions on criteria provide examples of how a criterion may be met. Even decisions finding a criterion was met in a final determination that was, on the whole, negative, provide examples of how a criterion can be met. Decisions finding a criterion was met in positive final determinations are especially compelling, however (see decisions such as those issued for the Grand Traverse Band of Ottawa and Chippewa Indians, the Jamestown S’Klallam Tribe, the Tunica-Biloxi Indian Tribe, the Death Valley Timbisha Shoshone Tribe, the Poarch Band of Creeks, the San Juan Southern Paiute Tribe of Arizona, Mohegan Indian Tribe, the Jena Band of Choctaw Indians, etc.). For example, evidence and methodology found sufficient by the Department to satisfy criterion (e) for tribes such as the Poarch Band of Creeks or Death Valley Timbi-sha Shoshone Tribe is sufficient under these final regulations for any subsequent petitioner. To be sure, some successful petitioners have provided more evidence to satisfy a particular criterion than other successful petitioners. However, the fact that a successful petitioner may have vastly exceeded a baseline threshold of a particular criterion does not raise the bar for subsequent petitioners. Section 83.10(a)(4) ensures that the basic criteria are not reinterpreted to apply any more onerously than they have been applied to a previous petitioner that has satisfied that criterion. Obviously, if there is significant actual countervailing evidence with regard to a petition that was not present in a previous positive determination on a criterion, the Department may consider whether the prior positive decision provides an appropriate precedent. Thus, for example, evidence or methodology that seems similar to that applied in a prior positive PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 37865 determination on a criterion may be evaluated differently in light of substantial countervailing evidence showing significantly different historical facts and circumstances. However, such affirmative significant countervailing evidence does not necessarily preclude a positive determination. It remains the Department’s responsibility to consider such evidence and provide an explanation of the significant countervailing evidence when deciding whether a criterion has been satisfied. Absent significant affirmative countervailing evidence, if the evidence or methodology was deemed sufficient in a previous positive decision on a criterion, it will be deemed sufficient for all current and future petitioners for that criterion. The final rule generally does not change how different types of evidence are evaluated or weighed, but does add certain categories of evidence. In one instance (criterion (a)), a new category of evidence is allowed to address issues of fairness. In other instances, categories of evidence are added to clarify the Department’s past practice in accepting such evidence (e.g., Indian educational institutions may be evidence of the Community criterion; land set aside by a State for the petitioner or collective ancestors of the petitioner that was actively used by the community may be evidence of Community or Political Influence/Authority criteria; and historian and anthropologist records as evidence of the Descent criterion). These do not reflect substantive changes in the criteria and includes evidentiary categories that might have been considered previously; this change is simply meant to be explicit about the value and relevance of certain evidence. The final rule does not incorporate language regarding the totality of the circumstances and evidence because the rule already provides the parameters within which the Department will evaluate the criteria. See § 83.10(b) (providing that the Department will apply the criteria in context with the history, regional differences, culture, and social organization of the petitioner, etc.). The proposed rule would have provided that the Department will apply the criteria ‘‘consistently with threshold standards utilized to acknowledge other tribes under this part.’’ The final rule adopts a modified version of this provision, to better ensure consistency with precedent, which states that if there is a prior decision finding evidence or methodology to be sufficient to satisfy any particular criterion previously, the Department E:\FR\FM\01JYR2.SGM 01JYR2 37866 Federal Register / Vol. 80, No. 126 / Wednesday, July 1, 2015 / Rules and Regulations shall find it sufficient to satisfy the criterion for a present petitioner. 2. Criterion (a) tkelley on DSK3SPTVN1PROD with RULES2 a. Proposed Elimination of Current ‘‘Criterion (a)’’ and Requirement for External Observer as an Independent Criterion The existing criterion (a) required that external observers identify the petitioner as an Indian entity; the proposed rule would have eliminated this requirement for evidence of external observations. Many who commented supported the proposed elimination of this requirement as an independent criterion because outside assessments of Indian tribes may be based on folk beliefs about ‘‘Indianness.’’ Moreover, it has been said to be unfair to rely on external identification because tribal groups were sometimes forced into hiding to avoid persecution by outside groups. Commenters noted that external identifications have been inaccurate in the past, as shown by the fact that outsiders have denied or mischaracterized the Indian entity of many currently federally recognized tribes. Some commenters pointed out that, because no petitioner has been denied solely on this criterion, it is of limited value and yet has consumed considerable petitioner and Department time and resources. Several other commenters opposed eliminating this criterion, stating that any petitioner that truly qualifies as a tribe should be able to prove external identifications, and that tribal existence should not be based completely on self-assertion and selfidentification or on historical material the petitioner developed through its own resources. Response: The Department agrees with commenters’ concerns regarding the unfairness of having an independent requirement for external identifications. The Department also considered other commenters’ concerns with eliminating the criterion, which stated that some external evidence is appropriate to avoid a situation where a group relies merely on its own self-assertion that it is, and has been, an Indian tribe. The final rule retains the current criterion (a), requiring identifications on a substantially continuous basis since 1900, with an adjustment to accept identifications by the petitioner in the same manner as we would accept identifications by external sources. While there may be factors affecting how outsiders view an Indian entity, allowing evidence from the Indian entity itself for a particular time period to demonstrate that the entity identified VerDate Sep<11>2014 19:58 Jun 30, 2015 Jkt 235001 itself as an Indian entity addresses this concern. With regard to concerns that a petitioner may have mostly, or even only, self-identifications rather than external identifications, the Department does not find these concerns compelling. An entity that descends from a historical tribe and exists continuously as a community with political influence/authority is still a tribe, regardless of whether records of external observers identify the tribe as an Indian entity. But the tribe’s continued view of itself as an Indian entity is essential. To the extent the commenters are concerned that a petitioner could recreate past selfidentifications, the final criterion (a) requires contemporaneous selfidentifications, just as external identifications must be contemporaneous. The Department believes that it is appropriate to retain the 1900 starting date for requiring evidence of identifications on a substantially continuous basis for the reasons stated in the 1994 rulemaking. See 59 FR 9280, 9286 (February 25, 1994). While the requirements of this criterion consume both petitioner and Departmental time, we have determined the final rule strikes a balance, taking into account the comments advocating substantial changes to or elimination of criterion (a) and those comments that advocated no change. b. Proposed Criterion (a), Requiring Narrative of Pre-1900 Existence Many commenters requested clarification of the proposed criterion (a) at proposed § 83.11(a), specifically asking for clarification on what evidence would be sufficient; whether the phrase ‘‘generally identified’’ indicates external identifications are still required; whether ‘‘a point in time’’ means any point in time chosen by petitioner, or chosen by the Department; whether 1900 is a general benchmark or definitive date; and what standard the Department will use to judge this criterion. Some commenters opposed the proposed criterion (a), stating that it does not meet the requirement for showing continuous political existence during historical times, that the ‘‘slightest connection’’ to a historical tribe prior to 1900 and existence of a contemporary tribal organization would be sufficient under this criterion, and that it does not sufficiently guard against a petitioner claiming a recognized tribe’s identity and history. These commenters also stated the criterion lends itself to politics-based rather than merits-based decisions. PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 Commenters also objected to requiring a showing of existence at only one point prior to 1900. These commenters found the deletion of the requirement for external identification criteria in favor of a brief narrative showing that the group existed as a tribe at some point ‘‘alarming.’’ Response: As discussed above, the Department has decided to retain the current criterion (a), with some adjustments, in lieu of the proposed criterion (a). See final § 83.11(a). The comments we received on the proposed criterion (a) expressed concern that the proposed criterion was not specific enough, but we received no suggestions for specifications that would address all commenters’ concerns. In attempting to identify revisions that would sufficiently address all commenters’ concerns with the proposed criterion (a), the Department determined that the current criterion (a) should be retained with a revision to allow for the petitioner’s own records to serve as evidence. 3. Criterion (e)—Descent a. Requirement for 80 Percent Descent We received comments both in support of and in opposition to the proposed requirement at proposed § 83.11(e) that petitioners show that at least 80 percent of their membership descends from a historical tribe. Those in support stated that using a quantitative measure is appropriate here because petitioners have lists of their members. Some stated that using 80 percent is appropriate for determining Indian ancestry in general, but not for showing a connection to a specific historical tribe because records that identify historical tribes do not contain censuses of the members. Some commenters, including some federally recognized tribes, strongly opposed any percentage less than 100 percent, and opposed using 80 percent because it could effectively allow for a petitioner with a membership of 20 percent nonIndians. A few commenters stated that the percentage requirement should be less than 80 percent to account for lack of records. Response: The final criterion (e) remains substantively unchanged from the current criterion (e). While the final rule does not include a percentage, this criterion will continue to be applied consistently with previous decisions. Evidence and methodology sufficient in positive decisions on criterion (e), such as Tunica-Biloxi Indian Tribe, Poarch Band of Creeks, and Death Valley Timbi-sha Shoshone Tribe, will continue to be sufficient to satisfy E:\FR\FM\01JYR2.SGM 01JYR2 Federal Register / Vol. 80, No. 126 / Wednesday, July 1, 2015 / Rules and Regulations criterion (e) under these final regulations. The Department aims to maintain consistency in applying the baseline utilized to satisfy the criteria. The 80 percent threshold was not intended to be a change in policy; it merely attempted to codify this existing Departmental practice. Yet a number of commenters expressed concern both for and against codifying this number, so the rule does not incorporate the 80 percent threshold. Instead, the criterion is satisfied if the petitioner provides evidence and utilizes methodology consistent with any previous positive determination under this criterion. tkelley on DSK3SPTVN1PROD with RULES2 b. Descent as a Race-Based Criterion Some commenters stated that criterion (e) should be deleted because it is race-based, while tribal membership is a political classification. Response: The Department recognizes descent from a political entity (tribe or tribes) as a basis from which evaluations of identification, community, and political influence/authority under criteria (a), (b), and (c) may reveal continuation of that political entity. Evidence sufficient to satisfy (e) is utilized as an approximation of tribal membership before 1900. c. Defining ‘‘Historical’’ To Be Before 1900 Commenters opposed, and others supported, defining ‘‘historical’’ to be before 1900. Some requested clarification for the beginning date of the ‘‘historical’’ period. Some commenters also requested clarification of ‘‘historical tribe’’ to require that the tribe functioned autonomously, and to ensure that a petitioner does not claim the same historical tribe as that claimed by a federally recognized tribe. Response: The final rule defines ‘‘historical’’ to be before 1900, maintaining the same approach as the proposed rule but clarifying that the year 1900 is not included in the ‘‘historical’’ period. The final rule does not identify the beginning date for the ‘‘historical’’ period, but it necessarily must be some date prior to 1900. The final rule does not identify the beginning date for the historical period to be 1789 or the period of earliest sustained non-Indian settlement and/or governmental presence in the local area, whichever is later, because these beginning dates would not achieve any reduction in the documentary or administrative burden. The term ‘‘autonomous’’ has been reinserted in the definitions and political influence/ authority criterion to require autonomous functioning since 1900, which is satisfied if evidence is VerDate Sep<11>2014 19:58 Jun 30, 2015 Jkt 235001 provided consistent with any previous positive finding of this criterion. d. Evidence in Support of Descent We received several comments either requesting clarification of the phrase ‘‘most recent evidence’’ in proposed criterion (e) or opposing the requirement to rely on the ‘‘most recent evidence’’ as limiting the Department’s ability to examine or rely on earlier, and more probative, evidence. Commenters also stated concerns with the language stating that rolls prepared by the Secretary or at the direction of Congress ‘‘satisfy’’ the criterion. Specifically, these commenters stated that that the proposed rule would not allow the Department to evaluate the reliability of rolls prepared by the Secretary or at the direction of Congress, and pointed out that in some cases, such rolls may be inaccurate or fail to identify tribal affiliation. Commenters also had suggestions for other categories of evidence or requested use of ‘‘best genealogical evidence.’’ We received comments both in support of and opposition to using historian and anthropologist conclusions as evidence of descent. Commenters stated their concerns that affidavits are not reliable for ancestry, unless they are contemporaneous records. Response: The final rule provides for evaluating the most recent evidence prior to 1900. Documents that are erroneous or fraudulent are not evidence and thus will not satisfy this criterion. The final rule also places great weight on applicable tribal Federal rolls prepared at the direction of Congress or by the Department. Based on the Department’s expertise, any inaccuracies of such tribal rolls are de minimis. Many federally recognized tribes rely on tribal Federal rolls as base membership rolls and the Department’s approach here regarding such rolls for this process is consistent with this tribal practice. While no human endeavor is perfect, tribal rolls created by the Department were often prepared in person by a Departmental representative or team to promote accuracy. The final rule clarifies that the roll must have been prepared for a tribe. In contrast, rolls of the Indians of California for claims payments would not satisfy § 83.11(e)(1) because those rolls were not prepared for specific tribes, but rather descendants from an Indian who lived in the State on June 1, 1852. If Departmental tribal censuses or rolls are not available, the Department will then look to other documents, as needed. For example, the rolls of the Indians of California may be provided as evidence to be evaluated under § 83.11(e)(2). This PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 37867 approach codifies past practice. For example, in acknowledging the Death Valley Timbi-Sha Shoshone Band, the Department relied on Departmental rolls and censuses: The Timbi-Sha Shoshone Band provided a total of three rolls and censuses, the current membership list dated March 1978, and 1933 and 1936 censuses prepared by the Bureau of Indian Affairs. . . . Rolls prepared from 1916 through 1940 by the Bishop and Carson agency staffs were also researched, as was the roll prepared pursuant to the Act of September 21, 1968, for the distribution of judgment funds awarded to the Indians of California. All data from these rolls and censuses confirm that virtually all of the members of the group have or can conclusively establish Shoshone Indian ancestry. We conclude, therefore, that the membership of the Death Valley Timbi-Sha Shoshone Band of Indians consists of individuals who have established descendancy from historical Shoshone bands in the Death Valley area which combined and functioned as a single autonomous entity, and that the band has met the criterion in 25 CFR 54.7(e). Proposed Finding at 6–7. Rather than requiring ‘‘best genealogical evidence,’’ which may impose an additional burden on the petitioner, the Department will continue its long standing practice of evaluating evidence under the standards established in this regulation. Criterion (e) also maintains the use of records created by historians and anthropologists identifying the tribe in historical times or historians’ and anthropologists’ conclusions drawn from historical records. This approach is consistent with past practice. For example, in Tunica-Biloxi the Department relied on the following historical records to satisfy (e): The work of anthropologists in the late 1800’s and early 1900’s and a list prepared by a representative of the Bureau in the 1930’s were used in conjunction with other recorded documents, the 1900 Federal Population census, and testimony from a 1915 civil court suit to establish Indian ancestry in the historical tribes. Tunica-Biloxi Proposed Finding at 4. Five sources were available which identified current tribal members, their relations, and/or ancestors as Indian: Ruth M. Underhill’s ‘‘Report on a visit to Indian groups in Louisiana, Oct. 15–25, 1938’’(6); James Owen Dorsey’s list of ‘‘Biloxis in Raipides Parish, La.’’ of 1892 and 1893; the 1900 Federal Population Census; pre-1900 church records submitted as genealogical documentation; and, testimony taken in the Sesostris Youchican v. Texas and Pacific Railway Company court case in 1915. Tunica Biloxi Genealogical Report at 3. We have also clarified the existing practice that affidavits must be based on first-hand knowledge. E:\FR\FM\01JYR2.SGM 01JYR2 37868 Federal Register / Vol. 80, No. 126 / Wednesday, July 1, 2015 / Rules and Regulations e. Review of Descent Many commenters suggested tying review of criterion (e) together with the proposed criterion (a), which required a narrative of existence prior to 1900, to provide context for the historical tribe. Response: Because the final rule retains an amended version of the current criterion (a), rather than the proposed criterion (a), these comments are no longer applicable. tkelley on DSK3SPTVN1PROD with RULES2 4. 1934 Starting Date for Evaluating Criteria (b) (Community) and (c) (Political Influence/Authority) The Department may have received more comments on the proposed starting date for evaluating criterion (b) (community) and criterion (c) (political influence/authority), at proposed § 83.11(b) and (c), than any other part of the rule. Several supported the proposed starting date of 1934, including renowned legal scholars, the Seminole Tribe of Florida, tribes that have successfully completed the process, and Senator Tim Kaine. Those opposed to this starting date, such as the Connecticut Congressional delegation and Governor, local governments, and tribes such as the Eastern Band of Cherokee and Muckleshoot Indian Tribe, generally stated that it cannot be assumed that tribes existed continuously from first sustained nonIndian contact or 1789, whichever is later, to 1934. These commenters stated that beginning evaluation in 1934 would significantly weaken the criteria, allow recently formed groups to obtain acknowledgment, and be inconsistent with precedent. They also disagreed with the Department’s basis for using 1934, stating that there are several turning points in Indian policy other than passage of the Indian Reorganization Act (IRA) and that the IRA had no effect on a tribe’s existence. Several commenters suggested moving the 1934 date to 1900 to be consistent with the definition of ‘‘historical.’’ A few commenters advocated for earlier or later dates. Response: The Department considered the full range of comments from those advocating for no change to those advocating for a date later than 1934. Of course, as a practical matter, it bears noting that under the current regulations 1789 does not uniformly apply to all petitioners. Depending on the location of the petitioner, first sustained contact for some petitioners may be the mid-1800’s. Of course, if the Petitioner demonstrates previous unambiguous Federal acknowledgment, the review period for (b) and (c) can be well after 1934. In considering the VerDate Sep<11>2014 19:58 Jun 30, 2015 Jkt 235001 comments received, a number of dates were suggested for consideration. For example, there are several turning points in Indian policy other than the passage of the IRA. The Department also considered using 1871 (the end of the treaty-making era), 1880 (Special Census of Indians), or 1887 (passage of the General Allotment Act and beginning of the allotment era), as possible starting dates. We summarize below our response to various start dates proposed by commenters during the rulemaking process. 1934 The Department received a number of comments supporting the use of 1934 as set forth in the proposed rule. Legal scholars, a number of federally recognized tribes, and others provided particularly strong comments in support of the Department’s use of 1934. In the nearly 40 years that the Department has utilized the Part 83 process, no petitioner has satisfied the seven mandatory criteria after 1934, but failed the criteria prior to 1934. The start date of 1934 is compelling also because groups who satisfy these criteria from 1934 maintained community and political authority for decades and across generations with little external incentive, given that the Part 83 process did not come into existence until 1978. Indeed, in 1998, the House Committee on Resources reported out favorably H.R. 1154, which would have utilized 1934 as a starting date under the criteria. While the bill did not garner the two-thirds votes required to suspend the rules and pass H.R. 1154, bi-partisan leadership on tribal issues voted in support of suspending the rules and passing the bill, including Representatives Young, Pombo, Kildee, and Rahall. While opposition to a start date of 1934 is based on a perception that a 1934 start date would significantly weaken these two criteria, we note that 1934 is the year the Indian Reorganization Act was passed, which was a turning point in the Federal government’s relationship with Indian tribes. However, in determining the appropriate date for (b) and (c), the Department concludes that, to maintain public faith in the Part 83 process, 1934 is not appropriate. Wide opposition to the 1934 date suggests that some people would question the rigor and integrity of the Department’s conclusions if the Department required less than a century’s review of these two particular criteria. PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 1900 The Department received a number of comments relating to 1900 as a start date. Some of those that commented advocating for no change did note that earlier time periods were important for review and that if a change were to be made, the Department should begin its review at least since 1900. For example, the Muckleshoot Indian Tribe expressed concern with not evaluating the time period between 1900 and 1925. Similarly, on this point, the Suquamish Tribe stated that ‘‘[t]he position advanced by the Department and implicitly agreed to by Congress is that an applicant must establish proof of a continuous political existence since at least 1900.’’ The Rural County Representatives of California, an organization of thirty-four rural counties in California comprising nearly half of the land mass of the state, commented that ‘‘at the very least, the standard should be set at 1900 which is consistent with other thresholds in the rule and requiring evidence that the tribe, at a minimum, pre-dates the Indian Reorganization Act.’’ Similarly, the Town of Kent advocated for no change but asserted that ‘‘at a minimum they should be amended to require the petitioning group to demonstrate that it has comprised a distinct community and exercised political authority from historical times to the present. With the definitional change of ‘‘historic’’ from ‘‘first sustained contact’’ to ‘‘1900’’ (see proposed Section 83.1), the burden upon petitioning groups will have already been substantially mitigated and with far less risk that groups who did not maintain tribal existence prior to 1934 will be entitled to recognition as Indian tribes.’’ In response to these comments as well as based on the Department’s experience in administering the Part 83 regulations, the final rule adopts the date of 1900 as the starting point for criteria (b) and (c). As discussed earlier in this preamble, there are number of factors that support the use of 1900. As explained in the 1994 rulemaking that established a 1900 starting point for criterion (a), use of this date avoids some of the problems with historical records in earlier periods while retaining the requirement for substantially continuous community and political influence/authority. The past 20 years has demonstrated that use of 1900 for criterion (a) has maintained the substantive rigor of the process and using 1900 for (b) and (c) will provide uniformity for these three criteria and to all petitioners regardless of where they are located. E:\FR\FM\01JYR2.SGM 01JYR2 Federal Register / Vol. 80, No. 126 / Wednesday, July 1, 2015 / Rules and Regulations 1900 is also squarely during the allotment and assimilation period of federal policy that was particularly difficult for tribal governments. Indeed, leading up to 1900 the United States continued to engage in military conflict with tribes in tragedies such as the Wounded Knee Massacre of 1890 and the 1898 Battle of Sugar Point. Simply put, there was little benefit and some risk to openly functioning as a tribal community and government in 1900. Under this final rule, petitioners will need to provide evidence of community and political authority beginning in 1900. If evidence is not available beginning in 1900, a petitioner may submit evidence that pre-dates 1900. The Department further notes that Congressional bills, from time to time, have utilized a starting date for evaluation of criteria (b) and (c) to begin in 1900. For example, in 2004 under the leadership of Senate Indian Affairs Committee Chairman Ben Nighthorse Campbell, the Senate Committee on Indian Affairs reported S. 297 favorably out of the Committee. S. 297 provided for a start date of 1900. 1887 While the Department received very few suggestions for 1887, many of the comments asserted that the Department should utilize a starting date when there was widespread discrimination for being a tribe or Indian. The Eastern Band of Cherokee expressed strong opposition to any change from 1789 or time of first non-Indian contact to the present, stating: It makes no sense to use the date of passage of the IRA as the starting point for showing continuous tribal existence. Rather, a year pre-dating the enactment of the policy of allotment (1887) and assimilation aimed at destroying tribal governments would be more appropriate. Eastern Band of Cherokee Nation Comments at 5. Utilization of 1900 as a start date is responsive to this comment. 1900 is within a period of time when federal policy in favor of allotment and assimilation was explicitly aimed at destroying tribal governments. tkelley on DSK3SPTVN1PROD with RULES2 First Sustained Contact or 1789 The Department considered the comments advocating for no change from a starting date of first sustained non-Indian contact or 1789, but determined that the efficiency gains from shortening the evaluation period, and factors gleaned from the Department’s vast expertise and experience in determining whether to acknowledge tribes both prior to and under the Part 83 regulations, merit VerDate Sep<11>2014 19:58 Jun 30, 2015 Jkt 235001 adjustment of the review period for these two criteria. Based on public input and expressions of concern, the Department has focused at this time on consistency with other parts of Part 83, reducing the documentary burden, and improving document availability for the new starting date and, as such, the final rule relies on 1900 as a starting point for criteria (b) (community) and (c) (political influence/authority). See final § 83.11(b) and (c). It is the Department’s intention to preserve the rigor and integrity of the process and the public’s trust in the legitimacy of tribes that have successfully navigated the rigorous standards in Part 83. Using 1900 as a starting date will accomplish the goals of consistency and efficiency while preserving substantive rigor by requiring well over a 100-year period of documentation. 5. State Reservations and U.S.-Held Land in Criteria (b) and (c) The proposed rule stated that a petitioner would satisfy criterion (b) (community) and criterion (c) (political influence/authority) if it maintained a State reservation since 1934 or if the United States held land for the petitioner at any time since 1934. See proposed § 83.11(b)(3) and (c)(3). Commenters in support of this provision stated that it is consistent with Felix Cohen’s thinking in the mid-1930’s that a reservation or Federal land holding is a formalization of collective rights in Indian land and results in cultural continuation of the tribe. Commenters opposed this provision for several reasons. Among them were that the existence of a reservation or Federalheld land is not a proxy for community and political influence/authority. States may establish reservations for reasons unrelated to the tribe’s community or political influence/authority (e.g., tourism, parks) and, at most, the fact that land was put aside for the group could be evidence of the group’s existence at that point in time only, but is not evidence of the group’s continued existence without additional evidence, as the petitioner may not have been active in maintaining the reservation. These commenters further stated that, even where members live on the reserved or set-aside land, that fact does not provide evidence of an organizational structure. Commenters were concerned that under the proposed provisions, descendants of a tribe for which a reservation was established, but which ceased operating as a tribe, could be acknowledged, or that several different petitioners may claim the same reservation. Commenters also asserted PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 37869 that reliance on States’ determinations is improper, that Cohen looked to collective rights as reflective of a Federal relationship after already determining that a tribe exists, and that the provision is discriminatory to Connecticut. A few commenters suggested limiting this provision to when the State agrees the reservation does, in fact, demonstrate community and political authority, or the petitioner demonstrates it has maintained on the reservation rates or patterns of social interaction that exist broadly among members of the entity and shared or cooperative labor or other economic activity among members. Commenters also requested numerous clarifications, including but not limited to, whether ‘‘collective ancestors’’ requires holding land for a group rather than individuals, whether the petitioner must have had authority over the land, and whether public domain and individual allotments are included. Other commenters requested various items of evidence be added as a third category that would satisfy criteria (b) and (c), including individual allotments, establishment of Indian schools, and participation in treaty negotiations or land and water claims litigation before the Indian Claims Commission. Response: The final rule does not adopt the approach in the proposed rule that a State reservation held continuously since 1934 or Federal land held for a group at any point after 1934 satisfies (b) and (c). However, tribes with State reservations will most likely have additional evidence of political influence/authority, as well as community. We note that under the regulations, evidence that the group has been treated by the Federal Government as having collective rights in tribal lands (i.e., the United States held land for the benefit of the group) or in funds demonstrates previous Federal acknowledgment. This evidence has been added to the list of evidence supporting previous Federal acknowledgment in final § 83.12(a). However, under no circumstance may a petitioner claim a current federally recognized tribe’s reservation as land that the United States set aside for the petitioner. Similarly, for purposes of this section, land set aside by the United States refers to those lands set aside by the Department of the Interior for a group. Any such lands set aside by another federal agency will need to continue to be evaluated on a case-bycase basis to determine whether such set aside demonstrates previous Federal acknowledgment. E:\FR\FM\01JYR2.SGM 01JYR2 37870 Federal Register / Vol. 80, No. 126 / Wednesday, July 1, 2015 / Rules and Regulations The Department has decided that State reservations, unlike federally-held land that demonstrates previous Federal acknowledgment, may generate evidence of community and political influence/authority, but are not determinative for these two criteria. As the late Chairman Inouye explained, [s]hould the fact that a State has recognized a tribe for over 200 years be a factor for consideration in the acknowledgment process? I would say definitely yes. How could it be otherwise? Don’t most, if not all, of our States want the Federal Government to recognize the official actions of a State Government, when most of our States want the Federal Government to defer to the sovereign decisions and actions of those States over the course of their history? I think the answer to that question would be decidedly in the affirmative. S. Hrg. 109–91 (2005). There may be a multitude of circumstances in which a State establishes a reservation. Nevertheless, a State reservation may generate documents or evidence used to satisfy the categories of evidence identified in criteria (b) (community) or (c) (political influence/authority). See final § 83.11(b)(1)(ix) and (c)(1)(vii). tkelley on DSK3SPTVN1PROD with RULES2 6. Criterion (b) (Community) a. Using 30 Percent as a Baseline The current criterion (b) requires a ‘‘predominant portion of the petitioning group’’ to comprise a community. The proposed rule would provide that the petitioner must constitute a community (deleting the phrase ‘‘predominant portion’’), and would provide that the petitioner demonstrates the criterion by showing two or more forms of evidence that at least 30 percent of its members constituted a community. See proposed § 83.11(b). Several commenters opposed this change, saying that it lowers the requirement for showing a distinct community and defies logic that a group could be a community when 70 percent do not interact. These commenters stated that relying on the voting requirements under the IRA as a basis for choosing the 30 percent figure is misplaced because the IRA was not a measurement of social interaction, and voting occurred after the Department already determined the group was a tribe; these commenters also noted that adoption of the IRA required a majority vote. Some commenters pointed out that no definitive percentage is appropriate because it would require identification of all the members at various times, which may not be possible. A few commenters supported the proposed change and agreed with the Department’s rationale. A few suggested lowering the percentage further to account for historical realities. One VerDate Sep<11>2014 19:58 Jun 30, 2015 Jkt 235001 suggested eliminating the criterion entirely. Response: The final rule requires the petitioner to constitute a distinct community, and provides that the petitioner may demonstrate this criterion by showing evidence that a ‘‘significant and meaningful portion’’ of its members constituted a community. See final § 83.11(b)(1). While the proposed rule included a specific percentage in an attempt to set an objective standard, in reality, the number of members who must constitute a community depends on the historical circumstances faced by the petitioner. In practice, there is a range in which the Department has identified whether the petitioner’s members are a distinct community. As described above, those previous determinations serve as precedent. The rule continues to provide that a petitioner demonstrates both distinct community and political influence/authority if the petitioner provides evidence that 50 percent or more of its members satisfy the factors in § 83.11(b)(2). discrimination or other social distinctions by non-members. This commenter also commented on the percentages for definitively showing marriage, distinct cultural patterns, etc., and suggested it be made clear that these percentages do not imply that something close to those percentages is needed to establish community absent such a definitive showing. Response: The Department has determined that it is appropriate to qualify the evidence with the term ‘‘significant’’ in these circumstances because the evidence needs to be probative of the criterion. Further, an alternative option, a definitive percentage, would be inappropriate without a baseline membership list for each period in time (which may not be available). Because the introductory paragraph requires a showing that a ‘‘significant and meaningful’’ portion of the petitioner’s members constituted a distinct community, insertion of the term ‘‘significant’’ for each item of evidence listed is not necessary. See final § 83.11(b). b. Allowing Sampling for Criterion (b) Some commenters opposed specifying statistically significant sampling as a method of demonstrating community because it is only one of many methods, could be easily manipulated, and has never before been used for criterion (b). One commenter stated that they appreciate the clarification that the Department may utilize this method in evaluating criterion (b). One commenter recommended multi-sampling for use on populations with over 10,000 members on their current rolls. Response: There may be circumstances in which sampling is appropriate. For this reason, the final rule retains the proposed allowance for sampling. The final rule adds that the sampling must be ‘‘reliable’’ to address concerns that sampling could be easily manipulated; ‘‘reliable’’ is intended to reflect that the sample must abide by professional sampling methodologies. See final § 83.11(b). d. Marriages/Endogamy as Evidence of Community Several commenters requested clarification of the provisions allowing for marriages to be considered evidence of community, specifically requesting that the Department count marriages by individual petitioner member rather than by marriage (e.g., if a petitioner has 100 members and 60 marry within the petitioner, that should count as 60 marriages, rather than 30). A few commenters stated that marriages should not be considered. Response: The Department has, in past practice, counted marriages by marriage, but commenters support the alternative approach—counting by individual petitioner member. Given that scholarship supports either approach, the Department has determined in its final rule to change its approach to specify counting by individual petitioner member, rather than by marriage. The final rule also includes the term ‘‘patterns,’’ in addition to the existing term ‘‘rates,’’ in reference to marriages and informal social interactions, to capture that the Department’s past practice of looking at either rates or patterns as indications of community. See final § 83.11(b)(1). c. Deletion of ‘‘Significant’’ in Criterion (b) A few commenters said the evidentiary requirements for paragraph (b)(1) are weakened because the proposed rule deleted the word ‘‘significant’’ which qualified some of the items of evidence listed (e.g., social relationships, marriages, informal social interactions). One commenter supported the removal of the ‘‘significant’’ qualifier and further recommended removing the qualifier ‘‘strong’’ from § 83.11(b)(1)(v), discussing patterns of PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 e. Indian Schools as Evidence of Community Several commenters stated their support of the proposal to include as evidence of community that children of petitioner’s members from a geographic area were placed in Indian boarding E:\FR\FM\01JYR2.SGM 01JYR2 tkelley on DSK3SPTVN1PROD with RULES2 Federal Register / Vol. 80, No. 126 / Wednesday, July 1, 2015 / Rules and Regulations schools or other Indian educational institutions. See proposed § 83.11(b)(1)(ix). Several commenters opposed this proposal on the basis that: (1) Relying on Indian educational institutions conflicts with past Departmental determinations; (2) attendance of children from a ‘‘geographic area’’ is not evidence of a community corresponding to a specific tribe because many children were placed in schools based on blood quantum rather than tribal affiliation and non-Indian children often attended Indian schools. One commenter noted that this provision is essentially a thirdparty identification of whether someone is a tribal member and, as such, should be deleted. Some commenters requested clarifications that the rule must require that agency records refer to the community in describing actions to place children in schools or that the school had been established exclusively for education of Indian children from petitioner’s community. A few comments advocated allowing as evidence of community any records that show that children from a specifically identified Indian community were sent to public schools with Federal funds. One commenter requested that this item of evidence alone suffice for the purpose of determining criterion (e) (descent). Response: In response to commenters’ concerns that placement in an Indian boarding school or other Indian educational institution may not necessarily reflect a distinct community, the final rule clarifies that the Department relies upon this evidence to the extent that other supporting documentation, pieced together with the school evidence, shows the existence of a community. See final § 83.11(b)(1)(ix). This codifies how the Department currently examines school evidence. In the past, the Department has issued decisions relying upon boarding school records as evidence of community because there was corroborating evidence to support that the school records were indicative of a community, while in others, the Department found that boarding school records were not sufficient because there was no corroborating evidence to indicate a community. The Department has concluded that boarding school records can be highly relevant when corroborated by other evidence. f. Language as Evidence of Community Several commenters stated that greater evidentiary weight should be given to communities that have maintained their indigenous language in VerDate Sep<11>2014 19:58 Jun 30, 2015 Jkt 235001 a continuous fashion in proving Indian identity and continuous community. Response: The Department agrees that language is an important indication of community and is often a binding force in a community. The regulations continue to list ‘‘language’’ as evidence of community, and continue to provide that if at least 50 percent of the petitioner’s members maintain distinct cultural patterns such as language, the petitioner satisfies criterion (b) (community). No change to the rule is needed in response to this comment. See final § 83.11(b)(1)(vii), (2)(iii). g. Nomenclature as Evidence of Community Several commenters requested clarification that historical references used to identify the petitioner should not weigh negatively against Indian identity if they racially misidentify, disparage, and/or deprecate the petitioner. Several commenters endorsed the proposed provision recognizing that names or identifications by outside entities may change over time. Response: The Department does not weigh references negatively against Indian identity if they racially misidentify, disparage, or deprecate the petitioner; rather, the Department may rely upon these references to prove a distinct community. This reflects the way the Department has reviewed historical references identifying petitioners in past decisions. h. Other Evidence of Community Under proposed § 83.11(b)(2)(iv), community may be shown by evidence of distinct community social institutions encompassing at least 50 percent of the members. The phrase ‘‘at least 50 percent’’ was substituted for the word ‘‘most’’ in the current version. Commenters opposed replacing ‘‘most’’ with ‘‘at least 50 percent’’ as no longer strong enough to demonstrate community by itself without further evidence. Others opposed relying on members residing in a ‘‘geographical area’’ as evidence under proposed § 83.11(b)(2)(i) because some currently recognized tribes that are landless could not meet this requirement and such evidence does not account for active armed service members. Some opposed the criterion in general as archaic in light of the assimilation of American Indians since 1830. Some commenters stated that flexibility should be allowed for California tribes, who were identified collectively as ‘‘Mission Indians’’ rather than a specific tribe. A few commenters also requested clarifications of ‘‘social relationship,’’ PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 37871 and whether enrollment evidence is required for each year. A commenter stated that review of this criterion should account for the history of racial prejudices, which often caused people to self-identify in various ways. Response: The replacement of ‘‘most of’’ with ‘‘at least 50 percent’’ is not a significant change to the social institution evidence. The percentage is included for petitioners’ guidance as a more definitive threshold than ‘‘most of.’’ No change is required in response to comments opposing reliance on members residing in a ‘‘geographical area’’ because this evidence is merely one of several items of evidence petitioners may offer; those who do not reside in a geographical area are not penalized. The provision in § 83.10 that the Department will review each petition in context with the history, regional differences, culture, and social organization of the petitioner, addresses the remaining comments on criterion (b). 7. Criterion (c)(Political Influence/ Authority) a. Bilateral Political Relationship A few commenters requested clarification in the rule that no bilateral political relationship is now required and/or that language from the proposed rule preamble (at 79 FR 30769, stating that political influence or authority does not mean that petitioner’s members must have actively participated in the political process or mechanism), be inserted into the rule. Several commenters stated that the requirement for bilateral political relationships should be retained in practice and made explicit in the rule because it has always been a fundamental part of the Department’s evaluation of criterion (c), is required by Federal court decisions, and prevents a finding of political influence/authority if petitioners have self-appointed leaders without followers. Response: The comments revealed different understandings of the meaning of the term ‘‘bilateral political relationship.’’ The Department has required, as part of a showing of political influence/authority, that there be some activity between tribal leaders and membership regarding issues that the petitioner’s membership considers important. The Department has not required a formal political organization or that a certain percentage of members vote. Indeed, the percentage of citizens who vote in Federal, State, tribal and local elections can be quite small. Accordingly, comments to change the regulations and require ‘‘bilateral E:\FR\FM\01JYR2.SGM 01JYR2 37872 Federal Register / Vol. 80, No. 126 / Wednesday, July 1, 2015 / Rules and Regulations political relationship’’ in (c) are not adopted. The petitioner may satisfy (c) with evidence of activity between tribal leaders and membership regarding issues that the petitioner’s membership considers important. A petitioner will satisfy (c) in this final rule if it provides similar evidence or methodology as was deemed sufficient by the Department in a previous decision on this criterion. Nor is it necessary to reinsert this phrase into criterion (f) (at § 83.11(f)) because this criterion already requires, where membership is composed principally of members of a federally recognized tribe, that the petitioner function as a separate politically autonomous community under criteria (b) and (c). tkelley on DSK3SPTVN1PROD with RULES2 b. ‘‘Show a Continuous Line of Entity Leaders and a Means of Selection or Acquiescence by a Majority of the Entity’s Members’’ 19:58 Jun 30, 2015 Jkt 235001 Some commenters requested adding references to attorney contracts, claims filings and other court cases as evidence of political influence or authority. Response: The items of evidence listed in criterion (c)(1) are examples, and are not exhaustive. See final § 83.11(c)(1)(i)–(viii). Actions by a petitioner’s leaders with regard to attorney contracts, claims filings, and other court cases may provide evidence of political influence/authority. The final rule also clarifies that a formal ‘‘government-to-government’’ relationship is not required between the federally recognized tribe and petitioner, as long as a ‘‘significant’’ relationship is present. See final § 83.11(c)(1)(vi). 8. ‘‘Substantially Continuous Basis, Without Substantial Interruption’’ The proposed criterion (c) adds to the list of evidence (of which petitioner must provide two or more items), that the petitioner has a ‘‘continuous line of entity leaders and a means of selection or acquiescence by a majority of the entity’s members.’’ See proposed § 83.7(c)(1)(viii). A few commenters opposed this proposed language stating that this requirement is less stringent than the requirement for having leaders and followers interact politically on issues of mutual importance. Commenters were also concerned that if ‘‘continuous’’ is interpreted to allow for a 20-year gap in this context, a significant time gap would be allowed for this item of evidence. A few commenters that supported this item of evidence stated that it should reflect that a majority of adult members need to select or acquiesce, as children have no role in the selection. Response: The Department has determined that no change to this item of evidence is necessary in response to comments, because this item demonstrates political influence/ authority only in combination with another item of evidence. The final rule does replace ‘‘majority’’ with ‘‘significant number’’ because the entity may allow for fewer than a majority of members to select leaders. See the discussion in ‘‘Substantially Continuous Basis, Without Substantial Interruption,’’ below, regarding allowable evidentiary gaps. The final rule does not specify that ‘‘adult’’ members need to select or acquiesce because petitioners may allow for youth participation in some circumstances. VerDate Sep<11>2014 c. Evidence The proposed rule would have defined ‘‘substantial interruption’’ to mean a gap of 20 years or less, unless a 20-year or longer gap is reasonable given the history and petitioner’s circumstances. See proposed § 83.10(b)(5). Some commenters pointed out the typographical error, that this should have defined ‘‘without substantial interruption.’’ Several commenters supported the proposal because it would add clarity and, when there is evidence before and after such gaps, would add fairness. Two commenters said 20 years is too short, because it is less than one generation and may not account for the affirmative measures taken to eradicate tribes. Several commenters said 20 years is too long, stating that it is ‘‘patently unreasonable’’ to allow 20-year or longer gaps in evidence when the proposed baseline requires only 80 years (evaluating from 1934 forward), as opposed to the 200+ years under the current regulations. Some interpreted the provision to allow acknowledgment of groups who could prove the criteria only in 1954, 1974, 1994, and 2014. These commenters stated that this is a major reduction in the standard, and provides no clarity because it allows for gaps less than or more than 20 years. These commenters also disputed the Department’s assertion that this reflects past practice because the current approach rejects a specific time period for an allowable gap. Some commenters requested more specification as to what level and time period of evidence is necessary before and after the gap (bookends) and a more definitive gap limit, given that the proposed rule allows longer than 20year gaps in some circumstances. Others PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 requested that the Department examine gaps in the context of the totality of the circumstances on a case-by-case basis. Finally, others such as Connecticut Attorney General George Jepsen commented that evidentiary gaps should continue to be evaluated on a case-by-case basis. Response: The Department has decided not to change the definition set forth in the previous rule. The previous rule allows some evidentiary gaps because evidentiary material may not be available for certain periods of time, even though a petitioner has continuously existed. Instead, the final rule expressly provides that evidence or methodology that was sufficient to satisfy any particular criterion previously will be sufficient to satisfy the criterion for a present petitioner. Likewise, any gaps in evidence that were allowable to satisfy any particular criterion previously will be allowable to satisfy the criterion for a present petitioner. A petitioner under these rules will satisfy a criterion if that type or amount of evidence was sufficient for a positive decision on that criterion (see, e.g., determination in decisions such as the Grand Traverse Band of Ottawa and Chippewa Indians, the Jamestown S’Klallam Tribe, the Tunica-Biloxi Indian Tribe, the Death Valley Timbisha Shoshone Tribe, the Poarch Band of Creeks, the San Juan Southern Paiute Tribe of Arizona, the Jena Band of Choctaws, and the Mohegan Tribe of Indians of Connecticut). Many previous Federal acknowledgment decisions had gaps of evidence and a one-size-fits-all approach will not reflect the unique histories of petitioners and the regions in which they reside. The Department recognizes that there are circumstances in which gaps considerably longer than 10 years may be appropriate. For example, some petitioners may have gaps in documentation of political activity and community in the 1940’s and 1950’s that are explainable by World War II and the Korean War. 9. Criterion (f) (Unique Membership) a. Criterion (f), in General Criterion (f) (at § 83.11(f)) requires that the petitioner’s membership be composed principally of persons who are not members of any federally recognized Indian tribe. A few commenters opposed this criterion, stating that it is an imposition into tribal sovereignty by prohibiting dual tribal membership. Commenters noted that tribal memberships may change, and that such changes do not indicate that a tribe ceases to exist (even if ‘‘key members’’ of the petitioner leave to join E:\FR\FM\01JYR2.SGM 01JYR2 Federal Register / Vol. 80, No. 126 / Wednesday, July 1, 2015 / Rules and Regulations tkelley on DSK3SPTVN1PROD with RULES2 a federally recognized tribe to obtain services). A commenter suggested renaming this criterion as something other than ‘‘membership’’ because it is confusable with criterion (d). Other commenters suggested clarifying whether members must withdraw from the federally recognized tribe, clarifying how this criterion discourages splintering, and clarifying ‘‘principally’’ with a percentage. Response: The Department has not changed Criterion (f)’s substantive requirements from the previous rule. The previous rule does not prohibit dual tribal membership; it requires only that a petitioner’s membership not be ‘‘composed principally’’ of persons who have dual membership. The Department recognizes that tribal memberships may change, and that such changes do not indicate that a tribe ceases to exist. This criterion is intended to prohibit factions or portions of federally recognized tribes from seeking Federal acknowledgment as a separate tribe, unless they have been a politically autonomous community since 1900 (criteria (b) and (c)). The final rule does not define a percentage for ‘‘composed principally’’ because the appropriate percentage may vary depending upon the role the individuals play within the petitioner and recognized tribe. Even if a petitioner is composed principally of members of a federally recognized tribe, the petitioner may meet this criterion— as long as it satisfies criteria (b) and (c) and its members have provided written confirmation of their membership in the petitioner. There is no requirement to withdraw from membership in the federally recognized tribe. The final rule titles this criterion ‘‘unique membership’’ in response to the comment that the title ‘‘membership’’ causes confusion. b. Deletion of Previous Rule’s Provision Prohibiting Members From Maintaining a ‘‘Bilateral Political Relationship’’ With the Federally Recognized Tribe The previous rule at § 83.11(f) requires that, if petitioner’s membership is principally composed of members of a federally recognized tribe, the petitioner must show that ‘‘its members do not maintain a bilateral political relationship with the acknowledged tribe,’’ in addition to showing the petitioner is politically autonomous and providing written confirmation of membership in petitioner. The proposed rule deleted the requirement to show that members do not maintain a bilateral political relationship with an acknowledged tribe. Some commenters opposed this change, stating that it could allow the acknowledgment VerDate Sep<11>2014 19:58 Jun 30, 2015 Jkt 235001 process to become a vehicle to allow for acknowledgment of factions of federally recognized tribes. These commenters requested that the Department correct the rule if criterion (f) is not intended to allow portions of a recognized tribe to separate. Response: Criterion (f) requires that the petitioner be a separate politically autonomous community since 1900. In the past, the Department has acknowledged a tribe even though its members had census numbers with a federally recognized tribe. Notice of Final Determination That the San Juan Southern Paiute Tribe Exists as an Indian Tribe, 54 FR 51502, 51504 (December 15, 1989) (finding that San Juan Paiute members were not members in the Navajo Nation despite having Navajo census numbers). Indeed, the Department may acknowledge a tribe even though its members has dual citizenship in a federally recognized tribe and maintains a bilateral political relationship with that tribe if the petitioner operates as a separate politically autonomous community on a substantially continuous basis. The disqualification for having a bilateral political relationship in (f) is unnecessary because criterion (f) already requires that the petitioner function as a politically autonomous entity. For this reason, the final rule implements the proposed deletion of bilateral political relationship from criterion (f). See final § 83.11(f). c. Exception for Members of Petitioners Who Filed Prior to 2010 For a petitioner who filed a letter of intent or a documented petition prior to 2010, the proposed rule would not consider as members of a federally recognized tribe, petitioner’s members who became members of a federally recognized tribe after filing of the petition. Several commenters supported this proposed new exception. However, nearly all of those who commented on the 2010 cut-off date requested clarification of why the date was chosen or advocated for eliminating the date limitation. See proposed § 83.11(f)(2). Several commenters opposed the exception, stating that it creates the possibility that portions of a recognized tribe could separate and become acknowledged. Some stated that a caseby-case examination is more appropriate than a blanket exception. Others requested specifying that a petitioner’s members should sign statements saying they would belong exclusively to the petitioner should the petitioner obtain acknowledgment. Response: The Department recognizes that there are situations in which PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 37873 petitioners’ members have become members of federally recognized tribes to obtain needed services pending the Department’s review of a petition. The proposed rule attempted to address this situation by establishing a blanket exception. After reviewing the comments and past petitions, the Department has determined that this exception is not necessary because, if so many of a petitioner’s members join a federally recognized tribe that the petitioner is then ‘‘composed principally’’ of members of the federally recognized tribe (i.e., the petitioner is ‘‘composed principally’’ of members with dual membership), then the petitioner may nevertheless be acknowledged if it meets criterion (f) as just discussed. The proposed additional exception for petitioners who filed prior to 2010 is unnecessary because the existing exception adequately addresses those situations where a petitioner’s members join a federally recognized tribe to obtain services. For this reason, the final rule deletes the proposed exception for petitioners who filed prior to 2010, but retains the intent of the proposed exception by permitting petitioners whose members have joined federally recognized tribes to obtain services while their petition is in the queue to still be eligible for acknowledgment. See final § 83.11(f). 10. Criterion (g) (Termination) A few commenters expressed support for the proposed change to criterion (g) (at § 83.11(g)), which would put the burden on the Department to show that a petitioner was terminated or the subject of legislation forbidding the Federal relationship. Commenters stated this is ‘‘obviously an important improvement’’ and ‘‘common sense.’’ A few commenters objected to the proposed amendment because it reduces the burden on petitioners and is ‘‘not appropriate.’’ One commenter stated that there should be a process for groups to respond to the Federal Government’s position on termination and for interested parties to weigh in. Response: In past practice, the Department’s legal team reviewed whether the petitioner is subject to legislation that has terminated or forbidden the Federal relationship, regardless of the documentation the petitioner provided in support of this criterion. Additionally, terminating or forbidding the relationship is a Federal action. For these reasons, the Department has determined that it is appropriate to clarify explicitly that the burden is on the Department to show that a petitioner was terminated or forbidden. See final § 83.11(g). E:\FR\FM\01JYR2.SGM 01JYR2 37874 Federal Register / Vol. 80, No. 126 / Wednesday, July 1, 2015 / Rules and Regulations tkelley on DSK3SPTVN1PROD with RULES2 Petitioners and interested parties may weigh in on the Federal Government’s position on this criterion in response to the PF. 11. Splinter Groups The proposed rule did not revise provisions addressing ‘‘splinter groups,’’ which is a subset of membership that ‘‘separates from the main group.’’ See proposed § 83.4(a)(2). Many commenters stated that clarification is necessary regarding treatment of splinter groups in light of the proposed allowance for repetitioning and proposed revisions to criteria. (For example, one commenter speculated that splinter groups each could be recognized without actually demonstrating criteria (b) (community) or (c) (political influence/authority) simply by pointing to a State reservation.) Among the clarifications requested were what qualifies as a ‘‘splinter group,’’ and whether and to what extent splinter groups may be acknowledged. Commenters appeared to use the term ‘‘splinter group’’ to mean one or more of the following: Groups who splinter from current petitioners; groups who splinter from previously denied petitioners; groups who splinter from currently federally recognized tribes (as evidenced by eligibility for membership or claiming the same historical tribe); groups who splinter from (i.e., are just a portion of) a historical tribe claimed by another petitioner or federally recognized tribe; and groups who splinter from tribes named in Termination Acts. Commenters argued that various types of these groups should or should not be acknowledged. For example, with regard to groups who splinter from current petitioners, several commenters requested incorporating the procedures in the 2008 Directive for dealing with splintering petitioners, noting that continued leadership disputes hamper the evaluation process, and dueling petitions from entities that trace themselves in some fashion to a common tribal entity have long caused problems, leading to delayed and costly petition reviews, intense conflicts, and litigation. Commenters also requested a prohibition against the Department forcing petitioners into one group. With regard to groups who splinter from previously denied petitioners, several commenters were concerned that petitioners may be acknowledged even if they are splinters of previously denied petitioners or petitioners who claim they are the ‘‘main group’’ and the previously denied petitioner was the splinter. Federally recognized tribes, in particular, expressed concern that VerDate Sep<11>2014 19:58 Jun 30, 2015 Jkt 235001 groups who claim the same historical tribe could appropriate the federally recognized tribe’s history and that the shortened time period for showing community and political influence/ authority would facilitate their acknowledgment. A few commenters requested prohibiting splinters from historical tribes and State-recognized tribes to prevent subsets of a historical tribe from being acknowledged (rival groups may claim to be descendants of the historical tribe). Response: The final rule does not change the way the Department has handled ‘‘splinter groups.’’ The Department will continue to address ‘‘splinter groups’’ with the same rigor it has applied under the existing rules. With regard to splinters of petitioners, the final rule continues to allow for the approach of the 2008 Departmental guidance to address conflicting claims to leadership within a petitioning group that interfere with OFA’s ability to conduct business with the group. Specifically, the Department may request additional information from the petitioner to clarify the situation and OFA may suspend its review of the petition. See 73 FR 30146 (May 23, 2008). OFA’s suspension would be based on the leadership dispute qualifying as an ‘‘administrative problem’’ with the petition under § 83.31. With regard to other types of ‘‘splinter groups,’’ final 83.4 incorporates a crossreference to criterion (f), which prohibits any petitioner from being composed principally of members of a federally recognized tribe unless the petitioner can provide evidence that it was an autonomous political community since 1900. The Department will continue the approach it has previously utilized. Final Determination of Federal Acknowledgment for the Jena Band of Choctaw Indians, 60 FR 28480 (May 31, 1995) (finding the Jena Band of Choctaw Indians to be a separate and distinct Indian group, first identified by Federal Census in 1880, who descended from the Choctaws who left the historical Mississippi Choctaws). B. Re-Petitioning Numerous commenters stated their support for allowing re-petitioning, stating that it is necessary for equal protection, appropriate because implementation of the rules has become more stringent over the years, and may be legally permissible. See proposed § 83.4(b). Numerous commenters were opposed to allowing re-petitioning, stating that allowing re-petitioning: PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 • Violates Federal law (separation of powers, collateral estoppel, res judicata), is arbitrary and capricious, and exceeds the Department’s authority; • Is unnecessary if the regulatory revisions truly are not affecting criteria or changing the standard of proof; • Is inefficient and administratively burdensome; • Undermines finality and certainty, disrupting settled expectations; • Is unfair to stakeholders, especially those who have already litigated against the unsuccessful original petition; • Is unfair to other petitioners and tribes who may have legitimate petitions; • Is unfair particularly to Connecticut; • Could result in acknowledgment of previously denied petitioners; • Is unnecessary because petitioners can challenge in court instead; and • Is unreasonable, especially with such a low standard for allowing repetitioning. A few commenters were neutral on repetitioning because ultimately the same individuals who reviewed the original petition would be reviewing the repetition and re-petitioning will require a petitioner to obtain resources (hire historians, genealogists, e.g.) to go through the petitioning process again. Some suggested that any Departmental employee who was associated with the original negative finding should be precluded from participating in the review of the re-petition. A few requested clarifications on the standard for allowing re-petitioning and on the order in which petitions, once repetitioning is granted, would be reviewed. Many commenters, including those who submitted form letters, opposed the proposed condition that re-petitioning would be allowed only with the consent of the opponents to the original petition, which some characterized as the ‘‘third party veto.’’ These commenters stated that this condition, among other things: • Is unfair (favoring third-party interest over correction of injustice), will deprive a petitioner of even making the case for re-petitioning, and will prevent getting to the truth of whether the tribe should be acknowledged; • Treats petitioners unequally; • Allows for political intervention in what should be a fact-driven process; • Is an illegal delegation of authority under the Appointment Clause and is legally unprecedented; • Is illegal for other reasons (under the Fifth Amendment Due Process Clause, Supremacy Clause, Commerce Clause) or is arbitrary and capricious; E:\FR\FM\01JYR2.SGM 01JYR2 tkelley on DSK3SPTVN1PROD with RULES2 Federal Register / Vol. 80, No. 126 / Wednesday, July 1, 2015 / Rules and Regulations • Is based on an invalid justification (established equities) that fails to consider petitioners’ interests; and/or • Is politically motivated by Connecticut’s influence. Some commenters suggested removing the third-party consent condition and instead allowing interested parties to participate in the hearing on whether re-petitioning is appropriate. Others suggested third parties be limited to participating in the petitioning process, if the re-petitioning request is granted. Some commenters stated that no third-party participation is appropriate in a re-petitioning request because third parties’ objections are based on factors other than whether the petitioner meets the criteria for acknowledgment. Those in support of the third-party consent condition stated that they would prefer not to allow re-petitioning at all, but if re-petitioning is allowed, then the third-party veto is necessary to protect established equities and should be expanded to require consent of all interested parties, regardless of whether they participated in a prior proceeding involving the original petition. A few commenters suggested different approaches to re-petitioning, allowing re-petitioning in only certain circumstances, such as if: • A substantial number of years passes and there is significant new evidence; • There is a showing of some modification of evidence; • The ALJ consults with nearby federally recognized tribes before making a decision, to give those who were not notified previously a chance to be involved; • The petitioner exhausted their administrative and appellate remedies; or • Third parties involved in a prior proceeding are granted special standing. Response: The proposed rule would have provided for a limited opportunity for re-petitioning. After reviewing the comments both in support of and in opposition to allowing for any opportunity for re-petitioning, limiting re-petitioning by providing for thirdparty input, and other suggested approaches for re-petitioning, the Department has determined that allowing re-petitioning is not appropriate. The final rule promotes consistency, expressly providing that evidence or methodology that was sufficient to satisfy any particular criterion in a previous positive decision on that criterion will be sufficient to satisfy the criterion for a present petitioner. The Department has petitions pending that have never been reviewed. VerDate Sep<11>2014 19:58 Jun 30, 2015 Jkt 235001 Allowing for re-petitioning by denied petitioners would be unfair to petitioners who have not yet had a review, and would hinder the goals of increasing efficiency and timeliness by imposing the additional workload associated with re-petitions on the Department, and OFA in particular. The Part 83 process is not currently an avenue for re-petitioning. C. Standard of Proof Proposed § 83.10(a) would attempt to clarify that the ‘‘reasonable likelihood’’ standard of proof means that there must be more than a mere possibility but does not require ‘‘more likely than not.’’ The clarifying language is based, in part, upon the definition of ‘‘reasonable likelihood’’ applied by the Supreme Court in determining whether there is a reasonable likelihood that a jury has misapplied a jury instruction for capital offense sentencing. See proposed § 83.10(a)(1). Several commenters expressed support for the proposed clarification to increase predictability and consistency in application. Some stated they specifically support clarification that the standard does not require ‘‘more likely than not’’ to counteract what, they assert, is a Departmental trend to require more and more evidence over time. Several commenters opposed how the proposed rule defined ‘‘reasonable likelihood,’’ stating that it would substantially lower the standard of proof, would allow acknowledgment of groups who ‘‘more likely than not’’ do not meet criteria, and would take away the Department’s ability to balance evidence by requiring acknowledgment if there is ‘‘more than a mere possibility.’’ Commenters also stated that the Supreme Court’s interpretation of ‘‘reasonable likelihood’’ in the case cited in the proposed rule is inapplicable and inappropriate for application to the acknowledgment process because the cited case involved jury instructions in a criminal (death penalty) case—where, as one commenter stated, society would rather acquit the guilty than wrongly convict the innocent. Commenters also stated that interpreting ‘‘reasonable likelihood’’ in this way exceeds the Department’s authority, is inconsistent with the Administrative Procedure Act and Steadman v. SEC, 450 U.S. 91 (1981), raises significant due process issues, and is unprecedented (no other Federal agency uses this standard in making eligibility determinations). Several commenters provided alternative suggestions, including applying a preponderance of the evidence/‘‘more likely than not’’ standard. One suggested providing that PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 37875 a criterion is met ‘‘if the evidence is sufficient for a reasonable mind to conclude that the criterion is met viewing the evidence in the light most favorable to the petitioner, in the specific cultural, social, political, and historical context of the tribe and in the light of adverse consequences caused by Federal policy or actions.’’ Some commenters stated that subjective judgment is involved, even with a clear definition of ‘‘reasonable likelihood.’’ Some requested reinserting the June 2013 discussion draft’s language that the evidence will be viewed in the light most favorable to the petitioner. Response: In light of commenters’ concerns that the proposed rule changed the standard of proof, the final rule retains the current standard of proof and discards the proposed interpreting language. The final rule expressly provides that evidence or methodology that was sufficient to satisfy any particular criterion in a previous positive decision on that criterion will be sufficient to satisfy the criterion for a present petitioner. In other words, a petitioner today satisfies the standards of evidence or baseline requirements of a criterion if that type or quantum of evidence was sufficient for a past positive decision on that criterion. The Department will continue to interpret ‘‘reasonable likelihood of the validity of the facts’’ as described in the 1994 preamble (at 59 FR 9280 (February 25, 1994)) and will not apply a more stringent interpretation of that standard. See final § 83.10(a). See also, e.g., Summary Under the Criteria and Evidence for Final Determination for Federal Acknowledgment of the Cowlitz Indian Tribe, February 14, 2000, p. 101 (stating that the general standard is a ‘‘reasonable likelihood’’ and ‘‘not that there must be conclusive proof’’). D. Third-Party Participation in the Acknowledgment Process Many commenters addressed the level of third-party participation in the petitioning process. Those commenters arguing that third parties should have more opportunity for participation stated that the proposed rule would severely limit third-party involvement by restricting the right to notice, allowing no opportunity to rebut petitioner’s responses, eliminating the opportunity to seek an on-the-record meeting or IBIA reconsideration, restricting to certain parties the right to have an impact on a positive PF, and making monitoring the petition more difficult by establishing more phases of review. One commenter stated that the proposed rule establishes an iterative process for the petitioner to engage OFA E:\FR\FM\01JYR2.SGM 01JYR2 37876 Federal Register / Vol. 80, No. 126 / Wednesday, July 1, 2015 / Rules and Regulations tkelley on DSK3SPTVN1PROD with RULES2 at every stage—creating a tutelage-like process between the petitioner and the agency. Federally recognized tribes asserted that they, in particular, should have more opportunity for input under the DOI Policy on Consultation with Indian Tribes and because they are more aware of tribal histories. Commenters provided a number of suggestions for allowing more opportunity for thirdparty input. Other commenters stated that more limits on third-party participation should be imposed because third parties improperly weigh in on acknowledgment petitions based on land-into-trust issues, taxation, discrimination, gaming fears, financial and political pressures, and other factors that do not address whether the petitioner meets the criteria. These commenters state that the process should be between a petitioner and the Department only and that, otherwise, third parties with substantial resources and power can challenge evidence and question interpretation of the criteria to disrupt petitions. Commenters provided suggestions for prohibiting or limiting third party participation, including imposing a requirement for comments and evidence to be directly relevant to whether the petitioner meets the criteria. Specific provisions that were the focus of comments on third party participation follow. 1. Who Receives Notice of the Receipt of the Petition The proposed rule provides that the Department will publish receipt of a documented petition in the Federal Register and on the OFA Web site, but will also notify in writing the governor and attorney general of the State in which petitioner is located, any federally recognized tribe within the State or within a 25-mile radius, or any other recognized tribe and petitioner that appears to have a historical or present relationship with the petitioner or may otherwise have a potential interest. See proposed § 83.22(b)(2). With regard to restricting notice to tribes within a certain radius, some commenters supported this limitation, stating that it would reduce the influence of parties hundreds of miles away who may be antagonists. Commenters opposed to this limitation stated that it is arbitrary because petitioners beyond the 25-mile radius could claim the same heritage as a federally recognized tribe, that it inappropriately suggests a gaming standard, and that generally a tribe’s presence extends beyond its headquarters. Some commenters VerDate Sep<11>2014 19:58 Jun 30, 2015 Jkt 235001 suggested notifying any federally recognized tribe: To which the petitioner claims to have ties or shared heritage; with trust land in the same State as petitioner; within a radius of aboriginal territory rather than headquarters; or within 100 miles. The proposal also provided that when a positive PF is issued, only certain parties may object, including tribes within 25 miles. See proposed § 83.37. Several commenters stated that local governments should receive written notice of the petition because the local governments have interests beyond those of the State (e.g., public health and safety service impacts) and otherwise may not be aware of the petition. Some commenters suggested that notice of the petition and proposed finding should be provided to all residents, businesses, landowners, and others within a 25-mile radius. Another commenter suggested notice to State government agencies responsible for Indian affairs. A few commenters stated that sending notice to the State and others is inappropriate because tribes do not receive notice of every State action. Response: After reviewing the comments, the Department determined the proposed addition of notice to tribes within a certain radius or within the State to be unnecessary, because the rule already provides for constructive notice to all through publication in the Federal Register and direct notice to any tribe 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. The final rule provides additional notice to county-level (or equivalent) governments, in response to comments by Stand Up for California and others; continues to require notice to the State governor and attorney general and affected tribes and petitioners; and allows for notice to everyone else through publication in the Federal Register and on the OFA Web site. See final § 83.22. Through much greater use of Web site publication, the new rule increases transparency throughout the administrative process of consideration. fairness, integrity, and transparency. Some federally recognized tribal commenters stated that the Department’s Indian trust responsibility requires their full participation in the acknowledgment process. Other commenters suggested reinserting the definition of ‘‘interested party’’ but establishing a formal process for determining who qualifies as an ‘‘interested party’’ or restricting interested parties to those with direct material interests. Commenters had other suggestions about disclosing the identity of interested parties and clarifying what happens to those who already have been granted interested party status in pending petitions. Comments on the term ‘‘informed party’’ defined in § 83.1 requested some process for determining whether a party is informed of the petitioner’s history (as opposed to a party who wants to be informed of the petition’s progress). Response: The final rule allows anyone who is interested in the petition to submit comments and evidence and receive notice, without labelling such individuals or entities. The final rule allows for broader notice, regardless of whether a particular party would qualify as an ‘‘interested’’ or ‘‘informed’’ party under the prior rules. The Department wishes to obtain relevant, reliable evidence from any source. Accordingly, the terms ‘‘interested party’’ and ‘‘informed party’’ are no longer necessary for the purposes of defining the persons who will be notified of actions on a specific petition, and therefore the terms have been deleted. See final § 83.1. 2. Deletion of Interested Party Status Many commenters opposed the proposed deletion of the ‘‘interested party’’ definition from § 83.1 and asserted that certain parties should have the ability to participate fully in the acknowledgment process. These commenters stated that local governments, landowners, and other parties affected by the acknowledgment decision must have broader rights of participation to ensure due process, The proposed rule would delete the optional step in the current § 83.4 of providing a letter of intent to submit a petition. Some commenters expressed support for deletion because many who provide letters of intent never submit petitions. Some commenters opposed eliminating this step because the letters track groups claiming tribal status, put others on notice that groups intend to seek Federal acknowledgment (and allow the others to start their own PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 3. Comment Periods Several commenters stated that limiting the period for commenting after receipt of a petition to 90 days from Web site posting and reducing the time period for comment on PFs unjustly limits third party participation. Response: These comments are addressed in Process—Timelines, below. E. Process—Approach 1. Letter of Intent E:\FR\FM\01JYR2.SGM 01JYR2 Federal Register / Vol. 80, No. 126 / Wednesday, July 1, 2015 / Rules and Regulations tkelley on DSK3SPTVN1PROD with RULES2 research), provide information for Departmental budget and staffing planning, benefit petitioners by allowing them to qualify for grants, etc., impose only a minimal burden, and are consistent with other Federal practices. Some commenters suggested alternatives to deleting this step, for example, imposing an expiration date so that a letter of intent is effective for a limited time (e.g., three years). Response: The final rule deletes the letter of intent step because, as some commenters noted, many who submit letters of intent never follow through to submit petitions. The Department reviewed the commenters’ concerns with deleting this step and determined that the improvements in clarity (the process will now clearly begin with the filing of a documented petition) and efficiency (fewer Departmental resources required) outweigh the potential negatives of eliminating this step. Prior to the effective date of this rule, the Department will send a letter to each entity who has submitted only a letter of intent, and encourage submission of a documented petition and inform them that if they do not, they will not be considered petitioners. Each entity that has submitted only a letter of intent is not a petitioner in the process unless and until it submits a documented petition. 2. Phased Review Under proposed § 83.26, OFA would conduct a phased review of the criteria. Most who commented on the proposed phased review supported it, noting that satisfaction of the descent criterion (e) is a threshold issue and that, because evaluation of criteria (b) (community) and (c) (political influence/authority) is more time consuming, phased review should make the process more efficient. One petitioner suggested reviewing criterion (d) (governing document) with criterion (e) to ensure submission of a governing document and membership list. A few commenters opposed eliminating the process for allowing expedited rejections of petitions in the current § 83.10(e) based on any one of the descent, membership, or termination criteria; others preferred the 2013 discussion draft approach of having expedited positive and negative findings. Response: The final rule streamlines the phased review and expedites the entire process by providing for a review first of criteria (d) (governing document), (e) (descent), (f) (unique membership), (g) (termination), and any claim to previous Federal acknowledgment; and second of criteria VerDate Sep<11>2014 19:58 Jun 30, 2015 Jkt 235001 (a) (identification), (b) (community), and (c) (political influence/authority). See final § 83.26. These two phases combine evaluations of the criteria that are most likely to be evaluated together even in the absence of defined phases. The result is likely to produce any negative decisions in a quicker manner, thereby resolving petitions sooner, reducing time delays, increasing efficiency, and preserving resources. 3. Technical Assistance The proposed rule would require OFA to conduct a technical assistance (TA) review for each of the two review phases, see proposed § 83.26(a)(1) and (b)(1). A few commenters requested that interested parties be permitted to request and participate in TA reviews. A few commenters stated that allowing multiple TA reviews creates a fragmented process and omits the prereview TA that often identifies problems in advance of OFA consideration. Response: Under the Department’s long-standing practice, OFA provides the petitioner with TA review because the petitioner is seeking Federal acknowledgment. However, to promote transparency, the final rule provides for the Department to make each TA review letter publicly available by posting it on the Web site as soon as it is issued, to allow review by anyone who is interested. See final § 83.22(c). The final rule limits the number of TA reviews to two, at the most: One for each phase. Each TA review will be limited to the criteria that are to be reviewed during that stage (i.e., Criteria (d) (Governing Document), (e) (Descent), (f) (Unique Membership) and (g) (Termination) in Phase I and the remaining criteria in Phase II). Because some petitioners may fail to proceed to the second phase, splitting the TA review into two phases will help promote efficiency. In addition, petitioners may seek informal assistance and guidance from OFA prior to submitting a petition. 4. Providing Petitioner With Opportunities To Respond Several commenters supported the proposed provision allowing a petitioner to respond to comments prior to issuance of a PF (proposed § 83.24), ensuring the Department has all relevant information. A few suggested allowing a reasonable extension beyond 60 days, if requested. Also, some commenters expressed support for the proposed requirements that OFA provide the petitioner with any material used in the PF or FD and that the AS–IA remand a favorable PF to OFA if new evidence might support a negative PF (proposed § 83.42(b)). One commenter stated that PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 37877 these changes are necessary to ensure due process and address the problems that, in its experience as a petitioner, plagued its petition following a favorable PF. Response: The final rule includes the proposed approach allowing a petitioner to respond to comments prior to the issuance of a PF and ensuring OFA provides the petitioner with any material used in the PF, to the extent allowable under Federal law. The requirement in proposed § 83.42(b) for remand to OFA if new evidence may support reversal of a positive PF has been deleted because it could have added significant delays to the process. Instead, the final rule provides, at § 83.41, that the Assistant Secretary will review the positive PF in light of the comments on the PF and the petitioner’s response. 5. Suspensions (Proposed § 83.31) and Withdrawals (Proposed § 83.30) Several commenters requested a time limit on suspension of review of a petition for technical or administrative problems to ensure the suspension lasts no longer than a year and to allow the petitioner to resume at any time. A few commenters also requested allowing petitioners to request suspension of their petitions where acts of God impede them from moving forward. Some commenters stated that the proposal to allow petitioners to withdraw their petitions after active consideration begins would allow petitioners to avoid negative findings, affecting the integrity of the acknowledgment process. They also note that it is inefficient to allow withdrawals because the Department will expend resources without reaching a final decision. A few commenters suggested allowing for withdrawal after active consideration only with the consent of AS–IA. Other commenters said that the proposal to allow withdrawal after the beginning of active consideration is only fair, to allow petitioner to gather additional evidence if needed. Several commenters objected to the proposal that petitions that are withdrawn and then re-filed will be placed at the end of the register of documented petitions when re-filed; these commenters stated that petitioners who withdraw should not lose their place in line if the withdrawal is for less than a year. Response: The final rule takes the approach that when the petitioner is preparing information to submit in response to technical assistance, no timeline applies. This negates the need for the petitioner to request a suspension from the Department; rather, E:\FR\FM\01JYR2.SGM 01JYR2 37878 Federal Register / Vol. 80, No. 126 / Wednesday, July 1, 2015 / Rules and Regulations tkelley on DSK3SPTVN1PROD with RULES2 the petitioner may take whatever time it needs. Upon submission of petitioner’s response, the timelines imposed on the Department for that phase will begin to run. Where the Department faces technical or administrative difficulties that prevent review, the final rule allows for the Department to suspend its own review. See final § 83.31. No suspension is necessary to allow time for the petitioner’s responses to technical assistance, because the final rule does not impose timelines on these actions. With regard to withdrawal, the final rule allows for withdrawal but with the consequence that the petition will be placed at the end of the numbered register upon re-submission. There is no need to provide that a petitioner does not lose their place in line if the withdrawal is less than a certain timeframe, because the petitioner always has the option of taking as long as they like to respond to technical assistance, in lieu of withdrawal. 6. Decision-Maker Several commenters opposed the proposed approach of having OFA issue the PF (proposed § 83.32) and AS–IA issue the FD (proposed § 83.42), rather than the current approach where AS–IA issues both the PF and FD with OFA’s input. These commenters stated that separating OFA experts’ analysis from AS–IA’s evaluation would allow AS–IA to deviate from evidence and findings without standards and make a political decision. Commenters also stated that the proposed approach promotes the idea that there is an adversarial relationship between OFA and AS–IA. These commenters believe OFA should provide neutral, expert analysis to AS– IA in each instance and AS–IA should issue both the PF and FD to provide greater checks and balances and more accurate findings by allowing for another level of fact checking and editing. At least one commenter supported the proposed approach, saying that OFA’s findings should be advisory only. Response: The Department does not agree that having OFA issue the PF separates OFA experts from AS–IA, allows for arbitrary deviation, or promotes an adversarial relationship. OFA exists within and reports to the Office of the AS–IA and works at AS– IA’s direction. Moreover, having OFA issue the PF underscores the crucial role that OFA plays in the process. The final rule retains the proposed approach of having OFA issue the PF as a documented recommendation for AS–IA to consider when preparing the FD. AS– IA’s preparation of the FD will be based VerDate Sep<11>2014 19:58 Jun 30, 2015 Jkt 235001 on the complete record, including the PF issued by OFA, comments and responses on the PF, and any hearing record and ALJ recommended decision. The Assistant Secretary may continue to seek the input of OFA, as technical staff throughout this process. 7. Automatic Final Determination For improved efficiency, several commenters supported proposed § 83.37(a), which would require automatic issuance of a positive FD when there is no significant opposition to a positive PF from the State or local government or any federally recognized Indian tribe within the State or within a 25-mile radius of petitioner’s headquarters. One commenter stated that a positive FD should be issued within 30 days after issuance of the positive PF rather than waiting 90 days for comments under proposed § 83.35(a). Those who opposed this requirement stated that all positive PFs should be treated the same, regardless of who submits comments, and that limiting commenters to certain interested parties violates the APA requirement that the whole record be considered, leaving those other interested parties without any procedural rights to protect their interests. Response: In response to commenters’ concerns regarding limiting commenters to certain parties, the final rule treats all commenters the same, regardless of who submits comments, but clarifies that the objection to the positive PF must be supported by evidence as to whether the petitioner meets the criteria. See final § 83.36. Allowing for automatic issuance of a positive FD if there is no objection with evidence germane to the criteria, conserves resources, and promotes efficiency in the process. 8. Prioritizing Reviews A number of commenters requested clarification of the priority of various categories of petitions (those pending during the regulatory process, suspended petitions, previously denied petitions), and advocated that various categories be given top priority in the order of review. One commenter suggested creating tiers for review based on which petitions are easiest to process. Response: The final rule’s revised process, which separates review into two phases, is intended to improve efficiency by focusing review first on a limited number of criteria to eliminate petitioners who do not meet those basic criteria, before embarking on the more time- and resource-intensive review of the other criteria. See final § 83.26. PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 9. Proceeding Under the New or Old Version of the Regulations Several commenters stated their support for allowing a petitioner who has a currently pending, complete documented petition on active status to choose whether to proceed under the new or current regulations. These commenters requested clarification on how to proceed under the new regulations and requested that they be placed in highest priority if they already submitted a letter of intent or other documentation under the current regulations. Response: The final rule, at § 83.7, establishes that the final rule will apply, except that a petitioner with a currently pending, complete documented petition may choose to proceed under the current regulations if it notifies the Department by the stated deadline. The Department will notify each such petitioner of the option to proceed under the current regulations. A petitioner must respond by the deadline if it chooses to do so; otherwise, the petitioner will be subject to the new regulations. See § 83.7. OFA will maintain a list of petitions that are awaiting Departmental action at any given time and address those petitions in the order in which they were submitted. 10. Precedent and Other Comments A few commenters requested specific language be added to the preamble regarding precedent (ranging from ensuring that OFA precedent continues to be followed, to ensuring that prior negative decisions of OFA will not be used to interpret the new regulations) and other statements as to applicability. Commenters commented on various other aspects of the process, OFA’s qualifications and oversight, making available example formats for the petition, and whether the Department owes a trust responsibility to petitioners. Response: Because the final rule does not make significant changes to the criteria, the Department’s precedent stands. To address concerns that the Department is implementing the criteria in an increasingly stringent manner, the final rule adds a section in § 83.10 to ensure that the Department is applying the criteria consistently. The final rule states that if there is a prior final positive decision finding evidence or methodology to be sufficient to satisfy any particular criterion previously, the Department will find it sufficient to satisfy the criterion for a present petitioner. In other words, a petitioner satisfies the standards of evidence or E:\FR\FM\01JYR2.SGM 01JYR2 Federal Register / Vol. 80, No. 126 / Wednesday, July 1, 2015 / Rules and Regulations baseline requirements of a criterion if that type or amount of evidence was sufficient for a positive decision on that criterion in prior final decisions (see., e.g., the Grand Traverse Band of Ottawa and Chippewa Indians, the Jamestown S’Klallam Tribe, the Tunica-Biloxi Indian Tribe, the Death Valley Timbisha Shoshone Tribe, the Poarch Band of Creeks, the San Juan Southern Paiute Tribe of Arizona, the Jena Band of Choctaws). The Department has considered the other miscellaneous comments and determined that they do not warrant any revisions to the regulation. tkelley on DSK3SPTVN1PROD with RULES2 F. Petitioning Process Timelines 1. Timelines—Overall We received several comments on how long the process currently takes, noting that, even with the proposed deadlines, the proposed process would continue to be lengthy, due to multiple instances of providing technical assistance, submission of new evidence, and the requirement that petitioners see and respond to any evidence before a PF is issued. These commenters stated that these parts of the process are unrealistic, unworkable, and inefficient. A few commenters suggested having more accountability for timeliness through a deadline for all prospective petitioners to submit their petitions, a deadline for the Department to issue decisions on all petitions, or parameters for how long a petition stays on the ‘‘ready’’ list. Several commenters supported the proposed timelines and requested they be strictly upheld, either allowing for a way to compel agency action or the issuance of automatic findings in support of petitioner. One commenter suggested adding timelines to the technical assistance process and one suggested the entire process be subject to a 6-month deadline. Response: The Department has retained the proposed timelines in nearly all instances to ensure efficiency. The final rule reduces the proposed opportunities for technical assistance to two (not including any informal guidance a petitioner may obtain prior to submitting a documented petition)— one for each of the two review phases. This change is intended to promote efficiency because the expectation is that each technical assistance review will be more targeted to certain criteria, and therefore likely shorter, and some petitioners may receive only the first phase of technical assistance, where Phase I results in a negative final determination. Ensuring that petitioners see and respond to any evidence before a PF is issued may, in fact, add time to VerDate Sep<11>2014 19:58 Jun 30, 2015 Jkt 235001 the process; however, the Department believes this is an instance where the need for transparency, fairness, and rigor outweighs the need for promptness. The final rule does not impose parameters for how long a petition stays on the ‘‘ready’’ list because the length of stay is subject to the availability of OFA staff at any given time. To emphasize that the Department plans to strictly uphold its timelines, the final rule deletes each individual provision allowing for a specific time extension and replaces them with a new section providing that the Department may extend a deadline only upon consent of the petitioner or for good cause. See § 83.8. 2. Timelines—Notice of Receipt of Documented Petition Proposed § 83.22(b)(1)(iv) establishes a deadline of 90 days from the date a documented petition is posted on OFA’s Web site for submission of comments. Several commenters stated that comments should be accepted without any definitive time limit until active consideration of the documented petition begins. These commenters argued that petitioners have as long as possible to prepare research and limiting others’ input to a 90-day window appears to be designed to preclude meaningful public comment. A few commenters requested expanding the 90-day comment period to 120 or 150 days. Response: In response to comments, the final rule extends the comment period to 120 days. The final rule retains a defined comment period because it is necessary to have a cut-off point in order to allow the petitioner time to respond to comments. We note that commenters also have the time to further prepare comments and gather evidence for submission during the comment period on the proposed finding. 3. Timelines—Petitioner Response to Comments Prior to PF Proposed § 83.24 would allow a petitioner at least 60 days to respond to comments before OFA begins review. A few commenters suggested allowing a reasonable extension beyond 60 days, if requested by petitioner. Response: The final rule allows the petitioner 90 days rather than 60 days to respond to comments (§ 83.24) and adds a provision in § 83.8 that generally allows for extensions of time for good cause. 4. Timelines—Issuance of a PF A few commenters noted that it will be difficult for OFA to issue a PF within PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 37879 6 months, as required by proposed § 83.32, for petitioners with large memberships. One commenter suggested adding flexibility to allow OFA and the petitioner to agree upon a deadline. This commenter pointed out that proposed § 83.26(a)(1)(i)(B) allows the petitioner to submit additional information, but proposed § 83.32 still requires issuance of PF within 6 months of beginning review. Response: The final rule clarifies that the time periods for issuance of PFs and FDs are suspended when the Department is waiting for a technical assistance response from the petitioner. See §§ 83.32(b), 83.42(b). In other words, the clock on these timelines runs only when the Department is obligated to act. 5. Timelines—Comment Period on PF The previous rule provides a 180-day period for comment on the PF, with the possibility of a 180-day extension. The proposed rule would reduce these time periods, allowing for a 90-day comment period (proposed § 83.35), with the possibility of a 60-day extension (proposed § 83.36). Most who commented on the proposed comment period stated their opposition to reducing the period from 180 days to 90 days. These commenters stated that this is a significant reduction, will place a substantial burden on petitioners and interested parties, and fails to account for petitions with large amounts of evidence requiring substantial time to review and possibly time to conduct independent research and submit evidence. Some commenters stated that this provision also appears designed to preclude third-party participation. A few commenters stated that the time should be further reduced to limit thirdparty involvement. Most commenters advocated for retaining the 180-day timeframe; one requested at least 120 days. Commenters also stated that, even with the 60-day extension, depending on the nature of the findings and petitioner’s resources, it may require longer than the initial 90day period plus the additional 60 days to submit comments. These commenters advocated for a 90-day extension, an extension for any period AS–IA chooses, or an automatic 60-day extension at the petitioner’s request and allowance of additional extensions for good cause shown, such as needing more time to generate probative evidence. Response: The final rule establishes a 120-day timeframe to comment on the PF. See final § 83.35. This deadline is shorter than the existing 180-day timeframe, but longer than the proposed E:\FR\FM\01JYR2.SGM 01JYR2 37880 Federal Register / Vol. 80, No. 126 / Wednesday, July 1, 2015 / Rules and Regulations 90-day timeframe, in order to promote efficiency in the process while still allowing sufficient time for input. The final rule also allows the timeframe to be extended for good cause. See final § 83.8. 6. Timelines—Period for Petitioner’s Response to Comments on a Positive PF Several commenters requested additional time for the petitioner to respond to comments on a positive PF (proposed § 83.37 would allow 60 days and an unspecified extension), advocating for a total of 120 days because petitioners may not have the resources to respond more quickly. Response: The final rule retains the 60-day deadline to respond in order to promote efficiency in the process while still allowing sufficient time for input. The final rule also allows the timeframe to be extended for good cause. See final § 83.8. tkelley on DSK3SPTVN1PROD with RULES2 7. Timelines—Petitioner Response to Comments and/or Election of Hearing Proposed § 83.38 would allow the petitioner 60 days to respond to comments and/or elect a hearing on a negative PF, and would allow AS–IA to extend the comment period if warranted. Commenters stated that 60 days is too short (see comments under ‘‘Hearings’’). They also suggested requiring filing of just a notice of appeal initially, then allowing for submission of lists of material facts, exhibits, and witnesses later rather than requiring their submittal with the election of hearing. Response: The final rule retains the 60-day deadline in order to promote efficiency in the process; however, the final rule provides the response timeframe and the timeframe for electing a hearing will run sequentially, rather than concurrently, to allow time to prepare the election of hearing listing the issues of law and material fact, witnesses, and exhibits. See final §§ 83.36(b), 83.38. The final rule also allows the timeframe to be extended for good cause. See final § 83.8. 8. Timelines—Issuance of FD Proposed § 83.42 would require the Assistant Secretary to issue a FD within 90 days. This is an increase from the current 60-day period for issuance of a FD. A small number of commenters opposed the extended time for AS–IA review as counter to the goal for efficiency. Response: While the 90-day period is an increase from the current 60 days, the Department believes this increase is justified given that the preparation of the final determination will be the first VerDate Sep<11>2014 19:58 Jun 30, 2015 Jkt 235001 occasion for the AS–IA to review the administrative record and formulate a determination. See final § 83.42. G. Hearings 1. Deleting the IBIA Reconsideration Process, and Adding a Hearing on the PF The proposed rule eliminates the process for limited reconsideration of the AS–IA’s determination by the IBIA and adds an option for a petitioner to elect a hearing on a negative PF before an independent judge in the Office of Hearings and Appeals (OHA). Many commenters expressed their strong support for the proposed option, saying this process adds transparency, fairness, and neutrality. These commenters also supported the proposed elimination of the IBIA reconsideration process, stating that the hearing process would be more fair and efficient. Others expressed their strong opposition to the proposed hearing process, stating that it makes the petitioning process more adversarial, more burdensome, and less transparent. These commenters also stated that the hearing and review of re-petition requests inappropriately burden an administrative court with analysis of non-legal issues. Several commenters also opposed elimination of the IBIA reconsideration process, disputing the accuracy of the rational for the elimination: that there are no other instances where IBIA reviews an AS–IA decision). Those commenters also argued that the IBIA process is more efficient than appeals to Federal court and is necessary to correct administrative errors before costly litigation and to guard against politically motivated Departmental decisions. These commenters note that IBIA has particular expertise with respect to Federal-tribal relations that a judge from elsewhere in OHA lacks. Some commenters claimed that replacing the IBIA process with the option for a hearing will result in more adversarial dealings and litigation. A few commenters suggested allowing the Secretary to direct reconsideration to IBIA on her own motion or upon request. Response: The final rule implements the proposal to delete the limited IBIA reconsideration process and to allow for a hearing on a negative PF. This procedure will require the parties to pinpoint specific findings that they dispute and provide evidence from the record, from testimony based on the record, or cite to precedent in support of their positions in a setting that is well-suited to objective consideration of PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 discrete issues in a transparent manner. Rather than making the process more adversarial, a hearing will help crystalize the issues in preparation for consideration by the AS–IA. Since it occurs before an objective forum without any preconceived notion of an outcome, it will further insulate the process from criticisms of perceived bias. 2. Opportunity for Third Parties To Request a Hearing and Intervene in Hearings Many commenters objected to the proposed rule allowing hearings only at the election of a petitioner on a negative PF. See § 83.38(a). These commenters asserted that any party should be entitled to request a hearing on a PF to ensure that all parties are treated equally. They asserted that third parties with evidence relevant to a positive PF are left only with the option of submitting comments and pursuing an appeal before Federal district court under the APA’s deferential ‘‘arbitrary and capricious’’ standard of review. Some commenters also stated that the proposed approach effectively precludes interested parties from appealing, because the proposed rule would not allow a hearing on a positive PF and interested parties may not be able to establish standing in Federal district court. Tribal commenters stated that the Department owes a trust responsibility to allow tribes the opportunity for a hearing where they have a present or historical relationship to petitioner and the petition involves the identity or heritage of the federally recognized tribe. Commenters also stated that standards for intervention should be broader than traditional standards, to allow intervention by States, local governments, federally recognized tribes, and any entity with a legal, factual, or property interest. These commenters stated that there should be no limit on the issues an intervenor can raise and intervenors should have the right to introduce evidence and testimony. Response: The Part 83 petitioning process is similar to other administrative processes uniquely affecting an applicant’s status in that the applicant may administratively challenge a negative determination, but third parties may not administratively challenge a positive determination. The question being examined in Part 83 is whether a petitioner meets the criteria to be federally acknowledged as an Indian tribe. Part 83 does not allow for consideration of speculative consequences because such E:\FR\FM\01JYR2.SGM 01JYR2 Federal Register / Vol. 80, No. 126 / Wednesday, July 1, 2015 / Rules and Regulations tkelley on DSK3SPTVN1PROD with RULES2 consequences are not yet ripe for consideration and administrative and judicial review is available for those separate decisions. For example, if the newly acknowledged tribe seeks to have land taken into trust and that application is approved, state or local governments may challenge that action under the land-into-trust process (25 CFR part 151), an entirely separate and distinct decision from the Part 83 process. Submissions are more appropriately addressed there. The Part 83 process provides third parties with the opportunity to submit comments and evidence. Comments that are germane to the criteria will be carefully considered. Also, the Office of the Secretary (OS) companion final rule at 43 CFR part 4, subpart K, adopts the proposed approach of allowing for intervention as of right in the hearing process for anyone with an interest that may be adversely affected by the FD. See 43 CFR 4.1021(d). No good reason has been identified for deviating from this traditional standard of intervention. The final rule allows anyone who intervenes as of right to participate as a full party, subject to the restriction that the intervenor may not raise issues of law or material fact beyond those raised in the election of hearing. 43 CFR 4.1021(f)(3). This restriction is necessary to keep the hearing focused on the issues related to the negative PF. 3. Hearing Process Timelines In the OS companion proposed rule, timelines were proposed for various activities during the hearing process as well as an overall 180-day time limit to complete the hearing process and issue a recommended decision. See proposed 43 CFR part 4, subpart K. Some commenters supported establishing definitive timelines. One commented that the proposed timelines were too long because the timelines are similar to those in the IBIA process, which is considered lengthy. Most commented that the timelines are unrealistically short given all that must occur during the overall 180-day timeline— prehearing conference, interventions, discovery, written direct testimony, oral cross-examination, post-hearing briefs, and issuance of a recommended decision. These commenters stated that full adjudications could take a year and opposed the overall 180-day deadline as interfering with the judge’s deliberation. Others opposed the timelines as not accounting for petitioner’s limited resources, and thereby compromising their ability to fully participate. Another commenter suggested an automatic 90day extension of the 180-day time limit VerDate Sep<11>2014 19:58 Jun 30, 2015 Jkt 235001 for the entire hearing process upon request of the petitioner, and additional extensions upon good cause shown, such as needing more time to prepare and generate probative evidence. Some commenters stated that the 60day timeframe for electing a hearing is too short to provide the required lists of issues of material fact, exhibits, and witnesses. These commenters suggested requiring a filing of ‘‘intent to challenge’’ within 60 days, then leaving it to the ALJ to establish the schedule for pre-hearing submittal of the lists. Others suggested expanding it to 180 days. Commenters also specifically opposed the proposed timeline for filing motions to intervene (15 days after issuance of the referral notice under § 83.39(a)) as a violation of due process, because the short timeframe would be ‘‘wholly unreasonable’’ for reviewing the administrative record and providing notice of all witnesses, issues, and exhibits. Commenters suggested a minimum timeline of 30, 45, or 60 days, or a deadline to identify only the movant’s affected interest and position on the issues, and then allowing the judge to set timelines for identifying witnesses and exhibits. Response: These comments relate to the OS companion final rule addressing hearing procedures at 43 CFR part 4, subpart K. To maintain an efficient process, that final rule adopts the proposed 180-day time period for completion of the hearing process. See final 43 CFR 4.1051(a). Because the hearing record is limited to documents that have already been presented, except in under extraordinary circumstances, see final 43 CFR 4.1046(a), the time needed to ‘‘generate probative evidence’’ should be minimal (see the discussion below on scope of record). To address comments that the proposed timeline for intervention is unreasonably short, the final 43 CFR 4.1021(a), doubles the proposed timeline to file a motion to intervene to 30 days. 4. Scope of Record In the proposed rule, we invited comment on whether the hearing record before OHA should include all the evidence in OFA’s administrative record for the petition or be limited to testimony and exhibits specifically identified by the parties. Most who commented on this question stated that the ALJ should rely on the entire administrative record before OFA (including the petition and all documents that were provided, or relied upon, for the PF, and comments and responses on the PF). PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 37881 A few commenters stated that the ALJ should engage in traditional factfinding, limiting the hearing record to the testimony and exhibits presented by the parties, to narrow the issues in the record and put the burden on the parties to bring the salient facts to the decisionmaker’s attention. Commenters provided arguments both for and against allowing the parties to provide evidence beyond what was in the OFA administrative record during and after the hearing—some saying it offers the opportunity to clarify the OFA administrative record and others saying it reduces transparency to expand the OFA administrative record after OFA has already issued a PF. Response: A primary purpose of the hearing process is to inform the AS–IA’s final determination by focusing in on the key issues and evidence and producing a recommended decision on those issues from an independent tribunal. To that end, under the OS companion final rule, the hearing record will not automatically include the entire administrative record reviewed by OFA, but only those portions which are considered sufficiently important to be offered by the parties as exhibits and admitted into evidence by the ALJ. While the AS–IA may consider not only the hearing record, but also OFA’s entire administrative record, we believe that an independent review of the key issues and evidence will be invaluable to the AS–IA. Part of the hearing process is to ensure that the Department abides by the baseline precedent of previous final decisions. Petitioners may rely on previous final decisions to establish that their evidence is sufficient to meet a criterion, where evidence in a previous final decision was sufficient to meet a criterion. The companion final rule also includes documentation in the OFA administrative record, including comments and responses on the PF, and testimony clarifying or explaining the information in that documentation. See 43 CFR 4.1046. That rule also limits who may testify to expert witnesses and OFA staff who participated in preparation of the negative proposed finding. See 43 CFR 4.1042. The ALJ may admit other evidence or allow other persons to testify only under extraordinary circumstances. These limits will afford the parties the opportunity to clarify the record, without expanding the record beyond what was before OFA when it issued the PF and comments and responses submitted following issuance of the PF. The limits will encourage the petitioner and all others to be diligent in gathering and presenting to OFA all their relevant E:\FR\FM\01JYR2.SGM 01JYR2 37882 Federal Register / Vol. 80, No. 126 / Wednesday, July 1, 2015 / Rules and Regulations evidence and discourage strategic withholding of evidence, which will further ensure that OFA’s PF is based on the most complete record possible, allowing the ALJ to focus on discrete issues in dispute if a hearing is requested. tkelley on DSK3SPTVN1PROD with RULES2 5. Presiding Judge Over Hearings In the OS companion proposed rule, any of several different employees of OHA could be assigned to preside as the judge over the hearing process: an ALJ appointed under 5 U.S.C. 3105, an IBIA judge, or an attorney designated by the OHA Director. See proposed 43 CFR 4.1001, definition of ‘‘judge.’’ We invited comments on who is an appropriate OHA judge to preside. Most commenters who expressed an opinion on this question stated that an ALJ is necessary to ensure sufficient qualifications, independence, impartiality, and objectivity. One commenter recommended an attorney because of the commenter’s belief that the attorney would be able to issue decisions more quickly. One stated that an IBIA judge would be most qualified due to experience with acknowledgment issues. Several commenters stated that the judge should have some background or training in Indian law and tribal histories and cultures. Response: The final rule establishes that the judge presiding over hearings will be an ALJ. See final § 83.39. There is no evidence that an attorney could issue decisions more quickly than an ALJ. An IBIA judge does not necessarily have more background in acknowledgment issues or tribal histories and cultures, and ALJs are skilled at presiding over hearings and managing procedural matters to facilitate justice. Also, their independence is protected and impartiality fostered by laws which, among other things, exempt them from performance ratings, evaluation, and bonuses (see 5 U.S.C. 4301(2)(D), 5 CFR 930.206); vest the Office of Personnel Management rather than the Department with authority over the ALJ’s compensation and tenure (see 5 U.S.C. 5372, 5 CFR 930.201–930.11); and provide that most disciplinary actions against ALJs may be taken only for good cause established and determined by the Merit Systems Protection Board on the record after opportunity for a hearing (see 5 U.S.C. 7521). 6. Conduct of the Hearing Several commenters asserted that OFA should be required to participate in the hearing and be subject to crossexamination to increase transparency in the process. A few commenters VerDate Sep<11>2014 19:58 Jun 30, 2015 Jkt 235001 requested clarification of whether only ‘‘senior departmental employees’’ or all of OFA were subject to discovery. A few commenters stated that OFA should not need to restate its PF at hearing to controvert petitioner’s claims because the PF should be sufficient on its own. Other commenters observed that the proposed requirement to submit direct testimony in writing will allow for faster hearings. Response: The OS companion final rule clarifies that OFA employees who participated in preparing the negative PFs may be called as witnesses. See final 43 CFR 4.1042. While the PF may be sufficient on its own in some cases, in others, it may be appropriate for OFA to call its staff to testify to elucidate parts of the PF or the OFA administrative record, subject to crossexamination, and/or to allow the petitioner or other parties to probe OFA’s rationale through direct examination of OFA staff. The OS companion final rule affords the ALJ discretion to consider requests regarding hearing locations, prehearing telephonic conferences, any discovery that the ALJ believes to be appropriate, and written testimony submittals. 7. Miscellaneous Hearing Process Comments A few commenters stated that the summary recommended decision process in proposed 43 CFR 4.1023 is not an appropriate procedure to overturn a PF. Other commenters made suggestions for facilitating petitioner participation in the hearing process, stating that hearings should be held in a location near the petitioner, that telephonic conferences should be allowed, and that filing and service of documents by priority mail or email should be allowed as an alternative to the OS companion proposed rule’s requirements that overnight mail or delivery services be used for both filing and service. See proposed 43 CFR 4.1012(b) and 4.1013(c). These suggestions are based in part upon the commenters’ stated concern that a petitioner’s participation may be impeded by a lack of resources. Commenters also observed that some petitioners may be in remote locations without access to overnight mail or delivery services. Response: Proposed 43 CFR 4.1023 would allow any party to file a motion for a summary recommended decision if the material facts are undisputed and a summary decision is appropriate as a matter of law. The OS companion final rule retains this provision. If the ALJ issued a summary recommended decision contrary to the PF (e.g., if the PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 summary recommended decision were in favor of the petitioner who had received a negative PF), it would not overturn the PF; rather, the AS–IA would consider that recommended decision when preparing a FD. A standard hearing procedure is for the ALJ to consider the convenience of all parties, their representatives, and witnesses in setting a place for hearing, but not to unduly favor the preferences of one party over another. A provision mandating that the hearing be held in a location near the petitioner would deviate from this fair standard in all cases without sufficient justification. Indeed, in some cases, the petitioner itself may not favor a hearing location near to it, such as where its witnesses are not located near the petitioner. The selection of a hearing location is best left to the discretion of the ALJ. To guide the exercise of that discretion, a provision has been added to the OS companion final rule incorporating the fair standard that the ALJ will consider the convenience of all parties, their representatives, and witnesses in setting a place for hearing. See 43 CFR 4.1040(a)(2). Regarding telephonic conferences, both the OS proposed and final rules include a provision that conferences will ordinarily be held by telephone. See proposed 43 CFR 4.1022(c) and final 43 CFR 4.1022(d). The suggestion to allow for filing and service of documents by priority mail has not been adopted in the OS final rule. Requiring filing and service by overnight delivery promotes compliance with time limits for specific actions as well as with the overall time limit for the hearing process of 180 days. The use and cost of overnight delivery can be avoided by filing and serving a document by fax and regular mail if the document is 20 pages or less. See 43 CFR 4.1012(b)(iii). Given the limits on discovery and admissible evidence, we do not anticipate a large volume of exchanges of documents exceeding 20 pages. Nevertheless, to address the rare situation where mandating strict compliance with the prescribed filing and service methods would be unfair, the OS final rule adds language to both 43 CFR 4.1012(b) and 4.1013(c) giving the ALJ discretion to allow deviation from those methods. Nor has the OS final rule adopted the suggestion to allow filing and service by email. A hard copy of each filing is needed to complete the hearing record that ultimately becomes part of the OFA administrative record. Service by email is problematic because not all parties may have email access. E:\FR\FM\01JYR2.SGM 01JYR2 tkelley on DSK3SPTVN1PROD with RULES2 Federal Register / Vol. 80, No. 126 / Wednesday, July 1, 2015 / Rules and Regulations H. Previous Federal Acknowledgment Several commenters suggested rearranging the review process so that previous Federal acknowledgment is considered at the beginning, making it procedurally easier for previously federally recognized tribes to obtain acknowledgment. Several commenters stated that the rule should be clarified so that previously acknowledged tribes need not meet criteria (b) (Community) and (c) (Political Influence or Authority) in proposed § 83.11 prior to either 1934 or the date of previous acknowledgment, whichever is later. Otherwise, previous Federal acknowledgment would be more stringent than fulfilling all criteria at proposed § 83.11. Several commenters provided suggestions for the definition of ‘‘previous Federal acknowledgment’’ at proposed § 83.1—some stating that it should mean Federal government officials with authority had clearly acknowledged the government-togovernment relationship with the petitioner, others stating that it should be defined more broadly to include tribes under Federal jurisdiction or to capture other historical dealings where the Federal Government did not respect the tribes’ sovereignty. Several commenters stated that the key proposed language, ‘‘an entity that qualified as an Indian tribe for the purposes of Federal law,’’ is more vague than the current ‘‘tribal political entity.’’ Commenters also stated that ‘‘for the purposes of Federal law’’ should be deleted because it is broader than necessary. Some commenters noted that the proposal to evaluate criteria (b) and (c) from 1934 to the present may reduce the advantage of previous Federal acknowledgment, because the types of actions listed in proposed § 83.12(a) as evidence of previous Federal acknowledgment are not likely to be probative post-1934. For example, there were no treaty negotiations between 1934 and the present, and any petitioner that was recognized by an Act of Congress or Executive Order since 1934 is likely already a recognized tribe. Some commenters requested clarification of the burden of showing previous Federal acknowledgment, stating that the ‘‘reasonable likelihood’’ standard of proof should apply, or that this standard conflicts with the requirement for ‘‘unambiguous evidence’’ in proposed § 83.12(a). One commenter stated that the proposed rule weakens the criteria for previous Federal acknowledgment because it no longer requires ‘‘substantial’’ evidence VerDate Sep<11>2014 19:58 Jun 30, 2015 Jkt 235001 of unambiguous previous Federal acknowledgment. One commenter stated that proposed § 83.12 eliminates the current requirement at § 83.8(d)(1) that the petitioner demonstrate it is the same group as was previously acknowledged tribe. A few commenters asserted that the rule should state that claims statutes allowing descendants of tribes to bring claims do not constitute previous Federal acknowledgment. Others advocated for including various additional items in the proposed § 83.12(a) list of evidence of previous Federal acknowledgment (e.g., recognition by Federal court, allotments, payments by Indian Court of Claims, unratified treaties, documented attempts to obtain land for the petitioner). Several commenters advocated for redefining previous Federal acknowledgment to include any tribe that can show it was under Federal jurisdiction, particularly for tribes who were never terminated but for whom the Federal Government may have failed to take action. Some commenters supported the proposed previous Federal acknowledgment provisions at § 83.12 as more clear, particularly provisions clarifying that a showing of continuous community is not necessary. Response: The final rule adopts the commenters’ suggestion for moving evaluation of previous Federal acknowledgment to the first phase of OFA review and clarifying that, once previous Federal acknowledgment is shown, the petitioner need only meet the criteria in § 83.11 since 1900 or the date of previous Federal acknowledgment, whichever is later. See final § 83.12(b). Otherwise, the intention of the final rule is not to make any changes to the previous Federal acknowledgment provisions but to clarify them. For example, the final rule deletes the proposed new phrase ‘‘government-togovernment’’ in proposed § 83.12(a). That proposed section provided that previous Federal acknowledgment may be proven ‘‘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. . . .’’ The ‘‘government-to-government’’ phrase has been deleted because it is not in the current provisions and may indicate a more formal relationship than is currently required for previous Federal acknowledgment. Further, just as with each criterion, evidence or methodology PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 37883 that was sufficient to satisfy previous Federal acknowledgment previously remains sufficient to satisfy previous Federal acknowledgment today. This clarification ensures that this section is not applied in a manner that raises the bar for each subsequent petitioner claiming previous Federal acknowledgment. In response to comments, the phrase ‘‘for the purposes of Federal law’’ is also deleted as overly broad. While moving the evaluation date to 1900 may limit the usefulness of the previous Federal acknowledgment provisions, there remains a possibility that a petitioner may show previous Federal acknowledgment post-1900. The final rule does not substantively change the burden for showing previous Federal acknowledgment—deletion of the term ‘‘substantial’’ in ‘‘substantial evidence of unambiguous Federal acknowledgment’’ does not change the evaluation—unambiguity is still required. The rule requires a showing that the petitioner is the same tribe that was previously acknowledged. Previous Federal acknowledgment requires that the petitioner, not another group, was previously acknowledged. The final rule adds that the entity may have evolved out of the previously recognized tribe (see § 83.12(a)); this addition incorporates a provision in the current § 83.8(d)(1) that was inadvertently omitted in the proposed rule. See § 83.12(a). The final rule does not substantively change the list of examples of evidence of previous Federal acknowledgment in response to requests for additions (or deletions). Land held by the United States for a group satisfies the existing category of evidence that the group has been treated by the Federal Government as having collective rights in tribal lands. The final rule simplifies the showing required after a petitioner proves previous Federal acknowledgment, to require the petitioner to meet criterion (b) (community) at present, as currently required, and require the petitioner to meet criteria (a) and (c) since 1900 or date of previous Federal acknowledgment, whichever is later. See § 83.12(b). The final rule deletes the proposed provision allowing a petitioner that has established previous Federal acknowledgment to meet the criteria for acknowledgment through ‘‘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 § 83.11(c),’’ because the E:\FR\FM\01JYR2.SGM 01JYR2 37884 Federal Register / Vol. 80, No. 126 / Wednesday, July 1, 2015 / Rules and Regulations tkelley on DSK3SPTVN1PROD with RULES2 existing criteria are satisfactory to provide adequate justification for acknowledgment. I. Automatic Disclosure of Documents Several commenters stated that the proposed regulations increase transparency by requiring, throughout the process, prompt and automatic disclosure of documents to the petitioner, without a FOIA request and posting documents to the Internet. Others requested that additional documents, such as all TA letters, be posted on the Internet based on the allegation that publishing only the narrative denies the public the opportunity to critically examine the evidence, and is thus a denial of due process. One suggested posting all OFA communications and a review of each petition’s status on OFA’s Web site. Some opposed making documents available on the Web site because of their concern about others appropriating their information and viewing confidential information such as sacred sites. One pointed out that posting will require additional OFA time. One commenter stated that lobbyists should present themselves to OFA and be listed on a Web site. Response: The final rule takes a significant step forward in promoting transparency by providing that the OFA will publish on its Web site the narrative portion of the petition and, to the extent allowable under Federal law, other portions of the documented petition, in addition to other items of information including but not limited to: The name, location, and mailing address of the petitioner and other information to identify the entity; the date of receipt of the petition; a notice of the opportunity to submit comments and evidence; and a notice of the opportunity to be kept informed of general actions regarding a specific petitioner. Transparency is crucial to maintaining trust in the Federal acknowledgment process. The Department will endeavor to make all information on each petition available on the OFA Web site to the extent it is releasable under Federal law, and to the extent it is feasible to do so (e.g., extraordinarily large files may instead be provided upon request). Nevertheless, the Department generally will not post genealogical information on living persons, in response to concerns about confidentiality and privacy. The final rule also allows petitioners to identify additional confidential information to be withheld by directing the petitioner to provide an unredacted version and a separate version redacting any confidential VerDate Sep<11>2014 19:58 Jun 30, 2015 Jkt 235001 information. See § 83.21(b). The Department will withhold any information that is protectable under Federal law, but may release any redacted information that is not protectable under Federal law. In response to the comment regarding listing lobbyists on the Web site, the final rule adds that OFA’s list of contacts for each petitioner, which may include attorneys and other representatives of the petitioner, along with a list of anyone else who requested to be kept informed of the petition will be posted on the Web site. See § 83.22(c). The Department encourages petitioners and others to provide their submissions electronically. J. Elimination of Enrollment Limitations A few commenters objected to the deletion of current § 83.12(b), which requires BIA review of tribal enrollment of acknowledged tribes to ensure that major changes have not occurred prior to taking administrative action in favor of the tribe. These commenters state that this review serves an important function by ensuring a tribe remains the tribe it was for the basis of acknowledgment, and that eliminating this section without explanation violates the APA. Response: The Department eliminated this section because Part 83 is focused on the process and criteria for Federal acknowledgment and this section would impose limitations on newly acknowledged tribes. The Department affords newly acknowledged tribes the same deference to determine its own membership as it affords other federally recognized tribes. K. Purpose (Proposed § 83.2) Several commenters opposed the provision in § 83.2 stating that Part 83 establishes whether the petitioner is an Indian tribe ‘‘for the purposes of Federal law’’ because some non-listed tribes are considered Indian tribes for certain benefits under other Federal statutes. Other commenters opposed the provision in § 83.2 stating that Part 83 establishes whether a petitioner is an Indian tribe and ‘‘therefore entitled to a government-to-government relationship with the United States.’’ One commenter pointed to the Federally Recognized Indian Tribe List Act of 1994, and noted that it says nothing about acknowledging tribes for the purposes of Federal law or that the Secretary maintains a government-togovernment relationship with listed tribes. This commenter disagreed with the implication that even if a tribe is not recognized for purposes of Federal law, it might still exist. PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 Response: The final rule replaces the phrase ‘‘for the purposes of Federal law’’ with language that more closely tracks the Federally Recognized Indian Tribe List Act of 1994. See 25 U.S.C. 479a–1. L. Definitions 1. ‘‘Historical’’ Several commenters opposed the proposed definition of ‘‘historical’’ to mean 1900 or earlier. These commenters were concerned that the definition implied that tracing prior to 1900 would not be required, allowing acknowledgment of petitioners who did not exist as tribes before 1900 and ignoring over a century of relevant history. Some pointed to alternative dates, such as 1830 when the Indian Removal Act was passed, or the date the State was admitted to the United States. Others stated that the definition should require tracing back to the date of first sustained European contact. Several commenters supported the proposed definition of ‘‘historical.’’ These commenters stated that relying on 1900 greatly reduces the evidentiary burden on petitioners and the Department, prevents further penalization of tribes for disruptive historical circumstances resulting from expansion of the United States, and because records before 1900 may have been lost, destroyed, or expunged. A few commenters requested that the definition of ‘‘historical’’ be explicitly restated in each criterion. A few commenters requested flexibility, to ensure the 1900 date serves as a benchmark rather than a definitive cut-off date. These commenters pointed out that a petitioner may have had reliable evidence in 1901, and that such evidence should be sufficient if the petitioner provides an explanation as to why it is unable to produce earlier evidence. Others stated that ‘‘first sustained contact’’ is subject to disagreement among experts, so exact, federally accepted sources of when first sustained contact occurred should be used. Response: The final rule defines ‘‘historical’’ as being before 1900. The rule still requires tracing to a historical (i.e., pre-1900) tribe as set forth in criterion (e) of 83.11. As explained above, the Department considered other dates for the start of our evaluation period, but determined that the fact that more documents are generally available after 1900 justifies a more intensive documentary review from that date on. The 1900 date is a definitive start date, but the Department will examine all E:\FR\FM\01JYR2.SGM 01JYR2 Federal Register / Vol. 80, No. 126 / Wednesday, July 1, 2015 / Rules and Regulations evidence in light of the history, regional differences, culture, and social organization of the petitioner. See 83.10(b)(7). 2. ‘‘Indigenous’’ Several commenters requested reinsertion of the term ‘‘indigenous’’ (to come from within the continental U.S. at the time of first sustained contact, rather than migrating into the U.S. during historical times), stating that Indians must have been in the U.S., at least in part, throughout history, and that it is inappropriate to delete the term in light of the United Nations Declaration on the Rights of Indigenous Peoples. Response: In response to these comments, the final rule reinserts the current definition of ‘‘indigenous’’ and the reference to ‘‘indigenous’’ in § 83.3. tkelley on DSK3SPTVN1PROD with RULES2 3. ‘‘Tribe’’ Several commenters supported the proposed definition of ‘‘tribe’’ as any Indian tribe, band, nation, pueblo, village or community. One requested clarification of a ‘‘community’’ versus a ‘‘tribe,’’ given that ‘‘community’’ is used in the proposed definition. A commenter suggested definitions for new terms: ‘‘Federal Indian tribe’’ and ‘‘Non-Federal Indian tribe.’’ A commenter stated that the definition of ‘‘tribe’’ should clarify that if the tribe is not recognized, the Federal Government does not consider it to be a tribe. One commenter requested adding Native Hawaiians to the definition. A few commenters opposed the statement in § 83.2 that the regulations determine whether a petitioner is an Indian tribe ‘‘for the purposes of Federal law’’ and is therefore entitled to a ‘‘governmentto-government relationship.’’ Response: The final rule maintains the proposed definition of ‘‘tribe.’’ Clarification of ‘‘community’’ versus ‘‘tribe’’ is unnecessary because the word ‘‘community’’ in the definition of ‘‘tribe’’ is merely nomenclature (as opposed to the concept of community required by criterion (b)). The final rule also separately defines ‘‘federally recognized tribe.’’ The final rule does not change the current approach to Native Hawaiians; rather, it continues to exclude Native Hawaiians from the definition of ‘‘tribe,’’ because the acknowledgment process has never applied to them. The final rule also simplifies the language in § 83.2 to instead reflect the language of the Federally Recognized Indian Tribe List Act of 1994; that simplification deletes the phrases suggested for deletion. VerDate Sep<11>2014 19:58 Jun 30, 2015 Jkt 235001 37885 4. Other Definitions V. Procedural Requirements Some commenters suggested additional definitions in conjunction with their more substantive comments, such as for ‘‘federal jurisdiction’’ and ‘‘government-to-government.’’ Some commenters suggested various edits to proposed definitions—for example, a commenter stated that the definition of ‘‘tribal rolls’’ should recognize that many tribes did not have formal rolls. A commenter suggested using the term ‘‘determination’’ rather than ‘‘recognition’’ or ‘‘acknowledgment.’’ Response: The final rule does not incorporate any of the new suggested definitions or edits to proposed definitions because they are not necessary for understanding the content of the rule. For example, the definition of ‘‘tribal rolls’’ already recognizes that tribes may not have a formal roll and provides an alternative definition in the absence of such a roll. The final rule does, however, change the term from ‘‘tribal roll’’ to ‘‘roll’’ to better match the terminology used throughout the rule. The final rule ensures that ‘‘acknowledgment’’ is used to refer to the process by which the United States acknowledges a tribe; once a tribe is acknowledged, it is considered a ‘‘recognized’’ tribe. 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. IV. Legislative Authority Congress granted the Assistant Secretary-Indian Affairs (then, the Commissioner of Indian Affairs) authority to ‘‘have management of all Indian affairs and of all matters arising out of Indian relations.’’ 25 U.S.C. 2 and 9, and 43 U.S.C. 1457. This authority includes the authority to administratively acknowledge Indian tribes. See, e.g., Miami Nation of Indians of Indiana, Inc. v. United States Dep’t of the Interior, 255 F.3d 342,, 346 (7th Cir. 2001); James v. United States Dep’t of Health & Human Servs., 824 F. 2d 1132, 1137 (D.C. Cir. 1987). The Congressional findings that supported the Federally Recognized Indian Tribe List Act of 1994 expressly acknowledged that Indian tribes could be recognized ‘‘by the administrative procedures set forth in part 83 of the Code of Federal Regulations denominated ‘Procedures for Establishing that an American Indian Group Exists as an Indian Tribe,’ ’’ and described the relationship that the United States has with federally recognized tribes. See Public Law 103– 454 Sec. 103(2), (3), (8) (Nov. 2, 1994). PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 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, 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 E:\FR\FM\01JYR2.SGM 01JYR2 37886 Federal Register / Vol. 80, No. 126 / Wednesday, July 1, 2015 / Rules and Regulations 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. Current sec. 83.7 (a)–(d), 83.7 (f)–(g); 83.7 (e). 83.7 (e) ............................... 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. Following publication of the proposed rule, the Department then hosted five additional in-person consultations and two teleconferences in July and August 2014. We considered each tribe’s comments and concerns and have addressed them, where possible, in the final rule. I. Paperwork Reduction Act OMB Control Number: 1076–0104. Title: Federal Acknowledgment as an Indian Tribe, 25 CFR part 83. Annual burden hours (10 respondents) Description of requirement 83.21 (referring to 83.11 (a)–(d), 83.11 (f)–(g)); 83.21 (referring to 83.11 (e)). 83.21 .................................. Conduct the anthropological and historical research relating to the criteria (a)–(d) and (f)–(g); Conduct the genealogical work to demonstrate tribal descent. 1,221 12,210 Provide past membership rolls and complete a membership roll of about 333 * * members (BIA Form 8306). Complete Individual History Chart (BIA Form 8304). On average, it takes 2 minutes per chart × 333 * * charts. Complete the Ancestry Chart (BIA Form 8305). On average, it takes about 30 minutes per chart × 333 * * charts. 38 380 11 110 166 1,660 83.21 (referring to 83.11 (e)). 83.7 (e) ............................... tkelley on DSK3SPTVN1PROD with RULES2 Burden hours on respondents per response New sec. 83.7 (e) ............................... 83.21 (referring to 83.11 (e)). One comment submission, from several towns in Connecticut, was submitted specifically addressing the information collection requirements in the proposed rule. The comments and responses are summarized here. PRA Comment 1: The estimate only considers the annual burden hours for petitioners in collecting information to meet the mandatory criteria in preparing a documented petition and responding to a Technical Assistance (TA) review, and fails to consider the burden hours VerDate Sep<11>2014 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: 14,360 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. DOI estimates that the annual burden hours for respondents (entities petitioning for Federal acknowledgment) from this final rule will decrease by a minimum by approximately 6,390 hours. Because the final rule would change sections where the information collections occur, we are including a table showing the section changes. 19:58 Jun 30, 2015 Jkt 235001 on petitioners for later stages of the process. PRA Response 1: The commenter is correct that the estimate only covers the burden hours for petitioners in collecting the information to develop and submit the documented petition. Once the documented petition is submitted, the Department opens an administrative case file for the petitioner, and all subsequent information collections are covered by the exemption in 5 CFR 1320.4(c). The PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 comment alerted the Department to the fact that it had previously included the burden for responding to a TA review; because the TA review occurs following the opening of the administrative case file, this too is covered by the regulatory exemption. As such, the Department has removed this burden estimate. No change is necessary in response to this comment. PRA Comment 2: The estimate fails to include burden hours for previously denied petitioners that must submit new E:\FR\FM\01JYR2.SGM 01JYR2 tkelley on DSK3SPTVN1PROD with RULES2 Federal Register / Vol. 80, No. 126 / Wednesday, July 1, 2015 / Rules and Regulations arguments and evidence in order to request permission from an Office of Hearings and Appeals (OHA) judge to re-petition. PRA Response 2: The proposed rule contained a provision that allowed previously denied petitioners to seek the opportunity to re-petition. The final rule deletes this provision. This comment is no longer applicable. No change is necessary in response to this comment. PRA Comment 3: The estimate fails to consider the burden hours on other respondents in the Federal Acknowledgment process, such as State governments, federally recognized tribes, and other petitioners that may submit information in support of or opposition to a petition. PRA Response 3: The estimate does not consider the burden hours on those who may submit information in support of or in opposition to a petition because such information is voluntarily submitted only after the administrative case file is opened, and is therefore covered by the exemption in 5 CFR 1320.4(c). No change is necessary in response to this comment. PRA Comment 4: The preamble to the proposed rule fails to describe the methodology used to arrive at the projections. The estimate is not based on any broad or accurate statistical data because there is no requirement or mechanism in place for petitioners to report annual burden hours. PRA Response 4: The supporting statement submitted in conjunction with the proposed rule described the methodology for arriving at the proposed projections, and was available upon request or at www.reginfo.gov. A revised supporting statement, which again describes the methodology used to arrive at the projections, has been submitted to OMB in conjunction with this final rule. The comment is correct that there is no requirement or mechanism in place for petitioners to report annual burden hours—the Department examined Congressional testimony and reached out to petitioners for help in developing its estimates. No change is necessary in response to this comment. PRA Comment 5: Most petitioners have a team of individuals working on their petitions, including group leaders and members, legal counsel, and professional researchers (such as anthropologists, historians, and genealogists). If each of these spent a quarter of their time working on a documented petition, the team would have an average of 4,160 annual burden hours. For an actual case, including all the information provided throughout VerDate Sep<11>2014 19:58 Jun 30, 2015 Jkt 235001 the process, including the stages that the Department is not including in its estimate, the team spent approximately 10,000 hours total. This experience strongly suggests the Department underestimated the annual burden hours with its estimate of 2,075. PRA Response 5: The burden hour estimate includes only the time that the petitioner itself expended in preparing the documented petition; the time that all professionals the petitioner had to hire to prepare the petition is accounted for as non-hour cost burden. In our development of the non-hour cost burden, we reached out to several petitioners (one of whom indicated the total hours reached 12,000 cumulative hours). No change is necessary in response to this comment. PRA Comment 6: Provisions of the proposed rule will slow down the acknowledgment process by: Incentivizing more documented petitions; allowing denied petitioners to re-petition; requiring OFA time to redact petition narratives; providing more extensive technical assistance to petitioners; allowing petitioners to withdraw from the review process; requiring appeals to OHA rather than IBIA; and requiring appeals of a final determination to go to Federal district court. PRA Response 6: Overall, this comment is not directly related to the Paperwork Reduction Act burdens; however, the Department disagrees with the assertions that the rule will slow down the acknowledgment process for the reasons stated elsewhere in this preamble. No change is necessary in response to this comment. 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. List of Subjects in 25 CFR Part 83 Administrative practice and procedure, Indians-tribal government. For the reasons stated in the preamble, the Department of the Interior, Bureau of Indian Affairs, PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 37887 revises part 83 in Title 25 of the Code of Federal Regulations as follows: PART 83—PROCEDURES FOR FEDERAL ACKNOWLEDGMENT OF INDIAN TRIBES Subpart A—General Provisions Sec. 83.1 What terms are used in this part? 83.2 What is the purpose of the regulations in this part? 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 July 31, 2015? 83.8 May the deadlines in this part be extended? 83.9 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 a previously federally acknowledged petitioner? 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 reviews? 83.30 Can a petitioner withdraw its documented petition? 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? E:\FR\FM\01JYR2.SGM 01JYR2 37888 Federal Register / Vol. 80, No. 126 / Wednesday, July 1, 2015 / Rules and Regulations Comment and Response Periods, Hearing 83.35 What opportunity will there be to comment after OFA issues the proposed finding? 83.36 What procedure follows the end of the comment period for a favorable proposed finding? 83.37 What procedure follows the end of the comment period on a negative proposed finding? 83.38 What options does the petitioner have at the end of the response period on a negative proposed finding? 83.39 What is the procedure if the petitioner elects to have a hearing before an ALJ? AS–IA Evaluation and Preparation of 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; Pub. L. 103–454 Sec. 103 (Nov. 2, 1994); and 43 U.S.C. 1457. Subpart A—General Provisions tkelley on DSK3SPTVN1PROD with RULES2 § 83.1 What terms are used in this part? As used in this part: ALJ means an administrative law judge in the Departmental Cases Hearings Division, Office of Hearings and Appeals (OHA), Department of the Interior, appointed under 5 U.S.C. 3105. Assistant Secretary or AS–IA means the Assistant Secretary—Indian Affairs within the Department of the Interior, or that officer’s authorized representative, but does not include representatives of the Office of Federal Acknowledgment. Autonomous means independent of the control of any other Indian governing entity. 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 claiming that it meets the Indian Entity Identification (§ 83.11(a)), Governing Document (§ 83.11(d)), Descent (§ 83.11(e)), Unique VerDate Sep<11>2014 19:58 Jun 30, 2015 Jkt 235001 Membership (§ 83.11(f)), and Congressional Termination (§ 83.11(g)) Criteria and claiming that it: (1) Demonstrates previous Federal acknowledgment under § 83.12(a) and meets the criteria in § 83.12(b); or (2) Meets the Community (§ 83.11(b)) and Political Authority (§ 83.11(c)) Criteria. Federally recognized Indian tribe means an entity listed on the Department of the Interior’s list under the Federally Recognized Indian Tribe List Act of 1994, which the Secretary currently acknowledges as an Indian tribe and with which the United States maintains a government-to-government relationship. Historical means before 1900. Indigenous means native to the continental United States in that at least part of the petitioner’s territory at the time of first sustained contact extended into what is now the continental United States. 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. 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 a tribal political entity and indicating clearly the recognition of a relationship between that entity and the United States. 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 roll means a list of those recognized as members by the tribe’s governing body. In either case, those individuals on a roll must have affirmatively demonstrated consent to being listed as members. Secretary means the Secretary of the Interior within the Department of the Interior or that officer’s authorized representative. Tribe means any Indian tribe, band, nation, pueblo, village or community. § 83.2 What is the purpose of the regulations in this part? The regulations in this part implement Federal statutes for the PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 benefit of Indian tribes by establishing procedures and criteria for the Department to use to determine whether a petitioner is an Indian tribe eligible for the special programs and services provided by the United States to Indians because of their status as Indians. A positive determination will result in Federal recognition status and the petitioner’s addition to the Department’s list of federally recognized Indian tribes. Federal recognition: (a) Is a prerequisite to the protection, services, and benefits of the Federal Government available to those that qualify as Indian tribes 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. § 83.3 Who does this part apply to? This part applies only to indigenous entities that are not federally recognized Indian tribes. § 83.4 Who cannot be acknowledged under this part? The Department will not acknowledge: (a) An association, organization, corporation, or entity of any character formed in recent times unless the entity has only changed form by recently incorporating or otherwise formalizing its existing politically autonomous community; (b) A splinter group, political faction, community, or entity of any character that separates from the main body of a currently federally recognized Indian tribe, petitioner, or previous petitioner unless the entity can clearly demonstrate it has functioned from 1900 until the present as a politically autonomous community and meets § 83.11(f), even though some have regarded them as part of or associated in some manner with a federally recognized Indian tribe; (c) An entity that is, or an entity whose members are, subject to congressional legislation terminating or forbidding the government-togovernment relationship; or (d) An entity that previously petitioned and was denied Federal acknowledgment under these regulations or under previous regulations in part 83 of this title E:\FR\FM\01JYR2.SGM 01JYR2 Federal Register / Vol. 80, No. 126 / Wednesday, July 1, 2015 / Rules and Regulations (including reconstituted, splinter, spinoff, or component groups who were once part of previously denied petitioners). § 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 Indian Entity Identification (§ 83.11(a)), Governing Document (§ 83.11(d)), Descent (§ 83.11(e)), Unique Membership (§ 83.11(f)), and Congressional Termination (§ 83.11(g)) Criteria and must: (a) Demonstrate previous Federal acknowledgment under § 83.12(a) and meet the criteria in § 83.12(b); or (b) Meet the Community (§ 83.11(b)) and Political Authority (§ 83.11(c)) Criteria. § 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, in accordance with the Federally Recognized Indian Tribe List Act of 1994. 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 examples of portions of documented petitions in the preferred format, though OFA will accept other formats. (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. tkelley on DSK3SPTVN1PROD with RULES2 § 83.7 How does this part apply to documented petitions submitted before August 17, 2015? (a) Any petitioner who has not submitted a complete documented petition as of July 31, 2015 must proceed under these revised regulations. We will notify these petitioners and provide them with a copy of the revised regulations by July 31, 2015. (b) By August 31, 2015, OFA will notify each petitioner that has submitted complete documented petitions but has not yet received a final agency decision that it must proceed under these revised regulations unless it chooses by September 29, 2015 to complete the petitioning process under the previous VerDate Sep<11>2014 19:58 Jun 30, 2015 Jkt 235001 version of the acknowledgment regulations as published in 25 CFR part 83, revised as of April 1, 1994. (c) Any petitioner who has submitted a documented petition under the previous version of the acknowledgment regulations and chooses to proceed under these revised regulations does not need to submit a new documented petition, but may supplement its petition. § 83.8 May the deadlines in this part be extended? (a) The AS–IA may extend any of the deadlines in this part upon a finding of good cause. (b) For deadlines applicable to the Department, AS–IA may extend the deadlines upon the consent of the petitioner. (c) If AS–IA grants a time extension, it will notify the petitioner and those listed in § 83.22(d). § 83.9 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 § 83.10 How will the Department evaluate each of the criteria? (a) The Department will consider a criterion in § 83.11 to be met if the available evidence establishes a reasonable likelihood of the validity of the facts relating to that criterion. (1) The Department will not require conclusive proof of the facts relating to a criterion in order to consider the criterion met. (2) The Department will require existence of community and political influence or authority be demonstrated on a substantially continuous basis, but this demonstration does not require meeting these criteria at every point in time. Fluctuations in tribal activity during various years will not in PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 37889 themselves be a cause for denial of acknowledgment under these criteria. (3) The petitioner may use the same evidence to establish more than one criterion. (4) Evidence or methodology that the Department found sufficient to satisfy any particular criterion in a previous decision will be sufficient to satisfy the criterion for a present petitioner. (b) When evaluating a petition, the Department will: (1) Allow criteria to be met by any suitable evidence, rather than requiring the specific forms of evidence stated in the criteria; (2) Take into account historical situations and time periods for which evidence is demonstrably limited or not available; (3) Take into account the limitations inherent in demonstrating historical existence of community and political influence or authority; (4) Require a demonstration that the criteria are met on a substantially continuous basis, meaning without substantial interruption; and (5) Apply these criteria in context with the history, regional differences, culture, and social organization of the petitioner. § 83.11 What are the criteria for acknowledgment as a federally recognized Indian tribe? The criteria for acknowledgment as a federally recognized Indian tribe are delineated in paragraphs (a) through (g) of this section. (a) Indian entity identification. The petitioner has been identified as an American Indian entity on a substantially continuous basis since 1900. Evidence that the group’s character as an Indian entity has from time to time been denied will not be considered to be conclusive evidence that this criterion has not been met. Evidence to be relied upon in determining a group’s Indian identity may include one or a combination of the following, as well as other evidence of identification. (1) Identification as an Indian entity by Federal authorities. (2) Relationships with State governments based on identification of the group as Indian. (3) Dealings with a county, parish, or other local government in a relationship based on the group’s Indian identity. (4) Identification as an Indian entity by anthropologists, historians, and/or other scholars. (5) Identification as an Indian entity in newspapers and books. (6) Identification as an Indian entity in relationships with Indian tribes or E:\FR\FM\01JYR2.SGM 01JYR2 tkelley on DSK3SPTVN1PROD with RULES2 37890 Federal Register / Vol. 80, No. 126 / Wednesday, July 1, 2015 / Rules and Regulations with national, regional, or state Indian organizations. (7) Identification as an Indian entity by the petitioner itself. (b) Community. The petitioner comprises a distinct community and demonstrates that it existed as a community from 1900 until the present. 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. Distinct community must be understood flexibly in the context of the history, geography, culture, and social organization of the entity. The petitioner may demonstrate that it meets this criterion by providing evidence for known adult members or by providing evidence of relationships of a reliable, statistically significant sample of known adult members. (1) The petitioner may demonstrate that it meets this criterion at a given point in time by some combination of two or more of the following forms of evidence or by other evidence to show that a significant and meaningful portion of the petitioner’s members constituted a distinct community at a given point in time: (i) Rates or patterns 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 nonmembers; (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 group as Indian. 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) Land set aside by a State for the petitioner, or collective ancestors of the petitioner, that was actively used by the community for that time period; (x) Children of members from a geographic area were placed in Indian VerDate Sep<11>2014 19:58 Jun 30, 2015 Jkt 235001 boarding schools or other Indian educational institutions, to the extent that supporting evidence documents the community claimed; or (xi) A demonstration of political influence under the criterion in § 83.11(c)(1) will be evidence for demonstrating distinct community for that same time period. (2) The petitioner will be considered to have provided more than sufficient evidence to demonstrate distinct community and political authority under § 83.11(c) 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 members of the entity were married to other 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 § 83.11(c) using evidence described in § 83.11(c)(2). (c) Political influence or authority. The petitioner has maintained political influence or authority over its members as an autonomous entity from 1900 until the present. Political influence or authority means the entity uses a council, leadership, internal process, or other mechanism 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 flexibly 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 forms of evidence or by other evidence that the petitioner had political influence or authority over its members as an autonomous entity: (i) The entity is able to mobilize significant numbers of members and significant resources from its members for entity purposes. PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 (ii) Many of the membership consider 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 many of the entity’s members. (iv) The entity meets the criterion in § 83.11(b) at greater than or equal to the percentages set forth under § 83.11(b)(2). (v) There are internal conflicts that show controversy over valued entity goals, properties, policies, processes, or decisions. (vi) The government of a federally recognized Indian tribe has a significant relationship with the leaders or the governing body of the petitioner. (vii) Land set aside by a State for petitioner, or collective ancestors of the petitioner, that is actively used for that time period. (viii) There is a continuous line of entity leaders and a means of selection or acquiescence by a significant number 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 § 83.11(b)(2) at a given time. (d) Governing document. The petitioner must provide: (1) A copy of the entity’s present governing document, including its membership criteria; or (2) In the absence of a governing document, a written statement describing in full its membership criteria and current governing procedures. (e) Descent. The petitioner’s membership consists of individuals who descend from a historical Indian tribe (or from historical Indian tribes that combined and functioned as a single autonomous political entity). (1) The petitioner satisfies this criterion by demonstrating that the E:\FR\FM\01JYR2.SGM 01JYR2 tkelley on DSK3SPTVN1PROD with RULES2 Federal Register / Vol. 80, No. 126 / Wednesday, July 1, 2015 / Rules and Regulations petitioner’s members descend from a tribal 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, unless significant countervailing evidence establishes that the tribal roll is substantively inaccurate; or (2) If no tribal roll was directed by Congress or prepared by the Secretary, the petitioner satisfies this criterion by demonstrating descent from a historical Indian tribe (or from historical Indian tribes that combined and functioned as a single autonomous political entity) with sufficient evidence including, but not limited to, one or a combination of the following identifying present members or ancestors of present members as being descendants of a historical Indian tribe (or of historical Indian tribes that combined and functioned as a single autonomous political entity): (i) Federal, State, or other official records or evidence; (ii) Church, school, or other similar enrollment records; (iii) Records created by historians and anthropologists in historical times; (iv) Affidavits of recognition by tribal elders, leaders, or the tribal governing body with personal knowledge; and (v) Other records or evidence. (f) Unique membership. The petitioner’s membership is composed principally of persons who are not members of any federally recognized Indian tribe. 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: (1) It has functioned as a separate politically autonomous community by satisfying criteria in paragraphs (b) and (c) of this section; and (2) Its members have provided written confirmation of their membership in the petitioner. (g) Congressional termination. Neither the petitioner nor its members are the subject of congressional legislation that has expressly terminated or forbidden the Federal relationship. The Department must determine whether the petitioner meets this criterion, and the petitioner is not required to submit evidence to meet it. § 83.12 What are the criteria for a previously federally acknowledged petitioner? (a) The petitioner may prove it was previously acknowledged as a federally VerDate Sep<11>2014 19:58 Jun 30, 2015 Jkt 235001 recognized Indian tribe, or is a portion that evolved out of a previously federally recognized Indian tribe, by providing substantial evidence of unambiguous Federal acknowledgment, meaning that the United States Government recognized the petitioner as an Indian tribe eligible for the special programs and services provided by the United States to Indians because of their status as Indians with which the United States carried on a 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; (3) Been treated by the Federal Government as having collective rights in tribal lands or funds; or (4) Land held for it or its collective ancestors by the United States. (b) Once the petitioner establishes that it was previously acknowledged, it must demonstrate that it meets: (1) At present, the Community Criterion; and (2) Since the time of previous Federal acknowledgment or 1900, whichever is later, the Indian Entity Identification Criterion and Political Authority Criterion. Subpart C—Process for Federal Acknowledgment Documented Petition Submission and Review § 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: Department of the Interior, Office of the Assistant Secretary—Indian Affairs, Attention: Office of Federal Acknowledgement, 1951 Constitution Ave. NW., Washington, DC 20240. § 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 citations to supporting documentation, thoroughly explaining how the petitioner meets each of the criteria in § 83.11, except the Congressional Termination Criterion (§ 83.11 (g))— (i) If the petitioner chooses to provide explanations of and supporting documentation for the Congressional PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 37891 Termination Criterion (§ 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 (§ 83.11 (g)). (3) Supporting documentation cited in the written narrative and containing specific, detailed evidence that the petitioner meets each of the criteria in § 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, if any), 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) If the documented petition contains any information that is protectable under Federal law such as the Privacy Act and Freedom of Information Act, the petitioner must provide a redacted version, an unredacted version of the relevant pages, and an explanation of the legal basis for withholding such information from public release. The Department will not publicly release information that is protectable under Federal law, but may release redacted information if not protectable under Federal law. § 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 § 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 entities to submit comments and E:\FR\FM\01JYR2.SGM 01JYR2 tkelley on DSK3SPTVN1PROD with RULES2 37892 Federal Register / Vol. 80, No. 126 / Wednesday, July 1, 2015 / Rules and Regulations evidence supporting or opposing the petitioner’s request for acknowledgment within 120 days of the date of the Web site posting; and (v) The opportunity for individuals and entities to request to be kept informed of general actions regarding a specific petitioner. (2) Notify, in writing, the following: (i) The governor of the State in which the petitioner is located; (ii) The attorney general of the State in which the petitioner is located; (iii) The government of the countylevel (or equivalent) jurisdiction in which the petitioner is located; and (iv) Notify any 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 the following additional information to the OFA Web site: (1) Other portions of the documented petition, to the extent feasible and allowable under Federal law, except documentation and information protectable from disclosure under Federal law, as identified by Petitioner under § 83.21(b) or otherwise; (2) Any comments or materials submitted by third parties to OFA relating to the documented petition; (3) Any substantive letter, proposed finding, recommended decision, and final determination issued by the Department; (4) OFA’s contact list for each petitioner, including the point of contact for the petitioner; attorneys, and representatives; and (5) Contact information for any other individuals and entities that request to be kept informed of general actions regarding the petitioner. (d) All subsequent notices that the Department provides under this part will be provided via the most efficient means for OFA to: (1) The governor of the State in which the petitioner is located; (2) The attorney general of the State in which the petitioner is located; (3) The government of the countylevel (or equivalent) jurisdiction in which the petitioner is located; (4) Any 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; and (5) Any individuals and entities that request to be kept informed of general actions regarding a specific petitioner. VerDate Sep<11>2014 19:58 Jun 30, 2015 Jkt 235001 Review of Documented Petition § 83.23 How will OFA determine which documented petition to consider first? (a) OFA will begin reviews of documented petitions in the order of their receipt. (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 give highest priority to completing reviews of documented petitions it has already begun to review. (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 July 31, 2015, or incomplete (i.e., not fully documented) 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. § 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 entities under § 83.22(b) and provide the petitioner with 90 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. § 83.25 Who will OFA notify when it begins review of a documented petition? OFA will notify the petitioner and those listed in § 83.22(d) when it begins review of a documented petition and will provide the petitioner and those listed in § 83.22(d) 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. § 83.26 How will OFA review a documented petition? (a) Phase I. When reviewing a documented petition, OFA will first determine if the petitioner meets the Governing Document Criterion PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 (§ 83.11(d)), Descent Criterion (§ 83.11(e)), Unique Membership Criterion (§ 83.11(f)), and Termination Criterion (§ 83.11(g)), in accordance with the following steps. (1)(i) OFA will conduct a Phase I technical assistance review and notify the petitioner by letter of any deficiencies that would prevent the petitioner from meeting the Governing Document, Descent, Unique Membership, or Termination Criteria. Upon receipt of the letter, the petitioner must submit a written response that: (A) Withdraws the documented petition to further prepare the petition; (B) Submits additional information and/or clarification; or (C) Asks OFA to proceed with the review. (ii) If the documented petition claims previous Federal acknowledgment and/ or includes evidence of previous Federal acknowledgment, the Phase I technical assistance review will include a review to determine whether that evidence meets the requirements of previous Federal acknowledgment (§ 83.12). (2) Following the receipt of the petitioner’s written response to the Phase I technical assistance review, OFA will provide the petitioner with: (i) Any comments and evidence OFA may consider that the petitioner does not already have, to the extent allowable by Federal law; and (ii) The opportunity to respond in writing to the comments and evidence provided. (3) OFA will publish a negative proposed finding if it issues a deficiency letter under paragraph (a)(1)(i) of this section, and the petitioner: (i) Does not withdraw the documented petition or does not respond with information or clarification sufficient to address the deficiencies; or (ii) Asks OFA in writing to proceed with the review. (4) OFA will publish a positive proposed finding and proceed to Phase II if it determines that the petitioner meets the Governing Document, Descent, Unique Membership, and Termination criteria. (b) Phase II. If the petitioner meets the Governing Document, Descent, Unique Membership, and Termination criteria, OFA will next review whether the petitioner meets the Indian Entity Identification Criterion (§ 83.11(a)), the Community Criterion (§ 83.11(b)), and the Political Influence/Authority Criterion (§ 83.11(c)). If the petitioner claims previous Federal acknowledgment, the Department will also review whether petitioner proves E:\FR\FM\01JYR2.SGM 01JYR2 Federal Register / Vol. 80, No. 126 / Wednesday, July 1, 2015 / Rules and Regulations previous Federal acknowledgment and, if so, will review whether the petitioner meets the criteria under § 83.12(b). (1) OFA will conduct a Phase II technical assistance review and notify the petitioner by letter of any deficiencies that would prevent the petitioner from meeting these criteria. Upon receipt of the letter, the petitioner must submit a written response that: (i) Withdraws the documented petition to further prepare the petition; (ii) Provides additional information and/or clarification; or (iii) Asks OFA to proceed with the review. (2) Following receipt of the petitioner’s written response to the Phase II 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 have, to the extent allowable by Federal law; and (ii) The opportunity to respond in writing to the comments and evidence provided. (3) OFA will then review the record to determine: (i) For petitioners with previous Federal acknowledgment, whether the criteria at § 83.12(b) are met; or (ii) For petitioners without previous Federal acknowledgment, whether the Indian Entity Identification (§ 83.11(a)), Community (§ 83.11(b)) and Political Authority (§ 83.11(c)) Criteria are met. (4) OFA will publish a negative proposed finding if it issues a deficiency letter under paragraph (a)(1) of this section, and the petitioner: (i) Does not withdraw the documented petition or does not respond with information or clarification sufficient to address the deficiencies; or (ii) Asks OFA in writing to proceed with the review. (5) OFA will publish a positive proposed finding if it determines that the petitioner meets the Indian Entity Identification (§ 83.11(a)), Community (§ 83.11(b)) and Political Authority (§ 83.11(c)) Criteria or, for petitioners with previous Federal acknowledgment, that the petitioner meets the criteria at § 83.12(b). § 83.27 What are technical assistance reviews? Technical assistance reviews are preliminary reviews for OFA to tell the petitioner where there appear to be evidentiary 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. § 83.28 When does OFA review for previous Federal acknowledgment? (a) OFA reviews the documented petition for previous Federal acknowledgment during the Phase II technical assistance review of the documented petition. (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. § 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 and evidence on the petition received during the comment period, and petitioners’ responses to comments and evidence received during the response period. (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 timely submitted additional explanations and information from commenting parties to 37893 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. § 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 end of the numbered register of documented petitions upon resubmission and may not regain its initial priority number. § 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 that temporarily preclude continuing review; and (2) Approval by the Assistant Secretary. (b) Upon resolution of 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 those listed in § 83.22(d) when it suspends and when it resumes review of the documented petition. (2) Upon the resumption of review, OFA will have the full six months to issue a proposed finding. Proposed Finding § 83.32 When will OFA issue a proposed finding? (a) OFA will issue a proposed finding as shown in the following table: within . . . (1) Complete its review under Phase I and either issue a negative proposed finding and publish a notice of availability in the Federal Register, or proceed to review under Phase II. (2) Complete its review under Phase II and issue a proposed finding and publish a notice of availability in the Federal Register. tkelley on DSK3SPTVN1PROD with RULES2 OFA must six months after notifying the petitioner under § 83.25 that OFA has begun review of the petition. (b) The times set out in paragraph (a) of this section will be suspended any time the Department is waiting for a VerDate Sep<11>2014 19:58 Jun 30, 2015 Jkt 235001 six months after the deadline in paragraph (a)(1) of this section. response or additional information from the petitioner. (c) OFA will strive to limit the proposed finding and any reports to no PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 more than 100 pages, cumulatively, excluding source documents. E:\FR\FM\01JYR2.SGM 01JYR2 37894 Federal Register / Vol. 80, No. 126 / Wednesday, July 1, 2015 / Rules and Regulations § 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: Governing Document (§ 83.11(d)), Descent (§ 83.11(e)), Unique Membership (§ 83.11(f)), or Congressional Termination (§ 83.11(g)). (b) A Phase II proposed finding will address whether the petitioner meets the following criteria: Indian Entity Existence (§ 83.11(a)), Community (§ 83.11(b)), and Political Influence/ Authority (§ 83.11(c)). § 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 those listed in § 83.22(d); and (b) Publish the proposed finding and reports on the OFA Web site. Proposed Finding—Comment and Response Periods, Hearing § 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 120-day comment period. During this comment period, the petitioner or any individual or entity may submit the following to OFA 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 individual or entity that submits comments and evidence must provide the petitioner with a copy of their submission. § 83.36 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 OFA does not receive a timely objection with evidence challenging the proposed finding that the petitioner meets the acknowledgment criteria. (b) If OFA has received a timely objection and evidence challenging the favorable proposed finding, then the petitioner will have 60 days to submit a written response, with citations to and explanations of supporting evidence, and the supporting evidence cited and explained in the response. The Department will not consider additional comments or evidence on the proposed finding submitted by individuals or entities during this response period. § 83.37 What procedure follows the end of the comment period on a negative proposed finding? If OFA has received comments on the negative proposed finding, then the petitioner will have 60 days to submit a written response, with citations to and explanations of supporting evidence, and the supporting evidence cited and explained in the response. The Department will not consider additional comments or evidence on the proposed finding submitted by individuals or entities during this response period. § 83.38 What options does the petitioner have at the end of the response period on a negative proposed finding? (a) At the end of the response period for a negative proposed finding, the petitioner will have 60 days to elect to challenge the proposed finding before an ALJ by sending to the Departmental Cases Hearings Division, Office of Hearings and Appeals, with a copy to OFA a written election of hearing that lists: (1) Grounds for challenging the proposed finding, including issues of law and issues of material fact; and (2) The witnesses and exhibits the petitioner intends to present at the hearing, other than solely for impeachment purposes, including: (i) 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 (ii) For each exhibit listed, a statement confirming that the exhibit is in the administrative record reviewed by OFA or is a previous final determination of a petitioner issued by the Department. (b) The Department will not consider additional comments or evidence on the proposed finding submitted by individuals or entities during this period. § 83.39 What is the procedure if the petitioner elects to have a hearing before an ALJ? (a) If the petitioner elects a hearing to challenge the proposed finding before an ALJ, OFA will provide to the Departmental Cases Hearings Division, Office of Hearings and Appeals, copies of the negative proposed finding, critical documents from the administrative record that are central to the portions of the negative proposed finding at issue, and any comments and evidence and responses sent in response to the proposed finding. (1) Within 5 business days after receipt of the petitioner’s hearing election, OFA will send notice of the election to each of those listed in § 83.22(d) and the Departmental Cases Hearings Division by express mail or courier service for delivery on the next business day. (2) OFA will retain custody of the entire, original administrative record. (b) Hearing process. The assigned ALJ 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 ALJ. The hearing record will become part of the record considered by AS–IA in reaching a final determination. (d) Recommended decision. The ALJ will issue a recommended decision and forward it along with the hearing 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 § 83.40 When will the Assistant Secretary begin review? (a) AS–IA will begin his/her review in accordance with the following table: tkelley on DSK3SPTVN1PROD with RULES2 If the PF was: And: AS–IA will begin review upon: (1) Negative ..................................... The petitioner did not elect a hearing .............. (2) Negative ..................................... (3) Positive ...................................... (4) Positive ...................................... The petitioner elected a hearing ...................... No objections with evidence were received .... Objections with evidence were received ......... Expiration of the period for the petitioner to elect a hearing. Receipt of the ALJ’s recommended decision. Expiration of the comment period for the positive PF. Expiration of the period for the petitioner to respond to comments on the positive PF. VerDate Sep<11>2014 19:58 Jun 30, 2015 Jkt 235001 PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 E:\FR\FM\01JYR2.SGM 01JYR2 Federal Register / Vol. 80, No. 126 / Wednesday, July 1, 2015 / Rules and Regulations (b) AS–IA will notify the petitioner and those listed in § 83.22(d) of the date he/she begins consideration. § 83.41 What will the Assistant Secretary consider in his/her review? (a) AS–IA will consider all the evidence in the administrative record, including any comments and responses on the proposed finding and any the hearing transcript and recommended decision. (b) AS–IA will not consider comments submitted after the close of the comment period in § 83.35, the response period in § 83.36 or § 83.37, or the hearing election period in § 83.38. § 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 those listed in § 83.22(d); and (2) Make copies of the final determination available to others upon written request. (b) AS–IA will strive to limit the final determination and any reports to no more than 100 pages, cumulatively, excluding source documents. (1) Demonstrates previous Federal acknowledgment under § 83.12(a) and meets the criteria in § 83.12(b); or (2) Meets the Indian Entity Identification (§ 83.11(a)), Community (§ 83.11(b)) and Political Authority (§ 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: (1) In Phase I, does not meet the Governing Document (§ 83.11(d)), Descent (§ 83.11(e)), Unique Membership (§ 83.11(f)), or Congressional Termination (§ 83.11(g)) Criteria: or (2) In Phase II, does not: (i) Demonstrate previous Federal acknowledgment under § 83.12(a) and meet the criteria in § 83.12(b); or (ii) Meet the Indian Entity Identification (§ 83.11(a)), Community (§ 83.11(b)) and Political Authority (§ 83.11(c)) Criteria. § 83.44 Is the Assistant Secretary’s final determination final for the Department? Yes. The AS–IA’s final determination is final for the Department and is a final agency action under the Administrative Procedure Act (5 U.S.C. 704). § 83.45 When will the final determination be effective? (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 Governing Document (§ 83.11(d)), Descent (§ 83.11(e)), Unique Membership (§ 83.11(f)), and Congressional Termination (§ 83.11(g)) Criteria and: tkelley on DSK3SPTVN1PROD with RULES2 § 83.43 How will the Assistant Secretary make the determination decision? The final determination will become immediately effective. Within 10 business days of the decision, the Assistant Secretary will submit to the Federal Register a notice of the final determination to be published in the Federal Register. VerDate Sep<11>2014 19:58 Jun 30, 2015 Jkt 235001 PO 00000 § 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. 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 acknowledged 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 newly federally acknowledged 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 acknowledged Indian tribe. Dated: June 23, 2015. Kevin K. Washburn, Assistant Secretary—Indian Affairs. [FR Doc. 2015–16193 Filed 6–29–15; 11:15 am] BILLING CODE 4337–15–P Frm 00035 Fmt 4701 Sfmt 9990 37895 E:\FR\FM\01JYR2.SGM 01JYR2

Agencies

[Federal Register Volume 80, Number 126 (Wednesday, July 1, 2015)]
[Rules and Regulations]
[Pages 37861-37895]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-16193]



[[Page 37861]]

Vol. 80

Wednesday,

No. 126

July 1, 2015

Part IV





Department of the Interior





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Bureau of Indian Affairs





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25 CFR Part 83





Federal Acknowledgment of American Indian Tribes; Final Rule

Federal Register / Vol. 80 , No. 126 / Wednesday, July 1, 2015 / 
Rules and Regulations

[[Page 37862]]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 83

[156A2100DD/AAKC001030/A0A501010.999900 253G]
RIN 1076-AF18


Federal Acknowledgment of American Indian Tribes

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Final rule.

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SUMMARY: This rule revises 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 and substantive rigor of 
the process. For decades, the current process has been criticized as 
``broken'' and 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. This rule reforms the process by, among other 
things, institutionalizing a phased review that allows for faster 
decisions; reducing the documentary burden while maintaining the 
existing rigor of the process; allowing for a hearing on a negative 
proposed finding to promote transparency and integrity; enhancing 
notice to tribes and local governments and enhancing transparency by 
posting all publicly available petition documents on the Department's 
Web site; establishing the Assistant Secretary's final determination as 
final for the Department to promote efficiency; and codifying and 
improving upon past Departmental implementation of standards, where 
appropriate, to ensure consistency, transparency, predictability and 
fairness.

DATES: This rule is effective July 31, 2015.

FOR FURTHER INFORMATION CONTACT: Elizabeth Appel, Director, Office of 
Regulatory Affairs & Collaborative Action--Indian Affairs, (202) 273-
4680; elizabeth.appel@bia.gov.

SUPPLEMENTARY INFORMATION: 
I. Executive Summary of Rule
II. History and Development of the Rule
III. Comments on the Proposed Rule and the Department's Responses
    A. Criteria
    1. Criteria, Generally
    2. Criterion (a)
    a. Proposed Elimination of Current ``Criterion (a)'' and 
Requirement for External Observer as an Independent Criterion
    b. Proposed Criterion (a), Requiring Narrative of Pre-1900 
Existence
    3. Criterion (e) (Descent)
    a. Requirement for 80 percent Descent
    b. Descent as a Race-Based Criterion
    c. Defining ``historical'' to be 1900 or earlier
    d. Evidence in Support of Descent
    e. Review of Descent
    4. 1934 Starting Date for Evaluating Criteria (b) (Community) 
and (c) (Political Influence/Authority)
    5. State Reservations and U.S.-Held Land in Criteria (b) and (c)
    6. Criterion (b) (Community)
    a. Using 30 percent as a Baseline
    b. Allowing Sampling for Criterion (b)
    c. Deletion of ``Significant'' in Criterion (b)
    d. Marriages/Endogamy as Evidence of Community
    e. Indian Schools as Evidence of Community
    f. Language as Evidence of Community
    g. Nomenclature as Evidence of Community
    h. Other Evidence of Community
    7. Criterion (c) (Political Influence/Authority)
    a. Bilateral Political Relationship
    b. ``Show a continuous line of entity leaders and a means of 
selection or acquiescence by a majority of the entity's members''
    c. Evidence
    8. ``Substantially Continuous Basis, Without Substantial 
Interruption''
    9. Criterion (f) (Unique Membership)
    a. Criterion (f), In General
    b. Deletion of previous rule's provision prohibiting members 
from maintaining a ``bilateral political relationship'' with the 
federally recognized tribe
    c. Exception for Members of Petitioners Who Filed Prior to 2010
    10. Criterion (g) (Termination)
    11. Splinter Groups
    B. Re-Petitioning
    C. Standard of Proof
    D. Third-Party Participation in the Acknowledgment Process
    1. Who Receives Notice of the Receipt of the Petition
    2. Deletion of Interested Party Status
    3. Comment Periods
    E. Process--Approach
    1. Letter of Intent
    2. Phased Review
    3. Technical Assistance
    4. Providing Petitioner With Opportunities to Respond
    5. Suspensions (proposed 83.31) and Withdrawals (proposed 83.30)
    6. Decision-Maker
    7. Automatic Final Determination
    8 Prioritizing Reviews
    9. Proceeding under the New or Old Version of the Regulations
    10. Precedent and Other Comments
    F. Petitioning Process Timelines
    1. Timelines--Overall
    2. Timelines--Notice of Receipt of Documented Petition
    3. Timelines--Petitioner Response to Comments Prior to PF
    4. Timelines--Issuance of a PF
    5. Timelines--Comment Period on PF
    6. Timelines--Period for Petitioner's Response to Comments on a 
Positive PF
    7. Timelines--Petitioner Response to Comments and/or Election of 
Hearing
    8. Timelines--Issuance of FD
    G. Hearings
    1. Deleting the IBIA Reconsideration Process, and Adding a 
Hearing on the PF
    2. Opportunity for Third Parties to Request a Hearing and 
Intervene in Hearings
    3. Hearing Process Timelines
    4. Scope of Record
    5. Presiding Judge Over Hearings
    6. Conduct of the Hearing
    7. Miscellaneous Hearing Process Comments
    H. Previous Federal Acknowledgment
    I. Automatic Disclosure of Documents
    J. Elimination of Enrollment Limitations
    K. Purpose (Proposed 83.2)
    L. Definitions
    1. ``Historical''
    2. ``Indigenous''
    3. ``Tribe''
    4. Other Definitions
IV. Legislative Authority
V. Procedural Requirements
    A. Regulatory Planning and Review (E.O. 12866 and 13563)
    B. Regulatory Flexibility Act
    C. Small Business Regulatory Enforcement Fairness Act
    D. Unfunded Mandates Reform Act
    E. Takings (E.O. 12630)
    F. Federalism (E.O. 13132)
    G. Civil Justice Reform (E.O. 12988)
    H. Consultation with Indian Tribes (E.O. 13175)
    I. Paperwork Reduction Act
    J. National Environmental Policy Act
    K. Effects on the Energy Supply (E.O. 13211)

I. Executive Summary of Rule

    This rule updates Part 83 to improve the processing of petitions 
for Federal acknowledgment of Indian tribes, with an aim of making the 
process more transparent, promoting fairness and consistent 
implementation, and increasing timeliness and efficiency, while 
maintaining the integrity and substantive rigor of the process. Primary 
revisions to the process would:
     Increase timeliness and efficiency by providing for a two-
phased review of petitions that establishes certain criteria as 
threshold criteria, potentially resulting in the issuance of proposed 
findings and final determinations earlier in the process and thereby 
expediting negative decisions (e.g., if a petitioner's membership does 
not consist of individuals who descend from a historical Indian tribe);
     Increase timeliness and efficiency while maintaining the 
substantive rigor and integrity of the process by providing a uniform 
start date of 1900 for criteria

[[Page 37863]]

(a) Identification, (b) Community and (c) Political Influence/
Authority;
     Promote fairness and consistent implementation by 
providing that if a prior decision finding evidence or methodology was 
sufficient to satisfy any particular criterion, the Department will 
find that evidence or methodology sufficient to satisfy the criterion 
for a present petitioner;
     Promote transparency by providing that the Office of 
Federal Acknowledgment (OFA), rather than the Assistant Secretary, will 
issue the proposed finding (PF);
     Promote fairness, objectivity, transparency and consistent 
implementation by offering petitioners who receive a negative PF the 
opportunity for a hearing, in which third parties may intervene, to 
address their objections to the PF before an administrative law judge 
(ALJ) who will then provide a recommended decision to the Assistant 
Secretary;
     Promote transparency by requiring all publicly available 
documents relating to a petition be posted on the Department's Web site 
and providing broader notice to local governments;
     Promote fairness, transparency and efficiency by providing 
that the Assistant Secretary will review the PF and the record, 
including an ALJ's recommended decision, and issue a final 
determination that is final for the Department, such that any 
challenges to the final determination would be pursued in United States 
District Court rather than in an administrative forum; and
     Promote efficiency by eliminating the process before the 
Interior Board of Indian Appeals (IBIA) providing for limited 
reconsideration of final determinations.
    This rule clarifies the criteria by codifying past Departmental 
practice in implementing the criteria. An overriding purpose for 
codification is to address assertions of arbitrariness and ensure 
consistency. If methodology or evidence was sufficient to satisfy a 
particular criterion in a decision for a previous petitioner, such 
evidence or methodology is sufficient to satisfy the particular 
criterion for a current petitioner. This clarification ensures that a 
criterion is not applied in a manner that raises the bar for each 
subsequent petitioner. Evidence or methodology that was sufficient to 
satisfy a criterion at any point since 1978 remains sufficient to 
satisfy the criterion today.
    The rule does not substantively change the Part 83 criteria, except 
in two instances.
     One instance is that the final rule retains the current 
criterion (a), requiring identification of the petitioner as an Indian 
entity, but does not limit the evidence in support of this criterion to 
observations by those external to the petitioner. In other words, the 
final rule allows the Department to accept any and all evidence, such 
as the petitioner's own contemporaneous records, as evidence that the 
petitioner has been an Indian entity since 1900.
     The other instance in which the criteria is changed is in 
the review of the number of marriages in support of criterion (b) 
(community)--past Departmental practice has been to count the number of 
marriages within a petitioner; this rule instead provides that the 
Department count the number of petitioner members who are married to 
others in the petitioning group.
    The final rule differs from the proposed rule in a number of 
important respects. First, the final rule does not adopt the proposed 
evaluation start date for criteria (b) (Community) and (c) (Political 
Authority) of 1934. See the response to comments below. Rather, the 
final rule starts this evaluation at 1900. The Department does not 
classify the start date change, from 1789 or the time of first 
sustained contact to 1900, as a substantive change to the existing 
criteria because: (1) 1900 is squarely during a particularly difficult 
Federal policy era for tribes--there were strong forces encouraging 
allotment of Indian lands and assimilation of Indian people and the 
federal government discouraged tribes from maintaining community and 
political authority during that time period; (2) depending on the 
history of an area, first sustained contact for some petitioners was as 
late as the mid-1800s; (3) the regulations currently provide for a 1900 
start date for criterion (a) and utilization of that start date for 
over 20 years has demonstrated that the date maintains the rigor of the 
criteria; (4) records are generally more available beginning in 1900, 
making the lack thereof more compelling too; and (5) a consistent start 
date will apply the same documentary burden to every petitioner 
uniformly across the country. Further, based on its experience in 
nearly 40 years of implementing the regulations, every group that has 
proven its existence from 1900 forward has successfully proven its 
existence prior to that time as well, making 1900 to the present a 
reliable proxy for all of history but at less expense. Further, in 1994 
the Department implemented 1900 as a start date for evaluation of 
criterion (a) to reduce the documentary burden of this criterion while 
retaining the requirement for substantially continuous identification 
as an Indian entity. In other words, the time since 1900 has been shown 
to be an effective and reliable demonstration for historical times for 
criterion (a). Starting the evaluation of the community and political 
authority criteria will promote uniformity for criteria (a), (b) and 
(c). Relying upon 1900 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, all while 
maintaining the integrity and rigor of the process.
    Second, the final rule defines ``historical'' as prior to 1900. 
Using pre-1900 for the end date of ``historical'' and 1900 for the 
start date for analysis of community and political influence/authority 
allows for a rigorous and seamless examination of each petitioner, 
requiring evidence of descent from a historical Indian tribe that 
existed prior to 1900 and requiring an evaluation of identification, 
community, and political influence/authority for more than a century 
from 1900 to the present. The final rule also retains the current 
requirement that a criterion be met ``without substantial 
interruption.'' The final rule does not incorporate the proposed 
definition of this phrase, instead allowing for the Department's 
continued interpretation consistent with any past positive finding on a 
criterion made as part of, or incorporated in, a final agency decision. 
Consistent with the Department's previous final decisions, documentary 
gaps longer than 10 years may be justified in certain historical 
situations and context.
    Third, the final rule maintains the current standard of proof as 
``reasonable likelihood'' without the proposed incorporation of 
judicial explanations of the phrase.
    Fourth, the final rule does not incorporate the proposal for 
limited re-petitioning, as explained in the response to comments below.
    To encourage conciseness, which improves transparency and 
facilitates public understanding of our decisions, the revisions 
provide that the Department will strive to abide by page limits for the 
proposed finding and final determination. To ensure transparency, the 
revisions require the Department to make available on the Internet the 
narrative of the petition, other parts of the petition, comments or 
materials submitted by third parties to OFA relating to the documented 
petition, and any letter, proposed finding, recommended decision, and 
final determination issued by the Department

[[Page 37864]]

that the Department is publicly releasing in accordance with Federal 
law. This rule also comprehensively revises part 83 to comply with 
plain language standards, using a question-and-answer format.

II. History and Development of the Rule

    For many years, the process for acknowledgment of American Indian 
and Alaska Native tribes has been criticized as broken. Since the 
establishment of the Part 83 process, multiple Congressional hearings 
have been held to address its failings. Some members of Congress, such 
as Chairman John Barrasso of the Senate Committee on Indian Affairs, 
have stated that the process simply takes too long. S. Hrg. 112-684 
(July 12, 2012). Previous Chairs of the Senate Committee on Indian 
Affairs, such as Byron Dorgan, have raised similar critiques. S. Hrg. 
110-189 (September 19, 2007). Congressional leaders in the House have 
raised other concerns. For example, Congressman Tom Cole has said that 
the process is ``complex,'' ``controversial,'' and ``frankly, has not 
worked well.'' H. Hrg. No. 110-47 (October 3, 2007). Chairman Don Young 
has said that ``reforms to expedite the process and to upgrade the 
fairness, consistency, and transparency are warranted.'' H. Hrg. No. 
110-47 (October 3, 2007). Others have supported the Department's 
efforts to reform Part 83. For example, Senator Tim Kaine stated he is 
``encouraged by BIA's efforts to improve its federal recognition 
process'' and ``support[s] the Department's efforts to expedite the 
federal recognition process, add transparency, and provide multiple 
opportunities for petitioners to engage the Department during the 
decision-making process.'' September 30, 2014, letter from Senator Tim 
Kaine to Assistant Secretary--Indian Affairs Kevin K. Washburn.
    Members of Congress are joined by others in criticism of the 
current regulation. A 2001 GAO Report entitled ``Improvements Needed in 
Tribal Recognition Process'' (Nov. 2001), is an example. The political 
nature of this work has also drawn scrutiny from the Department's 
Office of Inspector General (``Allegations Involving Irregularities in 
the Tribal Recognition Process,'' Report No. 01-I-00329, Feb. 2002).
    Despite wide agreement by the public that this process is broken, 
solutions are not obvious because members of the public have differing 
perspectives on the exact nature of the problems. Some reforms are as 
controversial as the broken process. Individual decisions are highly 
contested. Of the 51 petitions resolved since this process began, only 
17 petitions have been approved for acknowledgment and 34 have been 
denied. Far more tribes have been recognized by Congress during this 
time period, and Congress unquestionably has the power, in the first 
instance, to speak for the United States on recognition of groups as 
Indian tribes.
    Some think that the acknowledgment process is strongly related to 
gaming. The facts do not bear this out. Many of the petitioning groups 
came forward a long time ago. As the late Senator Daniel K. Inouye 
observed, if gaming were the driving force, ``we would have to 
attribute to many of the petitioning tribal groups a clairvoyance that 
they knew that one day in the distant future there was going to be a 
Supreme Court decision and thereafter the Congress was going to enact a 
law authorizing and regulating the conduct of gaming. . . .'' S. Hrg 
109-91 at 3. Of the 17 tribes that have been recognized since this 
process began 37 years ago, only 11 have obtained land in trust, a 
process regulated by an additional, separate set of regulations (25 CFR 
part 151), and only 9 of these currently engage in Indian gaming. Of 
course, Congress has enacted a detailed law establishing whether trust 
land is eligible for gaming. It is set forth in the Indian Gaming 
Regulatory Act of 1988 (IGRA) and the Department has promulgated 
separate regulations implementing IGRA (25 CFR part 292). For those 9 
tribes that successfully navigated acknowledgment and obtained land in 
trust, it took, on average, nearly 10 years after acknowledgment to 
engage in Indian gaming.
    The Department sought wide input in reforming Part 83 and used 
extraordinary process. It formed an internal workgroup in 2009 to 
reform the process through rulemaking. At a hearing before the House 
Subcommittee on Indian and Alaska Native Affairs in March of 2013, the 
Department explained the process it would follow in pursuing reform and 
set forth goals. After publicly identifying goals of reform of the 
regulations, the Department distributed a ``Discussion Draft'' of 
revisions to Part 83 in June 2013. In July and August 2013, the 
Department hosted five consultation sessions with federally recognized 
Indian tribes and five public meetings at various locations across the 
country. The Department received approximately 350 written comment 
submissions on the Discussion Draft, which were made available on its 
Web site with the transcripts of each consultation and public meeting. 
After considering all written comments as well as comments received at 
consultation sessions and public meetings, the Department developed and 
published a proposed rule. See 79 FR 30766 (May 29, 2014).

III. Comments on the Proposed Rule and the Department's Responses

    The proposed rule was published on May 29, 2014. See 79 FR 30766. 
In response to requests, the Department then extended the initial 
comment deadline of August 1, 2014, to September 30, 2014. See 79 FR 
44149. Throughout July 2014, the Department held public meetings and 
separate consultation sessions with federally recognized Indian tribes 
at regional locations across the country. In response to requests for 
additional meetings and consultations, the Department added two 
teleconference consultation sessions for federally recognized Indian 
tribes and two teleconference sessions for the public, which were held 
in August 2014. During the public comment period, the Department 
received over 330 written comment submissions plus several form 
letters, one of which included hundreds of signatories.
    Federally recognized tribes from across the country weighed in on 
the proposed rule. Tribes such as the Crow Nation, the Stockbridge-
Munsee Band of Mohican Indians, the Seminole Tribe of Florida, the San 
Juan Southern Paiute Tribe, the Mashantucket Pequot Tribal Nation, and 
the Mashpee Wampanoag Tribe expressed support for the proposed rule. 
Other tribes such as the Eastern Band of Cherokee, the Confederated 
Tribes of the Grand Ronde Community of Oregon, the Muckleshoot Indian 
Tribe, and the Temecula Band of Luiseno Mission Indians expressed 
opposition to and concerns with certain proposed changes.
    State and local governments also commented on the proposed rule. 
States such as Connecticut and numerous counties and local governments, 
such as Sonoma County in California, strongly opposed the proposed 
rule. In contrast, Governor Bullock of Montana strongly supported the 
proposed rule.
    The Department reviewed each of the comments received and has made 
several changes to the proposed rule in response to these comments. The 
following is a summary of comments received and the Department's 
responses.

A. Criteria

1. Criteria, Generally
    The criteria in the proposed and final rule are set out at Sec.  
83.11. Many

[[Page 37865]]

commenters stated that the proposed rule would ``weaken'' the criteria. 
These commenters stated that the criteria would be weakened by: 
Allowing for a presumption of continuous existence from 1789/first 
sustained contact to 1934; weakening listed items of evidence and 
adding new, potentially invalid forms of evidence; increasing allowable 
gaps in evidence; and deleting the requirement for external 
identifications. Further, these commenters asserted that the changes 
would: Exceed the Department's authority; be inconsistent with 
longstanding precedent; redefine tribes as racial, rather than 
political, entities; allow appropriation of tribes' identities; violate 
the trust responsibility; and fail to meet the stated goals for 
efficiency or transparency.
    Commenters also specifically argued for and against reliance on 
different types of evidence, including: The California Indian judgment 
rolls; oral history; and recognition by courts under criteria derived 
from Montoya v. United States, 180 U.S. 261 (1900). Some requested the 
addition of language that evaluation of the criteria will be based on 
the totality of the circumstances and evidence and/or consideration of 
specific circumstances. Some commented that while the basic criteria 
have not changed, the criteria are continually being reinterpreted in a 
way that makes them more onerous. Other commenters described the 
impacts to localities and others of weakening the criteria and argued 
that the ``broken'' parts of the acknowledgment process could be fixed 
through better staffing and clearer guidelines, rather than changing 
the criteria.
    Response: In light of comments expressing concern that the proposed 
rule would weaken the criteria, the final rule minimizes changes to the 
criteria, as described below. Instead, and in light of comments about 
the increasingly burdensome application of the criteria, it works to 
ensure consistent application across time. Given that the criteria have 
remained substantively unchanged since 1978, the amount and type of 
evidence that was sufficient to satisfy a particular criterion in 1980 
remains sufficient today. Our review of the Department's prior 
decisions confirms that, as a matter of both logic and fairness, 
evidence that has supported positive findings as to particular criteria 
in the past should support similar findings for present petitioners. 
Any other petitioning group that meets the same rigorous criteria 
should be recognized. Petitioning groups ought not face criteria that 
are interpreted more narrowly.
    The proposed rule would have provided that the Department will 
apply the criteria ``consistently with threshold standards utilized to 
acknowledge other tribes under this part.'' The final rule at Sec.  
83.10(a)(4) adopts a modified version of this provision, to better 
ensure consistency with precedent, which expressly provides that if 
there is a prior decision finding that evidence or methodology was 
sufficient to satisfy any particular criterion in a previous petition, 
the Department will find that evidence or methodology sufficient to 
satisfy the criterion for a present petitioner. In other words, a 
petitioner today satisfies the standards of evidence or baseline 
requirements of a criterion if that type or amount of evidence was 
sufficient in a previous decision. These prior decisions on criteria 
provide examples of how a criterion may be met. Even decisions finding 
a criterion was met in a final determination that was, on the whole, 
negative, provide examples of how a criterion can be met. Decisions 
finding a criterion was met in positive final determinations are 
especially compelling, however (see decisions such as those issued for 
the Grand Traverse Band of Ottawa and Chippewa Indians, the Jamestown 
S'Klallam Tribe, the Tunica-Biloxi Indian Tribe, the Death Valley 
Timbi-sha Shoshone Tribe, the Poarch Band of Creeks, the San Juan 
Southern Paiute Tribe of Arizona, Mohegan Indian Tribe, the Jena Band 
of Choctaw Indians, etc.). For example, evidence and methodology found 
sufficient by the Department to satisfy criterion (e) for tribes such 
as the Poarch Band of Creeks or Death Valley Timbi-sha Shoshone Tribe 
is sufficient under these final regulations for any subsequent 
petitioner. To be sure, some successful petitioners have provided more 
evidence to satisfy a particular criterion than other successful 
petitioners. However, the fact that a successful petitioner may have 
vastly exceeded a baseline threshold of a particular criterion does not 
raise the bar for subsequent petitioners. Section 83.10(a)(4) ensures 
that the basic criteria are not reinterpreted to apply any more 
onerously than they have been applied to a previous petitioner that has 
satisfied that criterion.
    Obviously, if there is significant actual countervailing evidence 
with regard to a petition that was not present in a previous positive 
determination on a criterion, the Department may consider whether the 
prior positive decision provides an appropriate precedent. Thus, for 
example, evidence or methodology that seems similar to that applied in 
a prior positive determination on a criterion may be evaluated 
differently in light of substantial countervailing evidence showing 
significantly different historical facts and circumstances. However, 
such affirmative significant countervailing evidence does not 
necessarily preclude a positive determination. It remains the 
Department's responsibility to consider such evidence and provide an 
explanation of the significant countervailing evidence when deciding 
whether a criterion has been satisfied. Absent significant affirmative 
countervailing evidence, if the evidence or methodology was deemed 
sufficient in a previous positive decision on a criterion, it will be 
deemed sufficient for all current and future petitioners for that 
criterion.
    The final rule generally does not change how different types of 
evidence are evaluated or weighed, but does add certain categories of 
evidence. In one instance (criterion (a)), a new category of evidence 
is allowed to address issues of fairness. In other instances, 
categories of evidence are added to clarify the Department's past 
practice in accepting such evidence (e.g., Indian educational 
institutions may be evidence of the Community criterion; land set aside 
by a State for the petitioner or collective ancestors of the petitioner 
that was actively used by the community may be evidence of Community or 
Political Influence/Authority criteria; and historian and 
anthropologist records as evidence of the Descent criterion). These do 
not reflect substantive changes in the criteria and includes 
evidentiary categories that might have been considered previously; this 
change is simply meant to be explicit about the value and relevance of 
certain evidence. The final rule does not incorporate language 
regarding the totality of the circumstances and evidence because the 
rule already provides the parameters within which the Department will 
evaluate the criteria. See Sec.  83.10(b) (providing that the 
Department will apply the criteria in context with the history, 
regional differences, culture, and social organization of the 
petitioner, etc.). The proposed rule would have provided that the 
Department will apply the criteria ``consistently with threshold 
standards utilized to acknowledge other tribes under this part.'' The 
final rule adopts a modified version of this provision, to better 
ensure consistency with precedent, which states that if there is a 
prior decision finding evidence or methodology to be sufficient to 
satisfy any particular criterion previously, the Department

[[Page 37866]]

shall find it sufficient to satisfy the criterion for a present 
petitioner.
2. Criterion (a)
a. Proposed Elimination of Current ``Criterion (a)'' and Requirement 
for External Observer as an Independent Criterion
    The existing criterion (a) required that external observers 
identify the petitioner as an Indian entity; the proposed rule would 
have eliminated this requirement for evidence of external observations. 
Many who commented supported the proposed elimination of this 
requirement as an independent criterion because outside assessments of 
Indian tribes may be based on folk beliefs about ``Indianness.'' 
Moreover, it has been said to be unfair to rely on external 
identification because tribal groups were sometimes forced into hiding 
to avoid persecution by outside groups. Commenters noted that external 
identifications have been inaccurate in the past, as shown by the fact 
that outsiders have denied or mischaracterized the Indian entity of 
many currently federally recognized tribes. Some commenters pointed out 
that, because no petitioner has been denied solely on this criterion, 
it is of limited value and yet has consumed considerable petitioner and 
Department time and resources. Several other commenters opposed 
eliminating this criterion, stating that any petitioner that truly 
qualifies as a tribe should be able to prove external identifications, 
and that tribal existence should not be based completely on self-
assertion and self-identification or on historical material the 
petitioner developed through its own resources.
    Response: The Department agrees with commenters' concerns regarding 
the unfairness of having an independent requirement for external 
identifications. The Department also considered other commenters' 
concerns with eliminating the criterion, which stated that some 
external evidence is appropriate to avoid a situation where a group 
relies merely on its own self-assertion that it is, and has been, an 
Indian tribe. The final rule retains the current criterion (a), 
requiring identifications on a substantially continuous basis since 
1900, with an adjustment to accept identifications by the petitioner in 
the same manner as we would accept identifications by external sources.
    While there may be factors affecting how outsiders view an Indian 
entity, allowing evidence from the Indian entity itself for a 
particular time period to demonstrate that the entity identified itself 
as an Indian entity addresses this concern. With regard to concerns 
that a petitioner may have mostly, or even only, self-identifications 
rather than external identifications, the Department does not find 
these concerns compelling. An entity that descends from a historical 
tribe and exists continuously as a community with political influence/
authority is still a tribe, regardless of whether records of external 
observers identify the tribe as an Indian entity. But the tribe's 
continued view of itself as an Indian entity is essential. To the 
extent the commenters are concerned that a petitioner could recreate 
past self-identifications, the final criterion (a) requires 
contemporaneous self-identifications, just as external identifications 
must be contemporaneous.
    The Department believes that it is appropriate to retain the 1900 
starting date for requiring evidence of identifications on a 
substantially continuous basis for the reasons stated in the 1994 
rulemaking. See 59 FR 9280, 9286 (February 25, 1994). While the 
requirements of this criterion consume both petitioner and Departmental 
time, we have determined the final rule strikes a balance, taking into 
account the comments advocating substantial changes to or elimination 
of criterion (a) and those comments that advocated no change.
b. Proposed Criterion (a), Requiring Narrative of Pre-1900 Existence
    Many commenters requested clarification of the proposed criterion 
(a) at proposed Sec.  83.11(a), specifically asking for clarification 
on what evidence would be sufficient; whether the phrase ``generally 
identified'' indicates external identifications are still required; 
whether ``a point in time'' means any point in time chosen by 
petitioner, or chosen by the Department; whether 1900 is a general 
benchmark or definitive date; and what standard the Department will use 
to judge this criterion.
    Some commenters opposed the proposed criterion (a), stating that it 
does not meet the requirement for showing continuous political 
existence during historical times, that the ``slightest connection'' to 
a historical tribe prior to 1900 and existence of a contemporary tribal 
organization would be sufficient under this criterion, and that it does 
not sufficiently guard against a petitioner claiming a recognized 
tribe's identity and history. These commenters also stated the 
criterion lends itself to politics-based rather than merits-based 
decisions. Commenters also objected to requiring a showing of existence 
at only one point prior to 1900. These commenters found the deletion of 
the requirement for external identification criteria in favor of a 
brief narrative showing that the group existed as a tribe at some point 
``alarming.''
    Response: As discussed above, the Department has decided to retain 
the current criterion (a), with some adjustments, in lieu of the 
proposed criterion (a). See final Sec.  83.11(a). The comments we 
received on the proposed criterion (a) expressed concern that the 
proposed criterion was not specific enough, but we received no 
suggestions for specifications that would address all commenters' 
concerns. In attempting to identify revisions that would sufficiently 
address all commenters' concerns with the proposed criterion (a), the 
Department determined that the current criterion (a) should be retained 
with a revision to allow for the petitioner's own records to serve as 
evidence.
3. Criterion (e)--Descent
a. Requirement for 80 Percent Descent
    We received comments both in support of and in opposition to the 
proposed requirement at proposed Sec.  83.11(e) that petitioners show 
that at least 80 percent of their membership descends from a historical 
tribe. Those in support stated that using a quantitative measure is 
appropriate here because petitioners have lists of their members. Some 
stated that using 80 percent is appropriate for determining Indian 
ancestry in general, but not for showing a connection to a specific 
historical tribe because records that identify historical tribes do not 
contain censuses of the members. Some commenters, including some 
federally recognized tribes, strongly opposed any percentage less than 
100 percent, and opposed using 80 percent because it could effectively 
allow for a petitioner with a membership of 20 percent non-Indians. A 
few commenters stated that the percentage requirement should be less 
than 80 percent to account for lack of records.
    Response: The final criterion (e) remains substantively unchanged 
from the current criterion (e). While the final rule does not include a 
percentage, this criterion will continue to be applied consistently 
with previous decisions. Evidence and methodology sufficient in 
positive decisions on criterion (e), such as Tunica-Biloxi Indian 
Tribe, Poarch Band of Creeks, and Death Valley Timbi-sha Shoshone 
Tribe, will continue to be sufficient to satisfy

[[Page 37867]]

criterion (e) under these final regulations. The Department aims to 
maintain consistency in applying the baseline utilized to satisfy the 
criteria. The 80 percent threshold was not intended to be a change in 
policy; it merely attempted to codify this existing Departmental 
practice. Yet a number of commenters expressed concern both for and 
against codifying this number, so the rule does not incorporate the 80 
percent threshold. Instead, the criterion is satisfied if the 
petitioner provides evidence and utilizes methodology consistent with 
any previous positive determination under this criterion.
b. Descent as a Race-Based Criterion
    Some commenters stated that criterion (e) should be deleted because 
it is race-based, while tribal membership is a political 
classification.
    Response: The Department recognizes descent from a political entity 
(tribe or tribes) as a basis from which evaluations of identification, 
community, and political influence/authority under criteria (a), (b), 
and (c) may reveal continuation of that political entity. Evidence 
sufficient to satisfy (e) is utilized as an approximation of tribal 
membership before 1900.
c. Defining ``Historical'' To Be Before 1900
    Commenters opposed, and others supported, defining ``historical'' 
to be before 1900. Some requested clarification for the beginning date 
of the ``historical'' period. Some commenters also requested 
clarification of ``historical tribe'' to require that the tribe 
functioned autonomously, and to ensure that a petitioner does not claim 
the same historical tribe as that claimed by a federally recognized 
tribe.
    Response: The final rule defines ``historical'' to be before 1900, 
maintaining the same approach as the proposed rule but clarifying that 
the year 1900 is not included in the ``historical'' period. The final 
rule does not identify the beginning date for the ``historical'' 
period, but it necessarily must be some date prior to 1900. The final 
rule does not identify the beginning date for the historical period to 
be 1789 or the period of earliest sustained non-Indian settlement and/
or governmental presence in the local area, whichever is later, because 
these beginning dates would not achieve any reduction in the 
documentary or administrative burden. The term ``autonomous'' has been 
reinserted in the definitions and political influence/authority 
criterion to require autonomous functioning since 1900, which is 
satisfied if evidence is provided consistent with any previous positive 
finding of this criterion.
d. Evidence in Support of Descent
    We received several comments either requesting clarification of the 
phrase ``most recent evidence'' in proposed criterion (e) or opposing 
the requirement to rely on the ``most recent evidence'' as limiting the 
Department's ability to examine or rely on earlier, and more probative, 
evidence. Commenters also stated concerns with the language stating 
that rolls prepared by the Secretary or at the direction of Congress 
``satisfy'' the criterion. Specifically, these commenters stated that 
that the proposed rule would not allow the Department to evaluate the 
reliability of rolls prepared by the Secretary or at the direction of 
Congress, and pointed out that in some cases, such rolls may be 
inaccurate or fail to identify tribal affiliation. Commenters also had 
suggestions for other categories of evidence or requested use of ``best 
genealogical evidence.'' We received comments both in support of and 
opposition to using historian and anthropologist conclusions as 
evidence of descent. Commenters stated their concerns that affidavits 
are not reliable for ancestry, unless they are contemporaneous records.
    Response: The final rule provides for evaluating the most recent 
evidence prior to 1900. Documents that are erroneous or fraudulent are 
not evidence and thus will not satisfy this criterion. The final rule 
also places great weight on applicable tribal Federal rolls prepared at 
the direction of Congress or by the Department. Based on the 
Department's expertise, any inaccuracies of such tribal rolls are de 
minimis. Many federally recognized tribes rely on tribal Federal rolls 
as base membership rolls and the Department's approach here regarding 
such rolls for this process is consistent with this tribal practice. 
While no human endeavor is perfect, tribal rolls created by the 
Department were often prepared in person by a Departmental 
representative or team to promote accuracy. The final rule clarifies 
that the roll must have been prepared for a tribe. In contrast, rolls 
of the Indians of California for claims payments would not satisfy 
Sec.  83.11(e)(1) because those rolls were not prepared for specific 
tribes, but rather descendants from an Indian who lived in the State on 
June 1, 1852. If Departmental tribal censuses or rolls are not 
available, the Department will then look to other documents, as needed. 
For example, the rolls of the Indians of California may be provided as 
evidence to be evaluated under Sec.  83.11(e)(2). This approach 
codifies past practice. For example, in acknowledging the Death Valley 
Timbi-Sha Shoshone Band, the Department relied on Departmental rolls 
and censuses:

    The Timbi-Sha Shoshone Band provided a total of three rolls and 
censuses, the current membership list dated March 1978, and 1933 and 
1936 censuses prepared by the Bureau of Indian Affairs. . . . Rolls 
prepared from 1916 through 1940 by the Bishop and Carson agency 
staffs were also researched, as was the roll prepared pursuant to 
the Act of September 21, 1968, for the distribution of judgment 
funds awarded to the Indians of California. All data from these 
rolls and censuses confirm that virtually all of the members of the 
group have or can conclusively establish Shoshone Indian ancestry. 
We conclude, therefore, that the membership of the Death Valley 
Timbi-Sha Shoshone Band of Indians consists of individuals who have 
established descendancy from historical Shoshone bands in the Death 
Valley area which combined and functioned as a single autonomous 
entity, and that the band has met the criterion in 25 CFR 54.7(e).

Proposed Finding at 6-7. Rather than requiring ``best genealogical 
evidence,'' which may impose an additional burden on the petitioner, 
the Department will continue its long standing practice of evaluating 
evidence under the standards established in this regulation.
    Criterion (e) also maintains the use of records created by 
historians and anthropologists identifying the tribe in historical 
times or historians' and anthropologists' conclusions drawn from 
historical records. This approach is consistent with past practice. For 
example, in Tunica-Biloxi the Department relied on the following 
historical records to satisfy (e):

    The work of anthropologists in the late 1800's and early 1900's 
and a list prepared by a representative of the Bureau in the 1930's 
were used in conjunction with other recorded documents, the 1900 
Federal Population census, and testimony from a 1915 civil court 
suit to establish Indian ancestry in the historical tribes.

Tunica-Biloxi Proposed Finding at 4.

    Five sources were available which identified current tribal 
members, their relations, and/or ancestors as Indian: Ruth M. 
Underhill's ``Report on a visit to Indian groups in Louisiana, Oct. 
15-25, 1938''(6); James Owen Dorsey's list of ``Biloxis in Raipides 
Parish, La.'' of 1892 and 1893; the 1900 Federal Population Census; 
pre-1900 church records submitted as genealogical documentation; 
and, testimony taken in the Sesostris Youchican v. Texas and Pacific 
Railway Company court case in 1915.

Tunica Biloxi Genealogical Report at 3. We have also clarified the 
existing practice that affidavits must be based on first-hand 
knowledge.

[[Page 37868]]

e. Review of Descent
    Many commenters suggested tying review of criterion (e) together 
with the proposed criterion (a), which required a narrative of 
existence prior to 1900, to provide context for the historical tribe.
    Response: Because the final rule retains an amended version of the 
current criterion (a), rather than the proposed criterion (a), these 
comments are no longer applicable.
4. 1934 Starting Date for Evaluating Criteria (b) (Community) and (c) 
(Political Influence/Authority)
    The Department may have received more comments on the proposed 
starting date for evaluating criterion (b) (community) and criterion 
(c) (political influence/authority), at proposed Sec.  83.11(b) and 
(c), than any other part of the rule. Several supported the proposed 
starting date of 1934, including renowned legal scholars, the Seminole 
Tribe of Florida, tribes that have successfully completed the process, 
and Senator Tim Kaine. Those opposed to this starting date, such as the 
Connecticut Congressional delegation and Governor, local governments, 
and tribes such as the Eastern Band of Cherokee and Muckleshoot Indian 
Tribe, generally stated that it cannot be assumed that tribes existed 
continuously from first sustained non-Indian contact or 1789, whichever 
is later, to 1934. These commenters stated that beginning evaluation in 
1934 would significantly weaken the criteria, allow recently formed 
groups to obtain acknowledgment, and be inconsistent with precedent. 
They also disagreed with the Department's basis for using 1934, stating 
that there are several turning points in Indian policy other than 
passage of the Indian Reorganization Act (IRA) and that the IRA had no 
effect on a tribe's existence. Several commenters suggested moving the 
1934 date to 1900 to be consistent with the definition of 
``historical.'' A few commenters advocated for earlier or later dates.
    Response: The Department considered the full range of comments from 
those advocating for no change to those advocating for a date later 
than 1934. Of course, as a practical matter, it bears noting that under 
the current regulations 1789 does not uniformly apply to all 
petitioners. Depending on the location of the petitioner, first 
sustained contact for some petitioners may be the mid-1800's. Of 
course, if the Petitioner demonstrates previous unambiguous Federal 
acknowledgment, the review period for (b) and (c) can be well after 
1934. In considering the comments received, a number of dates were 
suggested for consideration. For example, there are several turning 
points in Indian policy other than the passage of the IRA. The 
Department also considered using 1871 (the end of the treaty-making 
era), 1880 (Special Census of Indians), or 1887 (passage of the General 
Allotment Act and beginning of the allotment era), as possible starting 
dates. We summarize below our response to various start dates proposed 
by commenters during the rulemaking process.
1934
    The Department received a number of comments supporting the use of 
1934 as set forth in the proposed rule. Legal scholars, a number of 
federally recognized tribes, and others provided particularly strong 
comments in support of the Department's use of 1934. In the nearly 40 
years that the Department has utilized the Part 83 process, no 
petitioner has satisfied the seven mandatory criteria after 1934, but 
failed the criteria prior to 1934. The start date of 1934 is compelling 
also because groups who satisfy these criteria from 1934 maintained 
community and political authority for decades and across generations 
with little external incentive, given that the Part 83 process did not 
come into existence until 1978. Indeed, in 1998, the House Committee on 
Resources reported out favorably H.R. 1154, which would have utilized 
1934 as a starting date under the criteria. While the bill did not 
garner the two-thirds votes required to suspend the rules and pass H.R. 
1154, bi-partisan leadership on tribal issues voted in support of 
suspending the rules and passing the bill, including Representatives 
Young, Pombo, Kildee, and Rahall.
    While opposition to a start date of 1934 is based on a perception 
that a 1934 start date would significantly weaken these two criteria, 
we note that 1934 is the year the Indian Reorganization Act was passed, 
which was a turning point in the Federal government's relationship with 
Indian tribes. However, in determining the appropriate date for (b) and 
(c), the Department concludes that, to maintain public faith in the 
Part 83 process, 1934 is not appropriate. Wide opposition to the 1934 
date suggests that some people would question the rigor and integrity 
of the Department's conclusions if the Department required less than a 
century's review of these two particular criteria.
1900
    The Department received a number of comments relating to 1900 as a 
start date. Some of those that commented advocating for no change did 
note that earlier time periods were important for review and that if a 
change were to be made, the Department should begin its review at least 
since 1900. For example, the Muckleshoot Indian Tribe expressed concern 
with not evaluating the time period between 1900 and 1925. Similarly, 
on this point, the Suquamish Tribe stated that ``[t]he position 
advanced by the Department and implicitly agreed to by Congress is that 
an applicant must establish proof of a continuous political existence 
since at least 1900.'' The Rural County Representatives of California, 
an organization of thirty-four rural counties in California comprising 
nearly half of the land mass of the state, commented that ``at the very 
least, the standard should be set at 1900 which is consistent with 
other thresholds in the rule and requiring evidence that the tribe, at 
a minimum, pre-dates the Indian Reorganization Act.'' Similarly, the 
Town of Kent advocated for no change but asserted that ``at a minimum 
they should be amended to require the petitioning group to demonstrate 
that it has comprised a distinct community and exercised political 
authority from historical times to the present. With the definitional 
change of ``historic'' from ``first sustained contact'' to ``1900'' 
(see proposed Section 83.1), the burden upon petitioning groups will 
have already been substantially mitigated and with far less risk that 
groups who did not maintain tribal existence prior to 1934 will be 
entitled to recognition as Indian tribes.''
    In response to these comments as well as based on the Department's 
experience in administering the Part 83 regulations, the final rule 
adopts the date of 1900 as the starting point for criteria (b) and (c). 
As discussed earlier in this preamble, there are number of factors that 
support the use of 1900. As explained in the 1994 rulemaking that 
established a 1900 starting point for criterion (a), use of this date 
avoids some of the problems with historical records in earlier periods 
while retaining the requirement for substantially continuous community 
and political influence/authority. The past 20 years has demonstrated 
that use of 1900 for criterion (a) has maintained the substantive rigor 
of the process and using 1900 for (b) and (c) will provide uniformity 
for these three criteria and to all petitioners regardless of where 
they are located.

[[Page 37869]]

    1900 is also squarely during the allotment and assimilation period 
of federal policy that was particularly difficult for tribal 
governments. Indeed, leading up to 1900 the United States continued to 
engage in military conflict with tribes in tragedies such as the 
Wounded Knee Massacre of 1890 and the 1898 Battle of Sugar Point. 
Simply put, there was little benefit and some risk to openly 
functioning as a tribal community and government in 1900. Under this 
final rule, petitioners will need to provide evidence of community and 
political authority beginning in 1900. If evidence is not available 
beginning in 1900, a petitioner may submit evidence that pre-dates 
1900.
    The Department further notes that Congressional bills, from time to 
time, have utilized a starting date for evaluation of criteria (b) and 
(c) to begin in 1900. For example, in 2004 under the leadership of 
Senate Indian Affairs Committee Chairman Ben Nighthorse Campbell, the 
Senate Committee on Indian Affairs reported S. 297 favorably out of the 
Committee. S. 297 provided for a start date of 1900.
1887
    While the Department received very few suggestions for 1887, many 
of the comments asserted that the Department should utilize a starting 
date when there was widespread discrimination for being a tribe or 
Indian. The Eastern Band of Cherokee expressed strong opposition to any 
change from 1789 or time of first non-Indian contact to the present, 
stating:

    It makes no sense to use the date of passage of the IRA as the 
starting point for showing continuous tribal existence. Rather, a 
year pre-dating the enactment of the policy of allotment (1887) and 
assimilation aimed at destroying tribal governments would be more 
appropriate.

Eastern Band of Cherokee Nation Comments at 5. Utilization of 1900 as a 
start date is responsive to this comment. 1900 is within a period of 
time when federal policy in favor of allotment and assimilation was 
explicitly aimed at destroying tribal governments.
First Sustained Contact or 1789
    The Department considered the comments advocating for no change 
from a starting date of first sustained non-Indian contact or 1789, but 
determined that the efficiency gains from shortening the evaluation 
period, and factors gleaned from the Department's vast expertise and 
experience in determining whether to acknowledge tribes both prior to 
and under the Part 83 regulations, merit adjustment of the review 
period for these two criteria.
    Based on public input and expressions of concern, the Department 
has focused at this time on consistency with other parts of Part 83, 
reducing the documentary burden, and improving document availability 
for the new starting date and, as such, the final rule relies on 1900 
as a starting point for criteria (b) (community) and (c) (political 
influence/authority). See final Sec.  83.11(b) and (c). It is the 
Department's intention to preserve the rigor and integrity of the 
process and the public's trust in the legitimacy of tribes that have 
successfully navigated the rigorous standards in Part 83. Using 1900 as 
a starting date will accomplish the goals of consistency and efficiency 
while preserving substantive rigor by requiring well over a 100-year 
period of documentation.
5. State Reservations and U.S.-Held Land in Criteria (b) and (c)
    The proposed rule stated that a petitioner would satisfy criterion 
(b) (community) and criterion (c) (political influence/authority) if it 
maintained a State reservation since 1934 or if the United States held 
land for the petitioner at any time since 1934. See proposed Sec.  
83.11(b)(3) and (c)(3). Commenters in support of this provision stated 
that it is consistent with Felix Cohen's thinking in the mid-1930's 
that a reservation or Federal land holding is a formalization of 
collective rights in Indian land and results in cultural continuation 
of the tribe. Commenters opposed this provision for several reasons. 
Among them were that the existence of a reservation or Federal-held 
land is not a proxy for community and political influence/authority. 
States may establish reservations for reasons unrelated to the tribe's 
community or political influence/authority (e.g., tourism, parks) and, 
at most, the fact that land was put aside for the group could be 
evidence of the group's existence at that point in time only, but is 
not evidence of the group's continued existence without additional 
evidence, as the petitioner may not have been active in maintaining the 
reservation. These commenters further stated that, even where members 
live on the reserved or set-aside land, that fact does not provide 
evidence of an organizational structure. Commenters were concerned that 
under the proposed provisions, descendants of a tribe for which a 
reservation was established, but which ceased operating as a tribe, 
could be acknowledged, or that several different petitioners may claim 
the same reservation. Commenters also asserted that reliance on States' 
determinations is improper, that Cohen looked to collective rights as 
reflective of a Federal relationship after already determining that a 
tribe exists, and that the provision is discriminatory to Connecticut.
    A few commenters suggested limiting this provision to when the 
State agrees the reservation does, in fact, demonstrate community and 
political authority, or the petitioner demonstrates it has maintained 
on the reservation rates or patterns of social interaction that exist 
broadly among members of the entity and shared or cooperative labor or 
other economic activity among members.
    Commenters also requested numerous clarifications, including but 
not limited to, whether ``collective ancestors'' requires holding land 
for a group rather than individuals, whether the petitioner must have 
had authority over the land, and whether public domain and individual 
allotments are included.
    Other commenters requested various items of evidence be added as a 
third category that would satisfy criteria (b) and (c), including 
individual allotments, establishment of Indian schools, and 
participation in treaty negotiations or land and water claims 
litigation before the Indian Claims Commission.
    Response: The final rule does not adopt the approach in the 
proposed rule that a State reservation held continuously since 1934 or 
Federal land held for a group at any point after 1934 satisfies (b) and 
(c). However, tribes with State reservations will most likely have 
additional evidence of political influence/authority, as well as 
community. We note that under the regulations, evidence that the group 
has been treated by the Federal Government as having collective rights 
in tribal lands (i.e., the United States held land for the benefit of 
the group) or in funds demonstrates previous Federal acknowledgment. 
This evidence has been added to the list of evidence supporting 
previous Federal acknowledgment in final Sec.  83.12(a). However, under 
no circumstance may a petitioner claim a current federally recognized 
tribe's reservation as land that the United States set aside for the 
petitioner. Similarly, for purposes of this section, land set aside by 
the United States refers to those lands set aside by the Department of 
the Interior for a group. Any such lands set aside by another federal 
agency will need to continue to be evaluated on a case-by-case basis to 
determine whether such set aside demonstrates previous Federal 
acknowledgment.

[[Page 37870]]

    The Department has decided that State reservations, unlike 
federally-held land that demonstrates previous Federal acknowledgment, 
may generate evidence of community and political influence/authority, 
but are not determinative for these two criteria. As the late Chairman 
Inouye explained,

    [s]hould the fact that a State has recognized a tribe for over 
200 years be a factor for consideration in the acknowledgment 
process? I would say definitely yes. How could it be otherwise? 
Don't most, if not all, of our States want the Federal Government to 
recognize the official actions of a State Government, when most of 
our States want the Federal Government to defer to the sovereign 
decisions and actions of those States over the course of their 
history? I think the answer to that question would be decidedly in 
the affirmative.

S. Hrg. 109-91 (2005). There may be a multitude of circumstances in 
which a State establishes a reservation. Nevertheless, a State 
reservation may generate documents or evidence used to satisfy the 
categories of evidence identified in criteria (b) (community) or (c) 
(political influence/authority). See final Sec.  83.11(b)(1)(ix) and 
(c)(1)(vii).
6. Criterion (b) (Community)
a. Using 30 Percent as a Baseline
    The current criterion (b) requires a ``predominant portion of the 
petitioning group'' to comprise a community. The proposed rule would 
provide that the petitioner must constitute a community (deleting the 
phrase ``predominant portion''), and would provide that the petitioner 
demonstrates the criterion by showing two or more forms of evidence 
that at least 30 percent of its members constituted a community. See 
proposed Sec.  83.11(b). Several commenters opposed this change, saying 
that it lowers the requirement for showing a distinct community and 
defies logic that a group could be a community when 70 percent do not 
interact. These commenters stated that relying on the voting 
requirements under the IRA as a basis for choosing the 30 percent 
figure is misplaced because the IRA was not a measurement of social 
interaction, and voting occurred after the Department already 
determined the group was a tribe; these commenters also noted that 
adoption of the IRA required a majority vote. Some commenters pointed 
out that no definitive percentage is appropriate because it would 
require identification of all the members at various times, which may 
not be possible.
    A few commenters supported the proposed change and agreed with the 
Department's rationale. A few suggested lowering the percentage further 
to account for historical realities. One suggested eliminating the 
criterion entirely.
    Response: The final rule requires the petitioner to constitute a 
distinct community, and provides that the petitioner may demonstrate 
this criterion by showing evidence that a ``significant and meaningful 
portion'' of its members constituted a community. See final Sec.  
83.11(b)(1). While the proposed rule included a specific percentage in 
an attempt to set an objective standard, in reality, the number of 
members who must constitute a community depends on the historical 
circumstances faced by the petitioner. In practice, there is a range in 
which the Department has identified whether the petitioner's members 
are a distinct community. As described above, those previous 
determinations serve as precedent. The rule continues to provide that a 
petitioner demonstrates both distinct community and political 
influence/authority if the petitioner provides evidence that 50 percent 
or more of its members satisfy the factors in Sec.  83.11(b)(2).
b. Allowing Sampling for Criterion (b)
    Some commenters opposed specifying statistically significant 
sampling as a method of demonstrating community because it is only one 
of many methods, could be easily manipulated, and has never before been 
used for criterion (b). One commenter stated that they appreciate the 
clarification that the Department may utilize this method in evaluating 
criterion (b). One commenter recommended multi-sampling for use on 
populations with over 10,000 members on their current rolls.
    Response: There may be circumstances in which sampling is 
appropriate. For this reason, the final rule retains the proposed 
allowance for sampling. The final rule adds that the sampling must be 
``reliable'' to address concerns that sampling could be easily 
manipulated; ``reliable'' is intended to reflect that the sample must 
abide by professional sampling methodologies. See final Sec.  83.11(b).
c. Deletion of ``Significant'' in Criterion (b)
    A few commenters said the evidentiary requirements for paragraph 
(b)(1) are weakened because the proposed rule deleted the word 
``significant'' which qualified some of the items of evidence listed 
(e.g., social relationships, marriages, informal social interactions). 
One commenter supported the removal of the ``significant'' qualifier 
and further recommended removing the qualifier ``strong'' from Sec.  
83.11(b)(1)(v), discussing patterns of discrimination or other social 
distinctions by non-members. This commenter also commented on the 
percentages for definitively showing marriage, distinct cultural 
patterns, etc., and suggested it be made clear that these percentages 
do not imply that something close to those percentages is needed to 
establish community absent such a definitive showing.
    Response: The Department has determined that it is appropriate to 
qualify the evidence with the term ``significant'' in these 
circumstances because the evidence needs to be probative of the 
criterion. Further, an alternative option, a definitive percentage, 
would be inappropriate without a baseline membership list for each 
period in time (which may not be available). Because the introductory 
paragraph requires a showing that a ``significant and meaningful'' 
portion of the petitioner's members constituted a distinct community, 
insertion of the term ``significant'' for each item of evidence listed 
is not necessary. See final Sec.  83.11(b).
d. Marriages/Endogamy as Evidence of Community
    Several commenters requested clarification of the provisions 
allowing for marriages to be considered evidence of community, 
specifically requesting that the Department count marriages by 
individual petitioner member rather than by marriage (e.g., if a 
petitioner has 100 members and 60 marry within the petitioner, that 
should count as 60 marriages, rather than 30). A few commenters stated 
that marriages should not be considered.
    Response: The Department has, in past practice, counted marriages 
by marriage, but commenters support the alternative approach--counting 
by individual petitioner member. Given that scholarship supports either 
approach, the Department has determined in its final rule to change its 
approach to specify counting by individual petitioner member, rather 
than by marriage. The final rule also includes the term ``patterns,'' 
in addition to the existing term ``rates,'' in reference to marriages 
and informal social interactions, to capture that the Department's past 
practice of looking at either rates or patterns as indications of 
community. See final Sec.  83.11(b)(1).
e. Indian Schools as Evidence of Community
    Several commenters stated their support of the proposal to include 
as evidence of community that children of petitioner's members from a 
geographic area were placed in Indian boarding

[[Page 37871]]

schools or other Indian educational institutions. See proposed Sec.  
83.11(b)(1)(ix). Several commenters opposed this proposal on the basis 
that: (1) Relying on Indian educational institutions conflicts with 
past Departmental determinations; (2) attendance of children from a 
``geographic area'' is not evidence of a community corresponding to a 
specific tribe because many children were placed in schools based on 
blood quantum rather than tribal affiliation and non-Indian children 
often attended Indian schools. One commenter noted that this provision 
is essentially a third-party identification of whether someone is a 
tribal member and, as such, should be deleted.
    Some commenters requested clarifications that the rule must require 
that agency records refer to the community in describing actions to 
place children in schools or that the school had been established 
exclusively for education of Indian children from petitioner's 
community. A few comments advocated allowing as evidence of community 
any records that show that children from a specifically identified 
Indian community were sent to public schools with Federal funds. One 
commenter requested that this item of evidence alone suffice for the 
purpose of determining criterion (e) (descent).
    Response: In response to commenters' concerns that placement in an 
Indian boarding school or other Indian educational institution may not 
necessarily reflect a distinct community, the final rule clarifies that 
the Department relies upon this evidence to the extent that other 
supporting documentation, pieced together with the school evidence, 
shows the existence of a community. See final Sec.  83.11(b)(1)(ix). 
This codifies how the Department currently examines school evidence. In 
the past, the Department has issued decisions relying upon boarding 
school records as evidence of community because there was corroborating 
evidence to support that the school records were indicative of a 
community, while in others, the Department found that boarding school 
records were not sufficient because there was no corroborating evidence 
to indicate a community. The Department has concluded that boarding 
school records can be highly relevant when corroborated by other 
evidence.
f. Language as Evidence of Community
    Several commenters stated that greater evidentiary weight should be 
given to communities that have maintained their indigenous language in 
a continuous fashion in proving Indian identity and continuous 
community.
    Response: The Department agrees that language is an important 
indication of community and is often a binding force in a community. 
The regulations continue to list ``language'' as evidence of community, 
and continue to provide that if at least 50 percent of the petitioner's 
members maintain distinct cultural patterns such as language, the 
petitioner satisfies criterion (b) (community). No change to the rule 
is needed in response to this comment. See final Sec.  
83.11(b)(1)(vii), (2)(iii).
g. Nomenclature as Evidence of Community
    Several commenters requested clarification that historical 
references used to identify the petitioner should not weigh negatively 
against Indian identity if they racially misidentify, disparage, and/or 
deprecate the petitioner. Several commenters endorsed the proposed 
provision recognizing that names or identifications by outside entities 
may change over time.
    Response: The Department does not weigh references negatively 
against Indian identity if they racially misidentify, disparage, or 
deprecate the petitioner; rather, the Department may rely upon these 
references to prove a distinct community. This reflects the way the 
Department has reviewed historical references identifying petitioners 
in past decisions.
h. Other Evidence of Community
    Under proposed Sec.  83.11(b)(2)(iv), community may be shown by 
evidence of distinct community social institutions encompassing at 
least 50 percent of the members. The phrase ``at least 50 percent'' was 
substituted for the word ``most'' in the current version. Commenters 
opposed replacing ``most'' with ``at least 50 percent'' as no longer 
strong enough to demonstrate community by itself without further 
evidence. Others opposed relying on members residing in a 
``geographical area'' as evidence under proposed Sec.  83.11(b)(2)(i) 
because some currently recognized tribes that are landless could not 
meet this requirement and such evidence does not account for active 
armed service members. Some opposed the criterion in general as archaic 
in light of the assimilation of American Indians since 1830. Some 
commenters stated that flexibility should be allowed for California 
tribes, who were identified collectively as ``Mission Indians'' rather 
than a specific tribe. A few commenters also requested clarifications 
of ``social relationship,'' and whether enrollment evidence is required 
for each year. A commenter stated that review of this criterion should 
account for the history of racial prejudices, which often caused people 
to self-identify in various ways.
    Response: The replacement of ``most of'' with ``at least 50 
percent'' is not a significant change to the social institution 
evidence. The percentage is included for petitioners' guidance as a 
more definitive threshold than ``most of.'' No change is required in 
response to comments opposing reliance on members residing in a 
``geographical area'' because this evidence is merely one of several 
items of evidence petitioners may offer; those who do not reside in a 
geographical area are not penalized. The provision in Sec.  83.10 that 
the Department will review each petition in context with the history, 
regional differences, culture, and social organization of the 
petitioner, addresses the remaining comments on criterion (b).
7. Criterion (c)(Political Influence/Authority)
a. Bilateral Political Relationship
    A few commenters requested clarification in the rule that no 
bilateral political relationship is now required and/or that language 
from the proposed rule preamble (at 79 FR 30769, stating that political 
influence or authority does not mean that petitioner's members must 
have actively participated in the political process or mechanism), be 
inserted into the rule. Several commenters stated that the requirement 
for bilateral political relationships should be retained in practice 
and made explicit in the rule because it has always been a fundamental 
part of the Department's evaluation of criterion (c), is required by 
Federal court decisions, and prevents a finding of political influence/
authority if petitioners have self-appointed leaders without followers.
    Response: The comments revealed different understandings of the 
meaning of the term ``bilateral political relationship.'' The 
Department has required, as part of a showing of political influence/
authority, that there be some activity between tribal leaders and 
membership regarding issues that the petitioner's membership considers 
important. The Department has not required a formal political 
organization or that a certain percentage of members vote. Indeed, the 
percentage of citizens who vote in Federal, State, tribal and local 
elections can be quite small. Accordingly, comments to change the 
regulations and require ``bilateral

[[Page 37872]]

political relationship'' in (c) are not adopted. The petitioner may 
satisfy (c) with evidence of activity between tribal leaders and 
membership regarding issues that the petitioner's membership considers 
important. A petitioner will satisfy (c) in this final rule if it 
provides similar evidence or methodology as was deemed sufficient by 
the Department in a previous decision on this criterion. Nor is it 
necessary to reinsert this phrase into criterion (f) (at Sec.  
83.11(f)) because this criterion already requires, where membership is 
composed principally of members of a federally recognized tribe, that 
the petitioner function as a separate politically autonomous community 
under criteria (b) and (c).
b. ``Show a Continuous Line of Entity Leaders and a Means of Selection 
or Acquiescence by a Majority of the Entity's Members''
    The proposed criterion (c) adds to the list of evidence (of which 
petitioner must provide two or more items), that the petitioner has a 
``continuous line of entity leaders and a means of selection or 
acquiescence by a majority of the entity's members.'' See proposed 
Sec.  83.7(c)(1)(viii). A few commenters opposed this proposed language 
stating that this requirement is less stringent than the requirement 
for having leaders and followers interact politically on issues of 
mutual importance. Commenters were also concerned that if 
``continuous'' is interpreted to allow for a 20-year gap in this 
context, a significant time gap would be allowed for this item of 
evidence. A few commenters that supported this item of evidence stated 
that it should reflect that a majority of adult members need to select 
or acquiesce, as children have no role in the selection.
    Response: The Department has determined that no change to this item 
of evidence is necessary in response to comments, because this item 
demonstrates political influence/authority only in combination with 
another item of evidence. The final rule does replace ``majority'' with 
``significant number'' because the entity may allow for fewer than a 
majority of members to select leaders. See the discussion in 
``Substantially Continuous Basis, Without Substantial Interruption,'' 
below, regarding allowable evidentiary gaps. The final rule does not 
specify that ``adult'' members need to select or acquiesce because 
petitioners may allow for youth participation in some circumstances.
c. Evidence
    Some commenters requested adding references to attorney contracts, 
claims filings and other court cases as evidence of political influence 
or authority.
    Response: The items of evidence listed in criterion (c)(1) are 
examples, and are not exhaustive. See final Sec.  83.11(c)(1)(i)-
(viii). Actions by a petitioner's leaders with regard to attorney 
contracts, claims filings, and other court cases may provide evidence 
of political influence/authority. The final rule also clarifies that a 
formal ``government-to-government'' relationship is not required 
between the federally recognized tribe and petitioner, as long as a 
``significant'' relationship is present. See final Sec.  
83.11(c)(1)(vi).
8. ``Substantially Continuous Basis, Without Substantial Interruption''
    The proposed rule would have defined ``substantial interruption'' 
to mean a gap of 20 years or less, unless a 20-year or longer gap is 
reasonable given the history and petitioner's circumstances. See 
proposed Sec.  83.10(b)(5). Some commenters pointed out the 
typographical error, that this should have defined ``without 
substantial interruption.'' Several commenters supported the proposal 
because it would add clarity and, when there is evidence before and 
after such gaps, would add fairness. Two commenters said 20 years is 
too short, because it is less than one generation and may not account 
for the affirmative measures taken to eradicate tribes.
    Several commenters said 20 years is too long, stating that it is 
``patently unreasonable'' to allow 20-year or longer gaps in evidence 
when the proposed baseline requires only 80 years (evaluating from 1934 
forward), as opposed to the 200+ years under the current regulations. 
Some interpreted the provision to allow acknowledgment of groups who 
could prove the criteria only in 1954, 1974, 1994, and 2014. These 
commenters stated that this is a major reduction in the standard, and 
provides no clarity because it allows for gaps less than or more than 
20 years. These commenters also disputed the Department's assertion 
that this reflects past practice because the current approach rejects a 
specific time period for an allowable gap.
    Some commenters requested more specification as to what level and 
time period of evidence is necessary before and after the gap 
(bookends) and a more definitive gap limit, given that the proposed 
rule allows longer than 20-year gaps in some circumstances. Others 
requested that the Department examine gaps in the context of the 
totality of the circumstances on a case-by-case basis. Finally, others 
such as Connecticut Attorney General George Jepsen commented that 
evidentiary gaps should continue to be evaluated on a case-by-case 
basis.
    Response: The Department has decided not to change the definition 
set forth in the previous rule. The previous rule allows some 
evidentiary gaps because evidentiary material may not be available for 
certain periods of time, even though a petitioner has continuously 
existed. Instead, the final rule expressly provides that evidence or 
methodology that was sufficient to satisfy any particular criterion 
previously will be sufficient to satisfy the criterion for a present 
petitioner. Likewise, any gaps in evidence that were allowable to 
satisfy any particular criterion previously will be allowable to 
satisfy the criterion for a present petitioner. A petitioner under 
these rules will satisfy a criterion if that type or amount of evidence 
was sufficient for a positive decision on that criterion (see, e.g., 
determination in decisions such as the Grand Traverse Band of Ottawa 
and Chippewa Indians, the Jamestown S'Klallam Tribe, the Tunica-Biloxi 
Indian Tribe, the Death Valley Timbi-sha Shoshone Tribe, the Poarch 
Band of Creeks, the San Juan Southern Paiute Tribe of Arizona, the Jena 
Band of Choctaws, and the Mohegan Tribe of Indians of Connecticut). 
Many previous Federal acknowledgment decisions had gaps of evidence and 
a one-size-fits-all approach will not reflect the unique histories of 
petitioners and the regions in which they reside. The Department 
recognizes that there are circumstances in which gaps considerably 
longer than 10 years may be appropriate. For example, some petitioners 
may have gaps in documentation of political activity and community in 
the 1940's and 1950's that are explainable by World War II and the 
Korean War.
9. Criterion (f) (Unique Membership)
a. Criterion (f), in General
    Criterion (f) (at Sec.  83.11(f)) requires that the petitioner's 
membership be composed principally of persons who are not members of 
any federally recognized Indian tribe. A few commenters opposed this 
criterion, stating that it is an imposition into tribal sovereignty by 
prohibiting dual tribal membership. Commenters noted that tribal 
memberships may change, and that such changes do not indicate that a 
tribe ceases to exist (even if ``key members'' of the petitioner leave 
to join

[[Page 37873]]

a federally recognized tribe to obtain services). A commenter suggested 
renaming this criterion as something other than ``membership'' because 
it is confusable with criterion (d). Other commenters suggested 
clarifying whether members must withdraw from the federally recognized 
tribe, clarifying how this criterion discourages splintering, and 
clarifying ``principally'' with a percentage.
    Response: The Department has not changed Criterion (f)'s 
substantive requirements from the previous rule. The previous rule does 
not prohibit dual tribal membership; it requires only that a 
petitioner's membership not be ``composed principally'' of persons who 
have dual membership. The Department recognizes that tribal memberships 
may change, and that such changes do not indicate that a tribe ceases 
to exist. This criterion is intended to prohibit factions or portions 
of federally recognized tribes from seeking Federal acknowledgment as a 
separate tribe, unless they have been a politically autonomous 
community since 1900 (criteria (b) and (c)). The final rule does not 
define a percentage for ``composed principally'' because the 
appropriate percentage may vary depending upon the role the individuals 
play within the petitioner and recognized tribe. Even if a petitioner 
is composed principally of members of a federally recognized tribe, the 
petitioner may meet this criterion--as long as it satisfies criteria 
(b) and (c) and its members have provided written confirmation of their 
membership in the petitioner. There is no requirement to withdraw from 
membership in the federally recognized tribe. The final rule titles 
this criterion ``unique membership'' in response to the comment that 
the title ``membership'' causes confusion.
b. Deletion of Previous Rule's Provision Prohibiting Members From 
Maintaining a ``Bilateral Political Relationship'' With the Federally 
Recognized Tribe
    The previous rule at Sec.  83.11(f) requires that, if petitioner's 
membership is principally composed of members of a federally recognized 
tribe, the petitioner must show that ``its members do not maintain a 
bilateral political relationship with the acknowledged tribe,'' in 
addition to showing the petitioner is politically autonomous and 
providing written confirmation of membership in petitioner. The 
proposed rule deleted the requirement to show that members do not 
maintain a bilateral political relationship with an acknowledged tribe. 
Some commenters opposed this change, stating that it could allow the 
acknowledgment process to become a vehicle to allow for acknowledgment 
of factions of federally recognized tribes. These commenters requested 
that the Department correct the rule if criterion (f) is not intended 
to allow portions of a recognized tribe to separate.
    Response: Criterion (f) requires that the petitioner be a separate 
politically autonomous community since 1900. In the past, the 
Department has acknowledged a tribe even though its members had census 
numbers with a federally recognized tribe. Notice of Final 
Determination That the San Juan Southern Paiute Tribe Exists as an 
Indian Tribe, 54 FR 51502, 51504 (December 15, 1989) (finding that San 
Juan Paiute members were not members in the Navajo Nation despite 
having Navajo census numbers). Indeed, the Department may acknowledge a 
tribe even though its members has dual citizenship in a federally 
recognized tribe and maintains a bilateral political relationship with 
that tribe if the petitioner operates as a separate politically 
autonomous community on a substantially continuous basis. The 
disqualification for having a bilateral political relationship in (f) 
is unnecessary because criterion (f) already requires that the 
petitioner function as a politically autonomous entity. For this 
reason, the final rule implements the proposed deletion of bilateral 
political relationship from criterion (f). See final Sec.  83.11(f).
c. Exception for Members of Petitioners Who Filed Prior to 2010
    For a petitioner who filed a letter of intent or a documented 
petition prior to 2010, the proposed rule would not consider as members 
of a federally recognized tribe, petitioner's members who became 
members of a federally recognized tribe after filing of the petition. 
Several commenters supported this proposed new exception. However, 
nearly all of those who commented on the 2010 cut-off date requested 
clarification of why the date was chosen or advocated for eliminating 
the date limitation. See proposed Sec.  83.11(f)(2).
    Several commenters opposed the exception, stating that it creates 
the possibility that portions of a recognized tribe could separate and 
become acknowledged. Some stated that a case-by-case examination is 
more appropriate than a blanket exception. Others requested specifying 
that a petitioner's members should sign statements saying they would 
belong exclusively to the petitioner should the petitioner obtain 
acknowledgment.
    Response: The Department recognizes that there are situations in 
which petitioners' members have become members of federally recognized 
tribes to obtain needed services pending the Department's review of a 
petition. The proposed rule attempted to address this situation by 
establishing a blanket exception. After reviewing the comments and past 
petitions, the Department has determined that this exception is not 
necessary because, if so many of a petitioner's members join a 
federally recognized tribe that the petitioner is then ``composed 
principally'' of members of the federally recognized tribe (i.e., the 
petitioner is ``composed principally'' of members with dual 
membership), then the petitioner may nevertheless be acknowledged if it 
meets criterion (f) as just discussed. The proposed additional 
exception for petitioners who filed prior to 2010 is unnecessary 
because the existing exception adequately addresses those situations 
where a petitioner's members join a federally recognized tribe to 
obtain services. For this reason, the final rule deletes the proposed 
exception for petitioners who filed prior to 2010, but retains the 
intent of the proposed exception by permitting petitioners whose 
members have joined federally recognized tribes to obtain services 
while their petition is in the queue to still be eligible for 
acknowledgment. See final Sec.  83.11(f).
10. Criterion (g) (Termination)
    A few commenters expressed support for the proposed change to 
criterion (g) (at Sec.  83.11(g)), which would put the burden on the 
Department to show that a petitioner was terminated or the subject of 
legislation forbidding the Federal relationship. Commenters stated this 
is ``obviously an important improvement'' and ``common sense.'' A few 
commenters objected to the proposed amendment because it reduces the 
burden on petitioners and is ``not appropriate.'' One commenter stated 
that there should be a process for groups to respond to the Federal 
Government's position on termination and for interested parties to 
weigh in.
    Response: In past practice, the Department's legal team reviewed 
whether the petitioner is subject to legislation that has terminated or 
forbidden the Federal relationship, regardless of the documentation the 
petitioner provided in support of this criterion. Additionally, 
terminating or forbidding the relationship is a Federal action. For 
these reasons, the Department has determined that it is appropriate to 
clarify explicitly that the burden is on the Department to show that a 
petitioner was terminated or forbidden. See final Sec.  83.11(g).

[[Page 37874]]

Petitioners and interested parties may weigh in on the Federal 
Government's position on this criterion in response to the PF.
11. Splinter Groups
    The proposed rule did not revise provisions addressing ``splinter 
groups,'' which is a subset of membership that ``separates from the 
main group.'' See proposed Sec.  83.4(a)(2). Many commenters stated 
that clarification is necessary regarding treatment of splinter groups 
in light of the proposed allowance for re-petitioning and proposed 
revisions to criteria. (For example, one commenter speculated that 
splinter groups each could be recognized without actually demonstrating 
criteria (b) (community) or (c) (political influence/authority) simply 
by pointing to a State reservation.) Among the clarifications requested 
were what qualifies as a ``splinter group,'' and whether and to what 
extent splinter groups may be acknowledged. Commenters appeared to use 
the term ``splinter group'' to mean one or more of the following: 
Groups who splinter from current petitioners; groups who splinter from 
previously denied petitioners; groups who splinter from currently 
federally recognized tribes (as evidenced by eligibility for membership 
or claiming the same historical tribe); groups who splinter from (i.e., 
are just a portion of) a historical tribe claimed by another petitioner 
or federally recognized tribe; and groups who splinter from tribes 
named in Termination Acts. Commenters argued that various types of 
these groups should or should not be acknowledged. For example, with 
regard to groups who splinter from current petitioners, several 
commenters requested incorporating the procedures in the 2008 Directive 
for dealing with splintering petitioners, noting that continued 
leadership disputes hamper the evaluation process, and dueling 
petitions from entities that trace themselves in some fashion to a 
common tribal entity have long caused problems, leading to delayed and 
costly petition reviews, intense conflicts, and litigation. Commenters 
also requested a prohibition against the Department forcing petitioners 
into one group.
    With regard to groups who splinter from previously denied 
petitioners, several commenters were concerned that petitioners may be 
acknowledged even if they are splinters of previously denied 
petitioners or petitioners who claim they are the ``main group'' and 
the previously denied petitioner was the splinter.
    Federally recognized tribes, in particular, expressed concern that 
groups who claim the same historical tribe could appropriate the 
federally recognized tribe's history and that the shortened time period 
for showing community and political influence/authority would 
facilitate their acknowledgment. A few commenters requested prohibiting 
splinters from historical tribes and State-recognized tribes to prevent 
subsets of a historical tribe from being acknowledged (rival groups may 
claim to be descendants of the historical tribe).
    Response: The final rule does not change the way the Department has 
handled ``splinter groups.'' The Department will continue to address 
``splinter groups'' with the same rigor it has applied under the 
existing rules. With regard to splinters of petitioners, the final rule 
continues to allow for the approach of the 2008 Departmental guidance 
to address conflicting claims to leadership within a petitioning group 
that interfere with OFA's ability to conduct business with the group. 
Specifically, the Department may request additional information from 
the petitioner to clarify the situation and OFA may suspend its review 
of the petition. See 73 FR 30146 (May 23, 2008). OFA's suspension would 
be based on the leadership dispute qualifying as an ``administrative 
problem'' with the petition under Sec.  83.31.
    With regard to other types of ``splinter groups,'' final 83.4 
incorporates a cross-reference to criterion (f), which prohibits any 
petitioner from being composed principally of members of a federally 
recognized tribe unless the petitioner can provide evidence that it was 
an autonomous political community since 1900. The Department will 
continue the approach it has previously utilized. Final Determination 
of Federal Acknowledgment for the Jena Band of Choctaw Indians, 60 FR 
28480 (May 31, 1995) (finding the Jena Band of Choctaw Indians to be a 
separate and distinct Indian group, first identified by Federal Census 
in 1880, who descended from the Choctaws who left the historical 
Mississippi Choctaws).

B. Re-Petitioning

    Numerous commenters stated their support for allowing re-
petitioning, stating that it is necessary for equal protection, 
appropriate because implementation of the rules has become more 
stringent over the years, and may be legally permissible. See proposed 
Sec.  83.4(b).
    Numerous commenters were opposed to allowing re-petitioning, 
stating that allowing re-petitioning:
     Violates Federal law (separation of powers, collateral 
estoppel, res judicata), is arbitrary and capricious, and exceeds the 
Department's authority;
     Is unnecessary if the regulatory revisions truly are not 
affecting criteria or changing the standard of proof;
     Is inefficient and administratively burdensome;
     Undermines finality and certainty, disrupting settled 
expectations;
     Is unfair to stakeholders, especially those who have 
already litigated against the unsuccessful original petition;
     Is unfair to other petitioners and tribes who may have 
legitimate petitions;
     Is unfair particularly to Connecticut;
     Could result in acknowledgment of previously denied 
petitioners;
     Is unnecessary because petitioners can challenge in court 
instead; and
     Is unreasonable, especially with such a low standard for 
allowing re-petitioning.
    A few commenters were neutral on re-petitioning because ultimately 
the same individuals who reviewed the original petition would be 
reviewing the re-petition and re-petitioning will require a petitioner 
to obtain resources (hire historians, genealogists, e.g.) to go through 
the petitioning process again. Some suggested that any Departmental 
employee who was associated with the original negative finding should 
be precluded from participating in the review of the re-petition. A few 
requested clarifications on the standard for allowing re-petitioning 
and on the order in which petitions, once re-petitioning is granted, 
would be reviewed.
    Many commenters, including those who submitted form letters, 
opposed the proposed condition that re-petitioning would be allowed 
only with the consent of the opponents to the original petition, which 
some characterized as the ``third party veto.'' These commenters stated 
that this condition, among other things:
     Is unfair (favoring third-party interest over correction 
of injustice), will deprive a petitioner of even making the case for 
re-petitioning, and will prevent getting to the truth of whether the 
tribe should be acknowledged;
     Treats petitioners unequally;
     Allows for political intervention in what should be a 
fact-driven process;
     Is an illegal delegation of authority under the 
Appointment Clause and is legally unprecedented;
     Is illegal for other reasons (under the Fifth Amendment 
Due Process Clause, Supremacy Clause, Commerce Clause) or is arbitrary 
and capricious;

[[Page 37875]]

     Is based on an invalid justification (established 
equities) that fails to consider petitioners' interests; and/or
     Is politically motivated by Connecticut's influence.
    Some commenters suggested removing the third-party consent 
condition and instead allowing interested parties to participate in the 
hearing on whether re-petitioning is appropriate. Others suggested 
third parties be limited to participating in the petitioning process, 
if the re-petitioning request is granted. Some commenters stated that 
no third-party participation is appropriate in a re-petitioning request 
because third parties' objections are based on factors other than 
whether the petitioner meets the criteria for acknowledgment.
    Those in support of the third-party consent condition stated that 
they would prefer not to allow re-petitioning at all, but if re-
petitioning is allowed, then the third-party veto is necessary to 
protect established equities and should be expanded to require consent 
of all interested parties, regardless of whether they participated in a 
prior proceeding involving the original petition.
    A few commenters suggested different approaches to re-petitioning, 
allowing re-petitioning in only certain circumstances, such as if:
     A substantial number of years passes and there is 
significant new evidence;
     There is a showing of some modification of evidence;
     The ALJ consults with nearby federally recognized tribes 
before making a decision, to give those who were not notified 
previously a chance to be involved;
     The petitioner exhausted their administrative and 
appellate remedies; or
     Third parties involved in a prior proceeding are granted 
special standing.
    Response: The proposed rule would have provided for a limited 
opportunity for re-petitioning. After reviewing the comments both in 
support of and in opposition to allowing for any opportunity for re-
petitioning, limiting re-petitioning by providing for third-party 
input, and other suggested approaches for re-petitioning, the 
Department has determined that allowing re-petitioning is not 
appropriate. The final rule promotes consistency, expressly providing 
that evidence or methodology that was sufficient to satisfy any 
particular criterion in a previous positive decision on that criterion 
will be sufficient to satisfy the criterion for a present petitioner. 
The Department has petitions pending that have never been reviewed. 
Allowing for re-petitioning by denied petitioners would be unfair to 
petitioners who have not yet had a review, and would hinder the goals 
of increasing efficiency and timeliness by imposing the additional 
workload associated with re-petitions on the Department, and OFA in 
particular. The Part 83 process is not currently an avenue for re-
petitioning.

C. Standard of Proof

    Proposed Sec.  83.10(a) would attempt to clarify that the 
``reasonable likelihood'' standard of proof means that there must be 
more than a mere possibility but does not require ``more likely than 
not.'' The clarifying language is based, in part, upon the definition 
of ``reasonable likelihood'' applied by the Supreme Court in 
determining whether there is a reasonable likelihood that a jury has 
misapplied a jury instruction for capital offense sentencing. See 
proposed Sec.  83.10(a)(1). Several commenters expressed support for 
the proposed clarification to increase predictability and consistency 
in application. Some stated they specifically support clarification 
that the standard does not require ``more likely than not'' to 
counteract what, they assert, is a Departmental trend to require more 
and more evidence over time. Several commenters opposed how the 
proposed rule defined ``reasonable likelihood,'' stating that it would 
substantially lower the standard of proof, would allow acknowledgment 
of groups who ``more likely than not'' do not meet criteria, and would 
take away the Department's ability to balance evidence by requiring 
acknowledgment if there is ``more than a mere possibility.'' Commenters 
also stated that the Supreme Court's interpretation of ``reasonable 
likelihood'' in the case cited in the proposed rule is inapplicable and 
inappropriate for application to the acknowledgment process because the 
cited case involved jury instructions in a criminal (death penalty) 
case--where, as one commenter stated, society would rather acquit the 
guilty than wrongly convict the innocent. Commenters also stated that 
interpreting ``reasonable likelihood'' in this way exceeds the 
Department's authority, is inconsistent with the Administrative 
Procedure Act and Steadman v. SEC, 450 U.S. 91 (1981), raises 
significant due process issues, and is unprecedented (no other Federal 
agency uses this standard in making eligibility determinations).
    Several commenters provided alternative suggestions, including 
applying a preponderance of the evidence/``more likely than not'' 
standard. One suggested providing that a criterion is met ``if the 
evidence is sufficient for a reasonable mind to conclude that the 
criterion is met viewing the evidence in the light most favorable to 
the petitioner, in the specific cultural, social, political, and 
historical context of the tribe and in the light of adverse 
consequences caused by Federal policy or actions.'' Some commenters 
stated that subjective judgment is involved, even with a clear 
definition of ``reasonable likelihood.'' Some requested reinserting the 
June 2013 discussion draft's language that the evidence will be viewed 
in the light most favorable to the petitioner.
    Response: In light of commenters' concerns that the proposed rule 
changed the standard of proof, the final rule retains the current 
standard of proof and discards the proposed interpreting language. The 
final rule expressly provides that evidence or methodology that was 
sufficient to satisfy any particular criterion in a previous positive 
decision on that criterion will be sufficient to satisfy the criterion 
for a present petitioner. In other words, a petitioner today satisfies 
the standards of evidence or baseline requirements of a criterion if 
that type or quantum of evidence was sufficient for a past positive 
decision on that criterion. The Department will continue to interpret 
``reasonable likelihood of the validity of the facts'' as described in 
the 1994 preamble (at 59 FR 9280 (February 25, 1994)) and will not 
apply a more stringent interpretation of that standard. See final Sec.  
83.10(a). See also, e.g., Summary Under the Criteria and Evidence for 
Final Determination for Federal Acknowledgment of the Cowlitz Indian 
Tribe, February 14, 2000, p. 101 (stating that the general standard is 
a ``reasonable likelihood'' and ``not that there must be conclusive 
proof'').

D. Third-Party Participation in the Acknowledgment Process

    Many commenters addressed the level of third-party participation in 
the petitioning process. Those commenters arguing that third parties 
should have more opportunity for participation stated that the proposed 
rule would severely limit third-party involvement by restricting the 
right to notice, allowing no opportunity to rebut petitioner's 
responses, eliminating the opportunity to seek an on-the-record meeting 
or IBIA reconsideration, restricting to certain parties the right to 
have an impact on a positive PF, and making monitoring the petition 
more difficult by establishing more phases of review. One commenter 
stated that the proposed rule establishes an iterative process for the 
petitioner to engage OFA

[[Page 37876]]

at every stage--creating a tutelage-like process between the petitioner 
and the agency. Federally recognized tribes asserted that they, in 
particular, should have more opportunity for input under the DOI Policy 
on Consultation with Indian Tribes and because they are more aware of 
tribal histories. Commenters provided a number of suggestions for 
allowing more opportunity for third-party input.
    Other commenters stated that more limits on third-party 
participation should be imposed because third parties improperly weigh 
in on acknowledgment petitions based on land-into-trust issues, 
taxation, discrimination, gaming fears, financial and political 
pressures, and other factors that do not address whether the petitioner 
meets the criteria. These commenters state that the process should be 
between a petitioner and the Department only and that, otherwise, third 
parties with substantial resources and power can challenge evidence and 
question interpretation of the criteria to disrupt petitions. 
Commenters provided suggestions for prohibiting or limiting third party 
participation, including imposing a requirement for comments and 
evidence to be directly relevant to whether the petitioner meets the 
criteria.
    Specific provisions that were the focus of comments on third party 
participation follow.
1. Who Receives Notice of the Receipt of the Petition
    The proposed rule provides that the Department will publish receipt 
of a documented petition in the Federal Register and on the OFA Web 
site, but will also notify in writing the governor and attorney general 
of the State in which petitioner is located, any federally recognized 
tribe within the State or within a 25-mile radius, or any other 
recognized tribe and petitioner that appears to have a historical or 
present relationship with the petitioner or may otherwise have a 
potential interest. See proposed Sec.  83.22(b)(2).
    With regard to restricting notice to tribes within a certain 
radius, some commenters supported this limitation, stating that it 
would reduce the influence of parties hundreds of miles away who may be 
antagonists. Commenters opposed to this limitation stated that it is 
arbitrary because petitioners beyond the 25-mile radius could claim the 
same heritage as a federally recognized tribe, that it inappropriately 
suggests a gaming standard, and that generally a tribe's presence 
extends beyond its headquarters. Some commenters suggested notifying 
any federally recognized tribe: To which the petitioner claims to have 
ties or shared heritage; with trust land in the same State as 
petitioner; within a radius of aboriginal territory rather than 
headquarters; or within 100 miles. The proposal also provided that when 
a positive PF is issued, only certain parties may object, including 
tribes within 25 miles. See proposed Sec.  83.37.
    Several commenters stated that local governments should receive 
written notice of the petition because the local governments have 
interests beyond those of the State (e.g., public health and safety 
service impacts) and otherwise may not be aware of the petition. Some 
commenters suggested that notice of the petition and proposed finding 
should be provided to all residents, businesses, landowners, and others 
within a 25-mile radius. Another commenter suggested notice to State 
government agencies responsible for Indian affairs. A few commenters 
stated that sending notice to the State and others is inappropriate 
because tribes do not receive notice of every State action.
    Response: After reviewing the comments, the Department determined 
the proposed addition of notice to tribes within a certain radius or 
within the State to be unnecessary, because the rule already provides 
for constructive notice to all through publication in the Federal 
Register and direct notice to any tribe 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. The final rule provides additional notice 
to county-level (or equivalent) governments, in response to comments by 
Stand Up for California and others; continues to require notice to the 
State governor and attorney general and affected tribes and 
petitioners; and allows for notice to everyone else through publication 
in the Federal Register and on the OFA Web site. See final Sec.  83.22. 
Through much greater use of Web site publication, the new rule 
increases transparency throughout the administrative process of 
consideration.
2. Deletion of Interested Party Status
    Many commenters opposed the proposed deletion of the ``interested 
party'' definition from Sec.  83.1 and asserted that certain parties 
should have the ability to participate fully in the acknowledgment 
process. These commenters stated that local governments, landowners, 
and other parties affected by the acknowledgment decision must have 
broader rights of participation to ensure due process, fairness, 
integrity, and transparency. Some federally recognized tribal 
commenters stated that the Department's Indian trust responsibility 
requires their full participation in the acknowledgment process. Other 
commenters suggested reinserting the definition of ``interested party'' 
but establishing a formal process for determining who qualifies as an 
``interested party'' or restricting interested parties to those with 
direct material interests. Commenters had other suggestions about 
disclosing the identity of interested parties and clarifying what 
happens to those who already have been granted interested party status 
in pending petitions. Comments on the term ``informed party'' defined 
in Sec.  83.1 requested some process for determining whether a party is 
informed of the petitioner's history (as opposed to a party who wants 
to be informed of the petition's progress).
    Response: The final rule allows anyone who is interested in the 
petition to submit comments and evidence and receive notice, without 
labelling such individuals or entities. The final rule allows for 
broader notice, regardless of whether a particular party would qualify 
as an ``interested'' or ``informed'' party under the prior rules. The 
Department wishes to obtain relevant, reliable evidence from any 
source. Accordingly, the terms ``interested party'' and ``informed 
party'' are no longer necessary for the purposes of defining the 
persons who will be notified of actions on a specific petition, and 
therefore the terms have been deleted. See final Sec.  83.1.
3. Comment Periods
    Several commenters stated that limiting the period for commenting 
after receipt of a petition to 90 days from Web site posting and 
reducing the time period for comment on PFs unjustly limits third party 
participation.
    Response: These comments are addressed in Process--Timelines, 
below.

E. Process--Approach

1. Letter of Intent
    The proposed rule would delete the optional step in the current 
Sec.  83.4 of providing a letter of intent to submit a petition. Some 
commenters expressed support for deletion because many who provide 
letters of intent never submit petitions. Some commenters opposed 
eliminating this step because the letters track groups claiming tribal 
status, put others on notice that groups intend to seek Federal 
acknowledgment (and allow the others to start their own

[[Page 37877]]

research), provide information for Departmental budget and staffing 
planning, benefit petitioners by allowing them to qualify for grants, 
etc., impose only a minimal burden, and are consistent with other 
Federal practices. Some commenters suggested alternatives to deleting 
this step, for example, imposing an expiration date so that a letter of 
intent is effective for a limited time (e.g., three years).
    Response: The final rule deletes the letter of intent step because, 
as some commenters noted, many who submit letters of intent never 
follow through to submit petitions. The Department reviewed the 
commenters' concerns with deleting this step and determined that the 
improvements in clarity (the process will now clearly begin with the 
filing of a documented petition) and efficiency (fewer Departmental 
resources required) outweigh the potential negatives of eliminating 
this step. Prior to the effective date of this rule, the Department 
will send a letter to each entity who has submitted only a letter of 
intent, and encourage submission of a documented petition and inform 
them that if they do not, they will not be considered petitioners. Each 
entity that has submitted only a letter of intent is not a petitioner 
in the process unless and until it submits a documented petition.
2. Phased Review
    Under proposed Sec.  83.26, OFA would conduct a phased review of 
the criteria. Most who commented on the proposed phased review 
supported it, noting that satisfaction of the descent criterion (e) is 
a threshold issue and that, because evaluation of criteria (b) 
(community) and (c) (political influence/authority) is more time 
consuming, phased review should make the process more efficient. One 
petitioner suggested reviewing criterion (d) (governing document) with 
criterion (e) to ensure submission of a governing document and 
membership list.
    A few commenters opposed eliminating the process for allowing 
expedited rejections of petitions in the current Sec.  83.10(e) based 
on any one of the descent, membership, or termination criteria; others 
preferred the 2013 discussion draft approach of having expedited 
positive and negative findings.
    Response: The final rule streamlines the phased review and 
expedites the entire process by providing for a review first of 
criteria (d) (governing document), (e) (descent), (f) (unique 
membership), (g) (termination), and any claim to previous Federal 
acknowledgment; and second of criteria (a) (identification), (b) 
(community), and (c) (political influence/authority). See final Sec.  
83.26. These two phases combine evaluations of the criteria that are 
most likely to be evaluated together even in the absence of defined 
phases. The result is likely to produce any negative decisions in a 
quicker manner, thereby resolving petitions sooner, reducing time 
delays, increasing efficiency, and preserving resources.
3. Technical Assistance
    The proposed rule would require OFA to conduct a technical 
assistance (TA) review for each of the two review phases, see proposed 
Sec.  83.26(a)(1) and (b)(1). A few commenters requested that 
interested parties be permitted to request and participate in TA 
reviews. A few commenters stated that allowing multiple TA reviews 
creates a fragmented process and omits the pre-review TA that often 
identifies problems in advance of OFA consideration.
    Response: Under the Department's long-standing practice, OFA 
provides the petitioner with TA review because the petitioner is 
seeking Federal acknowledgment. However, to promote transparency, the 
final rule provides for the Department to make each TA review letter 
publicly available by posting it on the Web site as soon as it is 
issued, to allow review by anyone who is interested. See final Sec.  
83.22(c). The final rule limits the number of TA reviews to two, at the 
most: One for each phase. Each TA review will be limited to the 
criteria that are to be reviewed during that stage (i.e., Criteria (d) 
(Governing Document), (e) (Descent), (f) (Unique Membership) and (g) 
(Termination) in Phase I and the remaining criteria in Phase II). 
Because some petitioners may fail to proceed to the second phase, 
splitting the TA review into two phases will help promote efficiency. 
In addition, petitioners may seek informal assistance and guidance from 
OFA prior to submitting a petition.
4. Providing Petitioner With Opportunities To Respond
    Several commenters supported the proposed provision allowing a 
petitioner to respond to comments prior to issuance of a PF (proposed 
Sec.  83.24), ensuring the Department has all relevant information. A 
few suggested allowing a reasonable extension beyond 60 days, if 
requested. Also, some commenters expressed support for the proposed 
requirements that OFA provide the petitioner with any material used in 
the PF or FD and that the AS-IA remand a favorable PF to OFA if new 
evidence might support a negative PF (proposed Sec.  83.42(b)). One 
commenter stated that these changes are necessary to ensure due process 
and address the problems that, in its experience as a petitioner, 
plagued its petition following a favorable PF.
    Response: The final rule includes the proposed approach allowing a 
petitioner to respond to comments prior to the issuance of a PF and 
ensuring OFA provides the petitioner with any material used in the PF, 
to the extent allowable under Federal law. The requirement in proposed 
Sec.  83.42(b) for remand to OFA if new evidence may support reversal 
of a positive PF has been deleted because it could have added 
significant delays to the process. Instead, the final rule provides, at 
Sec.  83.41, that the Assistant Secretary will review the positive PF 
in light of the comments on the PF and the petitioner's response.
5. Suspensions (Proposed Sec.  83.31) and Withdrawals (Proposed Sec.  
83.30)
    Several commenters requested a time limit on suspension of review 
of a petition for technical or administrative problems to ensure the 
suspension lasts no longer than a year and to allow the petitioner to 
resume at any time. A few commenters also requested allowing 
petitioners to request suspension of their petitions where acts of God 
impede them from moving forward.
    Some commenters stated that the proposal to allow petitioners to 
withdraw their petitions after active consideration begins would allow 
petitioners to avoid negative findings, affecting the integrity of the 
acknowledgment process. They also note that it is inefficient to allow 
withdrawals because the Department will expend resources without 
reaching a final decision. A few commenters suggested allowing for 
withdrawal after active consideration only with the consent of AS-IA.
    Other commenters said that the proposal to allow withdrawal after 
the beginning of active consideration is only fair, to allow petitioner 
to gather additional evidence if needed. Several commenters objected to 
the proposal that petitions that are withdrawn and then re-filed will 
be placed at the end of the register of documented petitions when re-
filed; these commenters stated that petitioners who withdraw should not 
lose their place in line if the withdrawal is for less than a year.
    Response: The final rule takes the approach that when the 
petitioner is preparing information to submit in response to technical 
assistance, no timeline applies. This negates the need for the 
petitioner to request a suspension from the Department; rather,

[[Page 37878]]

the petitioner may take whatever time it needs. Upon submission of 
petitioner's response, the timelines imposed on the Department for that 
phase will begin to run. Where the Department faces technical or 
administrative difficulties that prevent review, the final rule allows 
for the Department to suspend its own review. See final Sec.  83.31. No 
suspension is necessary to allow time for the petitioner's responses to 
technical assistance, because the final rule does not impose timelines 
on these actions. With regard to withdrawal, the final rule allows for 
withdrawal but with the consequence that the petition will be placed at 
the end of the numbered register upon re-submission. There is no need 
to provide that a petitioner does not lose their place in line if the 
withdrawal is less than a certain timeframe, because the petitioner 
always has the option of taking as long as they like to respond to 
technical assistance, in lieu of withdrawal.
6. Decision-Maker
    Several commenters opposed the proposed approach of having OFA 
issue the PF (proposed Sec.  83.32) and AS-IA issue the FD (proposed 
Sec.  83.42), rather than the current approach where AS-IA issues both 
the PF and FD with OFA's input. These commenters stated that separating 
OFA experts' analysis from AS-IA's evaluation would allow AS-IA to 
deviate from evidence and findings without standards and make a 
political decision. Commenters also stated that the proposed approach 
promotes the idea that there is an adversarial relationship between OFA 
and AS-IA. These commenters believe OFA should provide neutral, expert 
analysis to AS-IA in each instance and AS-IA should issue both the PF 
and FD to provide greater checks and balances and more accurate 
findings by allowing for another level of fact checking and editing. At 
least one commenter supported the proposed approach, saying that OFA's 
findings should be advisory only.
    Response: The Department does not agree that having OFA issue the 
PF separates OFA experts from AS-IA, allows for arbitrary deviation, or 
promotes an adversarial relationship. OFA exists within and reports to 
the Office of the AS-IA and works at AS-IA's direction. Moreover, 
having OFA issue the PF underscores the crucial role that OFA plays in 
the process. The final rule retains the proposed approach of having OFA 
issue the PF as a documented recommendation for AS-IA to consider when 
preparing the FD. AS-IA's preparation of the FD will be based on the 
complete record, including the PF issued by OFA, comments and responses 
on the PF, and any hearing record and ALJ recommended decision. The 
Assistant Secretary may continue to seek the input of OFA, as technical 
staff throughout this process.
7. Automatic Final Determination
    For improved efficiency, several commenters supported proposed 
Sec.  83.37(a), which would require automatic issuance of a positive FD 
when there is no significant opposition to a positive PF from the State 
or local government or any federally recognized Indian tribe within the 
State or within a 25-mile radius of petitioner's headquarters. One 
commenter stated that a positive FD should be issued within 30 days 
after issuance of the positive PF rather than waiting 90 days for 
comments under proposed Sec.  83.35(a). Those who opposed this 
requirement stated that all positive PFs should be treated the same, 
regardless of who submits comments, and that limiting commenters to 
certain interested parties violates the APA requirement that the whole 
record be considered, leaving those other interested parties without 
any procedural rights to protect their interests.
    Response: In response to commenters' concerns regarding limiting 
commenters to certain parties, the final rule treats all commenters the 
same, regardless of who submits comments, but clarifies that the 
objection to the positive PF must be supported by evidence as to 
whether the petitioner meets the criteria. See final Sec.  83.36. 
Allowing for automatic issuance of a positive FD if there is no 
objection with evidence germane to the criteria, conserves resources, 
and promotes efficiency in the process.
8. Prioritizing Reviews
    A number of commenters requested clarification of the priority of 
various categories of petitions (those pending during the regulatory 
process, suspended petitions, previously denied petitions), and 
advocated that various categories be given top priority in the order of 
review. One commenter suggested creating tiers for review based on 
which petitions are easiest to process.
    Response: The final rule's revised process, which separates review 
into two phases, is intended to improve efficiency by focusing review 
first on a limited number of criteria to eliminate petitioners who do 
not meet those basic criteria, before embarking on the more time- and 
resource-intensive review of the other criteria. See final Sec.  83.26.
9. Proceeding Under the New or Old Version of the Regulations
    Several commenters stated their support for allowing a petitioner 
who has a currently pending, complete documented petition on active 
status to choose whether to proceed under the new or current 
regulations. These commenters requested clarification on how to proceed 
under the new regulations and requested that they be placed in highest 
priority if they already submitted a letter of intent or other 
documentation under the current regulations.
    Response: The final rule, at Sec.  83.7, establishes that the final 
rule will apply, except that a petitioner with a currently pending, 
complete documented petition may choose to proceed under the current 
regulations if it notifies the Department by the stated deadline. The 
Department will notify each such petitioner of the option to proceed 
under the current regulations. A petitioner must respond by the 
deadline if it chooses to do so; otherwise, the petitioner will be 
subject to the new regulations. See Sec.  83.7. OFA will maintain a 
list of petitions that are awaiting Departmental action at any given 
time and address those petitions in the order in which they were 
submitted.
10. Precedent and Other Comments
    A few commenters requested specific language be added to the 
preamble regarding precedent (ranging from ensuring that OFA precedent 
continues to be followed, to ensuring that prior negative decisions of 
OFA will not be used to interpret the new regulations) and other 
statements as to applicability. Commenters commented on various other 
aspects of the process, OFA's qualifications and oversight, making 
available example formats for the petition, and whether the Department 
owes a trust responsibility to petitioners.
    Response: Because the final rule does not make significant changes 
to the criteria, the Department's precedent stands. To address concerns 
that the Department is implementing the criteria in an increasingly 
stringent manner, the final rule adds a section in Sec.  83.10 to 
ensure that the Department is applying the criteria consistently. The 
final rule states that if there is a prior final positive decision 
finding evidence or methodology to be sufficient to satisfy any 
particular criterion previously, the Department will find it sufficient 
to satisfy the criterion for a present petitioner. In other words, a 
petitioner satisfies the standards of evidence or

[[Page 37879]]

baseline requirements of a criterion if that type or amount of evidence 
was sufficient for a positive decision on that criterion in prior final 
decisions (see., e.g., the Grand Traverse Band of Ottawa and Chippewa 
Indians, the Jamestown S'Klallam Tribe, the Tunica-Biloxi Indian Tribe, 
the Death Valley Timbi-sha Shoshone Tribe, the Poarch Band of Creeks, 
the San Juan Southern Paiute Tribe of Arizona, the Jena Band of 
Choctaws). The Department has considered the other miscellaneous 
comments and determined that they do not warrant any revisions to the 
regulation.

F. Petitioning Process Timelines

1. Timelines--Overall
    We received several comments on how long the process currently 
takes, noting that, even with the proposed deadlines, the proposed 
process would continue to be lengthy, due to multiple instances of 
providing technical assistance, submission of new evidence, and the 
requirement that petitioners see and respond to any evidence before a 
PF is issued. These commenters stated that these parts of the process 
are unrealistic, unworkable, and inefficient. A few commenters 
suggested having more accountability for timeliness through a deadline 
for all prospective petitioners to submit their petitions, a deadline 
for the Department to issue decisions on all petitions, or parameters 
for how long a petition stays on the ``ready'' list.
    Several commenters supported the proposed timelines and requested 
they be strictly upheld, either allowing for a way to compel agency 
action or the issuance of automatic findings in support of petitioner. 
One commenter suggested adding timelines to the technical assistance 
process and one suggested the entire process be subject to a 6-month 
deadline.
    Response: The Department has retained the proposed timelines in 
nearly all instances to ensure efficiency. The final rule reduces the 
proposed opportunities for technical assistance to two (not including 
any informal guidance a petitioner may obtain prior to submitting a 
documented petition)--one for each of the two review phases. This 
change is intended to promote efficiency because the expectation is 
that each technical assistance review will be more targeted to certain 
criteria, and therefore likely shorter, and some petitioners may 
receive only the first phase of technical assistance, where Phase I 
results in a negative final determination. Ensuring that petitioners 
see and respond to any evidence before a PF is issued may, in fact, add 
time to the process; however, the Department believes this is an 
instance where the need for transparency, fairness, and rigor outweighs 
the need for promptness. The final rule does not impose parameters for 
how long a petition stays on the ``ready'' list because the length of 
stay is subject to the availability of OFA staff at any given time. To 
emphasize that the Department plans to strictly uphold its timelines, 
the final rule deletes each individual provision allowing for a 
specific time extension and replaces them with a new section providing 
that the Department may extend a deadline only upon consent of the 
petitioner or for good cause. See Sec.  83.8.
2. Timelines--Notice of Receipt of Documented Petition
    Proposed Sec.  83.22(b)(1)(iv) establishes a deadline of 90 days 
from the date a documented petition is posted on OFA's Web site for 
submission of comments. Several commenters stated that comments should 
be accepted without any definitive time limit until active 
consideration of the documented petition begins. These commenters 
argued that petitioners have as long as possible to prepare research 
and limiting others' input to a 90-day window appears to be designed to 
preclude meaningful public comment. A few commenters requested 
expanding the 90-day comment period to 120 or 150 days.
    Response: In response to comments, the final rule extends the 
comment period to 120 days. The final rule retains a defined comment 
period because it is necessary to have a cut-off point in order to 
allow the petitioner time to respond to comments. We note that 
commenters also have the time to further prepare comments and gather 
evidence for submission during the comment period on the proposed 
finding.
3. Timelines--Petitioner Response to Comments Prior to PF
    Proposed Sec.  83.24 would allow a petitioner at least 60 days to 
respond to comments before OFA begins review. A few commenters 
suggested allowing a reasonable extension beyond 60 days, if requested 
by petitioner.
    Response: The final rule allows the petitioner 90 days rather than 
60 days to respond to comments (Sec.  83.24) and adds a provision in 
Sec.  83.8 that generally allows for extensions of time for good cause.
4. Timelines--Issuance of a PF
    A few commenters noted that it will be difficult for OFA to issue a 
PF within 6 months, as required by proposed Sec.  83.32, for 
petitioners with large memberships. One commenter suggested adding 
flexibility to allow OFA and the petitioner to agree upon a deadline. 
This commenter pointed out that proposed Sec.  83.26(a)(1)(i)(B) allows 
the petitioner to submit additional information, but proposed Sec.  
83.32 still requires issuance of PF within 6 months of beginning 
review.
    Response: The final rule clarifies that the time periods for 
issuance of PFs and FDs are suspended when the Department is waiting 
for a technical assistance response from the petitioner. See Sec. Sec.  
83.32(b), 83.42(b). In other words, the clock on these timelines runs 
only when the Department is obligated to act.
5. Timelines--Comment Period on PF
    The previous rule provides a 180-day period for comment on the PF, 
with the possibility of a 180-day extension. The proposed rule would 
reduce these time periods, allowing for a 90-day comment period 
(proposed Sec.  83.35), with the possibility of a 60-day extension 
(proposed Sec.  83.36). Most who commented on the proposed comment 
period stated their opposition to reducing the period from 180 days to 
90 days. These commenters stated that this is a significant reduction, 
will place a substantial burden on petitioners and interested parties, 
and fails to account for petitions with large amounts of evidence 
requiring substantial time to review and possibly time to conduct 
independent research and submit evidence. Some commenters stated that 
this provision also appears designed to preclude third-party 
participation. A few commenters stated that the time should be further 
reduced to limit third-party involvement.
    Most commenters advocated for retaining the 180-day timeframe; one 
requested at least 120 days. Commenters also stated that, even with the 
60-day extension, depending on the nature of the findings and 
petitioner's resources, it may require longer than the initial 90-day 
period plus the additional 60 days to submit comments. These commenters 
advocated for a 90-day extension, an extension for any period AS-IA 
chooses, or an automatic 60-day extension at the petitioner's request 
and allowance of additional extensions for good cause shown, such as 
needing more time to generate probative evidence.
    Response: The final rule establishes a 120-day timeframe to comment 
on the PF. See final Sec.  83.35. This deadline is shorter than the 
existing 180-day timeframe, but longer than the proposed

[[Page 37880]]

90-day timeframe, in order to promote efficiency in the process while 
still allowing sufficient time for input. The final rule also allows 
the timeframe to be extended for good cause. See final Sec.  83.8.
6. Timelines--Period for Petitioner's Response to Comments on a 
Positive PF
    Several commenters requested additional time for the petitioner to 
respond to comments on a positive PF (proposed Sec.  83.37 would allow 
60 days and an unspecified extension), advocating for a total of 120 
days because petitioners may not have the resources to respond more 
quickly.
    Response: The final rule retains the 60-day deadline to respond in 
order to promote efficiency in the process while still allowing 
sufficient time for input. The final rule also allows the timeframe to 
be extended for good cause. See final Sec.  83.8.
7. Timelines--Petitioner Response to Comments and/or Election of 
Hearing
    Proposed Sec.  83.38 would allow the petitioner 60 days to respond 
to comments and/or elect a hearing on a negative PF, and would allow 
AS-IA to extend the comment period if warranted. Commenters stated that 
60 days is too short (see comments under ``Hearings''). They also 
suggested requiring filing of just a notice of appeal initially, then 
allowing for submission of lists of material facts, exhibits, and 
witnesses later rather than requiring their submittal with the election 
of hearing.
    Response: The final rule retains the 60-day deadline in order to 
promote efficiency in the process; however, the final rule provides the 
response timeframe and the timeframe for electing a hearing will run 
sequentially, rather than concurrently, to allow time to prepare the 
election of hearing listing the issues of law and material fact, 
witnesses, and exhibits. See final Sec. Sec.  83.36(b), 83.38. The 
final rule also allows the timeframe to be extended for good cause. See 
final Sec.  83.8.
8. Timelines--Issuance of FD
    Proposed Sec.  83.42 would require the Assistant Secretary to issue 
a FD within 90 days. This is an increase from the current 60-day period 
for issuance of a FD. A small number of commenters opposed the extended 
time for AS-IA review as counter to the goal for efficiency.
    Response: While the 90-day period is an increase from the current 
60 days, the Department believes this increase is justified given that 
the preparation of the final determination will be the first occasion 
for the AS-IA to review the administrative record and formulate a 
determination. See final Sec.  83.42.

G. Hearings

1. Deleting the IBIA Reconsideration Process, and Adding a Hearing on 
the PF
    The proposed rule eliminates the process for limited 
reconsideration of the AS-IA's determination by the IBIA and adds an 
option for a petitioner to elect a hearing on a negative PF before an 
independent judge in the Office of Hearings and Appeals (OHA). Many 
commenters expressed their strong support for the proposed option, 
saying this process adds transparency, fairness, and neutrality. These 
commenters also supported the proposed elimination of the IBIA 
reconsideration process, stating that the hearing process would be more 
fair and efficient.
    Others expressed their strong opposition to the proposed hearing 
process, stating that it makes the petitioning process more 
adversarial, more burdensome, and less transparent. These commenters 
also stated that the hearing and review of re-petition requests 
inappropriately burden an administrative court with analysis of non-
legal issues. Several commenters also opposed elimination of the IBIA 
reconsideration process, disputing the accuracy of the rational for the 
elimination: that there are no other instances where IBIA reviews an 
AS-IA decision). Those commenters also argued that the IBIA process is 
more efficient than appeals to Federal court and is necessary to 
correct administrative errors before costly litigation and to guard 
against politically motivated Departmental decisions. These commenters 
note that IBIA has particular expertise with respect to Federal-tribal 
relations that a judge from elsewhere in OHA lacks. Some commenters 
claimed that replacing the IBIA process with the option for a hearing 
will result in more adversarial dealings and litigation. A few 
commenters suggested allowing the Secretary to direct reconsideration 
to IBIA on her own motion or upon request.
    Response: The final rule implements the proposal to delete the 
limited IBIA reconsideration process and to allow for a hearing on a 
negative PF. This procedure will require the parties to pinpoint 
specific findings that they dispute and provide evidence from the 
record, from testimony based on the record, or cite to precedent in 
support of their positions in a setting that is well-suited to 
objective consideration of discrete issues in a transparent manner. 
Rather than making the process more adversarial, a hearing will help 
crystalize the issues in preparation for consideration by the AS-IA. 
Since it occurs before an objective forum without any preconceived 
notion of an outcome, it will further insulate the process from 
criticisms of perceived bias.
2. Opportunity for Third Parties To Request a Hearing and Intervene in 
Hearings
    Many commenters objected to the proposed rule allowing hearings 
only at the election of a petitioner on a negative PF. See Sec.  
83.38(a). These commenters asserted that any party should be entitled 
to request a hearing on a PF to ensure that all parties are treated 
equally. They asserted that third parties with evidence relevant to a 
positive PF are left only with the option of submitting comments and 
pursuing an appeal before Federal district court under the APA's 
deferential ``arbitrary and capricious'' standard of review. Some 
commenters also stated that the proposed approach effectively precludes 
interested parties from appealing, because the proposed rule would not 
allow a hearing on a positive PF and interested parties may not be able 
to establish standing in Federal district court. Tribal commenters 
stated that the Department owes a trust responsibility to allow tribes 
the opportunity for a hearing where they have a present or historical 
relationship to petitioner and the petition involves the identity or 
heritage of the federally recognized tribe.
    Commenters also stated that standards for intervention should be 
broader than traditional standards, to allow intervention by States, 
local governments, federally recognized tribes, and any entity with a 
legal, factual, or property interest. These commenters stated that 
there should be no limit on the issues an intervenor can raise and 
intervenors should have the right to introduce evidence and testimony.
    Response: The Part 83 petitioning process is similar to other 
administrative processes uniquely affecting an applicant's status in 
that the applicant may administratively challenge a negative 
determination, but third parties may not administratively challenge a 
positive determination. The question being examined in Part 83 is 
whether a petitioner meets the criteria to be federally acknowledged as 
an Indian tribe. Part 83 does not allow for consideration of 
speculative consequences because such

[[Page 37881]]

consequences are not yet ripe for consideration and administrative and 
judicial review is available for those separate decisions. For example, 
if the newly acknowledged tribe seeks to have land taken into trust and 
that application is approved, state or local governments may challenge 
that action under the land-into-trust process (25 CFR part 151), an 
entirely separate and distinct decision from the Part 83 process. 
Submissions are more appropriately addressed there. The Part 83 process 
provides third parties with the opportunity to submit comments and 
evidence. Comments that are germane to the criteria will be carefully 
considered.
    Also, the Office of the Secretary (OS) companion final rule at 43 
CFR part 4, subpart K, adopts the proposed approach of allowing for 
intervention as of right in the hearing process for anyone with an 
interest that may be adversely affected by the FD. See 43 CFR 
4.1021(d). No good reason has been identified for deviating from this 
traditional standard of intervention. The final rule allows anyone who 
intervenes as of right to participate as a full party, subject to the 
restriction that the intervenor may not raise issues of law or material 
fact beyond those raised in the election of hearing. 43 CFR 
4.1021(f)(3). This restriction is necessary to keep the hearing focused 
on the issues related to the negative PF.
3. Hearing Process Timelines
    In the OS companion proposed rule, timelines were proposed for 
various activities during the hearing process as well as an overall 
180-day time limit to complete the hearing process and issue a 
recommended decision. See proposed 43 CFR part 4, subpart K. Some 
commenters supported establishing definitive timelines. One commented 
that the proposed timelines were too long because the timelines are 
similar to those in the IBIA process, which is considered lengthy. Most 
commented that the timelines are unrealistically short given all that 
must occur during the overall 180-day timeline--prehearing conference, 
interventions, discovery, written direct testimony, oral cross-
examination, post-hearing briefs, and issuance of a recommended 
decision. These commenters stated that full adjudications could take a 
year and opposed the overall 180-day deadline as interfering with the 
judge's deliberation. Others opposed the timelines as not accounting 
for petitioner's limited resources, and thereby compromising their 
ability to fully participate. Another commenter suggested an automatic 
90-day extension of the 180-day time limit for the entire hearing 
process upon request of the petitioner, and additional extensions upon 
good cause shown, such as needing more time to prepare and generate 
probative evidence.
    Some commenters stated that the 60-day timeframe for electing a 
hearing is too short to provide the required lists of issues of 
material fact, exhibits, and witnesses. These commenters suggested 
requiring a filing of ``intent to challenge'' within 60 days, then 
leaving it to the ALJ to establish the schedule for pre-hearing 
submittal of the lists. Others suggested expanding it to 180 days.
    Commenters also specifically opposed the proposed timeline for 
filing motions to intervene (15 days after issuance of the referral 
notice under Sec.  83.39(a)) as a violation of due process, because the 
short timeframe would be ``wholly unreasonable'' for reviewing the 
administrative record and providing notice of all witnesses, issues, 
and exhibits. Commenters suggested a minimum timeline of 30, 45, or 60 
days, or a deadline to identify only the movant's affected interest and 
position on the issues, and then allowing the judge to set timelines 
for identifying witnesses and exhibits.
    Response: These comments relate to the OS companion final rule 
addressing hearing procedures at 43 CFR part 4, subpart K. To maintain 
an efficient process, that final rule adopts the proposed 180-day time 
period for completion of the hearing process. See final 43 CFR 
4.1051(a). Because the hearing record is limited to documents that have 
already been presented, except in under extraordinary circumstances, 
see final 43 CFR 4.1046(a), the time needed to ``generate probative 
evidence'' should be minimal (see the discussion below on scope of 
record). To address comments that the proposed timeline for 
intervention is unreasonably short, the final 43 CFR 4.1021(a), doubles 
the proposed timeline to file a motion to intervene to 30 days.
4. Scope of Record
    In the proposed rule, we invited comment on whether the hearing 
record before OHA should include all the evidence in OFA's 
administrative record for the petition or be limited to testimony and 
exhibits specifically identified by the parties. Most who commented on 
this question stated that the ALJ should rely on the entire 
administrative record before OFA (including the petition and all 
documents that were provided, or relied upon, for the PF, and comments 
and responses on the PF).
    A few commenters stated that the ALJ should engage in traditional 
fact-finding, limiting the hearing record to the testimony and exhibits 
presented by the parties, to narrow the issues in the record and put 
the burden on the parties to bring the salient facts to the decision-
maker's attention. Commenters provided arguments both for and against 
allowing the parties to provide evidence beyond what was in the OFA 
administrative record during and after the hearing--some saying it 
offers the opportunity to clarify the OFA administrative record and 
others saying it reduces transparency to expand the OFA administrative 
record after OFA has already issued a PF.
    Response: A primary purpose of the hearing process is to inform the 
AS-IA's final determination by focusing in on the key issues and 
evidence and producing a recommended decision on those issues from an 
independent tribunal. To that end, under the OS companion final rule, 
the hearing record will not automatically include the entire 
administrative record reviewed by OFA, but only those portions which 
are considered sufficiently important to be offered by the parties as 
exhibits and admitted into evidence by the ALJ. While the AS-IA may 
consider not only the hearing record, but also OFA's entire 
administrative record, we believe that an independent review of the key 
issues and evidence will be invaluable to the AS-IA.
    Part of the hearing process is to ensure that the Department abides 
by the baseline precedent of previous final decisions. Petitioners may 
rely on previous final decisions to establish that their evidence is 
sufficient to meet a criterion, where evidence in a previous final 
decision was sufficient to meet a criterion. The companion final rule 
also includes documentation in the OFA administrative record, including 
comments and responses on the PF, and testimony clarifying or 
explaining the information in that documentation. See 43 CFR 4.1046. 
That rule also limits who may testify to expert witnesses and OFA staff 
who participated in preparation of the negative proposed finding. See 
43 CFR 4.1042. The ALJ may admit other evidence or allow other persons 
to testify only under extraordinary circumstances.
    These limits will afford the parties the opportunity to clarify the 
record, without expanding the record beyond what was before OFA when it 
issued the PF and comments and responses submitted following issuance 
of the PF. The limits will encourage the petitioner and all others to 
be diligent in gathering and presenting to OFA all their relevant

[[Page 37882]]

evidence and discourage strategic withholding of evidence, which will 
further ensure that OFA's PF is based on the most complete record 
possible, allowing the ALJ to focus on discrete issues in dispute if a 
hearing is requested.
5. Presiding Judge Over Hearings
    In the OS companion proposed rule, any of several different 
employees of OHA could be assigned to preside as the judge over the 
hearing process: an ALJ appointed under 5 U.S.C. 3105, an IBIA judge, 
or an attorney designated by the OHA Director. See proposed 43 CFR 
4.1001, definition of ``judge.'' We invited comments on who is an 
appropriate OHA judge to preside. Most commenters who expressed an 
opinion on this question stated that an ALJ is necessary to ensure 
sufficient qualifications, independence, impartiality, and objectivity. 
One commenter recommended an attorney because of the commenter's belief 
that the attorney would be able to issue decisions more quickly. One 
stated that an IBIA judge would be most qualified due to experience 
with acknowledgment issues. Several commenters stated that the judge 
should have some background or training in Indian law and tribal 
histories and cultures.
    Response: The final rule establishes that the judge presiding over 
hearings will be an ALJ. See final Sec.  83.39. There is no evidence 
that an attorney could issue decisions more quickly than an ALJ. An 
IBIA judge does not necessarily have more background in acknowledgment 
issues or tribal histories and cultures, and ALJs are skilled at 
presiding over hearings and managing procedural matters to facilitate 
justice. Also, their independence is protected and impartiality 
fostered by laws which, among other things, exempt them from 
performance ratings, evaluation, and bonuses (see 5 U.S.C. 4301(2)(D), 
5 CFR 930.206); vest the Office of Personnel Management rather than the 
Department with authority over the ALJ's compensation and tenure (see 5 
U.S.C. 5372, 5 CFR 930.201-930.11); and provide that most disciplinary 
actions against ALJs may be taken only for good cause established and 
determined by the Merit Systems Protection Board on the record after 
opportunity for a hearing (see 5 U.S.C. 7521).
6. Conduct of the Hearing
    Several commenters asserted that OFA should be required to 
participate in the hearing and be subject to cross-examination to 
increase transparency in the process. A few commenters requested 
clarification of whether only ``senior departmental employees'' or all 
of OFA were subject to discovery. A few commenters stated that OFA 
should not need to restate its PF at hearing to controvert petitioner's 
claims because the PF should be sufficient on its own. Other commenters 
observed that the proposed requirement to submit direct testimony in 
writing will allow for faster hearings.
    Response: The OS companion final rule clarifies that OFA employees 
who participated in preparing the negative PFs may be called as 
witnesses. See final 43 CFR 4.1042. While the PF may be sufficient on 
its own in some cases, in others, it may be appropriate for OFA to call 
its staff to testify to elucidate parts of the PF or the OFA 
administrative record, subject to cross-examination, and/or to allow 
the petitioner or other parties to probe OFA's rationale through direct 
examination of OFA staff. The OS companion final rule affords the ALJ 
discretion to consider requests regarding hearing locations, prehearing 
telephonic conferences, any discovery that the ALJ believes to be 
appropriate, and written testimony submittals.
7. Miscellaneous Hearing Process Comments
    A few commenters stated that the summary recommended decision 
process in proposed 43 CFR 4.1023 is not an appropriate procedure to 
overturn a PF. Other commenters made suggestions for facilitating 
petitioner participation in the hearing process, stating that hearings 
should be held in a location near the petitioner, that telephonic 
conferences should be allowed, and that filing and service of documents 
by priority mail or email should be allowed as an alternative to the OS 
companion proposed rule's requirements that overnight mail or delivery 
services be used for both filing and service. See proposed 43 CFR 
4.1012(b) and 4.1013(c). These suggestions are based in part upon the 
commenters' stated concern that a petitioner's participation may be 
impeded by a lack of resources. Commenters also observed that some 
petitioners may be in remote locations without access to overnight mail 
or delivery services.
    Response: Proposed 43 CFR 4.1023 would allow any party to file a 
motion for a summary recommended decision if the material facts are 
undisputed and a summary decision is appropriate as a matter of law. 
The OS companion final rule retains this provision. If the ALJ issued a 
summary recommended decision contrary to the PF (e.g., if the summary 
recommended decision were in favor of the petitioner who had received a 
negative PF), it would not overturn the PF; rather, the AS-IA would 
consider that recommended decision when preparing a FD.
    A standard hearing procedure is for the ALJ to consider the 
convenience of all parties, their representatives, and witnesses in 
setting a place for hearing, but not to unduly favor the preferences of 
one party over another. A provision mandating that the hearing be held 
in a location near the petitioner would deviate from this fair standard 
in all cases without sufficient justification. Indeed, in some cases, 
the petitioner itself may not favor a hearing location near to it, such 
as where its witnesses are not located near the petitioner. The 
selection of a hearing location is best left to the discretion of the 
ALJ. To guide the exercise of that discretion, a provision has been 
added to the OS companion final rule incorporating the fair standard 
that the ALJ will consider the convenience of all parties, their 
representatives, and witnesses in setting a place for hearing. See 43 
CFR 4.1040(a)(2).
    Regarding telephonic conferences, both the OS proposed and final 
rules include a provision that conferences will ordinarily be held by 
telephone. See proposed 43 CFR 4.1022(c) and final 43 CFR 4.1022(d).
    The suggestion to allow for filing and service of documents by 
priority mail has not been adopted in the OS final rule. Requiring 
filing and service by overnight delivery promotes compliance with time 
limits for specific actions as well as with the overall time limit for 
the hearing process of 180 days. The use and cost of overnight delivery 
can be avoided by filing and serving a document by fax and regular mail 
if the document is 20 pages or less. See 43 CFR 4.1012(b)(iii). Given 
the limits on discovery and admissible evidence, we do not anticipate a 
large volume of exchanges of documents exceeding 20 pages. 
Nevertheless, to address the rare situation where mandating strict 
compliance with the prescribed filing and service methods would be 
unfair, the OS final rule adds language to both 43 CFR 4.1012(b) and 
4.1013(c) giving the ALJ discretion to allow deviation from those 
methods.
    Nor has the OS final rule adopted the suggestion to allow filing 
and service by email. A hard copy of each filing is needed to complete 
the hearing record that ultimately becomes part of the OFA 
administrative record. Service by email is problematic because not all 
parties may have email access.

[[Page 37883]]

H. Previous Federal Acknowledgment

    Several commenters suggested rearranging the review process so that 
previous Federal acknowledgment is considered at the beginning, making 
it procedurally easier for previously federally recognized tribes to 
obtain acknowledgment. Several commenters stated that the rule should 
be clarified so that previously acknowledged tribes need not meet 
criteria (b) (Community) and (c) (Political Influence or Authority) in 
proposed Sec.  83.11 prior to either 1934 or the date of previous 
acknowledgment, whichever is later. Otherwise, previous Federal 
acknowledgment would be more stringent than fulfilling all criteria at 
proposed Sec.  83.11.
    Several commenters provided suggestions for the definition of 
``previous Federal acknowledgment'' at proposed Sec.  83.1--some 
stating that it should mean Federal government officials with authority 
had clearly acknowledged the government-to-government relationship with 
the petitioner, others stating that it should be defined more broadly 
to include tribes under Federal jurisdiction or to capture other 
historical dealings where the Federal Government did not respect the 
tribes' sovereignty. Several commenters stated that the key proposed 
language, ``an entity that qualified as an Indian tribe for the 
purposes of Federal law,'' is more vague than the current ``tribal 
political entity.'' Commenters also stated that ``for the purposes of 
Federal law'' should be deleted because it is broader than necessary.
    Some commenters noted that the proposal to evaluate criteria (b) 
and (c) from 1934 to the present may reduce the advantage of previous 
Federal acknowledgment, because the types of actions listed in proposed 
Sec.  83.12(a) as evidence of previous Federal acknowledgment are not 
likely to be probative post-1934. For example, there were no treaty 
negotiations between 1934 and the present, and any petitioner that was 
recognized by an Act of Congress or Executive Order since 1934 is 
likely already a recognized tribe.
    Some commenters requested clarification of the burden of showing 
previous Federal acknowledgment, stating that the ``reasonable 
likelihood'' standard of proof should apply, or that this standard 
conflicts with the requirement for ``unambiguous evidence'' in proposed 
Sec.  83.12(a). One commenter stated that the proposed rule weakens the 
criteria for previous Federal acknowledgment because it no longer 
requires ``substantial'' evidence of unambiguous previous Federal 
acknowledgment.
    One commenter stated that proposed Sec.  83.12 eliminates the 
current requirement at Sec.  83.8(d)(1) that the petitioner demonstrate 
it is the same group as was previously acknowledged tribe.
    A few commenters asserted that the rule should state that claims 
statutes allowing descendants of tribes to bring claims do not 
constitute previous Federal acknowledgment. Others advocated for 
including various additional items in the proposed Sec.  83.12(a) list 
of evidence of previous Federal acknowledgment (e.g., recognition by 
Federal court, allotments, payments by Indian Court of Claims, 
unratified treaties, documented attempts to obtain land for the 
petitioner). Several commenters advocated for redefining previous 
Federal acknowledgment to include any tribe that can show it was under 
Federal jurisdiction, particularly for tribes who were never terminated 
but for whom the Federal Government may have failed to take action.
    Some commenters supported the proposed previous Federal 
acknowledgment provisions at Sec.  83.12 as more clear, particularly 
provisions clarifying that a showing of continuous community is not 
necessary.
    Response: The final rule adopts the commenters' suggestion for 
moving evaluation of previous Federal acknowledgment to the first phase 
of OFA review and clarifying that, once previous Federal acknowledgment 
is shown, the petitioner need only meet the criteria in Sec.  83.11 
since 1900 or the date of previous Federal acknowledgment, whichever is 
later. See final Sec.  83.12(b). Otherwise, the intention of the final 
rule is not to make any changes to the previous Federal acknowledgment 
provisions but to clarify them.
    For example, the final rule deletes the proposed new phrase 
``government-to-government'' in proposed Sec.  83.12(a). That proposed 
section provided that previous Federal acknowledgment may be proven 
``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. . . .'' The ``government-to-government'' phrase has 
been deleted because it is not in the current provisions and may 
indicate a more formal relationship than is currently required for 
previous Federal acknowledgment. Further, just as with each criterion, 
evidence or methodology that was sufficient to satisfy previous Federal 
acknowledgment previously remains sufficient to satisfy previous 
Federal acknowledgment today. This clarification ensures that this 
section is not applied in a manner that raises the bar for each 
subsequent petitioner claiming previous Federal acknowledgment. In 
response to comments, the phrase ``for the purposes of Federal law'' is 
also deleted as overly broad.
    While moving the evaluation date to 1900 may limit the usefulness 
of the previous Federal acknowledgment provisions, there remains a 
possibility that a petitioner may show previous Federal acknowledgment 
post-1900. The final rule does not substantively change the burden for 
showing previous Federal acknowledgment--deletion of the term 
``substantial'' in ``substantial evidence of unambiguous Federal 
acknowledgment'' does not change the evaluation--unambiguity is still 
required. The rule requires a showing that the petitioner is the same 
tribe that was previously acknowledged. Previous Federal acknowledgment 
requires that the petitioner, not another group, was previously 
acknowledged. The final rule adds that the entity may have evolved out 
of the previously recognized tribe (see Sec.  83.12(a)); this addition 
incorporates a provision in the current Sec.  83.8(d)(1) that was 
inadvertently omitted in the proposed rule. See Sec.  83.12(a). The 
final rule does not substantively change the list of examples of 
evidence of previous Federal acknowledgment in response to requests for 
additions (or deletions). Land held by the United States for a group 
satisfies the existing category of evidence that the group has been 
treated by the Federal Government as having collective rights in tribal 
lands.
    The final rule simplifies the showing required after a petitioner 
proves previous Federal acknowledgment, to require the petitioner to 
meet criterion (b) (community) at present, as currently required, and 
require the petitioner to meet criteria (a) and (c) since 1900 or date 
of previous Federal acknowledgment, whichever is later. See Sec.  
83.12(b). The final rule deletes the proposed provision allowing a 
petitioner that has established previous Federal acknowledgment to meet 
the criteria for acknowledgment through ``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),'' because the

[[Page 37884]]

existing criteria are satisfactory to provide adequate justification 
for acknowledgment.

I. Automatic Disclosure of Documents

    Several commenters stated that the proposed regulations increase 
transparency by requiring, throughout the process, prompt and automatic 
disclosure of documents to the petitioner, without a FOIA request and 
posting documents to the Internet.
    Others requested that additional documents, such as all TA letters, 
be posted on the Internet based on the allegation that publishing only 
the narrative denies the public the opportunity to critically examine 
the evidence, and is thus a denial of due process. One suggested 
posting all OFA communications and a review of each petition's status 
on OFA's Web site.
    Some opposed making documents available on the Web site because of 
their concern about others appropriating their information and viewing 
confidential information such as sacred sites. One pointed out that 
posting will require additional OFA time.
    One commenter stated that lobbyists should present themselves to 
OFA and be listed on a Web site.
    Response: The final rule takes a significant step forward in 
promoting transparency by providing that the OFA will publish on its 
Web site the narrative portion of the petition and, to the extent 
allowable under Federal law, other portions of the documented petition, 
in addition to other items of information including but not limited to: 
The name, location, and mailing address of the petitioner and other 
information to identify the entity; the date of receipt of the 
petition; a notice of the opportunity to submit comments and evidence; 
and a notice of the opportunity to be kept informed of general actions 
regarding a specific petitioner. Transparency is crucial to maintaining 
trust in the Federal acknowledgment process. The Department will 
endeavor to make all information on each petition available on the OFA 
Web site to the extent it is releasable under Federal law, and to the 
extent it is feasible to do so (e.g., extraordinarily large files may 
instead be provided upon request). Nevertheless, the Department 
generally will not post genealogical information on living persons, in 
response to concerns about confidentiality and privacy. The final rule 
also allows petitioners to identify additional confidential information 
to be withheld by directing the petitioner to provide an unredacted 
version and a separate version redacting any confidential information. 
See Sec.  83.21(b). The Department will withhold any information that 
is protectable under Federal law, but may release any redacted 
information that is not protectable under Federal law. In response to 
the comment regarding listing lobbyists on the Web site, the final rule 
adds that OFA's list of contacts for each petitioner, which may include 
attorneys and other representatives of the petitioner, along with a 
list of anyone else who requested to be kept informed of the petition 
will be posted on the Web site. See Sec.  83.22(c). The Department 
encourages petitioners and others to provide their submissions 
electronically.

J. Elimination of Enrollment Limitations

    A few commenters objected to the deletion of current Sec.  
83.12(b), which requires BIA review of tribal enrollment of 
acknowledged tribes to ensure that major changes have not occurred 
prior to taking administrative action in favor of the tribe. These 
commenters state that this review serves an important function by 
ensuring a tribe remains the tribe it was for the basis of 
acknowledgment, and that eliminating this section without explanation 
violates the APA.
    Response: The Department eliminated this section because Part 83 is 
focused on the process and criteria for Federal acknowledgment and this 
section would impose limitations on newly acknowledged tribes. The 
Department affords newly acknowledged tribes the same deference to 
determine its own membership as it affords other federally recognized 
tribes.

 K. Purpose (Proposed Sec.  83.2)

    Several commenters opposed the provision in Sec.  83.2 stating that 
Part 83 establishes whether the petitioner is an Indian tribe ``for the 
purposes of Federal law'' because some non-listed tribes are considered 
Indian tribes for certain benefits under other Federal statutes. Other 
commenters opposed the provision in Sec.  83.2 stating that Part 83 
establishes whether a petitioner is an Indian tribe and ``therefore 
entitled to a government-to-government relationship with the United 
States.'' One commenter pointed to the Federally Recognized Indian 
Tribe List Act of 1994, and noted that it says nothing about 
acknowledging tribes for the purposes of Federal law or that the 
Secretary maintains a government-to-government relationship with listed 
tribes. This commenter disagreed with the implication that even if a 
tribe is not recognized for purposes of Federal law, it might still 
exist.
    Response: The final rule replaces the phrase ``for the purposes of 
Federal law'' with language that more closely tracks the Federally 
Recognized Indian Tribe List Act of 1994. See 25 U.S.C. 479a-1.

L. Definitions

1. ``Historical''
    Several commenters opposed the proposed definition of 
``historical'' to mean 1900 or earlier. These commenters were concerned 
that the definition implied that tracing prior to 1900 would not be 
required, allowing acknowledgment of petitioners who did not exist as 
tribes before 1900 and ignoring over a century of relevant history. 
Some pointed to alternative dates, such as 1830 when the Indian Removal 
Act was passed, or the date the State was admitted to the United 
States. Others stated that the definition should require tracing back 
to the date of first sustained European contact.
    Several commenters supported the proposed definition of 
``historical.'' These commenters stated that relying on 1900 greatly 
reduces the evidentiary burden on petitioners and the Department, 
prevents further penalization of tribes for disruptive historical 
circumstances resulting from expansion of the United States, and 
because records before 1900 may have been lost, destroyed, or expunged. 
A few commenters requested that the definition of ``historical'' be 
explicitly restated in each criterion.
    A few commenters requested flexibility, to ensure the 1900 date 
serves as a benchmark rather than a definitive cut-off date. These 
commenters pointed out that a petitioner may have had reliable evidence 
in 1901, and that such evidence should be sufficient if the petitioner 
provides an explanation as to why it is unable to produce earlier 
evidence. Others stated that ``first sustained contact'' is subject to 
disagreement among experts, so exact, federally accepted sources of 
when first sustained contact occurred should be used.
    Response: The final rule defines ``historical'' as being before 
1900. The rule still requires tracing to a historical (i.e., pre-1900) 
tribe as set forth in criterion (e) of 83.11. As explained above, the 
Department considered other dates for the start of our evaluation 
period, but determined that the fact that more documents are generally 
available after 1900 justifies a more intensive documentary review from 
that date on. The 1900 date is a definitive start date, but the 
Department will examine all

[[Page 37885]]

evidence in light of the history, regional differences, culture, and 
social organization of the petitioner. See 83.10(b)(7).
2. ``Indigenous''
    Several commenters requested reinsertion of the term ``indigenous'' 
(to come from within the continental U.S. at the time of first 
sustained contact, rather than migrating into the U.S. during 
historical times), stating that Indians must have been in the U.S., at 
least in part, throughout history, and that it is inappropriate to 
delete the term in light of the United Nations Declaration on the 
Rights of Indigenous Peoples.
    Response: In response to these comments, the final rule reinserts 
the current definition of ``indigenous'' and the reference to 
``indigenous'' in Sec.  83.3.
3. ``Tribe''
    Several commenters supported the proposed definition of ``tribe'' 
as any Indian tribe, band, nation, pueblo, village or community. One 
requested clarification of a ``community'' versus a ``tribe,'' given 
that ``community'' is used in the proposed definition. A commenter 
suggested definitions for new terms: ``Federal Indian tribe'' and 
``Non-Federal Indian tribe.'' A commenter stated that the definition of 
``tribe'' should clarify that if the tribe is not recognized, the 
Federal Government does not consider it to be a tribe. One commenter 
requested adding Native Hawaiians to the definition. A few commenters 
opposed the statement in Sec.  83.2 that the regulations determine 
whether a petitioner is an Indian tribe ``for the purposes of Federal 
law'' and is therefore entitled to a ``government-to-government 
relationship.''
    Response: The final rule maintains the proposed definition of 
``tribe.'' Clarification of ``community'' versus ``tribe'' is 
unnecessary because the word ``community'' in the definition of 
``tribe'' is merely nomenclature (as opposed to the concept of 
community required by criterion (b)). The final rule also separately 
defines ``federally recognized tribe.'' The final rule does not change 
the current approach to Native Hawaiians; rather, it continues to 
exclude Native Hawaiians from the definition of ``tribe,'' because the 
acknowledgment process has never applied to them.
    The final rule also simplifies the language in Sec.  83.2 to 
instead reflect the language of the Federally Recognized Indian Tribe 
List Act of 1994; that simplification deletes the phrases suggested for 
deletion.
4. Other Definitions
    Some commenters suggested additional definitions in conjunction 
with their more substantive comments, such as for ``federal 
jurisdiction'' and ``government-to-government.'' Some commenters 
suggested various edits to proposed definitions--for example, a 
commenter stated that the definition of ``tribal rolls'' should 
recognize that many tribes did not have formal rolls. A commenter 
suggested using the term ``determination'' rather than ``recognition'' 
or ``acknowledgment.''
    Response: The final rule does not incorporate any of the new 
suggested definitions or edits to proposed definitions because they are 
not necessary for understanding the content of the rule. For example, 
the definition of ``tribal rolls'' already recognizes that tribes may 
not have a formal roll and provides an alternative definition in the 
absence of such a roll. The final rule does, however, change the term 
from ``tribal roll'' to ``roll'' to better match the terminology used 
throughout the rule.
    The final rule ensures that ``acknowledgment'' is used to refer to 
the process by which the United States acknowledges a tribe; once a 
tribe is acknowledged, it is considered a ``recognized'' tribe.

IV. Legislative Authority

    Congress granted the Assistant Secretary-Indian Affairs (then, the 
Commissioner of Indian Affairs) authority to ``have management of all 
Indian affairs and of all matters arising out of Indian relations.'' 25 
U.S.C. 2 and 9, and 43 U.S.C. 1457. This authority includes the 
authority to administratively acknowledge Indian tribes. See, e.g., 
Miami Nation of Indians of Indiana, Inc. v. United States Dep't of the 
Interior, 255 F.3d 342,, 346 (7th Cir. 2001); James v. United States 
Dep't of Health & Human Servs., 824 F. 2d 1132, 1137 (D.C. Cir. 1987). 
The Congressional findings that supported the Federally Recognized 
Indian Tribe List Act of 1994 expressly acknowledged that Indian tribes 
could be recognized ``by the administrative procedures set forth in 
part 83 of the Code of Federal Regulations denominated `Procedures for 
Establishing that an American Indian Group Exists as an Indian Tribe,' 
'' and described the relationship that the United States has with 
federally recognized tribes. See Public Law 103-454 Sec. 103(2), (3), 
(8) (Nov. 2, 1994).

V. 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, 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

[[Page 37886]]

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. Following publication of the 
proposed rule, the Department then hosted five additional in-person 
consultations and two teleconferences in July and August 2014. We 
considered each tribe's comments and concerns and have addressed them, 
where possible, in the final rule.

I. Paperwork Reduction Act

    OMB Control Number: 1076-0104.
    Title: Federal Acknowledgment as an Indian Tribe, 25 CFR part 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: 14,360 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. DOI estimates that the annual 
burden hours for respondents (entities petitioning for Federal 
acknowledgment) from this final rule will decrease by a minimum by 
approximately 6,390 hours. Because the final rule would change sections 
where the information collections occur, we are including a table 
showing the section changes.

----------------------------------------------------------------------------------------------------------------
                                                                                          Burden
                                                                                         hours on      Annual
           Current sec.                    New sec.        Description of requirement  respondents  burden hours
                                                                                           per           (10
                                                                                         response   respondents)
----------------------------------------------------------------------------------------------------------------
83.7 (a)-(d), 83.7 (f)-(g); 83.7    83.21 (referring to    Conduct the                       1,221        12,210
 (e).                                83.11 (a)-(d), 83.11   anthropological and
                                     (f)-(g)); 83.21        historical research
                                     (referring to 83.11    relating to the criteria
                                     (e)).                  (a)-(d) and (f)-(g);
                                                            Conduct the genealogical
                                                            work to demonstrate
                                                            tribal descent.
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.
----------------------------------------------------------------------------------------------------------------

    One comment submission, from several towns in Connecticut, was 
submitted specifically addressing the information collection 
requirements in the proposed rule. The comments and responses are 
summarized here.
    PRA Comment 1: The estimate only considers the annual burden hours 
for petitioners in collecting information to meet the mandatory 
criteria in preparing a documented petition and responding to a 
Technical Assistance (TA) review, and fails to consider the burden 
hours on petitioners for later stages of the process.
    PRA Response 1: The commenter is correct that the estimate only 
covers the burden hours for petitioners in collecting the information 
to develop and submit the documented petition. Once the documented 
petition is submitted, the Department opens an administrative case file 
for the petitioner, and all subsequent information collections are 
covered by the exemption in 5 CFR 1320.4(c). The comment alerted the 
Department to the fact that it had previously included the burden for 
responding to a TA review; because the TA review occurs following the 
opening of the administrative case file, this too is covered by the 
regulatory exemption. As such, the Department has removed this burden 
estimate. No change is necessary in response to this comment.
    PRA Comment 2: The estimate fails to include burden hours for 
previously denied petitioners that must submit new

[[Page 37887]]

arguments and evidence in order to request permission from an Office of 
Hearings and Appeals (OHA) judge to re-petition.
    PRA Response 2: The proposed rule contained a provision that 
allowed previously denied petitioners to seek the opportunity to re-
petition. The final rule deletes this provision. This comment is no 
longer applicable. No change is necessary in response to this comment.
    PRA Comment 3: The estimate fails to consider the burden hours on 
other respondents in the Federal Acknowledgment process, such as State 
governments, federally recognized tribes, and other petitioners that 
may submit information in support of or opposition to a petition.
    PRA Response 3: The estimate does not consider the burden hours on 
those who may submit information in support of or in opposition to a 
petition because such information is voluntarily submitted only after 
the administrative case file is opened, and is therefore covered by the 
exemption in 5 CFR 1320.4(c). No change is necessary in response to 
this comment.
    PRA Comment 4: The preamble to the proposed rule fails to describe 
the methodology used to arrive at the projections. The estimate is not 
based on any broad or accurate statistical data because there is no 
requirement or mechanism in place for petitioners to report annual 
burden hours.
    PRA Response 4: The supporting statement submitted in conjunction 
with the proposed rule described the methodology for arriving at the 
proposed projections, and was available upon request or at 
www.reginfo.gov. A revised supporting statement, which again describes 
the methodology used to arrive at the projections, has been submitted 
to OMB in conjunction with this final rule. The comment is correct that 
there is no requirement or mechanism in place for petitioners to report 
annual burden hours--the Department examined Congressional testimony 
and reached out to petitioners for help in developing its estimates. No 
change is necessary in response to this comment.
    PRA Comment 5: Most petitioners have a team of individuals working 
on their petitions, including group leaders and members, legal counsel, 
and professional researchers (such as anthropologists, historians, and 
genealogists). If each of these spent a quarter of their time working 
on a documented petition, the team would have an average of 4,160 
annual burden hours. For an actual case, including all the information 
provided throughout the process, including the stages that the 
Department is not including in its estimate, the team spent 
approximately 10,000 hours total. This experience strongly suggests the 
Department underestimated the annual burden hours with its estimate of 
2,075.
    PRA Response 5: The burden hour estimate includes only the time 
that the petitioner itself expended in preparing the documented 
petition; the time that all professionals the petitioner had to hire to 
prepare the petition is accounted for as non-hour cost burden. In our 
development of the non-hour cost burden, we reached out to several 
petitioners (one of whom indicated the total hours reached 12,000 
cumulative hours). No change is necessary in response to this comment.
    PRA Comment 6: Provisions of the proposed rule will slow down the 
acknowledgment process by: Incentivizing more documented petitions; 
allowing denied petitioners to re-petition; requiring OFA time to 
redact petition narratives; providing more extensive technical 
assistance to petitioners; allowing petitioners to withdraw from the 
review process; requiring appeals to OHA rather than IBIA; and 
requiring appeals of a final determination to go to Federal district 
court.
    PRA Response 6: Overall, this comment is not directly related to 
the Paperwork Reduction Act burdens; however, the Department disagrees 
with the assertions that the rule will slow down the acknowledgment 
process for the reasons stated elsewhere in this preamble. No change is 
necessary in response to this comment.

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.

List of Subjects in 25 CFR Part 83

    Administrative practice and procedure, Indians-tribal government.

    For the reasons stated in the preamble, the Department of the 
Interior, Bureau of Indian Affairs, revises part 83 in Title 25 of the 
Code of Federal Regulations as follows:

PART 83--PROCEDURES FOR FEDERAL ACKNOWLEDGMENT OF INDIAN TRIBES

Subpart A--General Provisions
Sec.
83.1 What terms are used in this part?
83.2 What is the purpose of the regulations in this part?
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 July 31, 2015?
83.8 May the deadlines in this part be extended?
83.9 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 a previously federally acknowledged 
petitioner?
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 reviews?
83.30 Can a petitioner withdraw its documented petition?
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?

[[Page 37888]]

Comment and Response Periods, Hearing

83.35 What opportunity will there be to comment after OFA issues the 
proposed finding?
83.36 What procedure follows the end of the comment period for a 
favorable proposed finding?
83.37 What procedure follows the end of the comment period on a 
negative proposed finding?
83.38 What options does the petitioner have at the end of the 
response period on a negative proposed finding?
83.39 What is the procedure if the petitioner elects to have a 
hearing before an ALJ?

AS-IA Evaluation and Preparation of 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; Pub. L. 103-
454 Sec. 103 (Nov. 2, 1994); 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:
    ALJ means an administrative law judge in the Departmental Cases 
Hearings Division, Office of Hearings and Appeals (OHA), Department of 
the Interior, appointed under 5 U.S.C. 3105.
    Assistant Secretary or AS-IA means the Assistant Secretary--Indian 
Affairs within the Department of the Interior, or that officer's 
authorized representative, but does not include representatives of the 
Office of Federal Acknowledgment.
    Autonomous means independent of the control of any other Indian 
governing entity.
    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 claiming that it meets 
the Indian Entity Identification (Sec.  83.11(a)), Governing Document 
(Sec.  83.11(d)), Descent (Sec.  83.11(e)), Unique Membership (Sec.  
83.11(f)), and Congressional Termination (Sec.  83.11(g)) Criteria and 
claiming that it:
    (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 
Department of the Interior's list under the Federally Recognized Indian 
Tribe List Act of 1994, which the Secretary currently acknowledges as 
an Indian tribe and with which the United States maintains a 
government-to-government relationship.
    Historical means before 1900.
    Indigenous means native to the continental United States in that at 
least part of the petitioner's territory at the time of first sustained 
contact extended into what is now the continental United States.
    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.
    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 a tribal political 
entity and indicating clearly the recognition of a relationship between 
that entity and the United States.
    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 roll means a list of those recognized as members by the tribe's 
governing body. In either case, those individuals on a roll must have 
affirmatively demonstrated consent to being listed as members.
    Secretary means the Secretary of the Interior within the Department 
of the Interior or that officer's authorized representative.
    Tribe means any Indian tribe, band, nation, pueblo, village or 
community.


Sec.  83.2  What is the purpose of the regulations in this part?

    The regulations in this part 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 eligible for the special programs and services provided by the 
United States to Indians because of their status as Indians. A positive 
determination will result in Federal recognition status and the 
petitioner's addition to the Department's list of federally recognized 
Indian tribes. Federal recognition:
    (a) Is a prerequisite to the protection, services, and benefits of 
the Federal Government available to those that qualify as Indian tribes 
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 indigenous entities that are not 
federally recognized Indian tribes.


Sec.  83.4  Who cannot be acknowledged under this part?

    The Department will not acknowledge:
    (a) An association, organization, corporation, or entity of any 
character formed in recent times unless the entity has only changed 
form by recently incorporating or otherwise formalizing its existing 
politically autonomous community;
    (b) A splinter group, political faction, community, or entity of 
any character that separates from the main body of a currently 
federally recognized Indian tribe, petitioner, or previous petitioner 
unless the entity can clearly demonstrate it has functioned from 1900 
until the present as a politically autonomous community and meets Sec.  
83.11(f), even though some have regarded them as part of or associated 
in some manner with a federally recognized Indian tribe;
    (c) An entity that is, or an entity whose members are, subject to 
congressional legislation terminating or forbidding the government-to-
government relationship; or
    (d) An entity that previously petitioned and was denied Federal 
acknowledgment under these regulations or under previous regulations in 
part 83 of this title

[[Page 37889]]

(including reconstituted, splinter, spin-off, or component groups who 
were once part of previously denied petitioners).


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 Indian Entity Identification 
(Sec.  83.11(a)), Governing Document (Sec.  83.11(d)), Descent (Sec.  
83.11(e)), Unique 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, in accordance with the Federally Recognized Indian Tribe List 
Act of 1994. 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 examples of 
portions of documented petitions in the preferred format, though OFA 
will accept other formats.
    (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 August 17, 2015?

    (a) Any petitioner who has not submitted a complete documented 
petition as of July 31, 2015 must proceed under these revised 
regulations. We will notify these petitioners and provide them with a 
copy of the revised regulations by July 31, 2015.
    (b) By August 31, 2015, OFA will notify each petitioner that has 
submitted complete documented petitions but has not yet received a 
final agency decision that it must proceed under these revised 
regulations unless it chooses by September 29, 2015 to complete the 
petitioning process under the previous version of the acknowledgment 
regulations as published in 25 CFR part 83, revised as of April 1, 
1994.
    (c) Any petitioner who has submitted a documented petition under 
the previous version of the acknowledgment regulations and chooses to 
proceed under these revised regulations does not need to submit a new 
documented petition, but may supplement its petition.


Sec.  83.8  May the deadlines in this part be extended?

    (a) The AS-IA may extend any of the deadlines in this part upon a 
finding of good cause.
    (b) For deadlines applicable to the Department, AS-IA may extend 
the deadlines upon the consent of the petitioner.
    (c) If AS-IA grants a time extension, it will notify the petitioner 
and those listed in Sec.  83.22(d).


Sec.  83.9  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 in Sec.  83.11 to be 
met if the available evidence establishes a reasonable likelihood of 
the validity of the facts relating to that criterion.
    (1) The Department will not require conclusive proof of the facts 
relating to a criterion in order to consider the criterion met.
    (2) The Department will require existence of community and 
political influence or authority be demonstrated on a substantially 
continuous basis, but this demonstration does not require meeting these 
criteria at every point in time. Fluctuations in tribal activity during 
various years will not in themselves be a cause for denial of 
acknowledgment under these criteria.
    (3) The petitioner may use the same evidence to establish more than 
one criterion.
    (4) Evidence or methodology that the Department found sufficient to 
satisfy any particular criterion in a previous decision will be 
sufficient to satisfy the criterion for a present petitioner.
    (b) When evaluating a petition, the Department will:
    (1) Allow criteria to be met by any suitable evidence, rather than 
requiring the specific forms of evidence stated in the criteria;
    (2) Take into account historical situations and time periods for 
which evidence is demonstrably limited or not available;
    (3) Take into account the limitations inherent in demonstrating 
historical existence of community and political influence or authority;
    (4) Require a demonstration that the criteria are met on a 
substantially continuous basis, meaning without substantial 
interruption; and
    (5) Apply these criteria in context with the history, regional 
differences, culture, and social organization of the petitioner.


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

    The criteria for acknowledgment as a federally recognized Indian 
tribe are delineated in paragraphs (a) through (g) of this section.
    (a) Indian entity identification. The petitioner has been 
identified as an American Indian entity on a substantially continuous 
basis since 1900. Evidence that the group's character as an Indian 
entity has from time to time been denied will not be considered to be 
conclusive evidence that this criterion has not been met. Evidence to 
be relied upon in determining a group's Indian identity may include one 
or a combination of the following, as well as other evidence of 
identification.
    (1) Identification as an Indian entity by Federal authorities.
    (2) Relationships with State governments based on identification of 
the group as Indian.
    (3) Dealings with a county, parish, or other local government in a 
relationship based on the group's Indian identity.
    (4) Identification as an Indian entity by anthropologists, 
historians, and/or other scholars.
    (5) Identification as an Indian entity in newspapers and books.
    (6) Identification as an Indian entity in relationships with Indian 
tribes or

[[Page 37890]]

with national, regional, or state Indian organizations.
    (7) Identification as an Indian entity by the petitioner itself.
    (b) Community. The petitioner comprises a distinct community and 
demonstrates that it existed as a community from 1900 until the 
present. 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. 
Distinct community must be understood flexibly in the context of the 
history, geography, culture, and social organization of the entity. The 
petitioner may demonstrate that it meets this criterion by providing 
evidence for known adult members or by providing evidence of 
relationships of a reliable, statistically significant sample of known 
adult members.
    (1) The petitioner may demonstrate that it meets this criterion at 
a given point in time by some combination of two or more of the 
following forms of evidence or by other evidence to show that a 
significant and meaningful portion of the petitioner's members 
constituted a distinct community at a given point in time:
    (i) Rates or patterns 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 group as Indian. 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) Land set aside by a State for the petitioner, or collective 
ancestors of the petitioner, that was actively used by the community 
for that time period;
    (x) Children of members from a geographic area were placed in 
Indian boarding schools or other Indian educational institutions, to 
the extent that supporting evidence documents the community claimed; or
    (xi) A demonstration of political influence under the criterion in 
Sec.  83.11(c)(1) will be evidence for demonstrating distinct community 
for that same time period.
    (2) The petitioner will be considered to have provided more than 
sufficient evidence to demonstrate distinct community and political 
authority under Sec.  83.11(c) 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 members of the entity were married 
to other 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).
    (c) Political influence or authority. The petitioner has maintained 
political influence or authority over its members as an autonomous 
entity from 1900 until the present. Political influence or authority 
means the entity uses a council, leadership, internal process, or other 
mechanism 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 flexibly 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 forms of evidence or 
by other evidence that the petitioner had political influence or 
authority over its members as an autonomous entity:
    (i) The entity is able to mobilize significant numbers of members 
and significant resources from its members for entity purposes.
    (ii) Many of the membership consider 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 many 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 goals, properties, policies, processes, or decisions.
    (vi) The government of a federally recognized Indian tribe has a 
significant relationship with the leaders or the governing body of the 
petitioner.
    (vii) Land set aside by a State for petitioner, or collective 
ancestors of the petitioner, that is actively used for that time 
period.
    (viii) There is a continuous line of entity leaders and a means of 
selection or acquiescence by a significant number 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.
    (d) Governing document. The petitioner must provide:
    (1) A copy of the entity's present governing document, including 
its membership criteria; or
    (2) In the absence of a governing document, a written statement 
describing in full its membership criteria and current governing 
procedures.
    (e) Descent. The petitioner's membership consists of individuals 
who descend from a historical Indian tribe (or from historical Indian 
tribes that combined and functioned as a single autonomous political 
entity).
    (1) The petitioner satisfies this criterion by demonstrating that 
the

[[Page 37891]]

petitioner's members descend from a tribal 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, unless significant countervailing evidence 
establishes that the tribal roll is substantively inaccurate; or
    (2) If no tribal roll was directed by Congress or prepared by the 
Secretary, the petitioner satisfies this criterion by demonstrating 
descent from a historical Indian tribe (or from historical Indian 
tribes that combined and functioned as a single autonomous political 
entity) with sufficient evidence including, but not limited to, one or 
a combination of the following identifying present members or ancestors 
of present members as being descendants of a historical Indian tribe 
(or of historical Indian tribes that combined and functioned as a 
single autonomous political entity):
    (i) Federal, State, or other official records or evidence;
    (ii) Church, school, or other similar enrollment records;
    (iii) Records created by historians and anthropologists in 
historical times;
    (iv) Affidavits of recognition by tribal elders, leaders, or the 
tribal governing body with personal knowledge; and
    (v) Other records or evidence.
    (f) Unique membership. The petitioner's membership is composed 
principally of persons who are not members of any federally recognized 
Indian tribe. 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:
    (1) It has functioned as a separate politically autonomous 
community by satisfying criteria in paragraphs (b) and (c) of this 
section; and
    (2) Its members have provided written confirmation of their 
membership in the petitioner.
    (g) Congressional termination. Neither the petitioner nor its 
members are the subject of congressional legislation that has expressly 
terminated or forbidden the Federal 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 a previously federally 
acknowledged petitioner?

    (a) The petitioner may prove it was previously acknowledged as a 
federally recognized Indian tribe, or is a portion that evolved out of 
a previously federally recognized Indian tribe, by providing 
substantial evidence of unambiguous Federal acknowledgment, meaning 
that the United States Government recognized the petitioner as an 
Indian tribe eligible for the special programs and services provided by 
the United States to Indians because of their status as Indians with 
which the United States carried on a 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;
    (3) Been treated by the Federal Government as having collective 
rights in tribal lands or funds; or
    (4) Land held for it or its collective ancestors by the United 
States.
    (b) Once the petitioner establishes that it was previously 
acknowledged, it must demonstrate that it meets:
    (1) At present, the Community Criterion; and
    (2) Since the time of previous Federal acknowledgment or 1900, 
whichever is later, the Indian Entity Identification Criterion and 
Political Authority Criterion.

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: Department of the 
Interior, Office of the Assistant Secretary--Indian Affairs, Attention: 
Office of Federal Acknowledgement, 1951 Constitution Ave. 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 citations to supporting 
documentation, thoroughly explaining how the petitioner meets each of 
the criteria in Sec.  83.11, 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 in 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, 
if any), 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) If the documented petition contains any information that is 
protectable under Federal law such as the Privacy Act and Freedom of 
Information Act, the petitioner must provide a redacted version, an 
unredacted version of the relevant pages, and an explanation of the 
legal basis for withholding such information from public release. The 
Department will not publicly release information that is protectable 
under Federal law, but may release redacted information if not 
protectable 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 entities to submit 
comments and

[[Page 37892]]

evidence supporting or opposing the petitioner's request for 
acknowledgment within 120 days of the date of the Web site posting; and
    (v) The opportunity for individuals and entities to request to be 
kept informed of general actions regarding a specific petitioner.
    (2) Notify, in writing, the following:
    (i) The governor of the State in which the petitioner is located;
    (ii) The attorney general of the State in which the petitioner is 
located;
    (iii) The government of the county-level (or equivalent) 
jurisdiction in which the petitioner is located; and
    (iv) Notify any 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 the following additional information to the OFA Web 
site:
    (1) Other portions of the documented petition, to the extent 
feasible and allowable under Federal law, except documentation and 
information protectable from disclosure under Federal law, as 
identified by Petitioner under Sec.  83.21(b) or otherwise;
    (2) Any comments or materials submitted by third parties to OFA 
relating to the documented petition;
    (3) Any substantive letter, proposed finding, recommended decision, 
and final determination issued by the Department;
    (4) OFA's contact list for each petitioner, including the point of 
contact for the petitioner; attorneys, and representatives; and
    (5) Contact information for any other individuals and entities that 
request to be kept informed of general actions regarding the 
petitioner.
    (d) All subsequent notices that the Department provides under this 
part will be provided via the most efficient means for OFA to:
    (1) The governor of the State in which the petitioner is located;
    (2) The attorney general of the State in which the petitioner is 
located;
    (3) The government of the county-level (or equivalent) jurisdiction 
in which the petitioner is located;
    (4) Any 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; and
    (5) Any individuals and entities that request to be kept informed 
of general actions regarding a specific petitioner.

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 
their receipt.
    (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 give highest priority to 
completing reviews of documented petitions it has already begun to 
review.
    (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 July 31, 2015, or incomplete (i.e., not 
fully documented) 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 entities under Sec.  83.22(b) and provide the petitioner 
with 90 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 those listed in Sec.  83.22(d) 
when it begins review of a documented petition and will provide the 
petitioner and those listed in Sec.  83.22(d) 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. When reviewing a documented petition, OFA will first 
determine if the petitioner meets the Governing Document Criterion 
(Sec.  83.11(d)), Descent Criterion (Sec.  83.11(e)), Unique Membership 
Criterion (Sec.  83.11(f)), and Termination Criterion (Sec.  83.11(g)), 
in accordance with the following steps.
    (1)(i) OFA will conduct a Phase I technical assistance review and 
notify the petitioner by letter of any deficiencies that would prevent 
the petitioner from meeting the Governing Document, Descent, Unique 
Membership, or Termination Criteria. Upon receipt of the letter, the 
petitioner must submit a written response that:
    (A) Withdraws the documented petition to further prepare the 
petition;
    (B) Submits additional information and/or clarification; or
    (C) Asks OFA to proceed with the review.
    (ii) If the documented petition claims previous Federal 
acknowledgment and/or includes evidence of previous Federal 
acknowledgment, the Phase I technical assistance review will include a 
review to determine whether that evidence meets the requirements of 
previous Federal acknowledgment (Sec.  83.12).
    (2) Following the receipt of the petitioner's written response to 
the Phase I technical assistance review, OFA will provide the 
petitioner with:
    (i) Any comments and evidence OFA may consider that the petitioner 
does not already have, to the extent allowable by Federal law; and
    (ii) The opportunity to respond in writing to the comments and 
evidence provided.
    (3) OFA will publish a negative proposed finding if it issues a 
deficiency letter under paragraph (a)(1)(i) of this section, and the 
petitioner:
    (i) Does not withdraw the documented petition or does not respond 
with information or clarification sufficient to address the 
deficiencies; or
    (ii) Asks OFA in writing to proceed with the review.
    (4) OFA will publish a positive proposed finding and proceed to 
Phase II if it determines that the petitioner meets the Governing 
Document, Descent, Unique Membership, and Termination criteria.
    (b) Phase II. If the petitioner meets the Governing Document, 
Descent, Unique Membership, and Termination criteria, OFA will next 
review whether the petitioner meets the Indian Entity Identification 
Criterion (Sec.  83.11(a)), the Community Criterion (Sec.  83.11(b)), 
and the Political Influence/Authority Criterion (Sec.  83.11(c)). If 
the petitioner claims previous Federal acknowledgment, the Department 
will also review whether petitioner proves

[[Page 37893]]

previous Federal acknowledgment and, if so, will review whether the 
petitioner meets the criteria under Sec.  83.12(b).
    (1) OFA will conduct a Phase II technical assistance review and 
notify the petitioner by letter of any deficiencies that would prevent 
the petitioner from meeting these criteria. Upon receipt of the letter, 
the petitioner must submit a written response that:
    (i) Withdraws the documented petition to further prepare the 
petition;
    (ii) Provides additional information and/or clarification; or
    (iii) Asks OFA to proceed with the review.
    (2) Following receipt of the petitioner's written response to the 
Phase II 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 have, to the 
extent allowable by Federal law; and
    (ii) The opportunity to respond in writing to the comments and 
evidence provided.
    (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 Indian Entity Identification (Sec.  83.11(a)), Community 
(Sec.  83.11(b)) and Political Authority (Sec.  83.11(c)) Criteria are 
met.
    (4) OFA will publish a negative proposed finding if it issues a 
deficiency letter under paragraph (a)(1) of this section, and the 
petitioner:
    (i) Does not withdraw the documented petition or does not respond 
with information or clarification sufficient to address the 
deficiencies; or
    (ii) Asks OFA in writing to proceed with the review.
    (5) OFA will publish a positive proposed finding if it determines 
that the petitioner meets the Indian Entity Identification (Sec.  
83.11(a)), Community (Sec.  83.11(b)) and Political Authority (Sec.  
83.11(c)) Criteria or, for petitioners with previous Federal 
acknowledgment, that the petitioner meets the criteria at Sec.  
83.12(b).


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 evidentiary 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 Phase II technical assistance review of the 
documented petition.
    (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.


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 and evidence on the 
petition received during the comment period, and petitioners' responses 
to comments and evidence received during the response period.
    (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 timely submitted 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 end of the numbered 
register of documented petitions upon re-submission and may not regain 
its initial priority number.


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 that temporarily preclude continuing review; 
and
    (2) Approval by the Assistant Secretary.
    (b) Upon resolution of 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 those listed in Sec.  
83.22(d) when it suspends and when it resumes review of the documented 
petition.
    (2) Upon the resumption of review, OFA will have the full six 
months to issue a proposed finding.

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

    (b) The times set out in paragraph (a) of this section will be 
suspended any time the Department is waiting for a response or 
additional information from the petitioner.
    (c) OFA will strive to limit the proposed finding and any reports 
to no more than 100 pages, cumulatively, excluding source documents.

[[Page 37894]]

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: 
Governing Document (Sec.  83.11(d)), Descent (Sec.  83.11(e)), Unique 
Membership (Sec.  83.11(f)), or Congressional Termination (Sec.  
83.11(g)).
    (b) A Phase II proposed finding will address whether the petitioner 
meets the following criteria: Indian Entity Existence (Sec.  83.11(a)), 
Community (Sec.  83.11(b)), and Political Influence/Authority (Sec.  
83.11(c)).


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 those listed in Sec.  83.22(d); and
    (b) Publish the proposed finding and reports 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 120-day comment period. During this comment period, the petitioner 
or any individual or entity may submit the following to OFA 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 individual or entity that submits comments and evidence 
must provide the petitioner with a copy of their submission.


Sec.  83.36  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 
OFA does not receive a timely objection with evidence challenging the 
proposed finding that the petitioner meets the acknowledgment criteria.
    (b) If OFA has received a timely objection and evidence challenging 
the favorable proposed finding, then the petitioner will have 60 days 
to submit a written response, with citations to and explanations of 
supporting evidence, and the supporting evidence cited and explained in 
the response. The Department will not consider additional comments or 
evidence on the proposed finding submitted by individuals or entities 
during this response period.


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

    If OFA has received comments on the negative proposed finding, then 
the petitioner will have 60 days to submit a written response, with 
citations to and explanations of supporting evidence, and the 
supporting evidence cited and explained in the response. The Department 
will not consider additional comments or evidence on the proposed 
finding submitted by individuals or entities during this response 
period.


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

    (a) At the end of the response period for a negative proposed 
finding, the petitioner will have 60 days to elect to challenge the 
proposed finding before an ALJ by sending to the Departmental Cases 
Hearings Division, Office of Hearings and Appeals, with a copy to OFA a 
written election of hearing that lists:
    (1) Grounds for challenging the proposed finding, including issues 
of law and issues of material fact; and
    (2) The witnesses and exhibits the petitioner intends to present at 
the hearing, other than solely for impeachment purposes, including:
    (i) 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
    (ii) For each exhibit listed, a statement confirming that the 
exhibit is in the administrative record reviewed by OFA or is a 
previous final determination of a petitioner issued by the Department.
    (b) The Department will not consider additional comments or 
evidence on the proposed finding submitted by individuals or entities 
during this period.


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

    (a) If the petitioner elects a hearing to challenge the proposed 
finding before an ALJ, OFA will provide to the Departmental Cases 
Hearings Division, Office of Hearings and Appeals, copies of the 
negative proposed finding, critical documents from the administrative 
record that are central to the portions of the negative proposed 
finding at issue, and any comments and evidence and responses sent in 
response to the proposed finding.
    (1) Within 5 business days after receipt of the petitioner's 
hearing election, OFA will send notice of the election to each of those 
listed in Sec.  83.22(d) and the Departmental Cases Hearings Division 
by express mail or courier service for delivery on the next business 
day.
    (2) OFA will retain custody of the entire, original administrative 
record.
    (b) Hearing process. The assigned ALJ 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 
ALJ. The hearing record will become part of the record considered by 
AS-IA in reaching a final determination.
    (d) Recommended decision. The ALJ will issue a recommended decision 
and forward it along with the hearing 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 in accordance with the 
following table:

------------------------------------------------------------------------
                                                      AS-IA will begin
        If the PF was:                 And:             review upon:
------------------------------------------------------------------------
(1) Negative..................  The petitioner     Expiration of the
                                 did not elect a    period for the
                                 hearing.           petitioner to elect
                                                    a hearing.
(2) Negative..................  The petitioner     Receipt of the ALJ's
                                 elected a          recommended
                                 hearing.           decision.
(3) Positive..................  No objections      Expiration of the
                                 with evidence      comment period for
                                 were received.     the positive PF.
(4) Positive..................  Objections with    Expiration of the
                                 evidence were      period for the
                                 received.          petitioner to
                                                    respond to comments
                                                    on the positive PF.
------------------------------------------------------------------------


[[Page 37895]]

    (b) AS-IA will notify the petitioner and those listed in Sec.  
83.22(d) 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, including any comments and responses on the proposed finding 
and any the hearing transcript and recommended decision.
    (b) AS-IA will not consider comments submitted after the close of 
the comment period in Sec.  83.35, the response period in Sec.  83.36 
or Sec.  83.37, or the hearing election period in 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 
those listed in Sec.  83.22(d); and
    (2) Make copies of the final determination available to others upon 
written request.
    (b) 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 Governing Document (Sec.  83.11(d)), Descent 
(Sec.  83.11(e)), Unique 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 Indian Entity Identification (Sec.  83.11(a)), 
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:
    (1) In Phase I, does not meet the Governing Document (Sec.  
83.11(d)), Descent (Sec.  83.11(e)), Unique Membership (Sec.  
83.11(f)), or Congressional Termination (Sec.  83.11(g)) Criteria: or
    (2) In Phase II, does not:
    (i) Demonstrate previous Federal acknowledgment under Sec.  
83.12(a) and meet the criteria in Sec.  83.12(b); or
    (ii) Meet the Indian Entity Identification (Sec.  83.11(a)), 
Community (Sec.  83.11(b)) and Political Authority (Sec.  83.11(c)) 
Criteria.


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

    Yes. The AS-IA's 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 will 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. 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 acknowledged 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 newly federally 
acknowledged 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 acknowledged Indian 
tribe.

    Dated: June 23, 2015.
Kevin K. Washburn,
Assistant Secretary--Indian Affairs.
[FR Doc. 2015-16193 Filed 6-29-15; 11:15 am]
 BILLING CODE 4337-15-P