[Federal Register: May 23, 2008 (Volume 73, Number 101)]
[Notices]
[Page 30146-30148]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23my08-92]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
Office of Federal Acknowledgment; Guidance and Direction
Regarding Internal Procedures
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Notice.
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SUMMARY: The Assistant Secretary--Indian Affairs of the Department of
the Interior is providing guidance and direction to Office of Federal
Acknowledgment (OFA) staff for managing recurring administrative and
technical problems in processing petitions for Federal acknowledgment.
This guidance and direction does not amend the acknowledgment
regulations at 25 CFR part 83.
DATES: Effective Date: The guidance and direction defined by this
notice are effective on May 23, 2008.
FOR FURTHER INFORMATION CONTACT: R. Lee Fleming, Director, Office of
Federal Acknowledgment, MS 34B-SIB, 1951 Constitution Avenue, NW.,
Washington, DC 20240, telephone (202) 513-7650.
SUPPLEMENTARY INFORMATION:
Introduction
The Department publishes this notice in the exercise of authority
under 43 U.S.C. 1457, 25 U.S.C. 2 and 9, 5 U.S.C. 552(a), 5 U.S.C. 301,
and under the exercise of authority that the Secretary of the Interior
delegated to the Assistant Secretary--Indian Affairs (Assistant
Secretary) by 209 Department Manual 8.
This notice supplements the notice published in the Federal
Register (70 FR 16513) on March 31, 2005, entitled ``Office of Federal
Acknowledgment, Reports and Guidance Documents, Availability, etc.''
This notice provides the OFA with guidance and direction regarding
management of recurring administrative or technical problems in
processing petitions for Federal acknowledgment. This guidance and
direction is based on interpretation of the acknowledgment regulations.
This guidance and direction does not change the acknowledgment
regulations, but will assist in making the process more streamlined and
efficient, and improve the timeliness and transparency of the process.
The Department developed its Federal acknowledgment regulations, 25
CFR part 83--Procedures for Establishing that an American Indian Group
Exists as an Indian Tribe, after notice and substantial public comment,
both as to the original regulations and the amended regulations that
became effective in 1994. These regulations establish a uniform
procedure and fact-based approach to acknowledgment. The Department
subsequently published two notices in the Federal Register concerning
internal procedures for managing and processing petitions. This notice
provides additional guidance and direction.
The Department should direct all groups seeking to be acknowledged
as Indian tribes to 25 CFR part 83. OFA will provide copies of the
regulations and guidelines to any group or individual to assist them in
understanding the Department's regulatory process for Federal
acknowledgment. If a group does not meet the seven mandatory
requirements for Federal acknowledgment as an Indian tribe, then the
Department will inform the petitioner of ``alternatives, if any, to
acknowledgment'' (such as Congressional legislation) or other means
``through which any of its members may become eligible for services and
benefits from the Department as Indians'' (25 CFR 83.10(n)).
In the more than 29 years that the Department's acknowledgment
regulations have been in effect, the Department has confronted a number
of recurring issues in the administration of the regulations including:
the emergence of splinter groups; the administration of technical
assistance (TA); requests for expedited processing for uniquely
qualified groups, requests for a reduction of the time period for
historical evidence; opportunities for streamlining the process through
expedited decisions against acknowledgment and decisions against
acknowledgment on fewer than all seven criteria; the handling of
questionable submissions; and designation of ``inactive'' status.
Guidance and Direction
I. Emergence of Splinter Groups
A. Splinter Groups That Arise After a Petitioner Submits a Letter of
Intent and Before the Department Determines the Group Is ``Ready,
Waiting for Active Consideration.''
Conflicts within a petitioning group that result in multiple and
conflicting claims to leadership hamper the ability of OFA to
communicate and conduct its business with the group when OFA cannot
identify a single governing body as the point of contact with the
group. OFA should deal with the designated leaders of the group as a
whole, not the group's various members, and should continue to avoid
becoming involved in the internal conflicts of a petitioning group.
Disputes are matters that must be handled by the group. When OFA finds
that conflicting claims to leadership interfere with its ability to
conduct its business with the group, OFA should not devote its
expertise and resources to the group's petition.
In order to be able to work with the one duly authorized governing
body of a petitioner when these leadership disputes occur, OFA may
request the following information from the group:
(1) The current governing document, and all past governing
documents;
(2) The current membership list that is certified as accurate as of
a specific date, and all past membership lists;
(3) Completed consent forms from every member. A consent form
should be signed by each individual and should state that he or she
voluntarily wishes to belong to the group. A parent should sign for his
or her minor children individually or the legal guardian or
representative transacting for that minor child or individual should
sign. In the latter instance, the group should submit a copy of the
legal document allowing that representation;
(4) Copies of the all minutes of meetings of the group's governing
body since the filing of the letter of intent;
(5) Copies of documents reflecting changes in the composition of
the governing body since the filing of the letter of intent, such as
published election results, minutes, newspaper articles, or
newsletters; and
(6) Any court order determining the legitimate leadership of the
group.
[[Page 30147]]
Until this material is received and the leadership split is
resolved, OFA should not expend time on the petitioner. The submissions
should be reviewed by the appropriate OFA researchers, when available,
recognizing that, under the regulations, the Department's top priority
is processing petitions on active consideration, followed by those
petitions on the ``Ready, Waiting for Active Consideration''
(``Ready'') list. If an OFA review of the submitted information
identifies a governing body agreed upon by the group's members, then
OFA may contact the petitioner.
Some petitioning groups attempt to resolve their disputes by
splitting into two or more groups, not realizing that, by doing so,
neither group may be able to meet the criteria. The Department does not
acknowledge parts of an Indian tribe. Therefore, the groups should be
encouraged to work together for the long term, recognizing that there
may be circumstances in which the separation is appropriate to reflect
an actual group that might meet the regulatory criteria.
B. Splinter Groups That Emerge After the Department Determines the
Petitioner Is ``Ready, Waiting For Active Consideration.''
If a group on the ``Ready'' list of petitioners experiences
internal disputes, then OFA should advise the group that these disputes
jeopardize its placement on this ``Ready'' list and its priority
position on this list. When a group tries to resolve its disputes by
splitting into two or more groups, OFA also should advise the group
that the result of dividing into two or more may be that the individual
subgroups may not be able to meet the criteria. Again, the Department
does not acknowledge parts of an Indian tribe.
OFA should recommend that the group resolve its disputes in a
timely manner and submit the requested information, as outlined above
in the previous section, in a timely manner. If the information is not
received, or if the dispute is not resolved in a timely fashion, OFA,
in its discretion in managing its workload, may decide not to move the
group to active consideration or may decide to remove it from the
``Ready'' list because it is no longer ready for evaluation. If the
leadership dispute still results in two petitioners, OFA may, in its
discretion in managing its workload, recommend that the two petitioners
be evaluated together if both are ``ready'' to proceed to active
consideration or may proceed with one petitioner if the other is not
``ready.'' OFA should not, however, allow itself to be used as leverage
by one portion of the petitioning group to further its position with
the remainder of the group. Therefore, OFA may determine whether it can
proceed with the evaluation.
When and how OFA will respond to a group's leadership disputes and
emergence of splinter groups and its submissions will depend entirely
on the facts of the situation, availability of OFA's professional staff
members, their recommendations, and OFA's pending workload priorities.
OFA's priority remains to process petitions on active consideration.
II. Handling Petition Documentation When a Dispute Arises
The Department will treat claimed separate governing bodies within
the same petitioner as separate parties for purposes of the disclosures
under the Freedom of Information Act (FOIA). The Department will redact
or withhold personal information that one governing body submits from
the other governing body that may be requesting copies of such
documents. Under FOIA, members of the group or members of the public
may request in writing copies of documents submitted in relation to the
petition. Petition documentation is a public record subject to release
under FOIA unless an exemption applies. Certain personal records, such
as membership lists and genealogical information, may be protected from
disclosure by law. The Department will release copies of all records
requested that are not affected by the exemptions under FOIA.
III. Technical Assistance
Under 25 CFR part 83, OFA provides technical assistance (TA)
reviews of materials that are submitted by a petitioning group. As part
of this TA review, OFA should indicate the time periods under the
specific criteria for which there is little or no evidence submitted
and set a time period for response. If a petitioning group needs
additional time to respond, the group should provide a research plan of
action. Under most circumstances, if a timely response is not received,
then OFA should designate a petitioner as ``inactive.''
IV. Expedited Processing
If a preliminary review indicates that the group appears to meet
criteria 83.7(e), 83.7(f), and 83.7(g), subject to a full review under
the criteria on active consideration, OFA should recommend a waiver of
the priority provisions in the regulations to move to the top of the
``Ready'' list (1) any group that can show residence and association on
a state Indian reservation continuously for the past 100 years, or, (2)
any group that voted in a special election called by the Secretary of
the Interior under section 18 of the Indian Reorganization Act (IRA)
between 1934 and 1936, provided that the voting Indian group did not
organize under the IRA. This waiver of the priority provisions should
be recommended only if a preliminary review indicates that a
predominant portion of the group's current members appears to descend
from a representative portion of persons on a 1910 or earlier
governmental or tribal list of the residents of the State reservation,
or that a predominant portion of the group's current members appears to
descend from a representative portion of a list of voters on the IRA.
This provision is for purposes of priority placement on the ``Ready''
list and does not revise the required evaluation under the criteria.
V. Reducing the Time Period for Which Petitioners Must Submit Evidence
``First sustained contact'' is defined in part in the regulations
as ``the period of earliest sustained non-Indian settlement and/or
governmental presence in the local area.'' The purpose of the
evaluation under the regulations is to establish that an Indian tribe
has existed continuously and is entitled to a government-to-government
relationship with the United States. In order to reduce the evidentiary
responsibilities of the petitioner, it is reasonable to interpret the
regulations as requiring the petitioner to document its claim of
continuous tribal existence only since the formation of the United
States, the sovereign with which it wishes to establish a government-
to-government relationship. The Constitution was ratified March 4,
1789, and provides in Article I, section 8, clause 3, that Congress has
the power to regulate commerce with the Indian tribes. Therefore, if
the petitioner was an Indian tribe at that time the Constitution was
ratified, its prior colonial history need not be reviewed. The date of
``the period of earliest sustained non-Indian settlement and/or
governmental presence in the local area,'' thus, should be on or after
March 4, 1789, reducing the time period for which petitioners should
submit evidence.
VI. Expedited Findings Against Acknowledgment
The Department may issue an expedited proposed finding against
Federal acknowledgment under section 83.10(e), prior to placing the
group on the Ready list. OFA may prepare an expedited proposed finding
as appropriate, once a petitioner has
[[Page 30148]]
formally responded to a TA review letter or when a petitioner requests
to be placed on the ``Ready'' list or states in writing in a document
certified by the petitioner's governing body that the petition is
complete or that the Assistant Secretary should proceed with the active
consideration of the petition.
VII. Decision Against Acknowledgment Based on Failure To Meet Fewer
Than Seven Criteria
If during the evaluation of a petition on active consideration it
becomes apparent that the petitioner fails on one criterion, or more,
under the reasonable likelihood of the validity of the facts standard,
OFA may prepare a proposed finding or final determination not to
acknowledge the group on the failed criterion or criteria alone,
setting forth the evidence, reasoning, and analyses that form the basis
for the proposed decision. This process should be used to increase the
speed of the decision-making process and better utilize the time and
expertise of OFA professional staff. Thus, this process is most
appropriate when the deficiency becomes apparent during the initial
stages of active consideration.
If a proposed finding against acknowledgment is issued on fewer
than seven criteria and if, following an evaluation of the evidence and
argument submitted during the comment period, it is determined that the
petitioner meets the criterion or criteria, then the Assistant
Secretary will issue an amended proposed finding evaluating all seven
criteria.
VIII. Integrity
If OFA suspects that a petitioner may be involved in illegal
activities or has submitted fraudulent documents for the Federal
acknowledgment process, OFA should continue to refer any such matters
to the Office of the Solicitor and Inspector General to seek
appropriate action (such as investigation, prosecution, or other
action).
IX. ``Inactive'' Status
In order to more accurately gauge its workload, OFA should modify
its ``Status Summary'' publication to include only those petitioners
that have submitted a documented petition and responded to a TA review
letter. The ``register of letters of intent or incomplete petitions''
maintained under Sec. 83.10(d) should be maintained separately and
include a category of ``Inactive Petitioners.'' This inactive category
should include those petitioners that have not responded in two years
to a TA review, have missed suggested deadlines for responding to the
TA review, or have missed deadlines in its approved research plan of
action. It should also include those petitioners that have submitted
only a letter of intent, or are not otherwise ready for the initial TA
review.
Dated: May 16, 2008.
Carl J. Artman,
Assistant Secretary--Indian Affairs.
[FR Doc. E8-11603 Filed 5-22-08; 8:45 am]
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