[Federal Register Volume 65, Number 29 (Friday, February 11, 2000)]
[Notices]
[Pages 7052-7053]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-3161]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs


Changes in the Internal Processing of Federal Acknowledgment 
Petitions

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice.

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SUMMARY: Notice is hereby given that the Assistant Secretary--Indian 
Affairs (AS-IA) is changing certain internal procedures for processing 
petitions for federal acknowledgment as an Indian tribe, and clarifying 
other procedures. These revised procedures do not change the 
acknowledgment regulations, 25 CFR Part 83.

DATES: These changes are effective as of February 11, 2000. They are to 
apply to all future proposed findings, except for Little Shell of 
Montana petitioner, and to all future final determinations, except for 
the Cowlitz petitioner, where technical reports have been prepared 
already.

FOR FURTHER INFORMATION CONTACT: Acting Director, Duane Birdbear, 
Office of Tribal Services, Bureau of Indian Affairs, 1849 C Street, 
N.W., Washington, D.C. 20240, Attention: Branch of Acknowledgment and 
Research, MailStop 4660-MIB. (202) 208-3463.

SUPPLEMENTARY INFORMATION:

Introduction

    This notice is published in the exercise of authority under 5 
U.S.C. 552(a); 5 U.S.C. 301; 25 U.S.C. 2 and 9; 43 U.S.C. 1457; and 
under the exercise of authority delegated by the Secretary of the 
Interior to the Assistant Secretary--Indian Affairs by 209 Departmental 
Manual 8.
    To reduce the current delays in reviewing petitions for 
acknowledgment, the AS-IA is changing certain internal procedures for 
processing acknowledgment petitions, and clarifying other procedures. 
The current acknowledgment process has a substantial backlog resulting 
in delays of several years before review is begun of a petition that is 
ready for active consideration and before there is a final resolution 
of a petition on its merits. It is essential to change the internal 
processes so that acknowledgment decisions may be made in a more timely 
manner.
    The acknowledgment process is based on the regulations in 25 CFR 
Part 83, first issued in 1978 and revised in 1994. No specific 
legislation established the acknowledgment process. An agency may 
change its procedures and implementation of its own regulations where 
these changes do not contradict or alter the regulations. These revised 
procedures do not change the acknowledgment regulations. Rather, these 
changes provide a different means of implementing the existing 
regulations. This Federal Register notice is to advise petitioners, 
interested parties, and the public of these changes. Petitioners and 
interested parties will be provided a copy of this notice of changes in 
procedures by first class mail.
    After issuance of a proposed finding in Little Shell and a final 
determination in Cowlitz, the Branch of Acknowledgment and Research 
(BAR) will still have five active cases awaiting completion of a 
proposed finding. The BAR has not started the evaluation of four cases 
awaiting a final determination (two of which have been ready for more 
than two years), and three cases which are awaiting amended or second 
proposed findings. In addition, there are now 11 completed petitions 
awaiting active consideration which have not been reviewed. Six of 
these have been ready for review for more than three years. New letters 
of intent and documented petitions are continuing to be received in 
substantial numbers. There is no reason to believe that the number of 
requests for acknowledgment received by the Department will decline in 
the foreseeable future.
    At the same time, there are other substantial demands on the time 
of the BIA's staff which will continue to reduce the proportion of 
their time available for evaluation of petitions. For example, 
petitioners and third parties frequently request an independent review 
of acknowledgment final determinations by the Interior Board of Indian 
Appeals (IBIA), requiring the BIA to prepare the record and responses 
to issues referred by the IBIA. In addition, the BIA is currently 
responding to litigation in at least five lawsuits concerning 
acknowledgment decisions. Finally, there are substantial numbers of 
Freedom of Information Act (FOIA) requests which require the BIA to 
copy the voluminous records of current and completed cases. There is no 
anticipated decrease in these types of required work in the foreseeable 
future.
    In light of the backlog and other demands on the time of the BIA 
staff, it is necessary to make whatever procedural changes are possible 
within the framework of the existing regulations in order to resolve 
more expeditiously pending petitions for acknowledgment.

Changes in Procedures

    Under the regulations, the petitioner has the burden to present 
evidence that it meets the mandatory criteria. Section 83.5(c) of the 
acknowledgment regulations, describing the duties of the Department, 
states that: ``the Department shall not be responsible for the actual 
research on the part of the petitioner.''
    Section 83.10(a) of the regulations provides that the AS-IA may 
``initiate other research for any purpose relative to analyzing the 
documented petition and obtaining additional information about the 
petitioner's status.'' This language makes action on the part of the 
AS-IA discretionary and does not mandate that any additional research 
be carried out. In the past, under the authority of this section, 
substantial additional research often has been conducted by BIA staff 
to supplement a petitioner's research, especially where deficiencies 
remained even after extensive technical assistance had been provided to 
the petitioner. The present demands on BIA staff time and the backlog 
of cases mandate that this research no longer be done.
    The AS-IA is therefore directing the BIA that, in conducting its 
review of petitions and third party comments, it is not expected or 
required to locate new data in any substantial way. Staff research is 
to be limited to that needed to verify and evaluate the materials 
presented by the petitioner and submitted by third parties. The BIA's 
review of a petition shall be limited to evaluating the arguments 
presented by the petitioner and third parties and to determining 
whether the evidence submitted by the petitioner, or by third parties, 
demonstrates that the petitioner meets each of the criteria. The BIA is 
expected to use its expertise and

[[Page 7053]]

knowledge of sources to evaluate the accuracy and reliability of the 
submissions. In cases where petitioners or third parties submit data 
that they have not analyzed, the BIA shall not itself conduct extensive 
analysis of these data to demonstrate that the criteria have or have 
not been met, but shall refer the responsibility for analysis to the 
petitioner or third parties to be completed during the comment period.
    A proposed finding represents the agency's conclusions at the time 
that finding is made, based on the evidence in the record. One purpose 
of the comment period on the proposed finding is to give the petitioner 
and third parties an opportunity to present additional evidence in 
response to the deficiencies and weaknesses in the petition which were 
defined by the proposed finding. Submissions by the petitioner and 
third parties during the comment period, rather than BIA research, is 
the appropriate means to remedy such deficiencies.
    Once the regulatory time frame for active consideration has begun 
on a proposed finding, the BIA will not consider additional materials 
submitted by petitioners or third parties. Any such materials received 
from the petitioner or third parties will be held for review during 
preparation of the final determination. The staff members evaluating 
the petition shall not request additional information from the 
petitioner and third parties during the preparation of the proposed 
finding. If necessary information and analysis are lacking, the 
petitioner or third parties may supply it in response to the proposed 
finding.
    The review of a petition is to be conducted by a team of 
professional BIA researchers working in consultation with each other. 
The acknowledgment decision is not intended to be a definitive 
scholarly study of the petitioning group. The scope of the review shall 
be limited to that necessary to establish whether the petitioner has 
met its burden to establish by a reasonable likelihood of the validity 
of the facts that it meets all seven regulatory criteria. Although 
professional standards of BIA researchers will be applied to the 
review, these standards shall be applied within the constraints of time 
established by these procedures and the resources available, and as 
appropriate to the role of the Government in these procedures, which is 
to evaluate whether the petitioner has met its burden as defined in the 
regulations. In conducting its review and preparing its report and 
recommendation for the decision makers, it is not possible or 
reasonable to expect the BIA researchers to anticipate all possible 
court challenges. A court challenge is a reasonable expectation, and 
anticipating such challenges may require that extensive additional 
research or analysis be conducted beyond that necessary for the 
Department to reach a decision. Therefore, the AS--IA is directing the 
BIA to limit such research and analysis to that necessary for the 
decision.
    The regulations (83.6(a)) state that a petition may be ``in any 
readable form that contains detailed, specific evidence . . .'' In some 
instances, materials submitted by the petitioner or a third party are 
poorly organized, do not identify the sources or even the nature of the 
documents provided, or cannot be identified with the source cited in 
the text submitted by the petitioner or third party. Where documents or 
exhibits are not, in whole or in part, in a ``readable form,'' BIA 
researchers shall no longer expend more than a reasonable amount of 
time attempting to identify the source or sources of documentary 
materials submitted without such information. Therefore, it is 
important for the petitioner and third parties to cite the source(s) 
for each document submitted in order for it to be given appropriate 
weight as evidence.
    The acknowledgment regulations require that the AS-IA ``prepare a 
report summarizing the evidence, reasoning, and analyses that are the 
basis for the proposed decision'' (83.10(h)). In most instances in the 
past, one or more technical reports have been prepared in addition to 
the summary evaluation of the evidence under the criteria. A similar 
approach has been used for final determinations where there has been a 
substantial challenge to the proposed finding. The AS-IA is directing 
that, except for current cases where the technical reports have already 
been drafted, technical reports such as have been prepared in the past 
shall no longer be prepared to accompany the summary under the 
criteria.
    Henceforth, the report on the proposed finding called for under the 
regulations, which is prepared for review by the decision makers, shall 
consist of a detailed summary evaluation of the arguments and evidence 
presented by the petitioner and any third parties. The summary 
evaluation report may be supplemented by a chart, or charts, listing 
the evidence under each criterion, describing how the evidence has been 
weighed, and indicating the sections of the regulations and the 
precedents from past decisions that have been applied to that evidence. 
The acknowledgment process will continue to apply the precedents 
established in past decisions, including precedents under 83.6(e). 
Indeed, the existence of a substantial body of established precedents 
now makes possible this more streamlined review process.
    The AS-IA is directing that the departmental review of recommended 
decisions, including signature by the AS-IA, is to take no more than 
six weeks from the time the draft recommendation leaves the Branch of 
Acknowledgment and Research office and enters the surname process.

Advice to Petitioners

    In view of these changes, petitioners are reminded that the 
petitioner has the burden to show it meets the criteria and the 
requirements established by the regulations. Under section 83.6(c), a 
petitioner ``must satisfy all of the criteria in paragraphs (a) through 
(g) of section 83.7 in order for tribal existence to be acknowledged. 
Therefore, the documented petition must include thorough explanations 
and supporting documentation in response to all of the criteria'' 
(emphasis added). Section 83.6(a) states that the petition must contain 
``detailed specific evidence in support of a request to the Secretary 
to acknowledge tribal existence.'' While section 83.6(a) also provides 
that the ``documented petition may be in any readable form,'' this does 
not relieve the petitioner of the burden of providing adequate evidence 
that it meets all seven mandatory criteria. Petitioners are reminded 
that a petition can and will be turned down for lack of evidence 
(83.6(d)).
    The regulations at 83.5(b) provide that the guidelines for 
preparation of documented petitions may be updated as necessary. The 
changes the AS-IA is here making will require minor revisions of the 
guidelines. Until revised guidelines are issued, petitioners are 
advised by this notice that the policies and procedures in this 
memorandum supersede the existing guidelines where they may be in 
conflict.

    Dated: February 7, 2000.
Kevin Gover,
Assistant Secretary--Indian Affairs.
[FR Doc. 00-3161 Filed 2-10-00; 8:45 am]
BILLING CODE 4310-02-P