[Federal Register Volume 70, Number 61 (Thursday, March 31, 2005)]
[Notices]
[Pages 16513-16516]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-6325]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs


Office of Federal Acknowledgment; Reports and Guidance Documents; 
Availability, etc.

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice.

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SUMMARY: The Department gives notice that the Associate Deputy 
Secretary of the Interior is revising and clarifying certain internal 
procedures for managing and processing petitions for Federal 
acknowledgment as an Indian tribe. These revisions do not change the 
acknowledgment regulations, 25 CFR part 83.

DATES: Effective Date: The procedures defined by this notice are 
effective on March 31, 2005.

FOR FURTHER INFORMATION CONTACT: R. Lee Fleming, Director, Office of 
Federal Acknowledgment, MS: 34B-SIB, 1951 Constitution Avenue, NW., 
Washington, DC 20240, phone (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 which the Secretary of the Interior 
delegated to the Assistant Secretary--Indian Affairs (Assistant 
Secretary) by 209 Department Manual 8.
    This notice supersedes the notice published in the Federal Register 
(65 FR 7052) on February 11, 2000, entitled ``Changes in the Internal 
Processing of Federal Acknowledgment Petitions.''
    By Secretary's Order No. 3259, dated February 8, 2005, the 
Secretary delegated to the Associate Deputy Secretary most of the 
duties formerly delegated to the Assistant Secretary. (This delegation 
will expire upon confirmation of a new Assistant Secretary or 
designation of an Acting Assistant Secretary.) Among the delegated 
authorities is the authority to, ``execute all documents, including 
regulations and other Federal Register notices, and perform all other 
duties relating to Federal recognition of Native American Tribes.''
    The acknowledgment process is based on the regulations in 25 CFR 
Part 83, first issued in 1978 and revised in 1994. The acknowledgment 
function, formerly under the Branch of Acknowledgment and Research in 
the Bureau of Indian Affairs (BIA), was relocated to the Office of 
Federal Acknowledgment in the Office of the Assistant Secretary--Indian 
Affairs effective July 27, 2003.
    The General Accounting Office (now the Government Accountability 
Office) published on November 2001 a report entitled ``Improvements 
Needed in Tribal Recognition Process.'' In response to this report, the 
Department adopted a Strategic Plan, dated September 12, 2002, to 
identify ways to improve the timeliness and transparency of the 
acknowledgment process. That plan called for consideration of possible 
changes in the processing of acknowledgment petitions. This notice 
presents some of the results of that planning process.
    As part of its plan, the Department also provided for a review of a 
notice of ``Changes in the Internal Processing of Federal 
Acknowledgment Petitions'' published by the Assistant Secretary in the 
Federal Register (65 FR 7052) on February 11, 2000. In that notice, the 
Assistant Secretary changed certain internal procedures and clarified 
other procedures, within the parameters of the regulations. That notice 
directed BIA to adopt certain procedural changes in order to reduce 
delays in reviewing petitions for acknowledgment and to make 
acknowledgment decisions in a more timely manner. This notice 
supersedes the notice of February 11, 2000.
    The procedures described in this notice are based on five years of 
experience under the notice of February 11, 2000, and on the procedures 
that have been found most effective in producing the clearest decisions 
in an efficient manner, while giving petitioners and third parties 
appropriate opportunities to provide information and comment. These 
procedures are in accord with the commitment to the principle, stated 
by the Secretary in her April 1, 2004, memorandum to the Assistant 
Secretary, that acknowledgment decisions be based on documentation 
``carefully reviewed in

[[Page 16514]]

accordance with regulatory standards and then made available to the 
public in a transparent and timely manner.'' The Secretary stressed the 
importance of ``thorough and deliberate evaluations'' because 
acknowledgment decisions ``must be equitable and defensible.''
    The internal procedures stated in this notice do not change the 
acknowledgment regulations. Rather, they provide a better means of 
implementing the existing regulations and managing the agency's 
workload within the parameters of the regulations and available 
resources. These procedures apply to the Office of Federal 
Acknowledgment.
    This Federal Register notice is to advise petitioners, interested 
parties, and the public of the internal procedural changes adopted by 
the Department as part of its response to the GAO report. It also 
provides them with certain information and guidance to promote 
transparency in the acknowledgment process and timeliness in the 
processing of acknowledgment petitions. Petitioners and interested 
parties will be provided a copy of this notice by first class mail.

Regulatory Procedures

    Under the regulations, the petitioner has the burden to present 
evidence that it meets the mandatory criteria. Section 83.6(c) of the 
acknowledgment regulations provides that ``the documented petition must 
include thorough explanations and supporting documentation in response 
to all of the criteria.'' Section 83.6(d) provides that a petition can 
and will be turned down for lack of evidence.
    The regulations, in Sec.  83.5(c), describe the duties of the 
Department, in part, by stating 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 Assistant 
Secretary ``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 
additional research on the part of the Assistant Secretary 
discretionary and does not mandate that any additional research be 
carried out.
    The notice of February 11, 2000, limited research by the 
acknowledgment staff to that needed to verify and evaluate the 
``materials presented by the petitioner and submitted by third 
parties.'' This notice removes that specific limitation, while 
reaffirming the importance of timely reviews of the evidence by the 
acknowledgment staff. Consistent with that limitation, acknowledgment 
staff members have performed research--including archival, library, and 
field research--and analysis as necessary to verify and evaluate the 
arguments and evidence presented by the petitioner or third parties. 
Such expert research shall continue to be done. The acknowledgment 
staff may undertake some research or analysis beyond the arguments and 
evidence presented by the petitioner or third parties, at the 
discretion of the Department, only when consistent with producing a 
decision within the regulatory time period. This notice clarifies that 
the acknowledgment staff may acquire relevant and easily accessible 
documents not already in the record and may interview knowledgeable 
informants not already interviewed for the record. Research to obtain 
additional information that clarifies the issues in a case can speed 
the evaluation of a petition. Research to acquire relevant information 
not accessible to the parties or overlooked by the parties by using the 
professional expertise of the acknowledgment staff can aid the 
determination of whether the petitioner meets the regulatory criteria 
for acknowledgment and provide a clearer basis for the decision. 
Petitioners and third parties, however, have no expectation that the 
acknowledgment staff will perform additional research or analysis to 
correct omissions in their submitted documentation. The burden under 
the regulations remains on the petitioner to demonstrate that it meets 
the criteria.
    The notice of February 11, 2000, provided that materials submitted 
after the start of active consideration would not be reviewed for the 
proposed finding, but would be reviewed for the final determination. 
This notice modifies that direction. In the future, when the Department 
notifies the petitioner and third parties that a petition will be 
placed on active consideration on a specific date, it also will notify 
them of a date by which additional material must be submitted to be 
considered for the proposed finding. The Department will provide a 60-
day time period for such submissions. Unsolicited submissions after 
that date will be reviewed for the final determination and not for the 
proposed finding, with the following exception. Section 83.10(f)(2) of 
the regulations provides that the petitioner ``shall be notified of any 
substantive comment on its petition received prior to the beginning of 
active consideration or during the preparation of the proposed finding 
and shall be provided an opportunity to respond to such comments.'' A 
petitioner's response to substantive comments on its petition will be 
considered for the proposed finding if submitted within 60 days of its 
notification by the Department of the receipt of any substantive 
comments that will be considered for the proposed finding, or within 60 
days of the date by which additional materials had to be submitted to 
be considered for the proposed finding, whichever is later, even if 
active consideration has begun. The petitioner and third parties retain 
the opportunity under the regulations to comment on each other's 
submissions during the public comment period that follows the proposed 
finding.
    The notice of February 11, 2000, stated that the acknowledgment 
staff ``shall not request additional information from the petitioner 
and third parties during the preparation of the proposed finding.'' 
This notice modifies that limitation. Consistent with that limitation, 
acknowledgment researchers have requested and reviewed documents and 
analyses that were incomplete as submitted, available in a more usable 
form than that submitted, or referenced but not submitted. 
Acknowledgment staff may request additional information from the 
petitioner or third parties at any time prior to the proposed finding 
in order to clarify the arguments or evidence submitted by those 
parties, or to obtain information in the possession of the petitioner 
or third parties that was not submitted. The proposed finding, however, 
shall not be delayed to obtain this information.
    The notice of February 11, 2000, directed that ``technical reports 
such as have been prepared in the past'' by the acknowledgment staff, 
which often consisted of multiple technical reports reflecting the 
approaches of different professional disciplines, should no longer be 
prepared to accompany the summary evaluation of the evidence under the 
criteria as part of the report required by Sec.  83.10(h) of the 
regulations. Consistent with that limitation, new forms of charting, 
arranging, and describing the available evidence under each criterion 
have been used. This notice clarifies the notice of February 11, 2000, 
by providing that, in addition to a summary under the criteria, the 
Department may prepare a technical report, where appropriate, to 
memorialize the analysis of the evidence that is the basis of the 
summary evaluation in order to enhance the transparency of the 
decision. Such a report should not describe all of the evidence 
submitted, but should focus on the evidence most important to the 
decision-making process. It remains the

[[Page 16515]]

policy of the Department to provide a complete explanation of the basis 
for acknowledgment decisions.
    The notice of February 11, 2000, provided that Departmental review 
of recommended decisions, including signature by the Assistant 
Secretary, ``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.'' This notice clarifies the notice of 
February 11, 2000, by stating that, consistent with practice under that 
notice, the 6-week limitation does not apply to the processes of 
consultation and briefing by the Office of Federal Acknowledgment that 
should continue to occur with the Office of the Assistant Secretary--
Indian Affairs and the Office of the Solicitor prior to the start of 
the Department's surname process. The timely processing of 
acknowledgment petitions will be improved more by such earlier 
consultation and briefing than by limiting the time period for 
Departmental review. In addition, the reorganization of the 
acknowledgment function into the Office of the Assistant Secretary--
Indian Affairs has reduced the need for a specified time frame for the 
surname process and improved the timeliness of the processing of 
acknowledgment petitions by reducing the number of levels of 
Departmental review.
    Certain statements about the Department's procedures contained in 
the notice of February 11, 2000, are clarified and reaffirmed here:
    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 findings on the petition. Submissions by the petitioner 
and third parties during the comment period, rather than research by 
the acknowledgment staff, are the most appropriate and efficient means 
to supplement the record of the petition.
    The review of a petition is to be conducted by a team of 
professional researchers working in consultation with each other. The 
acknowledgment decision is not intended to be a definitive study of the 
petitioning group. The acknowledgment staff is expected to use its 
expertise and knowledge of sources to evaluate the accuracy and 
reliability of the submissions, but to conduct its professional review 
within the constraints of time established by the regulations and the 
resources available. The acknowledgment researchers are not expected to 
conduct extensive analysis of data that petitioners or third parties 
submitted but did not analyze. The acknowledgment researchers are not 
expected to conduct additional research and analysis in preparation for 
any anticipated challenge in court. The scope of the staff's 
professional 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.
    Section 83.6(a) of the regulations states 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 from the source cited 
in the text submitted by the petitioner or third party. The Department 
may consider such materials, either in whole or in part, as not being 
in a ``readable form'' within the meaning of the regulations, and 
acknowledgment researchers shall not 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 clearly the 
source(s) for each document submitted in order for it to be given 
appropriate weight as evidence.

Information and Advice for Petitioners and Third Parties

    In accordance with the Department's Strategic Plan of September 12, 
2002, the Office of Federal Acknowledgment has created a compilation of 
all of the Department's acknowledgment decisions in order to promote 
transparency in the acknowledgment process. This compilation contains 
all proposed findings, final determinations, and reconsidered final 
determinations, including their summaries under the criteria, technical 
reports, charts, supporting materials, and Federal Register notices, 
plus technical assistance letters to petitioners and Departmental 
correspondence relating to issues referred by the Interior Board of 
Indian Appeals in acknowledgment cases. This compilation will be 
periodically updated to include future completed cases. This 
``Acknowledgment Decisions Compilation'' is available to petitioners, 
third parties, and the public on compact disk (CD).
    The Department's Strategic Plan also included consideration of 
possible changes in acknowledgment procedures. From this review, the 
Department has identified several ways in which the timeliness and 
transparency of the acknowledgment process could be improved, both by 
providing petitioners and third parties with a better understanding of 
its policies and by suggesting certain practices that could be 
voluntarily adopted by petitioners and third parties in the absence of 
changes to the regulations. In accordance with the Strategic Plan, the 
Department reviewed whether petition data could be entered into a 
computerized system, whether a standard format could be adopted for the 
submission of petitions, whether letters of intent should include the 
submission of governing documents and membership lists, whether third 
parties could receive non-privacy documents without invoking the 
Freedom of Information Act (FOIA), whether possible impediments to the 
orderly consideration of petitions such as extensions of time could be 
resolved, and whether other possible changes in procedures could 
improve the administration of the acknowledgment process. The following 
information and suggestions resulted from this review.
    The Office of Federal Acknowledgment has used a computer database 
system (known as FAIR) as a pilot project in several cases. This system 
is intended to make the evidentiary record, and the Department's 
analysis of that evidence, more accessible to petitioners and third 
parties by allowing them to obtain that record on compact disk (CD). 
This system holds scanned images of all the documents in the 
administrative record for a petition and provides on-screen, 
computerized access to those documents. It allows the evidence for a 
petition to be sorted and retrieved, and thus improves the ability of 
petitioners and third parties to find and view specific documents cited 
in the Department's findings or in the submissions of other parties. 
The acknowledgment staff is available to provide assistance to 
petitioners and third parties about the use of this electronic database 
system.
    Petitioners are encouraged to consult with the acknowledgment staff 
before and during preparation of a documented petition in order to 
improve the quality of the petition, reduce the number of deficiencies 
noted in a technical assistance letter, and thus improve the timeliness 
of the acknowledgment process. Petitioners and third parties are 
advised to consult with the

[[Page 16516]]

acknowledgment staff before using genealogical, database, or other 
computer software programs in order to maximize compatibility with 
systems in use within the Office of Federal Acknowledgment. Petitioners 
and other parties may submit petition materials in an electronic 
format, such as images of documents, and consult with the 
acknowledgment staff to prepare for the inclusion of their petition in 
the FAIR system. Consultation before preparation of petition materials 
will facilitate compatibility and thereby speed the review of 
petitions.
    The acknowledgment staff is available to provide technical 
assistance to petitioners and third parties, but can understand the 
organization and composition of a petitioning group and its governing 
body only if the group's governing documents and membership roll are 
provided. Therefore, these documents should be submitted as soon as 
possible, preferably with the letter of intent, in order for the 
acknowledgment staff to provide effective and timely technical 
assistance. These items are required elements of a documented petition 
under Sec.  83.7(d) and (e). As part of their comments on a proposed 
finding, petitioners should submit an updated membership roll, 
certified by their governing body. The petitioner should include an 
explanation of any changes in its membership criteria and/or enrollment 
procedures and any substantial changes in its membership since the 
proposed finding. Petitioners are reminded that, under Sec.  83.11(b), 
if they are acknowledged, this list will become the group's base 
membership roll.
    In order to promote timeliness and transparency in the 
acknowledgment process, especially during the period between a 
determination that a documented petition is ready for active 
consideration and publication of a proposed finding, petitioners are 
encouraged to provide a copy of the non-privacy materials in their 
submissions to the Department directly to the State Attorney General's 
Office and any recognized tribe that is an interested party in their 
petition, and third parties are encouraged to provide a copy of their 
submissions to the Department directly to the petitioner, the State 
Attorney General's Office, and any recognized tribe that is an 
interested party. This request does not change the regulatory 
requirement, in Sec.  83.10(i), that third parties who submit arguments 
and evidence to the Assistant Secretary on the proposed finding must 
provide a copy of their submissions to the petitioner. This guidance 
does not create any rights in petitioners or third parties to obtain 
information or respond to it. Such voluntary, reciprocal exchanges with 
other parties may improve the ability of those parties to submit timely 
comments. If the Department is able to include an evaluation of such 
submissions in a proposed finding, then all parties will be able to 
reply to that evaluation during the comment period. These reciprocal 
exchanges also would improve the ability of all parties to comment 
after a proposed finding on any materials submitted too late to be 
considered for the proposed finding. If such exchanges eliminate a need 
for parties to submit FOIA requests, they should reduce the collateral 
duties of the acknowledgment staff and thus speed the Department's 
processing of acknowledgment petitions.
    The regulations provide, in Sec.  83.10(i), that the comment period 
that follows a proposed finding ``may be extended for up to an 
additional 180 days at the Assistant Secretary's discretion upon a 
finding of good cause.'' The Department has interpreted the regulations 
as providing for more than one extension. It has been the policy of the 
Department that the finding of ``good cause'' for any extension will 
depend on the specificity of the description of work that will be done 
if additional time is permitted, the explanation for why the research 
and analysis were not completed during the initial comment period or 
prior extension, and the amount of additional time requested. Any 
requests for extensions should be made appropriately in advance of the 
expiration of the initial or extended comment period, and petitioners 
and third parties should not assume that such extensions will be 
granted either in whole or in part. While extensions of the comment 
period will be granted on a showing of good cause, if, because of such 
an extension, a petition is not ready for evaluation for a final 
determination when the acknowledgment staff is available to be assigned 
to it, the Department will proceed to evaluate another petition. The 
Department cannot allow delay on one petition to cause delay on other 
petitions.
    The Department advises petitioners, third parties, and their 
representatives not to contact the Associate Deputy Secretary or any 
other Department official who may have been delegated authority to 
decide matters concerning the acknowledgment petition during the last 
60 days of the regulatory time period provided for the issuance of a 
proposed finding or final determination. During the active 
consideration of a petition, the petitioner and third parties may 
contact the supervisor of the acknowledgment staff (see the contact 
information above) regarding the status of the petition.
    Under Sec.  83.5 of the regulations, the Associate Deputy 
Secretary, or the Assistant Secretary, as appropriate, shall supplement 
or update the acknowledgment guidelines as necessary. The advice in 
this notice supersedes the existing guidelines for preparation of 
documented petitions where they may be in conflict.
    These revised procedures and guidance are effective on March 31, 
2005.

    Dated: March 10, 2005.
James E. Cason,
Associate Deputy Secretary.
[FR Doc. 05-6325 Filed 3-30-05; 8:45 am]
BILLING CODE 4310-G1-P