[Federal Register Volume 73, Number 101 (Friday, May 23, 2008)]
[Pages 30146-30148]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-11603]



Bureau of Indian Affairs

Office of Federal Acknowledgment; Guidance and Direction 
Regarding Internal Procedures

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice.


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.



    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 
    (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 

[[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 

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 

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 

    Dated: May 16, 2008.
Carl J. Artman,
Assistant Secretary--Indian Affairs.
 [FR Doc. E8-11603 Filed 5-22-08; 8:45 am]