[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]
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