Procedures for Establishing That an American Indian Group Exists as an Indian Tribe; Final Rule DEPARTMENT OF THE INTERIOR

SUMMARY: This rule makes substantial changes in the administrative

process for Federal acknowledgment of Indian groups as tribes entitled

to a government-to-government relationship with the United States.

Changes are made to clarify requirements for acknowledgment and define

more clearly standards of evidence. Provision is made for a reduced

burden of proof for petitioners demonstrating previous Federal

acknowledgment. Procedural improvements include an independent review

of decisions, revised timeframes for actions, definition of access to

records, and opportunity for a formal hearing on proposed findings.

These changes will improve the quality of materials submitted by

petitioners, as well as reduce the work required to develop petitions.

They are also intended to provide a faster and improved process of

evaluation.

EFFECTIVE DATE: March 28, 1994.

FOR FURTHER INFORMATION CONTACT: Holly Reckord, Chief, Branch of

Acknowledgment and Research, Bureau of Indian Affairs, MS 2611-MIB,

1849 C Street NW., Washington, DC 20240.

SUPPLEMENTARY INFORMATION:

I. Background

This final revised rule is published in the exercise of authority

delegated by the Secretary of the Interior to the Assistant Secretary--

Indian Affairs by 209 DM 8.

Regulations governing the administrative process for Federal

acknowledgment first became effective October 2, 1978. Initially

designated as 25 CFR part 54, they were later redesignated without

change as 25 CFR part 83. Prior to 1978, Federal acknowledgment was

accomplished both by Congressional action and by various forms of

administrative decision. However, there still remained in the 1970's

many acknowledgment claimants whose character and history varied

widely. The regulations established the first detailed, systematic

process for review of petitions from groups seeking Federal

acknowledgment.

Proposed revised regulations were published on September 18, 1991,

at 56 FR 47320. These were published in response to issues raised by

diverse parties concerning interpretation of the regulations and

administration of the review process. The proposed revised regulations

also incorporated changes based on the perspective that had been gained

by the Department from 13 years of experience administrating the

acknowledgment process.

The public comment period of 90 days was extended for an additional

30 days, until January 17, 1992. Public meetings were held at nine

locations around the country. Sixty-one written comments were received

from 59 different individuals. These individuals included

representatives of unrecognized groups, recognized tribes, Indian legal

rights organizations, State governments, and Federal agencies, as well

as individual attorneys, anthropologists, and other scholars. The

issues and concerns raised by commenters are summarized below, followed

by the Department's response and a description of changes made in

response to comments.

II. Review of Public Comments

Overview

These final regulations include changes which make clearer the

meaning of the criteria for acknowledgment and make more explicit the

kinds of evidence which may be used to meet the criteria. The general

standards for interpreting evidence set out in these regulations are

the same as were used to evaluate petitions under the previous

regulations. In some circumstances, the burden of evidence to be

provided is reduced, but the standards of continuity of tribal

existence that a petitioner must meet remain unchanged.

None of the changes made in these final regulations will result in

the acknowledgment of petitioners which would not have been

acknowledged under the previously effective acknowledgment regulations.

Neither will the changes result in the denial of petitioners which

would have been acknowledged under the previous regulations.

Standards of Evidence and Stringency of Requirements

Comments: Several commenters stated that the proposed revisions

represented a major escalation of requirements and/or that they

codified de facto escalations of requirements that had occurred in the

Department's application of the regulations in the 13 years since they

became effective in October 1978. Several other commenters stressed the

importance of maintaining the present standards and the necessity of

stringent standards for Federal acknowledgment.

Response: The Department does not agree that the standards of

evidence have escalated at any time, nor that the proposed revisions

have increased the requirements. The acknowledgment criteria and

definitions were modified on the basis of 13 years experience dealing

with a wide variety of cases. Changes were made to clarify the meaning

of the criteria and intent of the regulations, and make possible

efficient development of evidence specifically focused on the

requirements.

Comments: A number of commenters requested a specific statement of

the general burden of evidence. Most suggested demonstration by a

``preponderance'' of evidence or that a criterion be considered met if

it were more likely true than not.

Response: These comments are based on the incorrect assumption that

the acknowledgment process presently requires proof beyond a doubt. The

process only requires evidence providing a reasonable basis for

demonstrating that a criterion is met or that a particular fact has

been established. ``Preponderance'' is a legal standard focused on

weighing evidence for versus against a position. It is not appropriate

for the present circumstances where the primary question is usually

whether the level of evidence is high enough, even in the absence of

negative evidence, to demonstrate meeting a criterion, for example,

showing that political authority has been exercised. In many cases,

evidence is too fragmentary to reach a conclusion or is absent

entirely. In response to these comments, language has been added to

Sec. 83.6 codifying current practices by stating that facts are

considered established if the available evidence demonstrates a

reasonable likelihood of their validity. The section further indicates

that a criterion is not met if the available evidence is too limited to

establish it, even if there is no evidence contradicting facts asserted

by the petitioner.

Further, because the above standard is so general, additional

language has been added in Sec. 83.6 and Sec. 83.7 to clarify the

standard of proof as it relates to particular circumstances or

criteria. In particular, many commenters interpreted the revised

regulations as requiring a group to demonstrate that it meets the

criteria in historical times by using the same kinds of evidence as for

the present. In fact, actual acknowledgment decisions to date have

clearly recognized the limitations of the historical record and have

utilized standard scholarly requirements for determining the nature of

societies in the past. It has been the Department's experience that

claimed ``gaps'' in the historical record often represent deficiencies

in the petitioner's research even in easily accessible records.

Language has also been added to Sec. 83.6 which explicitly takes

into account the inherent limitations of historical research on

community and political influence. Further, the section allows for

circumstances where evidence is genuinely not available, as opposed to

being available but not developed by appropriate research. This does

not mean, however, that a group can be acknowledged where continuous

existence cannot be reasonably demonstrated, nor where an extant

historical record does not record its presence.

Comment: Extensive comment was received concerning the requirement

to demonstrate continuous existence as a tribe since first sustained

contact. Comments were divided concerning interpretation and/or

modification of the definition of ``continuous.'' Some expressed the

opinion that a stated period of years should be defined as a

permissible ``interval'' during which a group could be presumed to have

continued to exist. A petitioner would only have to demonstrate its

existence before and after the interval. Intervals as long as 50 years

were suggested. The suggestion to establish criteria for ``intervals''

is based on the language ``generation to generation'' which appeared in

the original definition of ``continuous.'' Other commenters felt that

the ``generation to generation'' language was vague and inappropriate

and should be eliminated in favor of a more careful, technical

explanation of the standards required to demonstrate continuity of

existence.

It was also suggested that no demonstration of continuity be

required if a group is presently a tribe and can show ancestry from a

historic tribe. A variant of this was a suggestion that petitioners

only be required to demonstrate continuity since 1934. This date was

suggested because it was the period of initial implementation of the

1934 Indian Reorganization Act.

Response: Language has been added to the regulations to make

explicit the existing standard that criteria (b) and (c) do not have to

be documented at every point in time. The phrase ``generation to

generation'' has been removed from the definition of continuous. The

additional language added to Sec. 83.6 concerning standards of evidence

clarifies the requirements for demonstrating historical existence.

However, in the Department's view it is inappropriate to establish a

specific interval during which tribal existence may be presumed. The

significance of an interval must be considered in light of the

character of the group, its history, and the nature of the available

historical evidence. It has been the Department's experience that

historical evidence of tribal existence is often not available in

clear, unambiguous packets relating to particular points in time. More

often, demonstration of historical existence requires piecing together

various bits of information of differing importance, each relating to a

different historical date.

The purpose of the acknowledgment process is to acknowledge that a

government-to-government relationship exists between the United States

and tribes which have existed since first contact with non-Indians.

Acknowledgment as a historic tribe requires a demonstration of

continuous tribal existence. A demonstration of tribal existence only

since 1934 would provide no basis to assume continuous existence before

that time. Further, the studies of unrecognized groups made by the

Government in the 1930's were often quite limited and inaccurate.

Groups known now to have existed as tribes then, were portrayed as not

maintaining communities or political leadership, or had their Indian

ancestry questioned. Thus, as a practical matter, 1934 would not be a

useful starting point.

Comment: In the proposed revised regulations, the definition of

``continuity'' was revised to require that ``substantially'' rather

than ``essentially'' continuous existence be demonstrated. Some

commenters interpreted this as an escalation of requirements.

Response: The change in wording is a reduction in the stated

requirements to demonstrate tribal existence. The modification in

wording reflects how the previous regulations had always been applied.

``Essentially'' means that there can be almost no interruptions.

``Substantially'' continuous is a lesser requirement which means only

that overall continuity has been maintained, even though there may be

interruptions or periods where evidence is absent or limited.

Comment: The language in Sec. 83.6(d) concerning fluctuations in

tribal activity drew a number of comments. Some commenters approved of

it, some objected to it, and others requested that it be clarified.

Commenters were uncertain about how the language was to be applied to

the criteria. Some objected to the use of the qualifier ``sole'' in the

phrase describing fluctuation as a cause of denial. They felt that

using fluctuation as a cause for denial was inappropriate.

Response: The language regarding fluctuations in activity appears

in the present regulations in Sec. 83.7(a). It was moved to Sec. 83.6,

the section dealing with general provisions, to make clear that it

applied to all the criteria. It is now placed together with the new

language concerning historical continuity, and should be read together

with the new language.

The language concerning fluctuations recognizes that acknowledgment

determinations should take into account that the level of tribal

activity may decrease temporarily for various reasons such as a change

in leadership or a loss of land or resources. These real historical

fluctuations are different from variations in documentation that result

from an incomplete historical record. To clarify the meaning, the

qualifier ``sole'' has been omitted and the sentence rewritten to state

that fluctuations will not in themselves be the cause of denial.

Comments: Commenters stated that the proposed revisions of the

regulations were inadequate because they did not make clear what

evidence was required to meet the criteria in Sec. 83.7 (b) and (c).

Some commenters requested a more explicit specification of the evidence

needed to meet these criteria in order to clarify the petitioner's

burden of proof. One commenter proposed a streamlined approach using

simplified and quantified standards. This individual felt that current

approaches were subjective and overly complicated and that they dealt

with extraneous issues.

Response: To clarify the kinds of evidence needed to demonstrate

the criteria at Sec. 83.7 (b) and (c), the revised regulations now

include a list of evidence that can be used to meet each criterion. To

further simplify and streamline the processes of developing and

reviewing petitions, new language sets forth specific kinds of evidence

considered sufficient in themselves to demonstrate that the criterion

has been met. For example, the revised regulations provide that a high

percentage of residence in a geographical area exclusively or almost

exclusively occupied by group members is sufficient to demonstrate

community. The additions to criteria (b) and (c) are discussed further

below, with the review of comments about specific criteria. The

existing regulations already contained lists of specific evidence for

criteria (a) and (e), and these are carried over into the revised rule.

These changes will provide a more focused and efficient process of

preparation and evaluation of petitions, particularly for strong,

clear-cut cases.

A new paragraph, 83.6(g), has been added to the section on general

provisions which specifies that these lists of specific evidence are

not mandatory requirements or ``tests'' that a petitioner must meet.

Rather, they are explicit statements of evidence that may be used to

demonstrate that a criterion has been met. As in past cases, other

kinds of evidence may be used to meet various criteria. The revised and

expanded guidelines will further help petitioners develop their

evidence by explicating the meaning of the criteria as well as

approaches to demonstrating that a criterion is met.

Previous Federal Acknowledgment

Comments: Extensive comment was received on the proposed provision

allowing petitioners that were federally acknowledged previously to

demonstrate only that they meet the criteria from the point of previous

acknowledgment until the present. Many commenters favored this

provision because they viewed it as remedying a lack in the present

regulations and restoring a policy in effect before the present

regulations were published in 1978. No commenters objected to taking

previous acknowledgment into account.

The strongest objections came from those holding the view that if a

group was acknowledged previously it should be recognized now, without

further requirements. These commenters felt that such a group should be

acknowledged automatically unless the Government could demonstrate that

the group had abandoned tribal relations voluntarily.

A variant of this approach was the suggestion that a petitioner

only be required to show that it was the same as the group acknowledged

previously. This could be done either by demonstrating genealogical

descent or by showing that the present group constitutes a tribe under

the regulations and that its members are genealogically descended from

the tribe acknowledged historically.

Response: The Department's position is, and has always been, that

the essential requirement for acknowledgment is continuity of tribal

existence rather than previous acknowledgment. The Federal court in

United States v. Washington, rejected the argument that ``because their

ancestors belonged to treaty tribes, the appellants benefitted from a

presumption of continuing existence.'' The court further defined as a

single, necessary and sufficient condition for the exercise of treaty

rights, that tribes must have functioned since treaty times as

``continuous separate, distinct Indian cultural or political

communities''(641 F.2d 1374 (9th Circuit 1981)). Thus, simple

demonstration of ancestry is not sufficient.

Petitioning groups may be recently formed associations of

individuals who have common tribal ancestry but whose families have not

been associated with the tribe or each other for many generations.

The Department cannot accord acknowledgment to petitioners claiming

previous acknowledgment without a showing that the group is the same as

one recognized in the past. Several previous petitioners claimed they

were a historical tribe for which previous Federal acknowledgment could

be demonstrated. However, it was later found that their members had no

genealogical connection with the claimed tribe. In addition the present

group did not connect with the previously acknowledged tribe through

the continuous historical existence of a distinct community and

political leadership.

The provisions concerning previously acknowledged tribes have been

further revised and set forth in a new, separate section of the

regulations. The changes reduce the burden of evidence for previously

acknowledged tribes to demonstrate continued tribal existence. The

revisions, however, still maintain the same requirements regarding the

character of the petitioner. For petitioners which were genuinely

acknowledged previously as tribes, the revisions recognize that

evidence concerning their continued existence may be entitled to

greater weight. Such groups, therefore, require only a streamlined

demonstration of criterion (c). Although these changes have been made,

the revisions maintain the essential requirement that to be

acknowledged a petitioner must be tribal in character and demonstrate

historic continuity of tribal existence. Thus, petitioners that were

not recognized under the previous regulations would not be recognized

by these revised regulations.

The revised language requires the previously acknowledged

petitioner as it exists today to meet the criteria for community

(criterion 83.7(b) and political influence (criterion 83.7(c)). The

demonstration of historical continuity of tribal existence, since last

Federal acknowledgment until the present, must meet three requirements.

First, the petitioner must demonstrate that it has been continuously

identified by external sources as the same tribe as the tribe

recognized previously. Second, continuity of political influence must

be established by showing identification of leaders and/or a governing

body exercising political influence on a substantially continuous basis

from last acknowledgment until the present, if supported by

demonstration of one form of evidence listed in Sec. 83.7(c).

Demonstration of historical community would not be required. Thus, the

evidence required is less burdensome. Alternatively, if these

requirements cannot be met, petitioner may demonstrate that it meets

the requirements of criteria 83.7(a)-(c) from last Federal

acknowledgment until the present. Third, ancestry from the historic

tribe (criterion 83.7(e)) must be shown. The requirements of criterion

(g), that the petitioner not be subject to legislation terminating or

forbidding the Federal relationship will still apply. Criterion (f),

which requires that the petitioner's members not be members of a

presently recognized tribe, will also still apply.

Comments: Several commenters raised the practical question of when

and how it would be demonstrated that the petitioner was in fact the

same as the previously acknowledged tribe.

Response: The determination under paragraphs 83.10(b)(3) and

83.10(c)(2) that a group was previously acknowledged will only be a

determination that past government actions constituted unambiguous

Federal acknowledgement as a tribe. It will not be a determination that

the criteria for acknowledgment have been met by the petitioning entity

since the last point in time that the tribe it claims to have evolved

from was acknowledged. If during the preliminary technical assistance

review it becomes apparent that the petitioner cannot be linked with

the previously acknowledged tribe, the petitioner will be advised.

Further explanation of this procedure will be provided in the revised

guidelines.

Language has been added to Sec. 83.10(c) to provide for

circumstances where a petitioner's response to the questions raised

during the technical assistance review are not adequate to establish

unambiguous previous Federal acknowledgment.

Comments: Many commenters felt that the definition of the term

``unambiguous previous federal acknowledgment'' was unclear. They

requested a statement of the specific evidence necessary to demonstrate

Federal acknowledgment.

Response: Section 83.8(c) now lists three forms of evidence for

unambiguous previous Federal acknowledgment. These are derived from the

``Cohen criteria'' used by the Department to recognize tribes between

the mid-1930's and 1978. The section further provides that unambiguous

previous acknowledgment may be demonstrated by other kinds of Federal

action. The guidelines provided for under Sec. 83.5(b) will include

further examples and explanations of how this provision will be

applied.

Comments: Several commenters felt that the regulations did not make

clear whether tribal existence would have to be demonstrated from the

earliest or from the latest date of Federal acknowledgment clearly

identified in records. Thus, for example, a petitioner's last point of

Federal acknowledgment might be when under the terms of a treaty,

services were withdrawn, even though that might have been several

decades after the treaty was signed.

Response: The language in Sec. 83.8(d) has been modified to

indicate that tribal existence need only be demonstrated from the

latest date of Federal acknowledgment.

Comment: One commenter was concerned that the regulations might

allow the isolated actions of individual Federal officials not

authorized to extend acknowledgment to be interpreted as previous

acknowledgment.

Response: Since the regulations require that previous

acknowledgment be unambiguous and clearly premised on acknowledgment of

a government-to-government relationship with the United States, no

change in the definition is necessary. The definition does not apply to

circumstances where services may have been provided to individual

Indians, but the services were not based on their membership in a

recognized tribe. Providing individual services in this way was common

earlier in this century.

Interested Parties

Comments: A definition of ``interested party'' was added to the

proposed revised regulations. Language concerning notification and

participation of interested parties was added to and/or clarified in

Sec. 83.9, Notification, Sec. 83.10, Processing of the documented

petition, and Sec. 83.11, Independent review, reconsideration and final

action (sections renumbered). Some commenters approved of these

changes. Yet, numerous others strongly objected to third parties having

an opportunity to participate in and comment on acknowledgment

petitions. Particular concern was expressed that interested parties

might be able to delay the effective date of an acknowledgment

determination without sufficient reason. Several commenters were

concerned that third party information might be considered in advance

of consideration of a petition. Conversely, several commenters wanted

language to insure that recognized tribes affected potentially by a

petition be notified and have an opportunity to comment.

Response: Interested parties participate fully in the

acknowledgment process under the present regulations. None of the

changes made in the proposed revised regulations reflected an increase

in their role. It is neither necessary nor appropriate, in the

Department's view, to prohibit the participation of third parties. In

particular, the Department's position is that parties which may have a

legal or property interest in a decision, such as recognized tribes or

non-Indian governmental units, must be allowed to participate. Other

parties, such as scholars with a knowledge of the history of a

petitioning group, often are able to contribute valuable information

not otherwise available. It has been our experience that this material

is most often favorable to petitioners. Thus, participation of such

interested parties is both appropriate and useful.

The Department agrees that third parties without a significant

property or legal interest in a determination should not be permitted

to participate without limit. Therefore, the definition of interested

party has been revised to refer to third parties with a significant

property or legal interest. A separate phrase informed party, has been

defined in Sec. 83.1 to refer to all other third parties. Language

throughout the regulations has been revised to reflect this

distinction. The revised and additional definitions should be read

together with the language of Sec. 83.11, on reconsideration, and the

new language in paragraph 83.10(i) concerning a formal meeting after a

proposed finding to review the bases of the determination. These

revisions limit to petitioners and interested parties the right to

initiate requests for a formal meeting or for reconsideration. The

Assistant Secretary and the Interior Board of Indian Appeals (IBIA),

respectively, will determine which third parties qualify as interested

parties in the formal meeting and the process for review of requests

for reconsideration.

Language has been added to Sec. 83.9(b) to provide that recognized

tribes and petitioners that can be identified as being affected by or

having a possible interest in a petition determination will be notified

of the opportunity to comment. Such tribes and petitioners will be

considered interested parties.

A requirement that third parties who comment on a proposed finding

or a final determination must provide copies of their comments to the

petitioner as well as to the Department was already included in the

proposed revised regulations (Sec. 83.10(i) and Sec. 83.11(b) as

renumbered here). In order to extend notification requirements to all

stages of the process, language has been added to Sec. 83.10(f)

requiring the Department to notify petitioners of comments received

from third parties before active consideration begins. Information

received from third parties will not be considered by the Department

until a petition is placed under active consideration.

Section-by-Section Review

Introduction: Comments relating to specific sections, not already

discussed in connection with the general issues reviewed above, are

reviewed below on a section-by-section basis. Because a new section,

83.8, has been added, previous sections 83.8-12 have been renumbered as

Sec. 83.9-13.

Throughout the body of the regulations, minor changes have been

made in the text. These are solely for the purposes of clarity and ease

of reading and have no intended change in meaning. All revisions which

are intended to change the acknowledgment process have been separately

noted.

Section 83.1 Definitions

Introduction: Comments on many of the most important definitions

have been incorporated with the criteria with which they are

associated. These comments are discussed below in Sec. 83.7. Comments

on other definitions are reviewed here.

Continental United States

Comment: A definition of continental United States was added to the

proposed revised regulations to make it clear that the regulations

apply to Alaska. The preamble to the proposed revised regulations

further stated that the Bureau would consider whether it was

appropriate to develop a modified acknowledgment process to apply to

Alaska organizations wishing to be included on the Federal Register

list of recognized tribes. One commenter strongly supported the

establishment of a modified acknowledgment process for Alaska.

Response: Many Federal statutes passed since the Alaska Native

Claims Settlement Act (ANCSA) (43 U.S.C. 1601 et seq.) have defined

Indian ``tribe'' to include the corporations established pursuant to

ANCSA. Thus, the Federal Register list of tribes recognized and

eligible for services was expanded to include ANCSA corporate entities

(see 53 FR 52829, at 52832, December 29, 1988). The ANCSA corporations,

while eligible for services as though they were ``tribes'' because

Congress expressly included them in the statutory definition of

``tribes,'' are not tribes in the historical or political sense.

The inclusion of non-tribal entities on the 1988 Alaska entities

list departed from the intent of 25 CFR 83.6(b) and created a

discontinuity from the list of tribal entities in the contiguous 48

states. On October 21, 1993, a Notice identifying tribal entities in

Alaska as well as the contiguous 48 states was published in the Federal

Register (58 FR 54364) to clarify that the villages and regional tribes

are not simply eligible for services, or recognized as tribes for

certain narrow purposes. Rather, the Alaska villages have the same

governmental status as other federally acknowledged tribes by virtue of

their status as Indian tribes with a government-to-government

relationship with the United States; are entitled to the same

protection, immunities, and privileges as other acknowledged tribes;

have the right, subject to general principles of Federal Indian law, to

exercise the same inherent and delegated authorities available to other

tribes; and are subject to the same limitations imposed by law on other

tribes.1 The publication of the new tribal entities list resolves

the primary questions relating to Alaska which led to the consideration

of adopting a possible modified acknowledgment process for Alaska (see

56 FR 47320, at 47321, September 18, 1991). Accordingly, a modification

now of the acknowledgment process to address the special circumstances

in Alaska is unwarranted.

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\1\Sol. Op. M-36,975 concluded, construing general principles of

Federal Indian law and ANCSA, that ``notwithstanding the potential

that Indian country still exists in Alaska in certain limited cases,

Congress has left little or no room for tribes in Alaska to exercise

governmental authority over land or nonmembers'' M-36,975 at 108.

That portion of the opinion is subject to review, but has not been

withdrawn or modified.

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Continuous and Historical

Comments: Commenters generally approved of the addition of language

providing that petitioners need only trace continuity as a tribe back

to the point where contact with non-Indians was sustained. This

provision was aimed at eliminating possible problems caused by the

often sporadic and poorly documented nature of initial contacts.

Several commenters were concerned that the revised definition might

lead to recognition of recently formed groups. Others felt that the

change would eliminate Eastern groups whose early culture and

government had been destroyed.

Response: A separate definition of sustained contact has been

created by restating language incorporated in the definition of

``historical'' in the proposed revised regulations. The revised and

added definitions concerning ``historical,'' ``continuous'' and

``sustained contact'' reflect the current administrative practice in

implementing the present regulations. They do not increase the burden

of demonstrating historical continuity for Eastern groups. The

definition would not permit recently formed groups in areas with long-

standing non-Indian settlement and/or governmental presence to claim

historical existence as a tribe.

European

Comment: Comments were received that European is an inappropriate

term to describe many of the peoples that Indian societies first came

into contact with.

Response: The term non-Indian has been substituted for European in

the definitions of continuous, historical and sustained contact.

Indian Group

Revision: Because the term ``Indian'' did not clearly cover Alaskan

groups, the term ``Alaska Native'' has been added to this definition.

Indian Tribe

Revision: Because the term ``Indian'' did not clearly cover

acknowledged Alaskan tribal entities, the terms Alaska Native and

villages have been added to this definition.

Indigenous

Revision: For clarity and consistency with portions of the

regulations referring to sustained historical contact, this definition

has been revised to refer to the tribe's ``territory at the time of

sustained contact,'' rather than its ``aboriginal range.''

Tribal Roll

Comments: One commenter objected to the requirement for ``active''

consent to membership while another supported it.

Response: This definition was added in the proposed revised

regulations to provide a specific definition of tribal roll for the

purposes of these regulations only. The intent of the regulations is to

acknowledge tribes that are in fact politically autonomous of other

Indian tribes. We believe that in order to meet this intent, a tribal

roll, which here refers to a roll made by a recognized tribe, must

clearly reflect the existence of a bilateral political relationship

between the individuals listed and their tribe. The definition has been

revised, however, to require that the individual have ``affirmatively

demonstrated'' consent rather than ``actively consented'' to

membership. This will make it clearer that a variety of actions may

constitute evidence that an individual's listing on a roll reflects the

existence of a bilateral political relationship with the tribe.

Undocumented Letter Petition

Comments: Comments indicated some continued confusion between the

status of an undocumented letter petition and a documented petition.

The former was defined in the proposed revised regulations as a letter

or resolution to the Assistant Secretary-Indian Affairs indicating that

an Indian group was requesting acknowledgment as a tribe. The latter

was defined as containing the necessary evidence for such a request to

be evaluated.

Response: The term letter of intent has been substituted for

undocumented letter petition in the definitions section and throughout

the regulations. This change more clearly distinguishes between a group

which has merely requested acknowledgment and one which has provided

the evidence necessary to review such a request. Hopefully, the change

will eliminate confusion concerning the status of groups seeking

acknowledgment.

Section 83.3 Scope

Section 83.3(a)

Comment: The meaning of the phrase ``ethnically identifiable'' was

questioned. The exclusion from the proposed revised regulations of the

phrase ``culturally identifiable'' was also questioned.

Response: The phrase ``ethnically identifiable'' has been

eliminated because it caused some confusion and does not contribute to

the implementation of the regulations. ``Culturally identifiable'' was

previously eliminated because the regulations do not require that a

successful petitioner be culturally different from non-Indians.

Section 83.3(g)

Comments: This section provides that petitioners under active

consideration when revised regulations become effective may choose

either to continue under the present regulations or come under the

revised regulations. One commenter objected to allowing a shift if a

proposed finding had already been issued and another objected to

allowing any choice at all. Most of the comments concerned providing

access to the Interior Board of Indian Appeals (IBIA) review process in

Sec. 83.11. Commenters argued that even if the petitioner chose to be

reviewed under the present regulations, they should have access to the

new appeal process. It was also suggested that petitioners whose cases

were already decided under the existing regulations be allowed access

to the IBIA process.

Response: The Department thinks it unlikely that the old

regulations will be chosen by petitioners under active consideration.

However, the comments underscored some procedural complications. Thus,

language has been added to specify that the transition rules apply at

any stage of active consideration, including reconsideration. Language

has also been added to allow petitioners presently under active

consideration to request a suspension of consideration in order to

modify their petition. In addition, the regulations have been revised

to allow groups choosing the original regulations to nonetheless use

the IBIA process, since the Department's policy is presently to utilize

the IBIA to conduct an independent review of requests for

reconsideration.

No provision is being made, however, to allow already completed

decisions to be reopened, since this would constitute repetitioning.

Repetitioning by petitioners for which a final decision has become

effective is prohibited by Sec. 83.10(p).

It is anticipated that groups ready for active consideration but

not yet being considered may wish to withdraw their petitions for

further work. Such petitions would be removed from the priority

register established under Sec. 83.10(d).

Comment: Two commenters requested clarification on what procedures

would apply if a court were to vacate or otherwise return a decision

for reconsideration.

Response: Provisions would be made regarding what procedures should

be followed on an individual basis depending on the specific court

ruling. Because the court would be expected to provide guidance for

each case of this type, no general provisions can be included in the

regulations.

New Issues

Comment: One commenter requested that the regulations bar

consideration of petitioners declared by a Federal court not to exist

as tribes, if the United States and a recognized tribe were a party to

the decision.

Response: It would be inappropriate to put a blanket prohibition in

the regulations. Whether the United States is barred by past court

decisions from acknowledging a petitioner would depend on the

particular circumstances of a given decision. In such cases, the

Department would undertake a legal review which would not require

regulatory language to be effective.

Section 83.4 Filing a Letter of Intent

Revision: Language has been added to clarify that even though in

most instances a letter of intent will be filed first, a petitioner's

letter of intent may be filed at the same time and as part of its

documented petition.

In addition, the language requiring that a letter of intent be

signed, dated, and produced by a petitioner's governing body has been

moved from the definition in Sec. 83.1 to this section as paragraph

83.4(c).

Section 83.5 Duties of the Department

Section 83.5(a)

Comments: The proposed revised regulations changed the requirement

for publication of a list of recognized tribes in the Federal Register

from annually to periodically, as deemed necessary. Commenters objected

that this change made the requirement too indefinite and that regular

publication was necessary so that other Federal agencies would clearly

know the status of tribes.

Response: While the Department believes annual publication is

unnecessary, we agree that some regular schedule is appropriate.

Consequently this section has been revised to provide for publication

at least every three years, and more frequently if deemed necessary.

Comments: Comments were received requesting that the Department

specify as part of the publication of the list of recognized tribes

that Alaska Native villages have the status of historic tribes. This

would include both those villages on lists published under the previous

regulations and on the lists published in the future under the current

regulations.

Response: As already indicated, on October 21, 1993, the Assistant

Secretary--Indian Affairs published a Notice in the Federal Register

(58 FR 54364) listing the recognized tribal entities in the contiguous

48 states and Alaska and clarifying the status of Alaska Native

villages.

Comments: Many comments stated that the revised regulations could

be used, or were intended to be used, to review tribes already on the

list of recognized tribes to determine whether they should continue to

be recognized.

Response: This is an erroneous and unwarranted interpretation of

the proposed revised regulations. The Department has no authority to

use these regulations to review the status of already recognized tribes

and no intention of doing so. Both the current and the proposed revised

regulations declare under Sec. 83.3(b) that presently acknowledged

tribes cannot be acknowledged under these regulations. The intent of

this is that presently acknowledged tribes not be reviewed under the

acknowledgment process.

Section 83.5(b)

Comments: Comments generally approved of the issuance of revised

guidelines, as a way to clarify the requirements for preparation and

evaluation of petitions. Some commenters were afraid that, because of

the provision for periodic updating, the guidelines would be used as a

way to modify the regulations without public comment. Some comments on

definitions wanted key terms such as ``significant'' and

``substantial'' defined in the regulations rather than in the

guidelines.

Response: The purpose of the guidelines is to clarify and explain

more precisely the kinds of evidence necessary for petitions as well as

the administrative procedures for reviewing petitions. It is not

possible to include in the regulations a definition of all of its terms

or a complete exposition of all forms of possible evidence to

demonstrate that the acknowledgment criteria have been met. The

provision for updating guidelines reflects the desire of the Department

to continue to improve its technical assistance to petitioners. The

revised guidelines will allow for response to petitioner's questions

and provide advice on cases or problems which have not been dealt with

previously. The guidelines cannot be used to modify the regulations.

Language has been added to clarify the nature of the guidelines, by

stating explicitly that they will include an explanation of the meaning

of the criteria and the types of evidence necessary to meet them.

New Provision

Comments: Several commenters objected to the deletion of a

provision to notify unrecognized groups of the opportunity to petition.

It was recommended that because the proposed changes in the regulations

are so extensive, the Department should notify petitioners and/or

potential petitioners of the revised regulations.

Response: A new section, 83.5(f), has been added to provide for the

notification of petitioners when the revised regulations become

effective. It is our view that it is not necessary to further notify

groups which have not petitioned that the regulations have been

modified even if they may be aware of the acknowledgment process. That

information can be provided when a letter of intent is submitted.

Section 83.6 General Provisions for the Documented Petition

Section 83.6(a)

Comment: Several commenters interpreted the word ``comprehensive''

in characterizing petitions as a requirement that all possible evidence

be supplied.

Response: The term ``comprehensive'' was used to mean that the

petition should contain evidence concerning all necessary aspects of

the regulations. Because of objections to this term, the language was

changed to require ``detailed, specific'' evidence.

Revision: The paragraph previously numbered 83.6(e) concerning

previous Federal acknowledgment, has been reorganized and augmented and

now appears as a separate section, Sec. 83.8.

Section 83.6(f)

This is a new paragraph which makes explicit that the regulations

apply not only to tribes which have existed historically as a single

entity, but also to tribes which are the result of the historical

combination of several tribes or subunits into a single political

entity. Language to this effect was added to criterion (b) in the

proposed revised regulations. That language in criterion (b) has been

replaced by this general provision. Similar language appears in

criterion (e) of the present regulations and, for reasons of clarity,

has been left in that criterion statement.

Section 83.7 Mandatory Criteria for Federal Acknowledgment

Section 83.7(a)

Comments: There were many comments that this criterion was unfair,

burdensome and unnecessary. Strong concerns were raised, particularly

regarding historical identification of groups in the South, that racial

prejudice, poverty, and isolation have resulted in either a lack of

adequate records or records which unfairly characterized Indian groups

as not being Indian. One commenter considered the criterion unnecessary

because the Indian character of a group should be established

adequately by the requirement under criterion 83.7(e) to show Indian

ancestry, and under criteria 83.7(b) and (c) to show continuity of

tribal community and political influence.

Response: The requirement for continued identification complements

criteria (b), community, (c), political influence, and (e), descent

from a historical tribe. The criterion is intended to exclude from

acknowledgment those entities which have only recently been identified

as being Indian or whose Indian identity is based solely on self-

identification.

The criterion for continued identification has been revised to

reduce the burden of preparing petitions, as well as to address

problems in the historical record in some areas of the country. The

requirement for substantially continuous external identification has

been reduced to require that it only be demonstrated since 1900. This

avoids some of the problems with historical records in earlier periods

while retaining the requirement for substantially continuous

identification as Indian. To further address the question of use of

historical records, language has been added to this criterion to make

explicit that the existence of historical records denying the Indian

character of a group will not be considered definitive evidence that

the group does not meet this criterion. In applying the present

acknowledgment regulations, records denying the Indian character of a

group have not been considered definitive, particularly where there is

evidence that the records have been influenced by racial bias, and

where other, reliable records affirming the group's Indian identity

have also been available.

Comments: Few changes were made in this paragraph in the proposed

revised regulations. For consistency, the word ``repeated'' was added

to several of the descriptions of specific evidence to be used to meet

the criterion. While most commenters viewed these descriptions as

useful, they felt that addition of the term ``repeated'' might be taken

to mean that repeated demonstration over time was required for each

kind of external identification.

Response: The intent of the paragraph is to outline the kinds of

evidence which may be used in combination to demonstrate substantially

continuous identification. In response to the comments, the term

``repeated'' has been taken out of the descriptions, since the basic

criterion language clearly indicates that consistent identification by

outsiders is required.

State and regional organizations have been added to Sec. 83.7(a)(7)

to better reflect the range of Indian organizations which may provide

external identification.

The criterion language has been revised to state that the kinds of

evidence specified ``may'' rather than ``shall'' be used to demonstrate

substantially continuous Indian identity. This has been done to reflect

explicitly how this criterion has been applied under the present

regulations, as well as to maintain consistency with the lists of

evidence provided for other criteria, which are not mandatory.

Comment: One commenter stated that the criterion should require

identification as an Indian tribe, not just as an Indian entity.

Response: The Department feels there is no need to revise the

criterion in this manner. The criterion serves to establish the Indian

identification as a group, but does not determine the character of that

group. Tribal character is determined by the other criteria.

Section 83.7(b)

Introduction: A list of specific evidence that can be used to

demonstrate this criterion, including evidence considered sufficient in

itself, has been added to this criterion. This provides a clearer

explanation of the meaning of the criterion and associated definitions,

and of the burden required to demonstrate this criterion.

Comments: Criterion (b), demonstration of community, and the

associated definition of community in Sec. 83.1, were substantially

revised in the proposed revised rule. The revision omitted an

apparently implied requirement that a group live in a geographical

community in order to demonstrate that this criterion was met. The

revised definition effectively requires a showing that substantial

social relationships and/or social interaction are maintained widely

within the membership, i.e., that members are more than simply a

collection of Indian descendants, and that the membership is socially

distinct from non-Indians.

Several commenters applauded the omission of a geographical or

territorial requirement as better reflecting the circumstances of

unrecognized tribes in some parts of the country. Two commenters

objected on the grounds that a tribe cannot exist without a territorial

basis.

Response: The omission of a geographical requirement reflects

current practices in interpreting the regulations and recognizes that

tribal social relations may be maintained even though members are not

in close geographical proximity. It focuses on the essential

requirement that such relationships exist to a significant degree. The

change has been made so that the definition of community could

encompass all forms of social interaction and not just the traditional

circumstances where a tribe lived on a separate landbase. It also takes

into account the historical difficulties and limitations which may have

made it impossible for unrecognized groups to maintain a separate

geographical community. The revised criterion does not eliminate the

possibility that geographical concentrations may provide direct or

supporting evidence concerning the existence of a community. The

statements of specific evidence added to the criterion state explicitly

that the existence of an exclusive territorial area is strong evidence

that a community exists, because it indicates that significant social

relationships are being maintained. Thus, the use of geographical

evidence remains an option, but not a requirement.

Comment: Several commenters maintained that the existing

regulations only required a showing that members were sufficiently

concentrated geographically to allow the possibility that they could

maintain social and political relationships, without having to show

that such relationships actually existed. They maintained that a

requirement to demonstrate that social relationships actually exists

represents a change in the regulations.

Response: This view misinterprets the definition of community in

the present regulations. The revision does not constitute a change in

meaning. It is consistent with the intent of the regulations and with

the legal precedents underlying the regulations, which require

demonstration of the social solidarity of the tribe. It is also

consistent with all acknowledgment decisions made under the existing

regulations. These determinations have required evidence that

significant social interaction and/or social relationships are actually

maintained within the petitioner's membership.

Comments: Two commenters maintained that the revised definition

adds a new requirement that ``social boundaries'' be shown.

Response: Distinctness is an essential requirement for the

acknowledgment of tribes which are separate social and political

entities. The existing criterion, and the revised one, both call for

the community to be distinct from non-Indians. It is thus not a new

requirement. The definition of ``community'' in the present regulations

does not provide a definition of ``distinct.'' The definition in the

revised regulations merely adds language that defines ``distinct.''

Further, sharp social distinctions have been treated under the

present regulations as strong evidence of cohesion within a community,

since they have the effect of strengthening social interaction and

relations within a group. Language to this effect has been added to

criterion (b), as part of the examples of evidence which may be used to

demonstrate the criterion. Sharp social distinctions include patterns

of discrimination where members of a group are excluded or limited in

their participation in the institutions of the larger society. While

the acknowledgment regulations do not require that such sharp

distinctions exist, they do require that some distinction be shown.

Distinctions may also be maintained by the group itself, and not

imposed by outsiders. In order to clarify the intent of the definition

of community it has been modified to indicate that social distinction

is the key element in the second part of the definition.

Comments: The proposed revised regulations added language to

criterion (b) making it explicit that community must be demonstrated

historically as well as presently. This language reflects the

interpretation of the original regulations used in previous

acknowledgment decisions.

Demonstration of continuity of a historical community is necessary

in order to meet the intent of the regulations that continuity of

tribal existence is the essential requirement for acknowledgment. In

addition, political authority cannot be demonstrated without showing

that there is a community within which political influence is

exercised.

Some comments approved the inclusion of this language. Others

opposed it as an escalation of requirements. These latter commenters

further saw this revision and the revised definition of community as

requiring a demonstration of specific details of interactions in the

historical past, and thus as creating an impossible burden. They also

viewed the requirement to demonstrate historical distinctness of

community as adding a new research burden, that of ``reconstructing

social boundaries.''

Response: A detailed description of individual social relationships

has not been required in past acknowledgment decisions where historical

community has been demonstrated successfully and it is not required

here. The descriptions of specific kinds of evidence to demonstrate

community make clear that detailed sociological reconstructions are not

required. That is, historical community may be demonstrated by other

means such as by showing distinct territorial areas occupied by the

group, strong patterns of intermarriage within the group, etc. Further,

the language added to Sec. 83.6 clarifies that the nature and

limitations of the historical record will be taken into account.

No requirement is intended, nor has one been imposed in past

decisions, to demonstrate ``social boundaries'' in the sense of a

detailed description of social interaction. In fact, however, since

much of the historical data on unacknowledged groups is provided by

outsiders to a group, information on social distinction is often more

readily available in historical sources than is information on the

internal workings of a group.

Comment: Several commenters objected to the use of the word

``predominant'' in the definition of community, rather than the term

``substantial'' as used in the previous definition. However, at least

one commenter viewed the use of ``predominant'' as essential to insure

that most of the group had significant social contact with each other.

Response: The two terms appear in the contexts of two different

definitions of community. The old definition implied a geographic

community, while the revised one focuses on the social character of the

community. The term ``predominant'' is used to state a requirement that

at least half of the membership maintains significant social contact

with each other. The Department considers this is a reasonable standard

for defining an Indian community eligible for acknowledgment.

Therefore, the term has been retained.

Comment: Several individuals pointed out that retention of the

language ``distinct from other populations in the area'' implied a

geographical requirement, even though this was eliminated elsewhere.

Response: We agree, so this language has been eliminated.

Comments: Some commenters felt that having both criteria (b) and

(c) was redundant, at least for the historical periods, since, in their

view, one implied the other.

Response: While the two criteria are interlinked, they are not

identical. Previous acknowledgment decisions have delineated the

relationship between these two criteria. Rather than eliminate one of

the criteria, a description of how one can be used in some

circumstances as evidence to demonstrate the other is included in the

new descriptions of specific evidence which may be used to demonstrate

these criteria. Contrary to the comments received, community is often

easier to demonstrate historically than is political influence.

Revision: To conform with the changes in criterion (a), the

language ``viewed as American Indian'' has been eliminated. The

language was essentially redundant with the requirement of criterion

(a) for identification of the group as an Indian entity.

Section 83.7(c)

Introduction: A list of specific evidence that can be used to

demonstrate this criterion, including evidence considered sufficient in

itself, has been added to this criterion. This addition provides a

clearer explanation of the meaning of the criterion and associated

definitions, and of the burden required to demonstrate this key

criterion.

Comment: The present regulations do not provide a definition of the

key phrase ``tribal political influence or other authority.'' While

some commenters approved of the definition added in Sec. 83.1 of the

proposed revised regulations, others interpreted it as establishing new

requirements. Commenters specifically objected to the language

specifying that influence on members be ``in significant respects,''

that decisions ``substantially affect members,'' and that outside

dealings be in ``matters of consequence.'' Several commenters suggested

that the clauses in the definition be linked by ``and/or'' rather than

``and'' to indicate that these were alternatives that could be used in

combination.

Response: The definition is not a change from present requirements.

It reflects the legal and policy precedents underlying the regulations.

These precedents have been used to interpret the existing regulations

in all previous acknowledgment decisions. It is essential that more

than a trivial degree of political influence be demonstrated.

Petitioners should show that the leaders act in some matters of

consequence to members or affect their behavior in more than a minimal

way. They need not demonstrate the ability to require action or enforce

decisions over strong opposition. It is also not necessary that

political influence be exercised in all or most areas of members' lives

or their relationships with other members. The definition provides for

taking into account the history of the group, including the

difficulties faced by unacknowledged groups in maintaining political

influence. Yet it maintains the fundamental requirements of the

regulations that political influence must not be so diminished as to be

of no consequence or of minimal effect. The qualifying language is

essential to the demonstration of political influence. Thus, it has

been retained in the final regulations. However, the suggestion of

linking the clauses with ``and/or'' has been adopted since it is more

consistent with the intent of the definition.

Comments: Two commenters wanted stronger requirements for criterion

(c). One requested that demonstration of authority over a specific area

be required. The other wanted the criterion to specify ``governmental''

authority, meaning the demonstration of extensive, often coercive

powers similar to those of recognized tribes.

Response: The requested changes would be an unwarranted escalation

of the present requirements and entirely unreasonable, given the

historical difficulties faced by many unacknowledged groups.

Comment: Several commenters questioned the use of the term

``tribal'' to qualify political influence or authority. The commenters

felt that this implied some specialized type of political influence

specific to Indians.

Response: The term ``tribal'' has been eliminated as unnecessary.

It's use merely suggested that the scope of influence was over the

tribal membership. It was not intended to imply a distinct type of

political influence.

Comment: The significance of the word ``other'' in criterion

83.7(c) and the related definitions was questioned. It's inclusion was

interpreted as implying an alternative definition of political

processes than that actually addressed in the definition.

Response: To eliminate confusion, ``other'' has been removed. Now

the basic phrase is ``political influence or authority'' rather than

``political influence or other authority.'' ``Authority'' refers to

exercise of political processes more directly and powerfully than is

the case with ``influence.''

Section 83.7(d)

Comments: Two commenters supported the inclusion of this criteria,

which was only slightly revised. Another concluded that it was

unnecessary because its requirements could be included in criteria (c)

and (e), respectively.

Response: This criterion is largely a technical requirement to

provide information essential to evaluation of a petition. Since it

does not constitute a significant burden on petitioners, it is being

kept separate as a matter of convenience.

Section 83.7(e)

Revisions: The order in which the requirements are presented has

been reversed, in order to state the most fundamental requirement

first. The paragraphs describing evidence which may be used to

demonstrate ancestry have been revised to be consistent with each other

and to state clearly that they should provide evidence demonstrating

that the present membership of a petitioner is descended from a

historic tribe.

Comment: Two commenters questioned the adequacy of the language

allowing ancestry to be derived from historic tribes which combined

into one autonomous political entity. They interpreted it as requiring

a formal union, even though tribal mergers more often occur informally.

They also thought allowance should be made for the movement of families

among tribes.

Response: The present language does not require a formal union, and

past acknowledgment decisions have not required it. The previous

decisions have also allowed for the movement of families between

tribes. Thus, we believe any elaboration on this issue can best be

provided in the revised guidelines.

Comment: Commenters generally supported the requirement of

demonstrating tribal ancestry, but questioned whether it needed to be

traced as far back as is currently required. They also questioned

whether standards of proof were too strict and whether insufficient

weight was given to oral history and tribal records, as opposed to

governmental records.

Response: The regulations have not been interpreted to require

tracing ancestry to the earliest history of a group. For most groups,

ancestry need only to be traced to rolls and/or other documents created

when their ancestors can be identified clearly as affiliated with the

historical tribe. Unfortunately such rolls and/or documents may not

exist for some groups or where they do, individuals may not be

identified as Indians. In such instances, the petitioner's task is more

difficult as they must find other reliable evidence to establish the

necessary link to the historical tribe.

Weight is given to oral history, but it should be substantiated by

documentary evidence wherever possible. Past decisions have utilized

oral history extensively, often using it to point the way to critical

documents. Tribal records are also given weight. In fact, all available

materials and sources are used and their importance weighed by taking

into account the context in which they were created.

Comment: One commenter considered it unreasonable to require a

description of the circumstances under which historical membership

lists were prepared. The commenter pointed out that such information

might not be available in the historical record. The commenter

interpreted the wording of the regulations as requiring this

information and was concerned that, therefore, a petitioner could be

denied for not meeting this requirement.

Response: Language has been added to indicate that information

regarding the creation of past membership lists is required only if it

can be obtained readily. Inability to provide it would not block a

group's ability to meet this criterion. Such information is often vital

to understanding the history of the group, and often helpful to

demonstrating that the group meets this or other criteria.

Comment: Two commenters wanted the criterion to state a specific

percentage of the modern membership, such as 60 percent, that would

have to demonstrate ancestry from the historic tribe.

Response: The Department has intentionally avoided establishing a

specific percentage to demonstrate required ancestry under criterion

(e). This is because the significance of the percentage varies with the

history and nature of a group and the particular reasons why a portion

of the membership may not meet the requirements of the criterion.

Section 83.7(f)

Comments: Several commenters supported the revisions made to this

section and the related definitions of tribal roll, membership in a

recognized tribe and tribal relations. The primary concern was that the

meaning of ``associated with'' was unclear. One commenter objected to

the definition of ``tribal roll'' associated with this criterion.

Another objected to prohibiting dual enrollment, because members of

unacknowledged groups often enroll themselves or their children in

recognized tribes. This may be done in order to receive essential

benefits, and not with the intent of changing tribal affiliation.

Response: The phrase ``associated with'' is meant as a general term

to encompass any situation where a petitioner may have had some

relationship with a recognized tribe but is not legally incorporated

with nor governed by that tribe and is not part of the same community.

No better substitute term was found. The language in this section

specifically prohibits use of the regulations to acknowledge portions

of already recognized tribes. However, it allows for acknowledgment of

rare cases where the petitioner has been regarded, erroneously, as part

of or associated with another tribe, but has been a separate,

autonomous group throughout history.

Section 83.7(g)

No significant comments were received on this paragraph.

Section 83.8 Previous Federal Acknowledgment

All comments relating to this section were dealt with above in the

responses concerning general issues.

Section 83.9 Notice of Receipt of Petition (Formerly 83.8)

This section was renumbered from Sec. 83.8, to permit insertion of

the new, separate section concerning previous Federal acknowledgment.

All comments relating to this section were dealt with above in the

section concerning interested parties.

Section 83.10 Processing the Documented Petition

Introduction: This section was renumbered from Sec. 83.9, to permit

insertion of the new, separate section concerning previous Federal

acknowledgment. Some paragraphs have been divided or combined, and

renumbered, to group together related ideas.

Comments: Numerous comments were received objecting to the fact

that no deadlines were required for Departmental action on technical

assistance reviews nor to commence active consideration of a case. In

contrast, it was pointed out that there were deadlines for petitioners

to respond to proposed findings and final determinations.

Response: The regulations do not provide deadlines for certain

Departmental actions nor for petitioners to submit documented petitions

or to respond to technical assistance reviews. Deadlines only apply to

the active consideration process, where both petitioners and the

Department have specific timelines in which to act. The Department is

committed to as timely and rapid consideration of petitions as

possible. Yet, it finds it cannot guarantee deadlines for technical

assistance reviews or initiation of active consideration, because it

cannot predict the number size, content, or time of submission of

documented petitions.

Section 83.10(a)

Comments: Several commenters objected to the deletion of the phrase

``by his staff'' in reference to research conducted for the Assistant

Secretary. Commenters interpreted this as allowing for the use of

contract researchers and felt strongly that contracting was not

desirable or effective in hastening petition reviews. If contract

research is to be allowed, provision was requested to enable

petitioners to be fully informed about the contracting process.

Commenters also asked to allow petitioners to decline to be reviewed by

contractors, and to have the right to challenge the credentials of

contract researchers.

Response: No change is necessary in this section. While the

Department has the obligation to perform its review using qualified

personnel, it is not obligated to allow petitioners to determine the

personnel reviewing petitions, whether under contract or not.

Contracting can play a useful role in expanding the Department's

resources and providing flexibility, thereby facilitating and

expediting the review of petitions. Furthermore, contracting is used

only for research purposes. Evaluation and determinations of whether a

petitioner meets the mandatory criteria for acknowledgment are only

carried out by Departmental staff.

Section 83.10(d)

Comments: Some commenters approved of the change this section makes

from basing priority of consideration on the date of submission of the

letter of intent to the order in which petitions are ready for active

consideration. Others opposed it as unfair or subject to manipulation.

Response: The Department's position is that the revised priority

register is the most equitable approach. In the past, petitions which

were ready for active consideration but had low priority numbers based

on the initial letter of intent were ``bumped'' by petitions completed

much later but with a higher priority number. This wait and uncertainty

is detrimental to the petitioning and review process.

Section 83.10(e)

Comments: Commenters generally approved of the addition of this

section, which provides for a limited, speedy review of petitions which

cannot, upon examination, meet the requirements of certain

acknowledgment criteria. The primary concern was whether sufficient

review and due process would be accorded.

Response: The section requires clear evidence, apparent on a

preliminary review, that one of the three named criteria are not met.

The section provides that, absent such clear evidence, the petition

will be reviewed under the regular process. This limited evaluation

will only occur after the petitioner has had the opportunity to respond

to the technical assistance review. A proposed finding under this

section would still be subject to the comment process before a final

determination was issued. The petitioner would also have the

opportunity to request reconsideration under Sec. 83.11.

Section 83.10(f)

Comments: Several commenters were concerned that this section did

not give the petitioner sufficient information about which personnel

were responsible for the reviewing of their petition.

Response: The language in this section has been modified to make

clear that the petitioner will be notified of the personnel actually

conducting the review of their petition, as well as the supervisor in

charge of the review.

Section 83.10(g)

Comments: Many commenters objected to the fact that while the

Assistant Secretary can suspend review of a petition under provisions

of this section, petitioners do not have the right to withdraw their

petition or suspend its consideration. Some commenters suggested that

the section should at least specify that the Assistant Secretary will

consider such requests from a petitioner. Several commenters objected

to the prohibition against withdrawal of a petition once active

consideration was begun.

Response: While the present section does not prohibit consideration

of petitioner requests for suspension of consideration, language has

been added to specify that the Assistant Secretary will consider such

requests.

The requirement for the Department to complete the review of any

petition upon which work has begun has been retained. This is because

of the considerable staff time and resources committed to a petition

review which are wasted if the petition is subsequently withdrawn.

Petitioners will have ample time to withdraw before active

consideration is begun. They also will receive extensive preliminary

review and advice concerning their petition. In addition, if

petitioners could choose to withdraw solely because they anticipated a

negative finding, this would create numerous administrative

difficulties which would, in turn, slow down the reviewing process.

Section 83.10(h)

Comments: Two commenters requested that the language in this

section describing the requirements for the Assistant Secretary's

report to accompany the proposed finding be expanded to require that

the bases for the decision be made clear.

Response: The current language calls for the report to summarize

the ``evidence and reasoning'' for the proposed decision. Revised

language has been added to further insure that the report provides a

detailed discussion of the basis for the decision.

In addition, language has been added in a new section,

Sec. 83.10(j), to provide access to all records used in the finding, as

well as for technical advice concerning the bases for the decision.

Further, provision has been made for a formal meeting on the proposed

finding which would be transcribed. This will allow a thorough

exploration of the bases for the proposed finding which will be on the

record, as well as an exchange of views and information between the

Bureau, the petitioner and any interested parties. These changes accord

with the Department's view that a proposed finding is a proposal

subject to change based on additional analyses and evidence. Since new

data and analysis may affect the conclusions proposed in the finding,

it is important to make the petitioner clearly aware of the evidence

and reasoning behind the proposed decision.

Section 83.10(i)

Comments: Several commenters observed that, based on experience to

date, the 120-day response period, even with a potential 120-day

extension, is greatly insufficient. Given the limitations of petitioner

resources and the extent and complexity of the documentation usually

involved, they felt that additional time was needed to prepare an

adequate response.

Response: The Department agrees with these conclusions. The time

periods in this section have been lengthened to provide for an initial

180-day response period and for an extension of up to an additional 180

days at the discretion of the Assistant Secretary. In addition, for

consistency with other sections, the language of the section has been

modified to make clear that comments to the Assistant Secretary may

address any aspect of the proposed finding, not simply the ``evidence

relied upon'', as the section currently provides.

Section 83.10(k)

Comments: Five commenters stated that the 60-day period for

petitioners to respond to the comments of interested parties regarding

a proposed finding was insufficient.

Response: The section allows for an extension of the 60-day period

if warranted by the extent and nature of the comments. No limits are

placed on this extension. We feel that this provision is adequate to

address the needs of petitioners who may need additional time to

address comments of any nature from third parties.

Comments: Two commenters requested that interested parties be

allowed an opportunity to respond in turn to petitioner's comments on

their submissions.

Response: Because the purpose of the response period is to address

the proposed finding, there is no reason to provide for an extended

exchange of comments between parties. However, because of the

importance of the acknowledgment decision to petitioning groups and

their future existence, opportunity is provided for petitioners to

comment both on the proposed finding and on any comments received from

other parties.

Section 83.10(l)

Clarification: Language has been added to this section to make it

clear that the Assistant Secretary's research for the purpose of

analyzing the petition and obtaining information concerning the

petitioner's status, which is stated in Sec. 83.10(a), extends through

the period for preparation of a final determination.

Language has also been added to make it explicit that the Assistant

Secretary may request that a petitioner or third party supplement or

support their comments on a proposed finding with additional

information and explanation. Comments on proposed findings are

sometimes submitted without adequate supporting documentation or

explanation. The absence of this information makes evaluation of the

comments and preparation of the final determination difficult. These

supplementary submissions would not be required and would not require

additional research on the part of the petitioner or commenting party.

These revisions do not provide for a reopening of the response period

and would not allow for the consideration of unsolicited comments

submitted after the close of the response period.

Section 83.10(m)

Revisions: This paragraph, numbered 83.10(l) in the proposed

revised regulations, has been combined with the initial sentence in

Sec. 83.10(m) (as renumbered in the proposed revised regulations), and

designated together as Sec. 83.10(m). The other paragraphs from

Sec. 83.10(m) (as renumbered), have been redesignated as separate

sections.

Sections 83.10 (o) and (p) (Renumbered, Formerly 83.9(m)(2))

Comments: Twenty comments were received on this section and the

related section, Sec. 83.3(f). These sections set forth the prohibition

against repetitioning by groups denied acknowledgment under the

existing regulations. The present regulations are silent on the

question of repetitioning. All but one of the commenters opposed this

change in the regulations. The primary objections were that

undiscovered evidence which might change the outcome of decisions could

come to light in the future. There was also some concern that petitions

could be denied because the petitioner's research was inadequate.

Some felt that proposed changes in the regulations might affect the

outcome if a petition decided under the existing regulations was

reevaluated under the revised rules. These commenters wanted the

revised reconsideration process made available to petitioners denied in

the past under the present regulations.

Response: The Department's position is that there should be an

eventual end to the present administrative process. Those petitioners

who were denied went through several stages of review with multiple

opportunities to develop and submit evidence. Allowing such groups to

return to the process with new evidence would burden the process for

the numerous remaining petitioners. The changes in the regulations are

not so fundamental that they can be expected to result in different

outcomes for cases previously decided. Denied petitioners still have

the opportunity to seek legislative recognition if substantial new

evidence develops.

Section 83.11 Independent Review, Reconsideration and Final Action

Introduction: This section has been reorganized to clarify the

steps in the process and to group together as far as possible the

actions required of each party. This section was formerly numbered

Sec. 83.10. To better reflect the nature of this process, the words

``Independent Review'' have been added to the title of the section.

General Comments: Many commenters supported the provision for

review of reconsideration requests by an independent body. Some

commenters objected to review by the IBIA, however, stating incorrectly

that it was part of the Bureau of Indian Affairs. Other commenters felt

that a review body outside of the Department would provide the fairest,

most independent review.

Commenters also questioned whether the IBIA has the technical

expertise necessary to adequately review acknowledgment decisions.

These observers requested that an ad hoc, independent panel of

professionals be utilized to review appeals.

Response: The IBIA is an independent administrative review body

within the Department. Its decisions are not reviewable by agency

officials. The Department does not believe that an independent panel of

experts would be an appropriate body to make the actual decision for

the Secretary whether to request reconsideration.

The proposed revised regulations included general provisions

intended to address the need for technical input and advice to the

IBIA. Section 83.11(e)(4) provides for a hearing before an

administrative law judge and Sec. 83.11(e)(3) provides for technical

comment by the Bureau at the Board's request, although the Bureau is

not otherwise involved in the independent review process. However, we

believe there is some merit to the concern whether adequate provision

has been made to address technical aspects of acknowledgment decisions

in the independent review process as set forth in the proposed revised

regulations. Therefore, the language of Sec. 83.11(e)(3) has been

modified to allow the Board to obtain independent expert comment if it

deems this appropriate. Additional language has been added to

Sec. 83.11(e)(4) to strengthen the role of the discretionary hearing

before an administrative law judge provided for in this paragraph.

Comments: Many commenters objected to the additional grounds for

reconsideration set forth in Sec. 83.11(d)(4). This paragraph provides

that alternative interpretations of evidence, not previously reviewed,

may be considered. Commenters interpreted this solely in terms of

allowing reversal of positive acknowledgment decisions. One commenter

approved of the additional grounds but questioned the competence of the

IBIA to utilize them because of its lack of technical expertise.

Another commenter wanted this provision limited to expert opinion, with

legal opinions barred with regard to this specific ground for

reconsideration.

Response: The additional grounds are neutral. They allow equally

for a positive or a negative decision to be vacated and returned to the

Assistant Secretary for reconsideration on the basis that the

interpretation used was incorrect or that there are valid, credible

alternative interpretations of the evidence. We believe these

additional grounds further guarantee fairness and flexibility

appropriate to the complexity of these decisions. We do not believe it

would be practical or appropriate to attempt to limit in advance the

kinds of alternative interpretations offered for consideration.

Comment: Some commenters wanted to omit all but the ``new

evidence'' grounds for reconsideration. Others objected to any

opportunity to present new evidence at all, on the grounds that ``due

diligence'' to develop such evidence should have been exercised by the

petitioner, who has the burden of proof under the regulations.

Response: The administrative process is predicated on providing a

maximum opportunity to develop and provide evidence, as well as further

analysis of existing evidence, free of as many procedural

technicalities as possible. We believe this opportunity should extend

to the reconsideration process. In addition, as the response to the

previous set of comments indicates, we believe that the most thorough

and equitable process requires consideration of more than just new

evidence.

Comments: Two commenters objected to the provisions of

Sec. 83.11(e)(8) calling for the Assistant Secretary to designate the

portions of the record to be sent to the IBIA. They felt that this

would allow withholding of vital documents or manipulation of the

decision.

Response: The section makes explicit that the entire record is

available to the Board. The limited initial transmission is called for

because of the extensive nature of the record, which often runs in

excess of 20,000 pages. Thus, it is merely a convenience for the

initial stages of the process of considering requests for

reconsideration. The filings of petitioners and interested parties will

require, in all likelihood, an examination of more of the record.

Comment: Several commenters pointed out that there was no

provision for petitioners or interested parties to comment on materials

submitted to the Secretary which result in a request for

reconsideration under based on grounds other than those in

Sec. 83.11(d)(1-4). One commenter wanted all parties to have an

opportunity to comment before the Secretary made a decision whether to

request reconsideration.

Response: We believe there is merit in having an opportunity to

comment in such circumstances, parallel to that provided in the review

by the IBIA. We also agree that it is most appropriate that such

comments be received before the decision is made by the Secretary.

Therefore, provision has been made for submission to the Secretary of

comments on requests for the Secretary to ask the Assistant Secretary

to reconsider the determination. Where comments are from interested

parties, provision has been made for a reply by the petitioner. The

revised language establishes timeframes for receipt of comment.

Revision: To simplify the reconsideration process, it has been

reorganized to provide that requests for reconsideration be made

directly to the Board. The initial determination of the nature of the

request is a straightforward one that can be more quickly made by the

Board.

As another means of simplifying the reconsideration process, the

Secretary will only review requests for reconsideration made on other

than the four basic grounds set forth in Sec. 83.11(b) if the Board

does not remand the determination to the Assistant Secretary on one or

more of the basic grounds. The Assistant Secretary, in the event of a

remand, would be authorized to also consider any other grounds alleged

for reconsideration besides the four basic ones.

Comments: One commenter wanted all parties to have an opportunity

to comment on any technical comments provided by the Bureau under

Sec. 83.11(e)(3).

Response: It is not necessary to provide for such a comment

opportunity. The Bureau under the regulations does not participate as

an active party opposing or supporting the submissions of petitioner or

interested parties or defending the determination. It is intended only

that the Board have the opportunity to obtain the technical comment

that it may need to make its decision. Further, the Board has authority

under Sec. 83.11(e)(2) to allow the active participants to respond to

such technical comments if it deems this necessary and appropriate.

Section 83.12 Implementation of Decisions

Section 83.12(a)

Comments: Several commenters objected to the change made in this

section identifying tribes acknowledged through this process as

``historic'' tribes. The commenters objected to the distinction that

has been made by the Department for many years between historical

tribes and other organized Indian communities. The political authority

of historical tribes is derived from aboriginal sovereignty because

they have existed historically as distinct tribes since first

acknowledgment. In contrast, the political authority of other organized

Indian communities is considered to be based solely on powers derived

from Federal statutes.

Response: This language is included to make clear that tribes

acknowledged through the process are historical tribes by virtue of the

requirements of the regulations. Removing the language would serve no

purpose in resolving current objections to the distinction between

historic tribes and other organized Indian communities.

The language of this section has been edited to state more directly

that tribes acknowledged through this process are historic tribes and

to clarify that all federally recognized tribes are considered to have

a government-to-government relationship with the United States.

Section 83.12(b)

Comments: Several commenters approved of the limitations

prescribed by this section on the base membership roll of a newly

acknowledged tribe. Others considered the limitation an infringement on

tribal sovereignty.

Response: The provision was included to clearly define tribal

membership prior to acknowledgment. It was also included so that

membership for purposes of Federal funding cannot later be so greatly

expanded that the petitioner becomes, in effect, a different group than

the one acknowledged. The acknowledgment decision rests on a

determination that members of the petitioner form a cohesive social

community and exercise tribal political influence. If the membership

after acknowledgment expands so substantially that it changes the

character of the group, then the validity of the acknowledgment

decision may become questionable. The language of this section does

allow for the addition to the base roll of these individuals who are

politically and socially part of the tribe and who meet its membership

requirements.

Section 83.13 Information Collection

Comment: Only one comment was received which concern the burden of

work stated in the information collection statement. This commenter

felt that the actual burden was much higher than the stated one.

Response: The Department does not agree that the stated burden is

unrealistic, if the research is focused on the information actually

needed to demonstrate tribal existence. Considerable scarce research

resources are wasted on materials which are not relevant to the

criteria. The stated burden hours have been reduced, to reflect the

revisions in the criteria and their application to petitioners which

can demonstrate tribal continuity with previously acknowledged tribes.

The reduction also reflects correction of an error in calculating the

number of genealogical forms which need to be filled out for a

petition. The explanation of the purpose of the information collection

has been revised slightly to more clearly reflect all seven of the

criteria in section 83.7(a-g).

III. Findings and Certifications

The Department has certified to the Office of Management and Budget

(OMB) that these final regulations meet the applicable standards

provided in Sections 2(a) and 2(b)(2) of Executive Order 12778. These

regulations have no preemptive or retroactive effect. A major purpose

of the revisions has been to address the clarity of language and

general draftsmanship of the regulations. Major efforts have been made

to reduce the burden on petitioners.

This rule has been reviewed under Executive Order 12866. In

accordance with E.O. 12630, the Department has determined that this

rule does not have significant takings implications.

The Department has determined that this rule does not have

significant federalism effects on States. This rule concerns the

establishment by the Federal Government of a government-to-government

relationship between the United States and Indian tribes not presently

accorded that relationship. It does not affect State laws or powers,

but may change the extent of their exercise or applicability to a tribe

which becomes federally acknowledged. Costs or burdens to the States

would not be significantly increased. Provision is made for State

comment during the review of petitions for acknowledgment.

The Department has determined that this rulemaking does not

constitute a major Federal action significantly affecting the quality

of the human environment and that no detailed statement is required

pursuant to the National Environmental Policy Act of 1969.

The information collection requirements contained in Sec. 83.7 have

been approved by the Office of Management and Budget (OMB) under 44

U.S.C. 3501 et seq. and assigned clearance number OMB 1076-0104.

The primary author of this document is George Roth, Cultural

Anthropologist, Branch of Acknowledgment and Research, Bureau of Indian

Affairs.

List of Subjects in 25 CFR Part 83

Administrative practice and procedure, Indians-tribal government.

For the reasons set out in the preamble, Title 25, Chapter 1 of the

Code of Federal Regulations is amended by revising part 83 to read as

follows:

PART 83--PROCEDURES FOR ESTABLISHING THAT AN AMERICAN INDIAN GROUP

EXISTS AS AN INDIAN TRIBE

Sec.

83.1 Definitions.

83.2 Purpose.

83.3 Scope.

83.4 Filing a letter of intent.

83.5 Duties of the Department.

83.6 General provisions for the documented petition.

83.7 Mandatory criteria for Federal acknowledgment.

83.8 Previous Federal acknowledgment

83.9 Notice of receipt of a petition.

83.10 Processing of the documented petition.

83.11 Independent review, reconsideration and final action.

83.12 Implementation of decisions.

83.13 Information collection.

Authority: 5 U.S.C. 301; 25 U.S.C. 2 and 9; 43 U.S.C. 1457; and

209 Departmental Manual 8.

Sec. 83.1 Definitions.

As used in this part:

Area Office means a Bureau of Indian Affairs Area Office.

Assistant Secretary means the Assistant Secretary--Indian Affairs,

or that officer's authorized representative.

Autonomous means the exercise of political influence or authority

independent of the control of any other Indian governing entity.

Autonomous must be understood in the context of the history, geography,

culture and social organization of the petitioning group.

Board means the Interior Board of Indian Appeals.

Bureau means the Bureau of Indian Affairs.

Community means any group of people which can demonstrate that

consistent interactions and significant social relationships exist

within its membership and that its members are differentiated from and

identified as distinct from nonmembers. Community must be understood in

the context of the history, geography, culture and social organization

of the group.

Continental United States means the contiguous 48 states and

Alaska.

Continuously or continuous means extending from first sustained

contact with non-Indians throughout the group's history to the present

substantially without interruption.

Department means the Department of the Interior.

Documented petition means the detailed arguments made by a

petitioner to substantiate its claim to continuous existence as an

Indian tribe, together with the factual exposition and all documentary

evidence necessary to demonstrate that these arguments address the

mandatory criteria in Sec. 83.7(a) through (g).

Historically, historical or history means dating from first

sustained contact with non-Indians.

Indian group or group means any Indian or Alaska Native aggregation

within the continental United States that the Secretary of the Interior

does not acknowledge to be an Indian tribe.

Indian tribe, also referred to herein as tribe, means any Indian or

Alaska Native tribe, band, pueblo, village, or community within the

continental United States that the Secretary of the Interior presently

acknowledges to exist as an Indian tribe.

Indigenous means native to the continental United States in that at

least part of the petitioner's territory at the time of sustained

contact extended into what is now the continental United States.

Informed party means any person or organization, other than an

interested party, who requests an opportunity to submit comments or

evidence or to be kept informed of general actions regarding a specific

petitioner.

Interested party means any person, organization or other entity who

can establish a legal, factual or property interest in an

acknowledgment determination and who requests an opportunity to submit

comments or evidence or to be kept informed of general actions

regarding a specific petitioner. ``Interested party'' includes the

governor and attorney general of the state in which a petitioner is

located, and may include, but is not limited to, local governmental

units, and any recognized Indian tribes and unrecognized Indian groups

that might be affected by an acknowledgment determination.

Letter of intent means an undocumented letter or resolution by

which an Indian group requests Federal acknowledgment as an Indian

tribe and expresses its intent to submit a documented petition.

Member of an Indian group means an individual who is recognized by

an Indian group as meeting its membership criteria and who consents to

being listed as a member of that group.

Member of an Indian tribe means an individual who meets the

membership requirements of the tribe as set forth in its governing

document or, absent such a document, has been recognized as a member

collectively by those persons comprising the tribal governing body, and

has consistently maintained tribal relations with the tribe or is

listed on the tribal rolls of that tribe as a member, if such rolls are

kept.

Petitioner means any entity that has submitted a letter of intent

to the Secretary requesting acknowledgment that it is an Indian tribe.

Political influence or authority means a tribal council,

leadership, internal process or other mechanism which the group has

used as a means of influencing or controlling the behavior of its

members in significant respects, and/or making decisions for the group

which substantially affect its members, and/or representing the group

in dealing with outsiders in matters of consequence. This process is to

be understood in the context of the history, culture and social

organization of the group.

Previous Federal acknowledgment means action by the Federal

government clearly premised on identification of a tribal political

entity and indicating clearly the recognition of a relationship between

that entity and the United States.

Secretary means the Secretary of the Interior or that officer's

authorized representative.

Sustained contact means the period of earliest sustained non-Indian

settlement and/or governmental presence in the local area in which the

historical tribe or tribes from which the petitioner descends was

located historically.

Tribal relations means participation by an individual in a

political and social relationship with an Indian tribe.

Tribal roll, for purposes of these regulations, means a list

exclusively of those individuals who have been determined by the tribe

to meet the tribe's membership requirements as set forth in its

governing document. In the absence of such a document, a tribal roll

means a list of those recognized as members by the tribe's governing

body. In either case, those individuals on a tribal roll must have

affirmatively demonstrated consent to being listed as members.

Sec. 83.2 Purpose.

The purpose of this part is to establish a departmental procedure

and policy for acknowledging that certain American Indian groups exist

as tribes. Acknowledgment of tribal existence by the Department is a

prerequisite to the protection, services, and benefits of the Federal

government available to Indian tribes by virtue of their status as

tribes. Acknowledgment shall also mean that the tribe is entitled to

the immunities and privileges available to other federally acknowledged

Indian tribes by virtue of their government-to-government relationship

with the United States as well as the responsibilities, powers,

limitations and obligations of such tribes. Acknowledgment shall

subject the Indian tribe to the same authority of Congress and the

United States to which other federally acknowledged tribes are

subjected.

Sec. 83.3 Scope.

(a) This part applies only to those American Indian groups

indigenous to the continental United States which are not currently

acknowledged as Indian tribes by the Department. It is intended to

apply to groups that can establish a substantially continuous tribal

existence and which have functioned as autonomous entities throughout

history until the present.

(b) Indian tribes, organized bands, pueblos, Alaska Native

villages, or communities which are already acknowledged as such and are

receiving services from the Bureau of Indian Affairs may not be

reviewed under the procedures established by these regulations.

(c) Associations, organizations, corporations or groups of any

character that have been formed in recent times may not be acknowledged

under these regulations. The fact that a group that meets the criteria

in Sec. 83.7 (a) through (g) has recently incorporated or otherwise

formalized its existing autonomous political process will be viewed as

a change in form and have no bearing on the Assistant Secretary's final

decision.

(d) Splinter groups, political factions, communities or groups of

any character that separate from the main body of a currently

acknowledged tribe may not be acknowledged under these regulations.

However, groups that can establish clearly that they have functioned

throughout history until the present as an autonomous tribal entity may

be acknowledged under this part, even though they have been regarded by

some as part of or have been associated in some manner with an

acknowledged North American Indian tribe.

(e) Further, groups which are, or the members of which are, subject

to congressional legislation terminating or forbidding the Federal

relationship may not be acknowledged under this part.

(f) Finally, groups that previously petitioned and were denied

Federal acknowledgment under these regulations or under previous

regulations in part 83 of this title, may not be acknowledged under

these regulations. This includes reorganized or reconstituted

petitioners previously denied, or splinter groups, spin-offs, or

component groups of any type that were once part of petitioners

previously denied.

(g) Indian groups whose documented petitions are under active

consideration at the effective date of these revised regulations may

choose to complete their petitioning process either under these

regulations or under the previous acknowledgment regulations in part 83

of this title. This choice must be made by April 26, 1994. This option

shall apply to any petition for which a determination is not final and

effective. Such petitioners may request a suspension of consideration

under Sec. 83.10(g) of not more than 180 days in order to provide

additional information or argument.

Sec. 83.4 Filing a letter of intent.

(a) Any Indian group in the continental United States that believes

it should be acknowledged as an Indian tribe and that it can satisfy

the criteria in Sec. 83.7 may submit a letter of intent.

(b) Letters of intent requesting acknowledgment that an Indian

group exists as an Indian tribe shall be filed with the Assistant

Secretary--Indian Affairs, Department of the Interior, 1849 C Street,

NW., Washington, DC 20240. Attention: Branch of Acknowledgment and

Research, Mail Stop 2611-MIB. A letter of intent may be filed in

advance of, or at the same time as, a group's documented petition.

(c) A letter of intent must be produced, dated and signed by the

governing body of an Indian group and submitted to the Assistant

Secretary.

Sec. 83.5 Duties of the Department.

(a) The Department shall publish in the Federal Register, no less

frequently than every three years, a list of all Indian tribes entitled

to receive services from the Bureau by virtue of their status as Indian

tribes. The list may be published more frequently, if the Assistant

Secretary deems it necessary.

(b) The Assistant Secretary shall make available revised and

expanded guidelines for the preparation of documented petitions by

September 23, 1994. These guidelines will include an explanation of the

criteria and other provisions of the regulations, a discussion of the

types of evidence which may be used to demonstrate particular criteria

or other provisions of the regulations, and general suggestions and

guidelines on how and where to conduct research. The guidelines may be

supplemented or updated as necessary. The Department's example of a

documented petition format, while preferable, shall not preclude the

use of any other format.

(c) The Department shall, upon request, provide petitioners with

suggestions and advice regarding preparation of the documented

petition. The Department shall not be responsible for the actual

research on behalf of the petitioner.

(d) Any notice which by the terms of these regulations must be

published in the Federal Register, shall also be mailed to the

petitioner, the governor of the state where the group is located, and

to other interested parties.

(e) After an Indian group has filed a letter of intent requesting

Federal acknowledgment as an Indian tribe and until that group has

actually submitted a documented petition, the Assistant Secretary may

contact the group periodically and request clarification, in writing,

of its intent to continue with the petitioning process.

(f) All petitioners under active consideration shall be notified,

by April 16, 1994 of the opportunity under Sec. 83.3(g) to choose

whether to complete their petitioning process under the provisions of

these revised regulations or the previous regulations as published, on

September 5, 1978, at 43 FR 39361.

(g) All other groups that have submitted documented petitions or

letters of intent shall be notified of and provided with a copy of

these regulations by July 25, 1994.

Sec. 83.6 General provisions for the documented petition.

(a) The documented petition may be in any readable form that

contains detailed, specific evidence in support of a request to the

Secretary to acknowledge tribal existence.

(b) The documented petition must include a certification, signed

and dated by members of the group's governing body, stating that it is

the group's official documented petition.

(c) A petitioner must satisfy all of the criteria in paragraphs (a)

through (g) of Sec. 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. The definitions in Sec. 83.1 are an integral part of the

regulations, and the criteria should be read carefully together with

these definitions.

(d) A petitioner may be denied acknowledgment if the evidence

available demonstrates that it does not meet one or more criteria. A

petitioner may also be denied if there is insufficient evidence that it

meets one or more of the criteria. A criterion shall be considered met

if the available evidence establishes a reasonable likelihood of the

validity of the facts relating to that criterion. Conclusive proof of

the facts relating to a criterion shall not be required in order for

the criterion to be considered met.

(e) Evaluation of petitions shall take into account historical

situations and time periods for which evidence is demonstrably limited

or not available. The limitations inherent in demonstrating the

historical existence of community and political influence or authority

shall also be taken into account. Existence of community and political

influence or authority shall be demonstrated on a substantially

continuous basis, but this demonstration does not require meeting these

criteria at every point in time. Fluctuations in tribal activity during

various years shall not in themselves be a cause for denial of

acknowledgment under these criteria.

(f) The criteria in Sec. 83.7 (a) through (g) shall be interpreted

as applying to tribes or groups that have historically combined and

functioned as a single autonomous political entity.

(g) The specific forms of evidence stated in the criteria in

Sec. 83.7 (a) through (c) and Sec. 83.7(e) are not mandatory

requirements. The criteria may be met alternatively by any suitable

evidence that demonstrates that the petitioner meets the requirements

of the criterion statement and related definitions.

Sec. 83.7 Mandatory criteria for Federal acknowledgment.

The mandatory criteria are:

(a) The petitioner has been identified as an American Indian entity

on a substantially continuous basis since 1900. Evidence that the

group's character as an Indian entity has from time to time been denied

shall not be considered to be conclusive evidence that this criterion

has not been met. Evidence to be relied upon in determining a group's

Indian identity may include one or a combination of the following, as

well as other evidence of identification by other than the petitioner

itself or its members.

(1) Identification as an Indian entity by Federal authorities.

(2) Relationships with State governments based on identification of

the group as Indian.

(3) Dealings with a county, parish, or other local government in a

relationship based on the group's Indian identity.

(4) Identification as an Indian entity by anthropologists,

historians, and/or other scholars.

(5) Identification as an Indian entity in newspapers and books.

(6) Identification as an Indian entity in relationships with Indian

tribes or with national, regional, or state Indian organizations.

(b) A predominant portion of the petitioning group comprises a

distinct community and has existed as a community from historical times

until the present.

(1) This criterion may be demonstrated by some combination of the

following evidence and/or other evidence that the petitioner meets the

definition of community set forth in Sec. 83.1:

(i) Significant rates of marriage within the group, and/or, as may

be culturally required, patterned out-marriages with other Indian

populations.

(ii) Significant social relationships connecting individual

members.

(iii) Significant rates of informal social interaction which exist

broadly among the members of a group.

(iv) A significant degree of shared or cooperative labor or other

economic activity among the membership.

(v) Evidence of strong patterns of discrimination or other social

distinctions by non-members.

(vi) Shared sacred or secular ritual activity encompassing most of

the group.

(vii) Cultural patterns shared among a significant portion of the

group that are different from those of the non-Indian populations with

whom it interacts. These patterns must function as more than a symbolic

identification of the group as Indian. They may include, but are not

limited to, language, kinship organization, or religious beliefs and

practices.

(viii) The persistence of a named, collective Indian identity

continuously over a period of more than 50 years, notwithstanding

changes in name.

(ix) A demonstration of historical political influence under the

criterion in Sec. 83.7(c) shall be evidence for demonstrating

historical community.

(2) A petitioner shall be considered to have provided sufficient

evidence of community at a given point in time if evidence is provided

to demonstrate any one of the following:

(i) More than 50 percent of the members reside in a geographical

area exclusively or almost exclusively composed of members of the

group, and the balance of the group maintains consistent interaction

with some members of the community;

(ii) At least 50 percent of the marriages in the group are between

members of the group;

(iii) At least 50 percent of the group members maintain distinct

cultural patterns such as, but not limited to, language, kinship

organization, or religious beliefs and practices;

(iv) There are distinct community social institutions encompassing

most of the members, such as kinship organizations, formal or informal

economic cooperation, or religious organizations; or

(v) The group has met the criterion in Sec. 83.7(c) using evidence

described in Sec. 83.7(c)(2).

(c) The petitioner has maintained political influence or authority

over its members as an autonomous entity from historical times until

the present.

(1) This criterion may be demonstrated by some combination of the

evidence listed below and/or by other evidence that the petitioner

meets the definition of political influence or authority in Sec. 83.1.

(i) The group is able to mobilize significant numbers of members

and significant resources from its members for group purposes.

(ii) Most of the membership considers issues acted upon or actions

taken by group leaders or governing bodies to be of importance.

(iii) There is widespread knowledge, communication and involvement

in political processes by most of the group's members.

(iv) The group meets the criterion in Sec. 83.7(b) at more than a

minimal level.

(v) There are internal conflicts which show controversy over valued

group goals, properties, policies, processes and/or decisions.

(2) A petitioning group shall be considered to have provided

sufficient evidence to demonstrate the exercise of political influence

or authority at a given point in time by demonstrating that group

leaders and/or other mechanisms exist or existed which:

(i) Allocate group resources such as land, residence rights and the

like on a consistent basis.

(ii) Settle disputes between members or subgroups by mediation or

other means on a regular basis;

(iii) Exert strong influence on the behavior of individual members,

such as the establishment or maintenance of norms and the enforcement

of sanctions to direct or control behavior;

(iv) Organize or influence economic subsistence activities among

the members, including shared or cooperative labor.

(3) A group that has met the requirements in paragraph 83.7(b)(2)

at a given point in time shall be considered to have provided

sufficient evidence to meet this criterion at that point in time.

(d) A copy of the group's present governing document including its

membership criteria. In the absence of a written document, the

petitioner must provide a statement describing in full its membership

criteria and current governing procedures.

(e) The petitioner's membership consists of individuals who descend

from a historical Indian tribe or from historical Indian tribes which

combined and functioned as a single autonomous political entity.

(1) Evidence acceptable to the Secretary which can be used for this

purpose includes but is not limited to:

(i) Rolls prepared by the Secretary on a descendancy basis for

purposes of distributing claims money, providing allotments, or other

purposes;

(ii) State, Federal, or other official records or evidence

identifying present members or ancestors of present members as being

descendants of a historical tribe or tribes that combined and

functioned as a single autonomous political entity.

(iii) Church, school, and other similar enrollment records

identifying present members or ancestors of present members as being

descendants of a historical tribe or tribes that combined and

functioned as a single autonomous political entity.

(iv) Affidavits of recognition by tribal elders, leaders, or the

tribal governing body identifying present members or ancestors of

present members as being descendants of a historical tribe or tribes

that combined and functioned as a single autonomous political entity.

(v) Other records or evidence identifying present members or

ancestors of present members as being descendants of a historical tribe

or tribes that combined and functioned as a single autonomous political

entity.

(2) The petitioner must provide an official membership list,

separately certified by the group's governing body, of all known

current members of the group. This list must include each member's full

name (including maiden name), date of birth, and current residential

address. The petitioner must also provide a copy of each available

former list of members based on the group's own defined criteria, as

well as a statement describing the circumstances surrounding the

preparation of the current list and, insofar as possible, the

circumstances surrounding the preparation of former lists.

(f) The membership of the petitioning group is composed principally

of persons who are not members of any acknowledged North American

Indian tribe. However, under certain conditions a petitioning group may

be acknowledged even if its membership is composed principally of

persons whose names have appeared on rolls of, or who have been

otherwise associated with, an acknowledged Indian tribe. The conditions

are that the group must establish that it has functioned throughout

history until the present as a separate and autonomous Indian tribal

entity, that its members do not maintain a bilateral political

relationship with the acknowledged tribe, and that its members have

provided written confirmation of their membership in the petitioning

group.

(g) Neither the petitioner nor its members are the subject of

congressional legislation that has expressly terminated or forbidden

the Federal relationship.

Sec. 83.8 Previous Federal acknowledgment.

(a) Unambiguous previous Federal acknowledgment is acceptable

evidence of the tribal character of a petitioner to the date of the

last such previous acknowledgment. If a petitioner provides substantial

evidence of unambiguous Federal acknowledgment, the petitioner will

then only be required to demonstrate that it meets the requirements of

Sec. 83.7 to the extent required by this section.

(b) A determination of the adequacy of the evidence of previous

Federal action acknowledging tribal status shall be made during the

technical assistance review of the documented petition conducted

pursuant to Sec. 83.10(b). If a petition is awaiting active

consideration at the time of adoption of these regulations, this review

will be conducted while the petition is under active consideration

unless the petitioner requests in writing that this review be made in

advance.

(c) Evidence to demonstrate previous Federal acknowledgment

includes, but is not limited to:

(1) Evidence that the group has had treaty relations with the

United States.

(2) Evidence that the group has been denominated a tribe by act of

Congress or Executive Order.

(3) Evidence that the group has been treated by the Federal

Government as having collective rights in tribal lands or funds.

(d) To be acknowledged, a petitioner that can demonstrate previous

Federal acknowledgment must show that:

(1) The group meets the requirements of the criterion in

Sec. 83.7(a), except that such identification shall be demonstrated

since the point of last Federal acknowledgment. The group must further

have been identified by such sources as the same tribal entity that was

previously acknowledged or as a portion that has evolved from that

entity.

(2) The group meets the requirements of the criterion in

Sec. 83.7(b) to demonstrate that it comprises a distinct community at

present. However, it need not provide evidence to demonstrate existence

as a community historically.

(3) The group meets the requirements of the criterion in

Sec. 83.7(c) to demonstrate that political influence or authority is

exercised within the group at present. Sufficient evidence to meet the

criterion in Sec. 83.7(c) from the point of last Federal acknowledgment

to the present may be provided by demonstration of substantially

continuous historical identification, by authoritative, knowledgeable

external sources, of leaders and/or a governing body who exercise

political influence or authority, together with demonstration of one

form of evidence listed in Sec. 83.7(c).

(4) The group meets the requirements of the criteria in paragraphs

83.7 (d) through (g).

(5) If a petitioner which has demonstrated previous Federal

acknowledgment cannot meet the requirements in paragraphs (d) (1) and

(3), the petitioner may demonstrate alternatively that it meets the

requirements of the criteria in Sec. 83.7 (a) through (c) from last

Federal acknowledgment until the present.

Sec. 83.9 Notice of receipt of a petition.

(a) Within 30 days after receiving a letter of intent, or a

documented petition if a letter of intent has not previously been

received and noticed, the Assistant Secretary shall acknowledge such

receipt in writing and shall have published within 60 days in the

Federal Register a notice of such receipt. This notice must include the

name, location, and mailing address of the petitioner and such other

information as will identify the entity submitting the letter of intent

or documented petition and the date it was received. This notice shall

also serve to announce the opportunity for interested parties and

informed parties to submit factual or legal arguments in support of or

in opposition to the petitioner's request for acknowledgment and/or to

request to be kept informed of all general actions affecting the

petition. The notice shall also indicate where a copy of the letter of

intent and the documented petition may be examined.

(b) The Assistant Secretary shall notify, in writing, the governor

and attorney general of the state in which a petitioner is located. The

Assistant Secretary shall also notify any recognized tribe and any

other petitioner which appears to have a historical or present

relationship with the petitioner or which may otherwise be considered

to have a potential interest in the acknowledgment determination.

(c) The Assistant Secretary shall also publish the notice of

receipt of the letter of intent, or documented petition if a letter of

intent has not been previously received, in a major newspaper or

newspapers of general circulation in the town or city nearest to the

petitioner. The notice will include all of the information in paragraph

(a) of this section.

Sec. 83.10 Processing of the documented petition.

(a) Upon receipt of a documented petition, the Assistant Secretary

shall cause a review to be conducted to determine whether the

petitioner is entitled to be acknowledged as an Indian tribe. The

review shall include consideration of the documented petition and the

factual statements contained therein. The Assistant Secretary may also

initiate other research for any purpose relative to analyzing the

documented petition and obtaining additional information about the

petitioner's status. The Assistant Secretary may likewise consider any

evidence which may be submitted by interested parties or informed

parties.

(b) Prior to active consideration of the documented petition, the

Assistant Secretary shall conduct a preliminary review of the petition

for purposes of technical assistance.

(1) This technical assistance review does not constitute the

Assistant Secretary's review to determine if the petitioner is entitled

to be acknowledged as an Indian tribe. It is a preliminary review for

the purpose of providing the petitioner an opportunity to supplement or

revise the documented petition prior to active consideration. Insofar

as possible, technical assistance reviews under this paragraph will be

conducted in the order of receipt of documented petitions. However,

technical assistance reviews will not have priority over active

consideration of documented petitions.

(2) After the technical assistance review, the Assistant Secretary

shall notify the petitioner by letter of any obvious deficiencies or

significant omissions apparent in the documented petition and provide

the petitioner with an opportunity to withdraw the documented petition

for further work or to submit additional information and/or

clarification.

(3) If a petitioner's documented petition claims previous Federal

acknowledgment and/or includes evidence of previous Federal

acknowledgment, the technical assistance review will also include a

review to determine whether that evidence is sufficient to meet the

requirements of previous Federal acknowledgment as defined in

Sec. 83.1.

(c) Petitioners have the option of responding in part or in full to

the technical assistance review letter or of requesting, in writing,

that the Assistant Secretary proceed with the active consideration of

the documented petition using the materials already submitted.

(1) If the petitioner requests that the materials submitted in

response to the technical assistance review letter be again reviewed

for adequacy, the Assistant Secretary will provide the additional

review. However, this additional review will not be automatic and will

be conducted only at the request of the petitioner.

(2) If the assertion of previous Federal acknowledgment under

Sec. 83.8 cannot be substantiated during the technical assistance

review, the petitioner must respond by providing additional evidence. A

petitioner claiming previous Federal acknowledgment who fails to

respond to a technical assistance review letter under this paragraph,

or whose response fails to establish the claim, shall have its

documented petition considered on the same basis as documented

petitions submitted by groups not claiming previous Federal

acknowledgment. Petitioners that fail to demonstrate previous Federal

acknowledgment after a review of materials submitted in response to the

technical assistance review shall be so notified. Such petitioners may

submit additional materials concerning previous acknowledgment during

the course of active consideration.

(d) The order of consideration of documented petitions shall be

determined by the date of the Bureau's notification to the petitioner

that it considers that the documented petition is ready to be placed on

active consideration. The Assistant Secretary shall establish and

maintain a numbered register of documented petitions which have been

determined ready for active consideration. The Assistant Secretary

shall also maintain a numbered register of letters of intent or

incomplete petitions based on the original date of filing with the

Bureau. In the event that two or more documented petitions are

determined ready for active consideration on the same date, the

register of letters of intent or incomplete petitions shall determine

the order of consideration by the Assistant Secretary.

(e) Prior to active consideration, the Assistant Secretary shall

investigate any petitioner whose documented petition and response to

the technical assistance review letter indicates that there is little

or no evidence that establishes that the group can meet the mandatory

criteria in paragraphs (e), (f) or (g) of Sec. 83.7.

(1) If this review finds that the evidence clearly establishes that

the group does not meet the mandatory criteria in paragraphs (e), (f)

or (g) of Sec. 83.7, a full consideration of the documented petition

under all seven of the mandatory criteria will not be undertaken

pursuant to paragraph (a) of this section. Rather, the Assistant

Secretary shall instead decline to acknowledge that the petitioner is

an Indian tribe and publish a proposed finding to that effect in the

Federal Register. The periods for receipt of comments on the proposed

finding from petitioners, interested parties and informed parties, for

consideration of comments received, and for publication of a final

determination regarding the petitioner's status shall follow the

timetables established in paragraphs (h) through (l) of this section.

(2) If the review cannot clearly demonstrate that the group does

not meet one or more of the mandatory criteria in paragraphs (e), (f)

or (g) of Sec. 83.7, a full evaluation of the documented petition under

all seven of the mandatory criteria shall be undertaken during active

consideration of the documented petition pursuant to paragraph (g) of

this section.

(f) The petitioner and interested parties shall be notified when

the documented petition comes under active consideration.

(1) They shall also be provided with the name, office address, and

telephone number of the staff member with primary administrative

responsibility for the petition; the names of the researchers

conducting the evaluation of the petition; and the name of their

supervisor.

(2) 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.

(g) Once active consideration of the documented petition has begun,

the Assistant Secretary shall continue the review and publish proposed

findings and a final determination in the Federal Register pursuant to

these regulations, notwithstanding any requests by the petitioner or

interested parties to cease consideration. The Assistant Secretary has

the discretion, however, to suspend active consideration of a

documented petition, either conditionally or for a stated period of

time, upon a showing to the petitioner that there are technical

problems with the documented petition or administrative problems that

temporarily preclude continuing active consideration. The Assistant

Secretary shall also consider requests by petitioners for suspension of

consideration and has the discretion to grant such requests for good

cause. Upon resolution of the technical or administrative problems that

are the basis for the suspension, the documented petition will have

priority on the numbered register of documented petitions insofar as

possible. The Assistant Secretary shall notify the petitioner and

interested parties when active consideration of the documented petition

is resumed. The timetables in succeeding paragraphs shall begin anew

upon the resumption of active consideration.

(h) Within one year after notifying the petitioner that active

consideration of the documented petition has begun, the Assistant

Secretary shall publish proposed findings in the Federal Register. The

Assistant Secretary has the discretion to extend that period up to an

additional 180 days. The petitioner and interested parties shall be

notified of the time extension. In addition to the proposed findings,

the Assistant Secretary shall prepare a report summarizing the

evidence, reasoning, and analyses that are the basis for the proposed

decision. Copies of the report shall be provided to the petitioner,

interested parties, and informed parties and made available to others

upon written request.

(i) Upon publication of the proposed findings, the petitioner or

any individual or organization wishing to challenge or support the

proposed findings shall have 180 days to submit arguments and evidence

to the Assistant Secretary to rebut or support the proposed finding.

The period for comment on 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 petitioner and interested parties shall be

notified of the time extension. Interested and informed parties who

submit arguments and evidence to the Assistant Secretary must provide

copies of their submissions to the petitioner.

(j)(1) During the response period, the Assistant Secretary shall

provide technical advice concerning the factual basis for the proposed

finding, the reasoning used in preparing it, and suggestions regarding

the preparation of materials in response to the proposed finding. The

Assistant Secretary shall make available to the petitioner in a timely

fashion any records used for the proposed finding not already held by

the petitioner, to the extent allowable by Federal law.

(2) In addition, the Assistant Secretary shall, if requested by the

petitioner or any interested party, hold a formal meeting for the

purpose of inquiring into the reasoning, analyses, and factual bases

for the proposed finding. The proceedings of this meeting shall be on

the record. The meeting record shall be available to any participating

party and become part of the record considered by the Assistant

Secretary in reaching a final determination.

(k) The petitioner shall have a minimum of 60 days to respond to

any submissions by interested and informed parties during the response

period. This may be extended at the Assistant Secretary's discretion if

warranted by the extent and nature of the comments. The petitioner and

interested parties shall be notified by letter of any extension. No

further comments from interested or informed parties will be accepted

after the end of the regular response period.

(l) At the end of the period for comment on a proposed finding, the

Assistant Secretary shall consult with the petitioner and interested

parties to determine an equitable timeframe for consideration of

written arguments and evidence submitted during the response period.

The petitioner and interested parties shall be notified of the date

such consideration begins.

(1) Unsolicited comments submitted after the close of the response

period established in Sec. 83.10(i) and Sec. 83.10(k), will not be

considered in preparation of a final determination. The Assistant

Secretary has the discretion during the preparation of the proposed

finding, however, to request additional explanations and information

from the petitioner or from commenting parties to support or supplement

their comments on a proposed finding. The Assistant Secretary may also

conduct such additional research as is necessary to evaluate and

supplement the record. In either case, the additional materials will

become part of the petition record.

(2) After consideration of the written arguments and evidence

rebutting or supporting the proposed finding and the petitioner's

response to the comments of interested parties and informed parties,

the Assistant Secretary shall make a final determination regarding the

petitioner's status. A summary of this determination shall be published

in the Federal Register within 60 days from the date on which the

consideration of the written arguments and evidence rebutting or

supporting the proposed finding begins.

(3) The Assistant Secretary has the discretion to extend the period

for the preparation of a final determination if warranted by the extent

and nature of evidence and arguments received during the response

period. The petitioner and interested parties shall be notified of the

time extension.

(4) The determination will become effective 90 days from

publication unless a request for reconsideration is filed pursuant to

Sec. 83.11.

(m) The Assistant Secretary shall acknowledge the existence of the

petitioner as an Indian tribe when it is determined that the group

satisfies all of the criteria in Sec. 83.7. The Assistant Secretary

shall decline to acknowledge that a petitioner is an Indian tribe if it

fails to satisfy any one of the criteria in Sec. 83.7.

(n) If the Assistant Secretary declines to acknowledge that a

petitioner is an Indian tribe, the petitioner shall be informed of

alternatives, if any, to acknowledgment under these procedures. These

alternatives may include other means through which the petitioning

group may achieve the status of an acknowledged Indian tribe or through

which any of its members may become eligible for services and benefits

from the Department as Indians, or become members of an acknowledged

Indian tribe.

(o) The determination to decline to acknowledge that the petitioner

is an Indian tribe shall be final for the Department.

(p) A petitioner that has petitioned under this part or under the

acknowledgment regulations previously effective and that has been

denied Federal acknowledgment may not re-petition under this part. The

term ``petitioner'' here includes previously denied petitioners that

have reorganized or been renamed or that are wholly or primarily

portions of groups that have previously been denied under these or

previous acknowledgment regulations.

Sec. 83.11 Independent review, reconsideration and final action

(a) (1) Upon publication of the Assistant Secretary's determination

in the Federal Register, the petitioner or any interested party may

file a request for reconsideration with the Interior Board of Indian

Appeals. Petitioners which choose under Sec. 83.3(g) to be considered

under previously effective acknowledgment regulations may nonetheless

request reconsideration under this section.

(2) A petitioner's or interested party's request for

reconsideration must be received by the Board no later than 90 days

after the date of publication of the Assistant Secretary's

determination in the Federal Register. If no request for

reconsideration has been received, the Assistant Secretary's decision

shall be final for the Department 90 days after publication of the

final determination in the Federal Register.

(b) The petitioner's or interested party's request for

reconsideration shall contain a detailed statement of the grounds for

the request, and shall include any new evidence to be considered.

(1) The detailed statement of grounds for reconsideration filed by

a petitioner or interested parties shall be considered the appellant's

opening brief provided for in 43 CFR 4.311(a).

(2) The party or parties requesting the reconsideration shall mail

copies of the request to the petitioner and all other interested

parties.

(c)(1) The Board shall dismiss a request for reconsideration that

is not filed by the deadline specified in paragraph (a) of this

section.

(2) If a petitioner's or interested party's request for

reconsideration is filed on time, the Board shall determine, within 120

days after publication of the Assistant Secretary's final determination

in the Federal Register, whether the request alleges any of the grounds

in paragraph (d) of this section and shall notify the petitioner and

interested parties of this determination.

(d) The Board shall have the authority to review all requests for

reconsideration that are timely and that allege any of the following:

(1) That there is new evidence that could affect the determination;

or

(2) That a substantial portion of the evidence relied upon in the

Assistant Secretary's determination was unreliable or was of little

probative value; or

(3) That petitioner's or the Bureau's research appears inadequate

or incomplete in some material respect; or

(4) That there are reasonable alternative interpretations, not

previously considered, of the evidence used for the final

determination, that would substantially affect the determination that

the petitioner meets or does not meet one or more of the criteria in

Sec. 83.7 (a) through (g).

(e) The Board shall have administrative authority to review

determinations of the Assistant Secretary made pursuant to

Sec. 83.10(m) to the extent authorized by this section.

(1) The regulations at 43 CFR 4.310-4.318 and 4.331-4.340 shall

apply to proceedings before the Board except when they are inconsistent

with these regulations.

(2) The Board may establish such procedures as it deems appropriate

to provide a full and fair evaluation of a request for reconsideration

under this section to the extent they are not inconsistent with these

regulations.

(3) The Board, at its discretion, may request experts not

associated with the Bureau, the petitioner, or interested parties to

provide comments, recommendations, or technical advice concerning the

determination, the administrative record, or materials filed by the

petitioner or interested parties. The Board may also request, at its

discretion, comments or technical assistance from the Assistant

Secretary concerning the final determination or, pursuant to paragraph

(e)(8) of this section, the record used for the determination.

(4) Pursuant to 43 CFR 4.337(a), the Board may require, at its

discretion, a hearing conducted by an administrative law judge of the

Office of Hearings and Appeals if the Board determines that further

inquiry is necessary to resolve a genuine issue of material fact or to

otherwise augment the record before it concerning the grounds for

reconsideration.

(5) The detailed statement of grounds for reconsideration filed by

a petitioner or interested parties pursuant to paragraph (b)(1) of this

section shall be considered the appellant's opening brief provided for

in 43 CFR 4.311(a).

(6) An appellant's reply to an opposing party's answer brief,

provided for in 43 CFR 4.311(b), shall not apply to proceedings under

this section, except that a petitioner shall have the opportunity to

reply to an answer brief filed by any party that opposes a petitioner's

request for reconsideration.

(7) The opportunity for reconsideration of a Board decision

provided for in 43 CFR 4.315 shall not apply to proceedings under this

section.

(8) For purposes of review by the Board, the administrative record

shall consist of all appropriate documents in the Branch of

Acknowledgment and Research relevant to the determination involved in

the request for reconsideration. The Assistant Secretary shall

designate and transmit to the Board copies of critical documents

central to the portions of the determination under a request for

reconsideration. The Branch of Acknowledgment and Research shall retain

custody of the remainder of the administrative record, to which the

Board shall have unrestricted access.

(9) The Board shall affirm the Assistant Secretary's determination

if the Board finds that the petitioner or interested party has failed

to establish, by a preponderance of the evidence, at least one of the

grounds under paragraph (d)(1-4) of this section.

(10) The Board shall vacate the Assistant Secretary's determination

and remand it to the Assistant Secretary for further work and

reconsideration if the Board finds that the petitioner or an interested

party has established, by a preponderance of the evidence, one or more

of the grounds under paragraph (d)(1-4) of this section.

(f)(1) The Board, in addition to making its determination to affirm

or remand, shall describe in its decision any grounds for

reconsideration other than those in paragraphs (d)(1-4) of this section

alleged by a petitioner's or interested party's request for

reconsideration.

(2) If the Board affirms the Assistant Secretary's decision under

Sec. 83.11(e)(9) but finds that the petitioner or interested parties

have alleged other grounds for reconsideration, the Board shall send

the requests for reconsideration to the Secretary. The Secretary shall

have the discretion to request that the Assistant Secretary reconsider

the final determination on those grounds.

(3) The Secretary, in reviewing the Assistant Secretary's decision,

may review any information available, whether formally part of the

record or not. Where the Secretary's review relies upon information

that is not formally part of the record, the Secretary shall insert the

information relied upon into the record, together with an

identification of its source and nature.

(4) Where the Board has sent the Secretary a request for

reconsideration under paragraph (f)(2), the petitioner and interested

parties shall have 30 days from receiving notice of the Board's

decision to submit comments to the Secretary. Where materials are

submitted to the Secretary opposing a petitioner's request for

reconsideration, the interested party shall provide copies to the

petitioner and the petitioner shall have 15 days from their receipt of

the information to file a response with the Secretary.

(5) The Secretary shall make a determination whether to request a

reconsideration of the Assistant Secretary's determination within 60

days of receipt of all comments and shall notify all parties of the

decision.

(g) (1) The Assistant Secretary shall issue a reconsidered

determination within 120 days of receipt of the Board's decision to

remand a determination or the Secretary's request for reconsideration.

(2) The Assistant Secretary's reconsideration shall address all

grounds determined to be valid grounds for reconsideration in a remand

by the Board, other grounds described by the Board pursuant to

paragraph (f)(1), and all grounds specified in any Secretarial request.

The Assistant Secretary's reconsideration may address any issues and

evidence consistent with the Board's decision or the Secretary's

request.

(h) (1) If the Board finds that no petitioner's or interested

party's request for reconsideration is timely, the Assistant

Secretary's determination shall become effective and final for the

Department 120 days from the publication of the final determination in

the Federal Register.

(2) If the Secretary declines to request reconsideration under

paragraph (f)(2) of this section, the Assistant Secretary's decision

shall become effective and final for the Department as of the date of

notification to all parties of the Secretary's decision.

(3) If a determination is reconsidered by the Assistant Secretary

because of action by the Board remanding a decision or because the

Secretary has requested reconsideration, the reconsidered determination

shall be final and effective upon publication of the notice of this

reconsidered determination in the Federal Register.

Sec. 83.12 Implementation of decisions.

(a) Upon final determination that the petitioner exists as an

Indian tribe, it shall be considered eligible for the services and

benefits from the Federal government that are available to other

federally recognized tribes. The newly acknowledged tribe shall be

considered a historic tribe and shall be entitled to the privileges and

immunities available to other federally recognized historic tribes by

virtue of their government-to-government relationship with the United

States. It shall also have the responsibilities and obligations of such

tribes. Newly acknowledged Indian tribes shall likewise be subject to

the same authority of Congress and the United States as are other

federally acknowledged tribes.

(b) Upon acknowledgment as an Indian tribe, the list of members

submitted as part of the petitioners documented petition shall be the

tribe's complete base roll for purposes of Federal funding and other

administrative purposes. For Bureau purposes, any additions made to the

roll, other than individuals who are descendants of those on the roll

and who meet the tribe's membership criteria, shall be limited to those

meeting the requirements of Sec. 83.7(e) and maintaining significant

social and political ties with the tribe (i.e., maintaining the same

relationship with the tribe as those on the list submitted with the

group's documented petition).

(c) While the newly acknowledged tribe shall be considered eligible

for benefits and services available to federally recognized tribes

because of their status as Indian tribes, acknowledgment of tribal

existence shall not create immediate access to existing programs. The

tribe may participate in existing programs after it meets the specific

program requirements, if any, and upon appropriation of funds by

Congress. Requests for appropriations shall follow a determination of

the needs of the newly acknowledged tribe.

(d) Within six months after acknowledgment, the appropriate Area

Office shall consult with the newly acknowledged tribe and develop, in

cooperation with the tribe, a determination of needs and a recommended

budget. These shall be forwarded to the Assistant Secretary. The

recommended budget will then be considered along with other

recommendations by the Assistant Secretary in the usual budget request

process.

Sec. 83.13 Information collection.

(a) The collections of information contained in Sec. 83.7 have been

approved by the Office of Management and Budget under 44 U.S.C. 3501 et

seq. and assigned clearance number 1076-0104. The information will be

used to establish historical existence as a tribe, verify family

relationships and the group's claim that its members are Indian and

descend from a historical tribe or tribes which combined, that members

are not substantially enrolled in other Indian tribes, and that they

have not individually or as a group been terminated or otherwise

forbidden the Federal relationship. Response is required to obtain a

benefit in accordance with 25 U.S.C. 2.

(b) Public reporting burden for this information is estimated to

average 1,968 hours per petition, including the time for reviewing

instructions, searching existing data sources, gathering and

maintaining the data needed, and completing and reviewing the

collection of information. Send comments regarding this collection of

information, including suggestions for reducing the burden, to both the

Information Collection Clearance Officer, Bureau of Indian Affairs,

Mail Stop 336-SIB, 1849 C Street, NW., Washington, DC 20240; and to the

Office of Information and Regulatory Affairs, Office of Management and

Budget, Washington, DC 20503.

Dated: December 28, 1993.

Ada E. Deer,

Assistant Secretary--Indian Affairs.

[FR Doc. 94-3934 Filed 2-24-94; 8:45 am]

BILLING CODE 4310-02-P