On June 29, 2015, Assistant Secretary – Indian Affairs Kevin Washburn announced publication of the final rule amending 25 C.F.R. Part 83, entitled “Federal Acknowledgment of American Indian Tribes.” The final rule was published in the FEDERAL REGISTER on July 1, 2015, and becomes effective 30 days after its publication.
The final rule makes significantly fewer changes to the federal acknowledgment regulations than the Department of Interior’s (Department) May 2014 proposed rule and the June 2013 discussion draft would have. Rather than modifying the seven mandatory criteria a petitioner must demonstrate in order to receive federal recognition pursuant to the regulatory process, the final rule seeks to increase efficiency through more streamlined procedural and processing methods.
Criteria
Although the final rule maintains all seven mandatory criteria found in the previous iteration of the regulations, the Department has made changes to the criteria that are meant to reduce the documentary burden on petitioners. Most significantly, petitioners are no longer required to demonstrate that they meet criteria based on the commencement date of 1789 or first sustained contact. Instead, they need only demonstrate that they meet certain criteria commencing in 1900. The Department has also sought to codify past Department practice in interpreting and implementing the criteria, including clarifying types of evidence that are admissible.
The major changes the final rule makes to the seven mandatory criteria are provided below.
Criterion A – Indian Entity Identification
• A petitioner need not demonstrate that outside entities identified it as an Indian entity. Rather, evidence of internal identification as such is sufficient. The proposed rule would have modified this criterion to require only a brief narrative of existence during historical times and supporting evidence.
Criteria B and C – Community and Political Influence/Authority
• Petitioners need only demonstrate they meet these criteria dating from 1900 rather than from 1789 or first sustained contact. The proposed rule would have required petitioners to satisfy these criteria from 1934 forward.
• Evidence of a state reservation or of the federal government holding land on behalf of a petitioner since 1934 do not by themselves demonstrate that the petitioner meets these criteria, as they would have under the proposed rule. Instead, land set aside by a state serves as evidence to support these criteria, and land held by the federal government constitutes previous federal acknowledgment.
Criteria E – Descent
• Petitioners must demonstrate their members’ lineal descent from members of a historical tribe, and historical is defined as before 1900. The previous version of the regulations required petitioners to demonstrate their members’ descent from members of a tribe that existed in 1789 or at the time of first sustained contact.
Standard of Review
• The regulations require demonstration of the community and political influence/authority criteria found at B and C “without substantial interruption.” The proposed rule would have clarified the meaning of this phrase as generally more than 20 years, but the final rule leaves the phrase undefined. Instead, the final rule states that petitioners need not meet these criteria at every point in time and that fluctuations in tribal activity are not cause for denial.
• The regulations state that the standard of proof is “reasonable likelihood.” The proposed rule would have clarified this standard using judicial precedent, but the final rule removed this clarification.
• In order to create a consistent baseline, methodology or evidence that was sufficient to satisfy a particular criterion for any previous petitioner dating back to the regulations’ creation in 1978 is sufficient to satisfy the particular criterion for a current petitioner. Accordingly, in applying the phrase “without substantial interruption,” gaps in evidence previously permitted for a particular criterion are permissible. In applying the phrase “reasonable likelihood,” types or amounts of evidence previously deemed sufficient are sufficient for current petitioners.
Process
The final rule provides for a phased review process designed to create efficiency. Under the final rule, the Office of Federal Acknowledgment is responsible for producing the proposed finding. This step involves a phased review that permits expedited negative decisions when a petitioner does not satisfy one of the less time-consuming criteria to review. If the proposed finding is positive and the Department does not receive substantive comments on it, the proposed finding automatically becomes a positive final determination. The Assistant Secretary is responsible for issuing the final determination.
The major changes the final rule makes to the process are provided below.
Expedited Decisions
• A phased review allows the Office of Federal Acknowledgment to issue a negative proposed finding based on a petitioner’s failure to meet the governing document criterion found at D, the descent criterion found at E, the unique membership criterion found at F, or the termination criterion found at G. Only after the Office of Federal Acknowledgment has determined a petitioner meets these criteria does it conduct the more lengthy review of the Indian entity existence criterion found at A, the community criterion found at B, and the political influence/authority criterion found at C.
• Positive proposed findings that are not followed by substantive comments become positive final determinations.
Hearing Before Administrative Law Judge
• Petitioners who receive a negative proposed finding may request a hearing before an administrative law judge, and third parties may intervene. The administrative law judge then presents a recommended decision to the Assistant Secretary.
• The limited reconsideration before the Interior Board of Indian Appeals that was available under the previous iteration of the regulations has been removed, and the Assistant Secretary’s final determination is directly appealable to federal court.
Transparency
• All publicly available documents related to a petition will be posted on the Department’s website.
• Notifications will be provided to those who sign up, and local governments as well as interested recognized tribes and petitioners automatically receive notices.
Re-petitioning
• Petitioners denied federal recognition under previous versions of the regulations will not be permitted to re-petition under the amended regulations. The proposed rule allowed for such re-petitioning when third parties that participated in an administrative reconsideration or appeal of the previous decision consented in writing.
Only Administrative Process
• The Department in separate policy guidance issued June 26, 2015, stated that the Part 83 regulatory process will be the only method utilized by the Department to recognize Indian tribes in the contiguous 48 states as long as the amended regulations are in effect and being implemented. Thus, the Department will no longer accept requests for administrative reaffirmations or for organization under the Indian Reorganization Act (IRA) for tribes in these states. With respect to Alaska, the policy guidance notes that Congress specifically provided that unrecognized groups of Alaska Natives meeting certain conditions may organize as tribes under the Alaska Amendment to the IRA.
Please let us know if you would like additional information regarding the revised 25 C.F.R. Part 83 federal acknowledgment regulations. A copy of the final rule is available here: http://www.gpo.gov/fdsys/pkg/FR-2015-07-01/pdf/2015-16193.pdf
