[Federal Register Volume 85, Number 1 (Thursday, January 2, 2020)]
[Proposed Rules]
[Pages 37-53]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-27998]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 82
[192A2100DD/AAKC001030/A0A501010.999900 253G]
RIN 1076-AF51
Procedures for Federal Acknowledgment of Alaska Native Entities
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This proposed rule would establish a new part in the Code of
Federal Regulations to address how Alaska Native entities may become
acknowledged as an Indian Tribe pursuant to the Alaska Amendment to the
Indian Reorganization Act. This proposed rule would not affect the
status of Tribes that are already federally recognized.
DATES: Comments are due by March 2, 2020. Consultation and public
meetings will be held January 28 and 30, and February 6, 2020 (see
section IV of this preamble for additional information).
ADDRESSES: You may send comments, identified by RIN number 1076-AF51 by
any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for sending comments.
Email: [email protected]. Include RIN number 1076-AF51
in the subject line of the message.
Mail or Hand-Delivery/Courier: Office of Regulatory
Affairs & Collaborative Action--Indian Affairs (RACA), U.S. Department
of the Interior, 1849 C Street NW, Mail Stop 4660, Washington, DC
20240.
All submissions received must include the Regulatory Information
Number (RIN) for this rulemaking (RIN 1076-AF51). All comments received
will be posted without change to http://www.regulations.gov, including
any personal information provided.
FOR FURTHER INFORMATION CONTACT: Elizabeth Appel, Director, Office of
Regulatory Affairs & Collaborative Action, (202) 273-4680;
[email protected].
SUPPLEMENTARY INFORMATION:
I. Executive Summary
II. Background
A. Alaska IRA
B. Implementation of Alaska IRA
C. Tribal Input on the Department's Implementation of the Alaska
IRA
1. Need for an Alaska-Specific Regulatory Process
2. No Effect on the Status of Tribes Who Are Currently Federally
Recognized
3. Consideration of Pending Petitions
III. Summary of Proposed Rule
A. Subpart A--General Provisions
1. Definitions
2. Scope and Applicability
B. Subpart B--Criteria for Federal Acknowledgment
1. Evaluation of the Mandatory Criteria
2. Criteria for Federal Acknowledgment
C. Subpart C--Process for Federal Acknowledgment
IV. Tribal Consultation and Public Meeting Sessions
V. Procedural Requirements
A. Regulatory Planning and Review (E.O. 12866)
[[Page 38]]
B. E.O. 13771: Reducing Regulation and Controlling Regulatory
Costs (E.O. 13771)
C. Regulatory Flexibility Act
D. Small Business Regulatory Enforcement Fairness Act
E. Unfunded Mandates Reform Act
F. Takings (E.O. 12630)
G. Federalism (E.O. 13132)
H. Civil Justice Reform (E.O. 12988)
I. Consultation With Indian Tribes (E.O. 13175)
J. Paperwork Reduction Act
K. National Environmental Policy Act
L. Effects on the Energy Supply (E.O. 13211)
M. Clarity of This Regulation
N. Public Availability of Comments
I. Executive Summary
In 1936, Congress enacted an amendment to the Indian Reorganization
Act (Alaska IRA) to allow groups of Indians \1\ in Alaska, not
previously recognized as bands or Tribes by the United States, to
organize under the Indian Reorganization Act (IRA), provided they could
demonstrate ``a common bond of occupation, or association, or residence
within a well-defined neighborhood, community or rural district.'' The
Department of the Interior (Department) has not previously promulgated
regulations establishing a process through which entities in Alaska
that were not previously recognized as bands or Tribes before 1936 can
be acknowledged pursuant to the Alaska IRA. Rather, the Department has
reviewed Alaska IRA petitions on a case-by-case basis.
---------------------------------------------------------------------------
\1\ The term ``Indian,'' as used herein, is a defined term in
the Indian Reorganization Act and ``include[s] all persons of Indian
descent who are members of any recognized Indian tribe now under
Federal jurisdiction, and all persons who are descendants of such
members who were, on June 1, 1934, residing within the present
boundaries of any Indian reservation, and shall further include all
other persons of one-half or more Indian blood. For the purposes of
this Act, Eskimos and other aboriginal peoples of Alaska shall be
considered Indians.''
---------------------------------------------------------------------------
This proposed rule would establish a new 25 CFR part 82 that would
establish an acknowledgment process for entities in Alaska that were
not recognized as bands or Tribes before 1936. This proposed rule
relies to a significant extent on the existing process through which
entities may petition for Federal acknowledgment under 25 CFR part 83
(Part 83). However, the proposed rule would first require petitioners
to establish a connection from an entity that satisfied the Alaska IRA
as of the date of the statute's enactment. Upon such a showing,
petitioners would then need to satisfy the current Part 83 evidentiary
criteria, largely incorporated into the proposed rule, though on a
shorter timeframe than that of a Part 83 petitioner.
This proposed rule would provide necessary consistency to the
Alaska IRA petition process. This proposed rule would settle
expectations among Alaska IRA petitioners, the United States, the State
of Alaska and its constituent local governments, and federally
recognized Tribes as to how an entity can petition for acknowledgment
under the Alaska IRA. This proposed rule would not affect the status of
Tribes that are already federally recognized.
The Department requests comments on this proposed rule.
II. Background
A. Alaska IRA
Congress enacted the IRA in 1934, which, among other things,
authorized Indian Tribes to organize for their common welfare and adopt
an appropriate constitution and bylaws. 25 U.S.C. 5101 et seq. Although
Congress prohibited the IRA's application to the territories of the
United States, Congress created an exception expressly making certain
sections of the IRA applicable to the Territory of Alaska. 25 U.S.C.
5118.
As originally enacted, Congress expressly made Section 16 of the
IRA applicable to the Territory of Alaska, which gave any Tribe or
Tribes residing on a reservation the right to organize and adopt an
appropriate constitution and bylaws. 25 U.S.C. 5123. However, there
were very few areas in the Territory of Alaska that qualified as
``reservations'' within the meaning of the IRA. Further, Congress did
not make Section 7 of the IRA applicable to the Territory of Alaska,
which authorized the Secretary to proclaim new reservations. 25 U.S.C.
5110. Nor did Congress make Section 19 of the IRA applicable to the
Territory of Alaska, which generally defined the terms Indian and
Tribe, and which referenced ``Eskimos'' and other aboriginal peoples of
Alaska. 25 U.S.C. 5129. Thus, the incomplete application of the IRA to
Alaska in 1934 functionally prevented nearly all Alaska Natives from
benefitting from the IRA's provisions.
Congress understood that many Alaska Native entities did not
resemble Tribes in the conterminous United States and generally lacked
reservations within the meaning of the IRA. Because of this, Alaska
Native entities found themselves unable to meet the IRA's definition of
``tribe'' and unable to organize under Section 16 of the IRA, which
required residence on a reservation.
In 1936, Congress accordingly established an alternative means for
determining whether an Alaska Native entity could become eligible for
benefits under the IRA. In enacting the Alaska IRA, the House of
Representatives Committee on Indian Affairs explained the need for the
amendment by expressly noting ``the peculiar nontribal organizations
under which the Alaska Indians operate,'' as well as the fact that
``[m]any groups that would otherwise be termed `tribes' live in
villages which are the bases of their organizations.'' H.R. Rep. No.
74-2244, at 2 (1936).
B. Implementation of Alaska IRA
The Alaska IRA establishes a ``common bond'' basis of organization
applicable only to certain entities in Alaska. To date, the Department
has approved the organization of over 70 entities under this statutory
standard. All such entities are included on the Department's list of
federally recognized Indian Tribes (List).
The Department has not previously adopted regulations establishing
requirements and procedures for implementing the eligibility criteria
under the Alaska IRA. While the Department issued instructions in 1937
providing guidance on how to organize under the IRA and the Alaska IRA,
those instructions did not fully address which entities would be
eligible for organization under the ``common bond'' standard. Since
then, the Department has determined eligibility for organization under
the Alaska IRA on a case-by-case basis and in the absence of any
comprehensive or binding regulations, has relied on the 1937 guidance,
other Alaska IRA-contemporaneous guidance, and previous Alaska IRA
determinations.
C. Tribal Input on the Department's Implementation of the Alaska IRA
In recent years, the Department has considered whether and how it
should evaluate Alaska IRA petitions in the absence of an established
regulatory process. On July 2, 2018, the Department issued a Dear
Tribal Leader Letter (DTLL) initiating Tribal consultation in Alaska on
a number of questions concerning the implementation of the Alaska IRA.
The Department sought comment on the following issues:
Is the Alaska IRA still relevant?
How should the Department define or interpret the
statutory phrase, ``common bond''?
How should the Department define or interpret the
statutory phrase, ``well-defined neighborhood, community, or rural
district''?
Should a group of Alaska Natives sharing a common bond of
occupation
[[Page 39]]
have the ability to exercise sovereign governmental powers, and, if so,
should there be any limits on those powers?
How should the Department implement the Alaska IRA?
Through regulations? Through formal guidance? Through some other means?
Are the federal acknowledgment regulations set out in 25
CFR part 83 (Part 83) an appropriate process for groups in Alaska to
seek Federal acknowledgment?
Are there challenges specific to Alaska Native groups that
make the requirements of Part 83 particularly challenging to satisfy?
Is there a need to create a separate process for Federal
acknowledgment of Alaska groups, outside Part 83?
The Department held several listening sessions and consultations on
these issues. The Department ultimately received eight written comments
in response to the Tribal consultation (though several of the comments
were submitted on behalf of multiple Tribes or Tribal organizations).
Most commenters agreed that the Alaska IRA remains a viable means for
Alaska Native groups to seek Federal acknowledgment outside of Part 83,
and questioned the need for an Alaska-specific formal regulatory
process. Other commenters expressed concern as to whether an Alaska-
specific regulatory process would somehow affect the federal
recognition of existing Tribes in Alaska (whether organized under the
Alaska IRA or otherwise). Nearly all commenters urged the Department to
issue final decisions on any outstanding Alaska IRA petitions prior to
implementing a regulatory or guidance-based process for Alaska.
The Department reviewed and considered each comment in developing
this proposed rule and addresses them here.
1. Need for an Alaska-Specific Regulatory Process
The Department has determined that regulations determining
eligibility to organize under the Alaska IRA are necessary to
effectively carry out its provisions. After consideration of the
various regulatory options, the Department has concluded that a formal
acknowledgment process based on the criteria and the procedures set
forth in Part 83, but tailored to accommodate the unique provisions of
the Alaska IRA, is the best path forward for acknowledging Alaska
Native entities under the Alaska IRA.
Specifically, and as discussed further below, the proposed rule
would require that an Alaska Native entity seeking Federal
acknowledgment under the Alaska IRA submit a ``documented petition,''
as currently required for Part 83 purposes at 25 CFR 83.21. As part of
such ``documented petition,'' an Alaska Native entity would
additionally need to submit evidence establishing a connection to an
entity or group that satisfied the Alaska IRA's ``common bond''
standard as of the statute's enactment on May 1, 1936. Upon fulfilling
these requirements, the petitioner would then need to satisfy the
evidentiary criteria of Part 83 currently enacted in 25 CFR 83.11. For
those criteria that require satisfaction from 1900 to present, however,
under this proposed rule the petitioner would need only to satisfy the
criteria from May 1, 1936 to present.
The Department has examined its authority to interpret and
implement the Alaska IRA in this manner. We conclude that Congress has
delegated the necessary authority to the Department to implement the
statute through rulemaking. Further, we conclude that such rulemaking
may incorporate Part 83 standards.
The Department is the Federal agency charged with the management of
all Indian affairs and of all matters arising out of Indian relations.
25 U.S.C. 2. Similarly, the Secretary may prescribe such regulations as
he or she sees fit for carrying into effect the various provisions of
any act relating to Indian affairs, 25 U.S.C. 9, which includes the IRA
and the Alaska IRA. Thus Federal acknowledgment determinations are
squarely within the Department's authority and expertise.
Courts have accordingly recognized that the acknowledgement of
Tribal status and the commensurate government-to-government
relationship between the Indian Tribe and the United States is a
political question on which deference is provided to the political
branches of the government. See Miami Nation of Indians of Ind. v.
Dep't of the Interior, 255 F.3d 342 (7th Cir. 2001). As a general
matter, the Department's authority to decide matters of Federal
acknowledgment is derived from the Secretary's broad discretionary
authority to handle all public business relating to Indians and the
authority to manage all Indian affairs and matters arising out of
Indian relations. See 43 U.S.C. 1457, and 25 U.S.C. 2, 9. Under this
broad delegation of powers, the Department's authority to adopt Federal
acknowledgment regulations and the appropriateness of those regulations
has been litigated and uniformly upheld. See, e.g., James v. U.S. Dep't
of Health and Human Servs., 824 F.2d 1132, 1138 (D.C. Cir. 1987); Miami
Nation of Indians of Ind. v. Babbitt, 887 F. Supp. 1158 (N.D. Ind.
1995).
The Department has historically determined eligibility for
organization under the Alaska IRA on a case-by-case basis and in the
absence of any comprehensive or binding regulations, relying on the
1937 guidance, other Alaska IRA-contemporaneous guidance, and previous
Alaska IRA determinations. Applying its expertise in the field of
Indian affairs, the Department believes the most appropriate option is
to require that eligible Alaska Native entities seeking to organize
under the Alaska IRA first satisfy a process similar to Part 83, with
certain Alaska-specific distinctions. The Department reached this
conclusion based on several considerations.
First, Part 83 is premised on the fundamental tenet that a
petitioner's membership consist of individuals who descend from a
historical Indian Tribe (or from historical Indian Tribes that combined
and functioned as a single autonomous political entity). 25 CFR
83.11(e). By requiring that petitioners demonstrate a historical
connection to an entity that could have satisfied the Alaska IRA in
1936, the proposed rule balances the specific provisions of the Alaska
IRA with the historical demonstration undertaken in Part 83. This
ensures that when acknowledging a petitioner under the Alaska IRA
criteria, the Department has determined that said petitioner is an
Alaska Native political entity exercising governmental authority over a
discrete Alaska Native membership, and has a direct connection to such
an entity that was in existence at the time that Congress enacted the
Alaska IRA.
Second, the proposed rule envisions that the Office of Federal
Acknowledgment (OFA) will review Alaska IRA petitions on the merits.
OFA is composed of anthropologists, historians, and genealogists, all
of whom are civil servants who work together to review, analyze, and
evaluate evidence submitted by Part 83 petitioners consistent with the
methods and standards of their profession. OFA's professional expertise
is important not only to safeguard the uniform application of the
Alaska IRA according to best practices within these academic fields,
but also to help ensure the Department's administrative decisions will
be accorded due deference by a reviewing court.
The Department has previously suggested that Part 83 may not be
appropriate in Alaska. In 1988, the Department wrote that:
[[Page 40]]
[A]pplying the criteria presently contained in Part 83 to Alaska may
be unduly burdensome for the many small Alaska organizations.
Alaska, with small pockets of Natives living in isolated locations
scattered throughout the state, may not have extensive documentation
on its history during the 1800's and early 1900's much less the even
earlier periods commonly researched for groups in the lower-48.
While it is fair to require groups in the lower-48 states to produce
such documentation because they are located in areas where no group
could exist without being the subject of detailed written records,
insistence on the same formality for those Alaska groups might
penalize them simply for being located in an area that was, until
recently, extremely isolated.
53 FR 52829, 52833 (Dec. 28, 1988). We subsequently reasoned in the
proposed rule to the 1994 amendments of Part 83 that treating Alaska
differently than the conterminous United States reflected the fact that
Alaska Native entities ``are not tribes in the historical or political
senses.'' 56 FR 47320, 47321 (Sept. 18, 1991). Finally, in a 2015
guidance document limiting Departmental Federal acknowledgment to the
Part 83 process, the Assistant Secretary--Indian Affairs (AS-IA) noted
this limitation applied only in the conterminous United States, and
that the Alaska IRA criteria presented an alternative process through
which Alaska Native entities could organize. 80 FR 37538, 37539 n.1
(July 15, 2015). One could argue that these statements suggest that the
process for implementing the Alaska IRA criteria inherently cannot
incorporate Part 83 standards.
We have determined that the Department may and should incorporate
relevant Part 83 requirements into the proposed rule. Federal courts
have affirmed the authority and broad discretion of the Secretary to
regulate issues concerning the acknowledgment of Tribal entities, even
if it results in a significant departure from past administrative
practices. See, e.g., Miami Nation, 887 F. Supp. at 1169 (``That the
Secretary elected to promulgate [Federal acknowledgment] regulations
that allegedly differ from past practices is not enough to render that
decision impermissible.''); accord James, 824 F.2d at 1137-38. And as
the Supreme Court has observed, `` `[regulatory] agencies do not
establish rules of conduct to last forever,' . . . and . . . an agency
must be given ample latitude to `adapt their rules and policies to the
demands of changing circumstances.' '' Motor Vehicle Mfrs. Ass'n of the
United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42
(1983) (quoting Am. Trucking Ass'ns, Inc. v. Atchison, Topeka & Santa
Fe R.R. Co., 387 U.S. 397, 416 (1967) and Permian Basin Area Rate
Cases, 390 U.S., 747, 784 (1968)) (alteration in original). So, while
an agency must show that there are good reasons for the new policy, it
need not demonstrate that the reasons for the new policy are better
than the reasons for the old one; rather, it suffices that the new
policy is permissible under the statute and that the agency believes it
to be better than the previous policy. FCC v. Fox TV Stations, Inc.,
556 U.S. 502, 515-16 (2009). In such cases, the agency need only
explain why it is disregarding the facts and circumstances that
underlay or were engendered by the prior policy. Id.
In this instance, the aforementioned reasoning suggesting that the
Department should not apply Part 83 to Alaska does not rise to the
level of ``prior policy.'' In the 1994 Final Rule amending Part 83, for
example, the Department declined to implement an Alaska-specific
alternative to the Part 83 process because:
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.
. . . [A] modification now of the acknowledgment process to address
the special circumstances in Alaska is unwarranted.
59 FR 9280, 9284 (Feb. 25, 1994). In that Final Rule, the Department
recognized that it was nevertheless appropriate to include Alaska
Native entities within the parameters of those regulations. The
incorporation of Part 83 standards under the current proposed rule
therefore does not qualify as a deviation from previous Department
precedent.
Additionally, as stated in the Department's 1988 notice of its list
of federally recognized Indian Tribes, the Department's main concern
about requiring an Alaska Native entity to undergo Part 83 was that it
``may not have extensive documentation on its history during the 1800's
and early 1900's much less the even earlier periods commonly researched
for groups in the lower-48.'' 53 FR at 52833. As further discussed
below, this concern is largely ameliorated by the proposed requirement
that petitioners under the Alaska IRA criteria satisfy Part 83's
evidentiary criteria only from May 1, 1936--not ``during the 1800's and
early 1900's, much less the even earlier periods.''
Finally, in the 2015 AS-IA guidance, the Department wrote that
while Part 83 ``should be the only method utilized by the Department to
acknowledge an Indian tribe in the contiguous 48 states,'' the Alaska
IRA criteria nevertheless also applied ``[w]ith regard to Alaska.'' 80
FR at 37539, id. at n.1. The 2015 guidance stated neither that Part 83
was inapplicable in Alaska nor that the Alaska IRA criteria required
the Department to apply any particular standard, whether based on Part
83 or otherwise. The 2015 guidance's acknowledgment of the Alaska IRA's
existence as an alternative to Part 83 does not prohibit the Department
from designing such an alternative that incorporates by reference
aspects of Part 83.
For these reasons, the Department concludes that the proposed
rule's inclusion of aspects of Part 83 does not depart from previous
Department precedent. Assuming, arguendo, that it did, however, the
necessity of establishing a consistent, predictable procedure that is
subject to public notice and comment in determining eligibility under
the Alaska IRA would wholly justify the Department's ``change in
position'' within the meaning of Federal law. Federal acknowledgment of
Indian groups establishes a government-to-government relationship with
the United States and is a prerequisite to eligibility for nearly all
of the Federal protections, services, and benefits available to Indian
Tribes. 25 CFR 83.2 (2015). As affirmed by case law, Part 83 is a
rigorous, legally viable implementation of the Department's statutory
mandate concerning the management of Indian affairs. See, e.g., Miami
Nation, 887 F. Supp. at 1176-77. By drawing upon the examination of
continuous Tribal existence set forth in Part 83, the Department will
ensure that a positive determination under the proposed Federal
acknowledgment procedures for petitioners under the Alaska IRA
accurately reflects such petitioner's status as a distinct governmental
entity.
2. No Effect on the Status of Tribes Who Are Currently Federally
Recognized
As noted above, several comments expressed concern as to whether an
Alaska-specific regulatory process would affect the federal recognition
status of existing Tribes in Alaska (whether organized under the Alaska
IRA or otherwise). This proposed rule applies only to groups not
currently present on the List. It does not impair or otherwise affect
the existing rights and authorities of any Alaska Native
[[Page 41]]
tribe already recognized and included on the List.
3. Consideration of Pending Petitions
The Department will not consider any acknowledgment petitions
submitted by Alaska Native entities under the Alaska IRA during the
pendency of this proposed rulemaking. Should the Department ultimately
enact a final rule implementing the Alaska IRA criteria in a formal
acknowledgment process, then that process will become the sole
mechanism through which entities may petition for acknowledgment under
the Alaska IRA. Alaska Native groups that have previously submitted
petitions would be invited to revise or resubmit such petitions to
conform to the final rule.
III. Summary of the Proposed Rule
This proposed rule sets forth a new regulatory process through
which Alaska Native entities can become federally acknowledged under
the common bond standard set forth in the Alaska IRA. This proposed
rule applies only to groups not currently present on the List. It does
not impair or otherwise affect the existing rights and authorities of
any Alaska Native Tribe already recognized and included on the List.
Pursuant to the List Act of 1994 and the IRA Technical Amendments of
1994, Act of May 31, 1994, Public Law 103-263, 108 Stat. 709, any
Alaska Native entity acknowledged under this proposed rule would be
eligible to receive all services available to federally recognized
Tribes.
In large part, this proposed rule incorporates the requirements and
procedures for federal acknowledgment found in Part 83, with a limited
number of important distinctions. First, rather than establishing
descent from a ``historical Indian Tribe,'' a petitioner under the
proposed rule must descend, genealogically and politically, from an
Alaska IRA-eligible entity (as defined). Second, and relatedly, since
descent from a historical Indian Tribe is not required, the proposed
rule shifts the start date for satisfying the Part 83 evidentiary
standards from 1900 (as presently used under Part 83) to May 1, 1936
(the date of enactment of the Alaska IRA). Third, a petitioner under
the proposed rule must submit as part of their documented petition ``a
clear, concise claim of an Alaska IRA-eligible entity that existed on
May 1, 1936 . . . from which the petitioner will claim descent.'' Once
a petitioner has satisfied the requirements of a documented petition,
including a showing of the existence of an Alaska IRA-eligible entity
in 1936, the petitioning entity would then be required to satisfy all
Part 83 evidentiary criteria from May 1, 1936 to present.
Next, this proposed rule establishes a requirement that Alaska
Native entities seeking to hold secretarial elections pursuant to 25
CFR part 81 (Part 81) first gain Federal recognition through the
proposed process. This requirement is consistent with past Department
practices, which have focused on organizing entities capable of
establishing government-to-government relations with the United States.
The requirement to first obtain Federal acknowledgement before
conducting an IRA election (where desired) is consistent with the
intent of the IRA, the Alaska IRA, and the administrative process set
forth in Part 81.
Like the current regulations at Part 83, this proposed rule is
broken down into three subparts. First, ``General Provisions'' sets
forth definitions, the overall purpose of the regulations, deadlines,
and various administrative legalities. Second, ``Criteria for Federal
Acknowledgment'' establishes the substantive evidentiary and factual
requirements for petitioner to achieve Federal recognition. Third,
``Process for Federal Acknowledgment'' sets out the actual processes
through which OFA will receive a Part 82 petition, engage with the
petitioner, and make and publish decisions; this section further
discusses the process for obtaining and appealing a final decision by
AS-IA.
At the outset, the Department notes that this proposed rule largely
incorporates the Part 83 regulations, with certain distinctions. As
justification for, and clarification of, this proposed rule, the
Department accordingly adopts the preambles to the proposed and final
rules associated with Part 83, as relevant. 80 FR 37862 (July 1, 2015);
79 FR 30766 (May 29, 2014); 59 FR 9280 (Feb. 25, 1994); 56 FR 47320
(Sept. 18, 1991); 43 FR 23743 (June 1, 1978).
The Department similarly notes that this proposed rule incorporates
the provision currently codified at 25 CFR 83.10(a)(4), which provides
that when the Department finds that evidence or methodology was
sufficient to satisfy any particular criterion in a previous Part 83
petition, the Department will find that evidence or methodology
sufficient to satisfy the criterion for a present petitioner. As the
Department noted in the 2015 Final Rule, previous decisions provide
examples of how a criterion may be met, and a petitioner satisfies the
standards or evidence or baseline requirements of a criterion if that
type or amount of evidence was sufficient in a previous decision. (80
FR 37865). The Department notes here that the same premise will apply
under this proposed rule. To the extent that the Department found a
particular type of evidence or line of argument either probative or
non-probative with regard to a previous petition, the Department will
similarly evaluate such evidence or reasoning under this proposed rule.
As the Department processes petitions for acknowledgment under this
proposed rule, it will similarly treat such petitions as
``precedential'' with regard to one another to the extent that they
demonstrate how a particular criterion may be met.
With that said, the Department generally requests comments on the
issues set out above concerning the role of Part 83 and OFA in the
proposed Alaska IRA acknowledgment process. These include, but are not
limited to:
Whether it is appropriate to require petitioners under the
Alaska IRA criteria to satisfy any Part 83 requirements.
Even if it is appropriate for the Department to require
Alaska Native petitioners to satisfy the Part 83 requirements (in whole
or in part), whether alternative mechanisms or processes exist through
which the Department can or should evaluate Alaska IRA petitions
outside of Part 83.
Whether any recordkeeping or other historical or practical
concerns specific to Alaska counsel against applying Part 83's
evidentiary criteria to Alaska Native petitioners.
Whether there exists any other way that the Department
should incorporate the Part 83 requirements with the Alaska IRA
criteria, in whole or in part, other than as proposed in this NPRM.
Whether the Department is constrained in any way from
directing Alaska Native groups with outstanding petitions to re-submit
their petitions under the ultimate final rule.
Whether there exist any textual or procedural
inconsistencies, ambiguities, or other discrepancies in Part 83 that
the Department should clarify or amend for the purposes of this
proposed rule.
A. Subpart A--General Provisions
1. Definitions
This proposed rule defines the term ``Alaska IRA-eligible entity''
as an entity that as of May 1, 1936, (1) was not recognized by the
Federal government as a band or Tribe; (2) was organized on the basis
of a common bond of occupation, association, or residence; and (3) was
comprised of members descending from Indians in Alaska. As part of its
documented petition, the petitioner must submit a claim of an Alaska
IRA-eligible entity from which it
[[Page 42]]
will demonstrate descent. This proposed rule further defines each of
these constituent requirements.
First, since the Alaska IRA excludes ``groups of Indians in Alaska
not heretofore recognized as bands or tribes,'' the proposed rule
includes the term ``recognized by the Federal government,'' to mean
that the Federal government took an action clearly premised on
identification of a Tribal political entity as such and indicating
clearly the recognition of a relationship between that entity and the
United States. The Alaska IRA criteria were intended to permit Alaska
Native entities that were not previously recognized to become eligible
to organize under the IRA and the Alaska IRA. As this suggests, Alaska
Native tribes or bands recognized before May 1, 1936 do not qualify for
acknowledgment under this proposed rule. The proposed definition for
``recognition'' reasons that for Alaska Native entities that were
already ``recognized'' as of May 1, 1936, there would exist evidence of
formalized relationship between that entity and the United States.
Presumably, this would involve evidence along the lines ordinarily
considered under 25 CFR 83.11(a), ``Indian entity identification.'' In
reviewing the documented petition, OFA will evaluate contemporary
evidence to determine whether a petitioner's Alaska IRA-eligible entity
was recognized as of May 1, 1936. The Department invites comment as to
whether this definition requires additional clarification. The
Department also invites comment as to the specific type of evidence
that OFA should view as proof of ``recognition'' in Alaska as of May 1,
1936, such as to disqualify an entity from being considered Alaska IRA-
eligible.
Second, this proposed rule defines ``Common Bond'' in a manner that
draws from contemporaneous interpretations of the Alaska IRA, as well
as past administrative actions by the Department: A clearly defined
common interest shared and acted upon by a group of Alaska Natives,
distinguishable from other groups or associations. The definition is
broadly drafted on the assumption that a more flexible, open-ended
common bond standard will allow petitioners to more easily satisfy that
standard before proceeding to the more rigorous and substantive post-
May 1, 1936 showing under the Part 83 evidentiary criteria. However,
additional guidance on the common bond standard is provided in proposed
Sec. 82.21(a)(5), which states that having a common bond:
[M]eans that the petitioner must be bound together by their
common interest and actions taken in common. The claimed common bond
must be clear and capable of statement and definition, and the
petitioner must be distinguishable from other groups or
associations. Groups of Alaska Natives having a common bond must be
substantial enough and democratic enough to permit participation by
a substantial share of the persons within the entity. There is no
legal requirement that the members of a petitioning group must all
live in one community or village to meet this criterion. The claimed
common bond is best understood flexibly in the context of the
history, geography, culture, and social organization of the entity.
With an eye toward maintaining flexibility as to the manner in which
petitioners can demonstrate that an Alaska IRA-eligible entity
satisfied the common bond standard as of May 1, 1936, the Department
invites comment on whether the proposed definition of ``common bond,''
paired with the clarifying language in Sec. 82.21(a)(5), is
sufficient. The Department also invites comment on whether and how the
Department should define the terms ``occupation,'' ``association,'' and
``residence within a well-defined neighborhood, community, or rural
district'' as they appear in the Alaska IRA criteria, or whether such
terms are already well-understood and need not be further defined.
Third, the proposed rule defines the terms ``Indians in Alaska'' or
``Alaska Native'' to mean Eskimos and other aboriginal peoples in
Alaska. While recognizing that these terms are anachronistic in modern
parlance, this definition was adopted from the definition of ``Indian''
provided in the IRA, which states that for the purposes of that Act,
``Eskimos and other aboriginal peoples of Alaska'' are considered
Indians. 25 U.S.C. 5129. The Department invites comment as to whether
this definition should be expanded, narrowed, or clarified. The
Department also invites comment as to the manner of evidence that
petitioners can submit to demonstrate descent from, and current
composition of, ``Indians in Alaska.''
The term ``historical'' is defined in Part 83 as the period before
1900 and is included in the context of the requirement that Part 83
petitioners demonstrate descent from a ``historical Indian Tribe.''
This definition has been removed from this proposed rule. Federal
acknowledgment under the Alaska IRA criteria does not require descent
or any connection to a historical Indian Tribe. The petitioner must
instead make a comparable showing of connection to an entity that
satisfied the Alaska IRA's common bond requirement in 1936. The term
``historical'' was therefore removed as it has little relevance or
applicability to this proposed rule.
This proposed rule includes a definition of ``membership list,''
which must include all known current members of the petitioning entity.
An official and current membership list must be included in the
documented petition submitted by the petitioner. The Department invites
comments as to whether entities in Alaska differ from those in the
conterminous United States such that it will complicate the provision
of a membership list, or otherwise require further consideration of
this specific definition or of the overall requirement.
The term ``roll'' is defined in Part 83, but has been removed from
this proposed rule since the proposed descent criteria does not
necessarily require evidence that the petitioner's membership descends
from a Tribal roll. The descent criteria does, however, require
evidence identifying individuals associated with the petitioning
entity.
2. Scope and Applicability
As with Part 83, there are a number of entities that the Department
will not acknowledge under the proposed rule, including any entity that
has already petitioned for, and been denied, Federal acknowledgment
under Part 83. The Department may, however, acknowledge under the
eventual final rule implementing this proposed rule any entity that has
petitioned under Part 83 but withdrawn its documented petition pursuant
to 25 CFR 83.30 and has not received a final determination pursuant to
25 CFR 83.43.
In addition to those entities listed in Part 83, the Department
will not acknowledge the following entities in light of the eligibility
standards specific to this proposed rule: (1) Entities that petition
and are denied acknowledgment under the eventual final rule
implementing this proposed rule; (2) entities located outside of
Alaska; (3) any Alaska Native group that was recognized as a band or
Tribe by the Federal government on or before May 1, 1936, and (4) any
Alaska Native tribes or bands that was recognized by the Federal
government through some other means and included on the List after May
1, 1936. An entity that has petitioned and been denied acknowledgment
under the eventual final rule implementing this proposed rule will not
be eligible for Federal acknowledgement under Part 83.
The Department invites comment on any of these standards,
particularly as to
[[Page 43]]
whether it must clarify the manner in which it will determine where a
petitioner is ``located'' or, as discussed, how an entity may or may
not be determined to be ``recognized'' within the meaning of the Alaska
IRA.
B. Subpart B--Criteria for Federal Acknowledgment
1. Evaluation of the Mandatory Criteria
Under this proposed rule, the Department will evaluate the
mandatory criteria set forth in proposed Sec. 82.11 under the same
``reasonable likelihood of the validity of the facts relating to that
criterion'' standard of proof used in the Part 83 process. Under this
standard, facts are considered established if the available evidence
demonstrates a reasonable likelihood of their validity. This standard
of evidence has governed the acknowledgment process since 1994, and is
particularly appropriate in the acknowledgment context where the
primary question is usually whether the level of evidence is high
enough to demonstrate meeting a particular criterion.
As in Part 83, under this proposed rule, the Department will
require that existence of community and political influence and
authority be demonstrated on a substantially continuous basis. In the
Part 83 context, the Department has interpreted ``substantially
continuous'' to mean that overall continuity has been maintained, even
though there may be interruptions or periods where evidence is absent
or limited.
Finally, and as discussed above, in order to ensure predictability
and consistency with precedent, this proposed rule provides that if
there was a prior decision finding that evidence or methodology was
sufficient to satisfy any particular criterion in a particular
petition, the Department will find that evidence or methodology
sufficient to satisfy the criterion for a present petitioner.
2. Criteria for Acknowledgment
This proposed rule includes seven mandatory criteria designed to
demonstrate an Alaska IRA-eligible entity's continued Tribal existence.
To become acknowledged, the petitioner must satisfy all seven of the
mandatory criteria set forth in Sec. 82.11, which are the same
criteria used to evaluate petitioners under the Part 83 process.
One of the principle differences between this proposed rule and
Part 83 is that petitioners under this proposed rule must satisfy the
evidentiary standards between 1936 and the present, not 1900 to the
present as under Part 83. The later start date comports with
Congressional intent to establish an alternative means for Alaska
Native entities to be eligible to organize under the Alaska IRA that
would not require descent from a Tribe that existed during historical
times. H.R. Rep. No. 74-2244, at 2, 4-5 (1936); 53 FR 52835, 52832-33
(Dec. 28, 1988). Moreover, it follows the Department's longstanding
practical interpretation of the Alaska IRA criteria that petitioners
must be a continuation of a pre-existing group that existed before May
1, 1936, the date the Alaska IRA was enacted. For example, in a July
10, 1978, memorandum on the eligibility of Eskimo Village to organize
under the IRA, the Associate Solicitor, Indian Affairs, concluded in
part that the Department's interpretation of the Alaska IRA as limiting
the eligibility of Alaska Native groups to organize pursuant to the
common bond standard only if the basis of association existed prior to
May 1, 1936 was ``consistent with the intent of the Congress and the
application of the Indian Reorganization Act to tribes in the other
states.'' The Department solicits comment on whether there are legal or
practical justifications for requiring a different ``start date.''
Criterion (a) requires the petitioner to show that it has been
identified as an Alaska Native entity on a substantially continuous
basis since May 1, 1936. Evidence of both self-identification and
external identification as an Alaska Native entity will be accepted
under this proposed rule. This proposed rule lists specific evidence
that may be used to demonstrate that this criterion has been met,
including contemporaneous identification as an Alaska Native entity by
the petitioner itself.
Criterion (b) requires the petitioner to show that its members have
comprised a distinct community from May 1, 1936 to the present. The
petitioner's evidence must show consistent interactions and significant
social relationships within its membership, and demonstrate how its
members are differentiated from and distinct from nonmembers. The
community criterion provides a list of evidence that is sufficient in
itself to demonstrate the criterion at a particular point in time, as
well as specific evidence that may be used to demonstrate that this
criterion has been met, including shared or cooperative labor or other
economic activity among members and shared cultural patterns distinct
from those of the non-Alaska Native populations with whom it interacts.
Community may also be shown by evidence of distinct social institutions
encompassing at least 50 percent of the members.
Criterion (c) examines the political influence/authority of the
petitioner over its members. Exercising political influence or
authority means the entity uses some mechanism to influence or control
the behavior of its members in significant respects. This proposed rule
lists specific evidence that may be used to demonstrate that this
criterion has been met, including mobilization of significant numbers
of members and resources for entity purposes and a continuous line of
entity leaders and a means of selection or acquiescence by a majority
of the membership. The political influence/authority criterion also
provides a list of evidence that is sufficient in itself to demonstrate
the criterion at a particular point in time.
Criterion (d) requires the submission of the entity's present
governing document or, in the absence of such a document, a written
statement describing its membership criteria and current governing
procedures.
Criterion (e) requires petitioners to demonstrate descent from
members of the Alaska IRA-eligible entity that existed on May 1, 1936.
This proposed rule does not quantify the number of members who must
satisfy this descent criterion; in practice, however, OFA applies an
80% threshold in the Part 83 context. The Department invites comment on
whether an 80% threshold is appropriate for this proposed rule, or
whether a different threshold is needed to accommodate the fluidity and
geographically transient nature of some historical Alaska Native
communities. A member who is unable to establish descent from an Alaska
IRA-eligible entity can still satisfy this criterion with documentation
detailing his or her integration or adoption into the petitioning group
and by demonstrating descent from an Alaska Native.
Criterion (f) requires that a petitioner's membership not be
``composed principally'' of persons who have dual membership in two
federally recognized Indian Tribes. In the Part 83 context, this
criterion is intended to prohibit a faction of a federally recognized
Tribe from seeking acknowledgment as a separate Tribe, unless it can
demonstrate its status as a politically autonomous community. This
proposed rule does not define a percentage for ``composed principally''
because the appropriate percentage may vary depending upon the role the
individuals play within the petitioner and recognized Indian Tribe.
Even if a petitioner is composed principally of members of a federally
recognized Indian Tribe, the petitioner may meet
[[Page 44]]
this criterion as long as it satisfies the community and political
influence/authority criteria, and its members have provided written
confirmation of their membership in the petitioner. There is no
requirement to withdraw from membership in the federally recognized
Tribe.
The Department seeks comment on the manner in which criterion (f)
would apply in the context of the Alaska IRA. First, the Department
seeks comment on the relevance of Alaska Native Claims Settlement Act
(ANCSA) shareholder status under this requirement, as opposed to Tribal
membership. The Department also seeks comment on whether it should
reevaluate or reframe this requirement if, as a practical matter, many
potential Alaska IRA petitioners would have high levels of dual
membership.
Under criterion (g), neither the petitioner nor its members must be
subject to any legislation that has expressly terminated or forbidden a
government-to-government relationship. For this criterion, the
evidentiary burden shifts to the Department to show that the petitioner
has not been congressionally terminated. However, the Department notes
that it is unaware of any entity in Alaska that would be disqualified
under proposed criterion (g). The Department solicits comment as to
whether this criterion is applicable in Alaska or whether it should be
deleted from the final rule.
3. Previous Federal Acknowledgment
Unlike Part 83, this proposed rule does not include criteria and
procedures for evaluating claims of previous Federal acknowledgment.
Any group claiming to have been Federally acknowledged prior to May 1,
1936, would necessarily be excluded from this proposed rule since the
Alaska IRA only applies to groups that were ``not heretofore recognized
as bands or tribes'' on or before May 1, 1936. Any claims of previous
Federal acknowledgment after May 1, 1936, may be evaluated through the
Part 83 process.
C. Subpart C--Process for Federal Acknowledgment
Under the proposed rule, the administrative process begins when an
Alaska Native entity petitions for acknowledgment and submits its
documented petition to OFA. The documented petition must include a
concise written narrative explaining how the petitioner meets criteria
(a) through (f) and, if the petitioner wishes, it can address criterion
(g). The documented petition must also include the petitioner's claim
that an Alaska IRA-eligible entity existed on May 1, 1936, which will
be evaluated using the ``reasonable likelihood of the validity of the
facts'' standard. If the claim fails to show the existence of an Alaska
IRA-eligible entity, the petitioner will not be considered to have
submitted a documented petition and will not be able to move forward
under the proposed rule. Since, unlike Part 83 petitions, a documented
petition under Part 82 must include an additional claim of an Alaska
IRA-eligible entity, the proposed rule includes a longer timeframe of
120 days for processing documented petitions.
As is the case under Part 83, OFA will review a documented petition
in two phases. During Phase I, OFA will determine whether the
petitioner meets criteria (d) (governing document), (e) (descent), (f)
(unique membership), and (g) (termination). Once OFA has completed its
review under this phase, it will issue a proposed finding within six
months of giving notice that review of the petition has begun. During
Phase II, OFA will review criteria (a) (identification), (b)
(community), and (c) (political influence/authority). The proposed
finding following completion of the Phase II review is due within six
months of the deadline for the Phase I proposed finding.
By beginning with the more straightforward, easily demonstrated
requirements in Phase I prior to turning to the more substantive
requirements in Phase II, the proposed rule allows OFA to identify more
glaring shortcomings in a petition prior to a petitioner having to
undertake the more arduous information-gathering required under Phase
II. This allows OFA to issue negative decisions more quickly, thereby
resolving petitions sooner, reducing time delays, increasing
efficiency, and preserving resources. During each phase, OFA will
provide technical assistance review, which will be limited to the
criteria under review at that time.
The proposed rule offers petitioners who receive a negative
proposed finding the opportunity for a hearing, in which third parties
may intervene, to address their objections to the proposed finding
before an administrative law judge, who will then provide a recommended
decision to the AS-IA. The AS-IA will review the proposed finding and
the record, including the administrative law judge's recommended
decision, and issue a determination that is a final agency action for
the Department. Any challenges to the final determination would be
pursued in Federal court rather than in an administrative forum.
Acknowledgment occurs when a petitioner has received a positive
final determination. Upon acknowledgement, the petitioner will be a
federally recognized Indian Tribe and included on the next list of
federally recognized Indian Tribes. The fact that a petitioner has
achieved acknowledgment, but there is a time gap between the
publication of the positive final determination and the publication of
the next List, does not in the interim deny the petitioner the benefits
of Federal recognition.
IV. Tribal Consultation and Public Meeting Sessions
This rule does not address or impact Tribes in Alaska that are
presently recognized; however, to further the existing government-to-
government relationship with Tribes by seeking their input on this
proposed rule, the Department will be holding the following Tribal
consultation and public meeting sessions:
Tuesday, January 28, 2020, at the Centennial Hall Convention
Center, 101 Egan Drive, Juneau, AK 99801: Tribal consultation from 10
a.m. to 12 p.m. (Local Time); public meeting from 1 p.m. to 3 p.m.
(Local Time)
Thursday, January 30, 2020, at the Raven Landing Center, 1222
Cowles Street (Mailing: 949 McGown St.) Fairbanks, AK 99701: Tribal
consultation from 10 a.m. to 12 p.m. (Local Time); public meeting from
1 p.m. to 3 p.m. (Local Time)
Thursday, February 6, 2020, by teleconference
[cir] Tribal consultation 1 p.m. to 3 p.m. (Eastern Time): (888)
456-0351, Passcode 5309360
[cir] Public meeting 3:30 p.m. to 5:50 p.m. (Eastern Time): (888)
857-9837, Passcode 6239571
Please check the following website for any updates: https://www.bia.gov/as-ia/raca/regulations-development-andor-under-review/alaska-ira.
V. Procedural Requirements
A. Regulatory Planning and Review (E.O. 12866)
Executive Order (E.O.) 12866 provides that the Office of
Information and Regulatory Affairs (OIRA) at the Office of Management
and Budget (OMB) will review all significant rules. OIRA has determined
that this rule is not significant.
E.O. 13563 reaffirms the principles of E.O. 12866 while calling for
improvements in the Nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best,
[[Page 45]]
most innovative, and least burdensome tools for achieving regulatory
ends. The E.O. directs agencies to consider regulatory approaches that
reduce burdens and maintain flexibility and freedom of choice for the
public where these approaches are relevant, feasible, and consistent
with regulatory objectives. E.O. 13563 emphasizes further that
regulations must be based on the best available science and that the
rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
B. Reducing Regulation and Controlling Regulatory Costs (E.O. 13771)
This action is not an E.O. 13771 regulatory action because this
rule is not significant under Executive Order 12866.
C. Regulatory Flexibility Act
The Department of the Interior certifies that this document will
not have a significant economic effect on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
It does not change current funding requirements and would not impose
any economic effects on small governmental entities; rather, it
addresses how Alaska Native entities may become acknowledged as an
Indian Tribe pursuant to the Alaska IRA.
D. Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act because this rule affects
only those Alaska Native entities that may seek to become acknowledged
as an Indian Tribe pursuant to the Alaska IRA. This rule:
(a) Will not have an annual effect on the economy of $100 million
or more.
(b) Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions.
(c) Will not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of the
U.S.-based enterprises to compete with foreign-based enterprises.
E. Unfunded Mandates Reform Act
This rule does not impose an unfunded mandate on State, local, or
Tribal governments or the private sector of more than $100 million per
year. The rule does not have a significant or unique effect on State,
local, or Tribal governments or the private sector because this rule
affects only those Alaska Native entities that may seek to become
acknowledged as an Indian Tribe pursuant to the Alaska IRA. A statement
containing the information required by the Unfunded Mandates Reform Act
(2 U.S.C. 1531 et seq.) is not required.
F. Takings (E.O. 12630)
This rule does not effect a taking of private property or otherwise
have taking implications under E.O. 12630. A takings implication
assessment is not required.
G. Federalism (E.O. 13132)
Under the criteria in section 1 of E.O. 13132, this rule does not
have sufficient federalism implications to warrant the preparation of a
federalism summary impact statement. A federalism summary impact
statement is not required.
H. Civil Justice Reform (E.O. 12988)
This rule complies with the requirements of E.O. 12988.
Specifically, this rule: (a) Meets the criteria of section 3(a)
requiring that all regulations be reviewed to eliminate errors and
ambiguity and be written to minimize litigation; and (b) meets the
criteria of section 3(b)(2) requiring that all regulations be written
in clear language and contain clear legal standards.
I. Consultation With Indian Tribes (E.O. 13175)
The Department of the Interior strives to strengthen its
government-to-government relationship with Indian Tribes through a
commitment to consultation with Indian Tribes and recognition of their
right to self-governance and Tribal sovereignty. We have evaluated this
rule under the Department's consultation policy and under the criteria
in E.O. 13175 and have determined there are no substantial direct
effects on federally recognized Indian Tribes that will result from
this rulemaking because the rule is limited to entities in Alaska and
the Department has conducted consultation with the federally recognized
Indian Tribes in Alaska prior to promulgating this proposed rule. The
Department will also be hosting consultation on this proposed rule.
J. Paperwork Reduction Act
OMB Control No. 1076-0104 currently authorizes the collections of
information related to petitions for Federal acknowledgment under the
Indian Reorganization Act (IRA) contained in 25 CFR part 83, with an
expiration of October 31, 2021. With this rulemaking, we are seeking to
revise this information collection to include collections of
information related to petitions for Federal acknowledgment under the
Alaska IRA and 25 CFR part 82. The current authorization totals an
estimated 14,360 annual burden hours. This rule change would require a
revision to an approved information collection under the Paperwork
Reduction Act (PRA), 44 U.S.C. 3501 et seq., for which the Department
is requesting OMB approval.
OMB Control Number: 1076-0104.
Title: Federal Acknowledgment as an Indian Tribe, 25 CFR 82 & 83.
Brief Description of Collection: This information collection
requires entities seeking Federal recognition as an Indian Tribe to
collect and provide information in a documented petition evidencing
that the entities meet the criteria set out in the rule.
Type of Review: Revision of currently approved collection.
Respondents: Entities petitioning for Federal acknowledgment.
Number of Respondents: 2 on average (each year).
Number of Responses: 2 on average (each year).
Frequency of Response: On occasion.
Estimated Time per Response: (See table below).
Estimated Total Annual Hour Burden: 2,872 hours.
Estimated Total Annual Non-Hour Cost: $2,100,000.
OMB Control No. 1076-0104 currently authorizes the collections of
information contained in 25 CFR part 83. If this proposed rule is
finalized, DOI estimates that the annual burden hours for respondents
(entities petitioning for Federal acknowledgment) will increase by
approximately 1,436 hours, for a total of 2,872 hours.
K. National Environmental Policy Act
This rule does not constitute a major Federal action significantly
affecting the quality of the human environment. A detailed statement
under the National Environmental Policy Act of 1969 (NEPA) is not
required because this is an administrative and procedural regulation.
(For further information see 43 CFR 46.210(i)). We have also determined
that the rule does not involve any of the extraordinary circumstances
listed in 43 CFR 46.215 that would require further analysis under NEPA.
[[Page 46]]
L. Effects on the Energy Supply (E.O. 13211)
This rule is not a significant energy action under the definition
in E.O. 13211. A Statement of Energy Effects is not required.
M. Clarity of This Regulation
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
a. Be logically organized;
b. Use the active voice to address readers directly;
c. Use clear language rather than jargon;
d. Be divided into short sections and sentences; and
e. Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in the ADDRESSES section. To
better help us revise the rule, your comments should be as specific as
possible. For example, you should tell us the numbers of the sections
or paragraphs that you find unclear, which sections or sentences are
too long, the sections where you believe lists or tables would be
useful, etc.
N. Public Availability of Comments
Before including your address, phone number, email address, or
other personal identifying information in your comment, you should be
aware that your entire comment--including your personal identifying
information--may be made publicly available at any time. While you can
ask us in your comment to withhold your personal identifying
information from public review, we cannot guarantee that we will be
able to do so.
List of Subjects in 25 CFR Part 82
Administrative practice and procedure, Indians-tribal government.
For the reasons stated in the preamble, the Department of the
Interior, Bureau of Indian Affairs, proposes to amend 25 CFR chapter I,
subchapter F, to add a new part 82 to read as follows:
PART 82--FEDERAL RECOGNITION OF ALASKA TRIBES UNDER THE ALASKA
INDIAN REORGANIZATION ACT
Subpart A--General Provisions
Sec.
82.1 What terms are used in this part?
82.2 What is the purpose of the regulations in this part?
82.3 To whom does this part apply?
82.4 Who cannot be acknowledged under this part?
82.5 How does a petitioner obtain Federal acknowledgment under this
part?
82.6 What are the Department's duties?
82.8 May the deadlines in this part be extended?
82.9 How does the Paperwork Reduction Act affect the information
collections in this part?
Subpart B--Criteria for Federal Acknowledgment
82.10 How will the Department evaluate each of the criteria?
82.11 What are the criteria for acknowledgment as a federally
recognized Indian Tribe?
Subpart C--Process for Federal Acknowledgment
Documented Petition Submission
82.20 How does an entity request Federal acknowledgment?
82.21 What must a documented petition include?
82.22 What notice will the Office of Federal Acknowledgment (OFA)
provide upon receipt of a documented petition?
Review of Documented Petition
82.23 How will OFA determine which documented petition to consider
first?
82.24 What opportunity will the petitioner have to respond to
comments before OFA reviews the petition?
82.25 Who will OFA notify when it begins review of a documented
petition?
82.26 How will OFA review a documented petition?
82.27 What are technical assistance reviews?
82.28 [Reserved].
82.29 What will OFA consider in its reviews?
82.30 Can a petitioner withdraw its documented petition?
82.31 Can OFA suspend review of a documented petition?
Proposed Finding
82.32 When will OFA issue a proposed finding?
82.33 What will the proposed finding include?
82.34 What notice of the proposed finding will OFA provide?
Comment and Response Periods, Hearing
82.35 What opportunity will there be to comment after OFA issues the
proposed finding?
82.36 What procedure follows the end of the comment period for a
positive proposed finding?
82.37 What procedure follows the end of the comment period on a
negative proposed finding?
82.38 What options does the petitioner have at the end of the
response period on a negative proposed finding?
82.39 What is the procedure if the petitioner elects to have a
hearing before an administrative law judge (ALJ)?
AS-IA Evaluation and Preparation of Final Determination
82.40 When will the Assistant Secretary begin review?
82.41 What will the Assistant Secretary consider in his/her review?
82.42 When will the Assistant Secretary issue a final determination?
82.43 How will the Assistant Secretary make the final determination
decision?
82.44 Is the Assistant Secretary's final determination final for the
Department?
82.45 When will the final determination be effective?
82.46 How is a petitioner with a positive final determination
integrated into Federal programs as a federally recognized Indian
Tribe?
Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 5119, 5131; Public Law
103-454 Sec. 103 (Nov. 2, 1994); and 43 U.S.C. 1457.
Subpart A--General Provisions
Sec. 82.1 What terms are used in this part?
As used in this part:
Alaska IRA-eligible entity means a group of Indians in Alaska that
was not, as of May 1, 1936, recognized by the Federal government as a
band or Tribe, but that had a common bond of occupation, or
association, or residence within a well-defined neighborhood,
community, or rural district. All members of the entity must descend
from Indians in Alaska.
ALJ means an administrative law judge in the Departmental Cases
Hearings Division, Office of Hearings and Appeals (OHA), Department of
the Interior, appointed under 5 U.S.C. 3105.
Assistant Secretary or AS-IA means the Assistant Secretary--Indian
Affairs within the Department of the Interior, or that officer's
authorized representative, but does not include representatives of the
Office of Federal Acknowledgment.
Autonomous means independent of the control of any other Indian
governing entity.
Bureau means the Bureau of Indian Affairs within the Department of
the Interior.
Common bond means a clearly defined common interest shared and
acted upon by a group of Alaska Natives, distinguishable from other
groups or associations.
Department means the Department of the Interior, including the
Assistant Secretary and OFA.
Documented petition means the detailed arguments and supporting
documentary evidence enumerated in Sec. 82.21 and submitted by a
petitioner claiming that it meets the mandatory criteria in Sec.
82.11.
Federally recognized Indian Tribe or Indian Tribe means an entity
appearing on the list published by the Department
[[Page 47]]
of the Interior under the Federally Recognized Indian Tribe List Act of
1994, which the Secretary currently acknowledges as an Indian Tribe and
with which the United States maintains a government-to-government
relationship.
Indians in Alaska or Alaska Native means ``Eskimos and other
aboriginal peoples of Alaska'' as stated in Section 19 of the Indian
Reorganization Act.
Member means an individual who is recognized by the petitioner as
meeting its membership criteria and who consents to being listed as a
member of the petitioner.
Membership list means a list of all known current members of the
petitioner, including each member's full name (including maiden name,
if any), date of birth, and current residential address.
Office of Federal Acknowledgment or OFA means the Office of Federal
Acknowledgment within the Office of the Assistant Secretary--Indian
Affairs, Department of the Interior.
Petitioner means any Alaska Native entity that has submitted a
documented petition to OFA requesting Federal acknowledgment as a
federally recognized Indian Tribe.
Recognized by the Federal government means that the Federal
government took an action 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 within the Department
of the Interior or that officer's authorized representative.
Sec. 82.2 What is the purpose of the regulations in this part?
The regulations in this part implement Federal statutes for the
benefit of Indian Tribes by establishing procedures and criteria for
the Department to use to determine whether an Alaska Native entity may
be considered an Indian Tribe eligible for the special programs and
services provided by the United States to Indians because of their
status as Indians. A positive determination will result in
acknowledgment of the petitioner's Tribal status and the petitioner's
addition to the Department's list of federally recognized Indian
Tribes. Federal recognition:
(a) Is a prerequisite to the protection, services, and benefits of
the Federal Government available to those that qualify as Indian Tribes
and possess a government-to-government relationship with the United
States;
(b) Means the Tribe is entitled to the immunities and privileges
available to other federally recognized Indian Tribes;
(c) Means the Tribe has the responsibilities, powers, limitations,
and obligations of other federally recognized Indian Tribes; and
(d) Subjects the Indian Tribe to the same authority of Congress and
the United States as other federally recognized Indian Tribes.
Sec. 82.3 To whom does this part apply?
This part applies only to Alaska Native entities in Alaska that are
not federally recognized Indian Tribes.
Sec. 82.4 Who cannot be acknowledged under this part?
(a) The Department will not acknowledge:
(1) An association, organization, corporation, or entity of any
character formed in recent times unless the entity has only changed
form by recently incorporating or otherwise formalizing its existing
politically autonomous community;
(2) A splinter group, political faction, community, or entity of
any character that separates from the main body of a currently
federally recognized Indian Tribe, petitioner, or previous petitioner
unless the entity can clearly demonstrate it has functioned from May 1,
1936, until the present as a politically autonomous community and meets
Sec. 82.11(f), even though some have regarded them as part of or
associated in some manner with a federally recognized Indian Tribe;
(3) An entity that is, or an entity whose members are, subject to
congressional legislation terminating or forbidding the government-to-
government relationship;
(4) An entity that previously petitioned and was denied Federal
acknowledgment under these regulations (including reconstituted,
splinter, spin-off, or component groups who were once part of
previously denied petitioners);
(5) An entity that petitioned for Federal acknowledgment and was
denied under Part 83 of this title;
(6) Any entity outside of Alaska;
(7) Any Alaska Native entity that was recognized by the Federal
government on or before May 1, 1936; or
(8) Any Alaska Native entity that was recognized by the Federal
government and included on the List after May 1, 1936.
(b) A petitioner that has been denied Federal acknowledgment under
these regulations will be ineligible to seek Federal acknowledgment
under Part 83 of this title.
Sec. 82.5 How does a petitioner obtain Federal acknowledgment under
this part?
To be acknowledged as a federally recognized Indian Tribe under
this part, a petitioner must meet the Alaska Native Entity
Identification (Sec. 82.11(a)), Community (Sec. 82.11(b)), Political
Authority (Sec. 82.11(c)), Governing Document (Sec. 82.11(d)),
Descent (Sec. 82.11(e)), Unique Membership (Sec. 82.11(f)), and
Congressional Termination (Sec. 82.11(g)) Criteria.
Sec. 82.6 What are the Department's duties?
(a) The Department will publish in the Federal Register, by January
30 each year, a list of all Indian Tribes which the Secretary
recognizes to be eligible for the special programs and services
provided by the United States to Indians because of their status as
Indians, in accordance with the Federally Recognized Indian Tribe List
Act of 1994. The list may be published more frequently, if the
Assistant Secretary deems it necessary.
(b) OFA will maintain guidelines limited to general suggestions on
how and where to conduct research. The guidelines may be supplemented
or updated as necessary. OFA will also make available examples of
portions of documented petitions in the preferred format, though OFA
will accept other formats.
(c) OFA will, upon request, give prospective petitioners
suggestions and advice on how to prepare the documented petition. OFA
will not be responsible for the actual research on behalf of the
petitioner.
Sec. 82.7 [Reserved]
Sec. 82.8 May the deadlines in this part be extended?
(a) The AS-IA may extend any of the deadlines in this part upon a
finding of good cause.
(b) For deadlines applicable to the Department, AS-IA may extend
the deadlines upon the consent of the petitioner.
(c) If AS-IA grants a time extension, it will notify the petitioner
and those listed in Sec. 82.22(d).
Sec. 82.9 How does the Paperwork Reduction Act affect the information
collections in this part?
The collections of information contained in this part have been
approved by the Office of Management and Budget under 44 U.S.C. 3501 et
seq. and assigned OMB Control Number 1076-0104. Response is required to
obtain a benefit. A Federal agency may not conduct or sponsor, and you
are not required to respond to, a collection of information unless the
form or
[[Page 48]]
regulation requesting the information displays a currently valid OMB
Control Number. Send comments regarding this collection of information,
including suggestions for reducing the burden, to the Information
Collection Clearance Officer--Indian Affairs, 1849 C Street NW,
Washington, DC 20240.
Subpart B--Criteria for Federal Acknowledgment
Sec. 82.10 How will the Department evaluate each of the criteria?
(a) The Department will consider a criterion in Sec. 82.11 to be
met if the available evidence establishes a reasonable likelihood of
the validity of the facts relating to that criterion.
(1) The Department will not require conclusive proof of the facts
relating to a criterion in order to consider the criterion met.
(2) The Department will require existence of community and
political influence or authority 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 will not in themselves be a cause for denial of
acknowledgment under these criteria.
(3) The petitioner may use the same evidence to establish more than
one criterion.
(4) Evidence or methodology that the Department found sufficient to
satisfy any particular criterion in a previous Part 82 decision will be
sufficient to satisfy the criterion for a present petitioner.
(b) When evaluating a petition, the Department will:
(1) Allow criteria to be met by any suitable evidence, rather than
requiring the specific forms of evidence stated in the criteria;
(2) Take into account historical situations and time periods for
which evidence is demonstrably limited or not available;
(3) Take into account the limitations inherent in demonstrating
historical existence of community and political influence or authority;
(4) Require a demonstration that the criteria are met on a
substantially continuous basis, meaning without substantial
interruption; and
(5) Apply these criteria in context with the history, regional
differences, culture, and social organization of the petitioner.
Sec. 82.11 What are the criteria for acknowledgment as a federally
recognized Indian Tribe?
The criteria for acknowledgment as a federally recognized Indian
Tribe are delineated in paragraphs (a) through (g) of this section.
(a) Alaska Native entity identification. The petitioner has been
identified as an Alaska Native entity on a substantially continuous
basis since May 1, 1936. Evidence that the entity's character as an
Alaska Native entity has from time to time been denied will not be
considered to be conclusive evidence that this criterion has not been
met. Evidence to be relied upon in determining an entity's Alaska
Native identity may include one or a combination of the following, as
well as other evidence of identification.
(1) Identification as an Alaska Native entity by Federal
authorities.
(2) Relationships with the Alaska State or territorial governments
based on identification of the entity as Alaska Native.
(3) Dealings with a borough or other local government in a
relationship based on the entity's Alaska Native identity.
(4) Identification as an Alaska Native entity by anthropologists,
historians, and/or other scholars.
(5) Identification as an Alaska Native entity in newspapers and
books.
(6) Identification as an Alaska Native entity in relationships with
Indian Tribes or with national, regional, or State Indian or Alaska
Native organizations.
(7) Contemporaneous identification as an Alaska Native entity by
the petitioner itself.
(b) Community. The petitioner comprises a distinct community and
demonstrates that it evolved as such from the Alaska IRA-eligible
entity in existence on May 1, 1936, until the present. Distinct
community means an entity with consistent interactions and significant
social relationships within its membership and whose members are
differentiated from and distinct from nonmembers. Distinct community
must be understood flexibly in the context of the history, geography,
culture, and social organization of the entity. The petitioner may
demonstrate that it meets this criterion by providing evidence for
known adult members or by providing evidence of relationships of a
reliable, statistically significant sample of known adult members.
(1) The petitioner may demonstrate that it meets this criterion at
a given point in time by some combination of two or more of the
following forms of evidence or by other evidence to show that a
significant and meaningful portion of the petitioner's members
constituted a distinct community at a given point in time:
(i) Rates or patterns of known marriages within the entity, or, as
may be culturally required, known patterned out-marriages;
(ii) Social relationships connecting individual members;
(iii) Rates or patterns of informal social interaction that exist
broadly among the members of the entity;
(iv) Shared or cooperative labor or other economic activity among
members;
(v) Strong patterns of discrimination or other social distinctions
by non-members;
(vi) Shared sacred or secular ritual activity;
(vii) Cultural patterns shared among a portion of the entity 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 entity as Alaska Native. They may include, but
are not limited to, language, kinship organization or system, religious
beliefs or practices, and ceremonies;
(viii) The persistence of a collective identity continuously over a
period of more than 50 years, notwithstanding any absence of or changes
in name;
(ix) Land set aside by the Federal Government, the Territorial
government, or the State of Alaska for the petitioner, or collective
ancestors of the petitioner, that was actively used by the community
for that time period;
(x) Children of members from a geographic area attended Indian
boarding schools or other Indian educational institutions, to the
extent that supporting evidence documents the community claimed; or
(xi) A demonstration of political influence under the criterion in
Sec. 82.11(c)(1) will be evidence for demonstrating distinct community
for that same time period.
(2) The petitioner will be considered to have provided more than
sufficient evidence to demonstrate distinct community and political
authority under Sec. 82.11(c) at a given point in time if the evidence
demonstrates 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
entity, and the balance of the entity maintains consistent interaction
with some members residing in that area;
(ii) At least 50 percent of the members of the entity were married
to other members of the entity;
(iii) At least 50 percent of the entity members maintain distinct
cultural patterns such as, but not limited to, language, kinship
system, religious beliefs and practices, or ceremonies;
[[Page 49]]
(iv) There are distinct community social institutions encompassing
at least 50 percent of the members, such as kinship organizations,
formal or informal economic cooperation, or religious organizations; or
(v) The petitioner has met the criterion in Sec. 82.11(c) using
evidence described in Sec. 82.11(c)(2).
(c) Political influence or authority. The petitioner has maintained
political influence or authority over its members as an autonomous
entity from when it existed as the Alaska IRA-eligible entity on May 1,
1936, until the present. Political influence or authority means the
entity uses a council, leadership, internal process, or other mechanism
as a means of influencing or controlling the behavior of its members in
significant respects, making decisions for the entity which
substantially affect its members, and/or representing the entity in
dealing with outsiders in matters of consequence. This process is to be
understood flexibly in the context of the history, culture, and social
organization of the entity.
(1) The petitioner may demonstrate that it meets this criterion by
some combination of two or more of the following forms of evidence or
by other evidence that the petitioner had political influence or
authority over its members as an autonomous entity:
(i) The entity is able to mobilize significant numbers of members
and significant resources from its members for entity purposes.
(ii) Many of the membership consider issues acted upon or actions
taken by entity leaders or governing bodies to be of importance.
(iii) There is widespread knowledge, communication, or involvement
in political processes by many of the entity's members.
(iv) The entity meets the criterion in Sec. 82.11(b) at greater
than or equal to the percentages set forth under Sec. 82.11(b)(2).
(v) There are internal conflicts that show controversy over valued
entity goals, properties, policies, processes, or decisions.
(vi) The government of a federally recognized Indian Tribe has a
significant relationship with the leaders or the governing body of the
petitioner.
(vii) Land set aside by the Federal Government, the territorial
government, or the State of Alaska for petitioner, or collective
ancestors of the petitioner, that is actively used for that time
period.
(viii) There is a continuous line of entity leaders and a means of
selection or acquiescence by a significant number of the entity's
members.
(2) The petitioner will be considered to have provided sufficient
evidence of political influence or authority at a given point in time
if the evidence demonstrates any one of the following:
(i) Entity leaders or other internal mechanisms exist or existed
that:
(A) Allocate entity resources such as land, residence rights, and
the like on a consistent basis;
(B) Settle disputes between members or subgroups by mediation or
other means on a regular basis;
(C) Exert strong influence on the behavior of individual members,
such as the establishment or maintenance of norms or the enforcement of
sanctions to direct or control behavior; or
(D) Organize or influence economic subsistence activities among the
members, including shared or cooperative labor.
(ii) The petitioner has met the requirements in Sec. 82.11(b)(2)
at a given time.
(d) Governing document. The petitioner must provide:
(1) A copy of the entity's present governing document, including
its membership criteria; or
(2) In the absence of a governing document, a written statement
describing in full its membership criteria and current governing
procedures.
(e) Descent. The petitioner's membership consists of individuals
who descend from the Alaska IRA-eligible entity that existed on May 1,
1936, or demonstrate Alaska Native descent. Those members who do not
descend genealogically from members of the Alaska IRA-eligible entity
that existed on May 1, 1936, must be able to document their integration
into the petitioning group.
(1) All present members must be able to demonstrate Alaska Native
descent.
(2) The petitioner satisfies this criterion by demonstrating
descent either from the Alaska IRA-eligible entity that existed on May
1, 1936, or from an Alaska Native with sufficient evidence including,
but not limited to, one or a combination of the following identifying
present members or ancestors of present members as being descendants of
the Alaska IRA-eligible entity that existed on May 1, 1936:
(i) Federal, State of Alaska, Territory of Alaska, or other
official records or evidence;
(ii) Church, school, or other similar enrollment records;
(iii) Records created by historians and anthropologists in
historical times;
(iv) Affidavits of personal knowledge by Alaska Native elders,
leaders, or the petitioner's governing body;
(v) Records created by the group itself detailing the adoption or
integration of other Alaska Natives into the entity; and
(vi) Other records or evidence acceptable to the Secretary.
(f) Unique membership. The petitioner's membership is composed
principally of persons who are not members of any federally recognized
Indian Tribe. However, a petitioner may be acknowledged even if its
membership is composed principally of persons whose names have appeared
on the membership list of, or who have been otherwise associated with,
a federally recognized Indian Tribe, if the petitioner demonstrates
that:
(1) It has functioned as a separate politically autonomous
community by satisfying criteria in paragraphs (b) and (c) of this
section; and
(2) Its members have provided written confirmation of their
membership in the petitioner.
(g) Congressional termination. Neither the petitioner nor its
members are the subject of congressional legislation that has expressly
terminated or forbidden the Federal relationship. The Department must
determine whether the petitioner meets this criterion, and the
petitioner is not required to submit evidence to meet it.
Subpart C--Process for Federal Acknowledgment
Documented Petition Submission and Review
Sec. 82.20 How does an entity request Federal acknowledgment?
Any entity that believes it can satisfy the criteria in this part
may submit a documented petition under this part to: Department of the
Interior, Office of the Assistant Secretary--Indian Affairs, Attention:
Office of Federal Acknowledgement, 1849 C Street NW, Washington, DC
20240.
Sec. 82.21 What must a documented petition include?
(a) The documented petition may be in any readable form and must
include the following:
(1) A certification, signed and dated by the petitioner's governing
body, stating that it is the petitioner's official documented petition;
(2) A concise written narrative, with citations to supporting
documentation, thoroughly explaining how the petitioner meets each of
the criteria in Sec. 82.11, except the Congressional Termination
Criterion (Sec. 82.11(g)); it must also include the claim of an Alaska
IRA-eligible entity that existed on May 1, 1936, required in Sec.
82.21(5)--
(i) If the petitioner chooses to provide explanations of and
supporting documentation for the Congressional
[[Page 50]]
Termination Criterion (Sec. 82.11(g)), the Department will review
them; but
(ii) The Department will conduct the research necessary to
determine whether the petitioner meets the Congressional Termination
Criterion (Sec. 82.11(g)).
(3) Supporting documentation cited in the written narrative and
containing specific, detailed evidence that the petitioner meets each
of the criteria in Sec. 82.11;
(4) Membership lists and explanations, including:
(i) An official current membership list, separately certified by
the petitioner's governing body, of all known current members of the
petitioner, including each member's full name (including maiden name,
if any), date of birth, and current residential address;
(ii) A statement describing the circumstances surrounding the
preparation of the current membership list;
(iii) A copy of each available former list of members based on the
petitioner's own defined criteria; and
(iv) A statement describing the circumstances surrounding the
preparation of the former membership lists, insofar as possible.
(5) A clear, concise claim of an Alaska IRA-eligible entity that
existed on May 1, 1936, as described in Sec. 82.1, from which the
petitioner will claim descent and continuous existence. The existence
of this claimed entity, including satisfaction of the common bond
standard as described in Sec. 82.1, must be supported by
contemporaneous documentation and evaluated using the reasonable
likelihood of the validity of the facts standard.
(i) For the purposes of this requirement, having a common bond
means that the petitioner must be bound together by their common
interest and actions taken in common. The claimed common bond must be
clear and capable of statement and definition, and the petitioner must
be distinguishable from other groups or associations. Groups of Alaska
Natives having a common bond must be substantial enough to permit
participation by a substantial share of the persons within the entity.
(ii) There is no legal requirement that the members of a
petitioning group must all live in one community or village to meet
this criterion.
(iii) The claimed common bond must be understood flexibly in the
context of the history, geography, culture, and social organization of
the entity.
(b) If the documented petition contains any information that is
protectable under Federal law such as the Privacy Act and Freedom of
Information Act, the petitioner must provide a redacted version, an
unredacted version of the relevant pages, and an explanation of the
legal basis for withholding such information from public release. The
Department will not publicly release information that is protectable
under Federal law, but may release redacted information if not
protectable under Federal law.
Sec. 82.22 What notice will the Office of Federal Acknowledgment
(OFA) provide upon receipt of a documented petition?
When OFA receives a documented petition, it will do all of the
following:
(a) Within 30 days of receipt, acknowledge receipt in writing to
the petitioner.
(b) Within 120 days of receipt:
(1) Publish notice of receipt of the documented petition in the
Federal Register and publish the following on the OFA website:
(i) The narrative portion of the documented petition, as submitted
by the petitioner (with any redactions appropriate under Sec.
82.21(b));
(ii) The name, location, and mailing address of the petitioner and
other information to identify the entity;
(iii) The date of receipt;
(iv) The opportunity for individuals and entities to submit
comments and evidence supporting or opposing the petitioner's request
for acknowledgment within 120 days of the date of the website posting;
and
(v) The opportunity for individuals and entities to request to be
kept informed of general actions regarding a specific petitioner.
(2) Notify, in writing, the following:
(i) The governor of Alaska;
(ii) The attorney general of Alaska;
(iii) The government of the borough-level (or equivalent)
jurisdiction in which the petitioner is located; and
(iv) Notify any recognized Tribe and any petitioner that appears to
have a historical or present relationship with the petitioner or that
may otherwise be considered to have a potential interest in the
acknowledgment determination.
(c) Publish the following additional information to the OFA
website:
(1) Other portions of the documented petition, to the extent
feasible and allowable under Federal law, except documentation and
information protectable from disclosure under Federal law, as
identified by the petitioner under Sec. 82.21(b) or otherwise;
(2) Any comments or materials submitted by third parties to OFA
relating to the documented petition;
(3) Any substantive letter, proposed finding, recommended decision,
and final determination issued by the Department;
(4) OFA's contact list for each petitioner, including the point of
contact for the petitioner; attorneys, and representatives; and
(5) Contact information for any other individuals and entities that
request to be kept informed of general actions regarding the
petitioner.
(d) All subsequent notices that the Department provides under this
part will be provided via the most efficient means for OFA to:
(1) The governor of Alaska;
(2) The attorney general of Alaska;
(3) The government of the borough-level (or equivalent)
jurisdiction in which the petitioner is located;
(4) Any federally recognized Indian Tribe and any petitioner that
appears to have a historical or present relationship with the
petitioner or that may otherwise be considered to have a potential
interest in the acknowledgment determination; and
(5) Any individuals and entities that request to be kept informed
of general actions regarding a specific petitioner.
Review of Documented Petition
Sec. 82.23 How will OFA determine which documented petition to
consider first?
(a) OFA will begin reviews of documented petitions in the order of
their receipt.
(1) At each successive review stage, there may be points at which
OFA is waiting on additional information or clarification from the
petitioner. Upon receipt of the additional information or
clarification, OFA will return to its review of the documented petition
as soon as possible.
(2) To the extent possible, OFA will give highest priority to
completing reviews of documented petitions it has already begun to
review.
(b) OFA will maintain a numbered register of documented petitions
that have been received.
Sec. 82.24 What opportunity will the petitioner have to respond to
comments before OFA reviews the petition?
Before beginning review of a documented petition, OFA will provide
the petitioner with any comments on the petition received from
individuals or entities under Sec. 82.22(b) and provide the petitioner
with 90 days to respond to such comments. OFA will not begin review
until it receives the petitioner's response to the comments, the
petitioner requests that OFA proceed without its response, or the 90-
day response period has expired and OFA has not received a response
from the petitioner, whichever occurs earlier.
[[Page 51]]
Sec. 82.25 Who will OFA notify when it begins review of a documented
petition?
OFA will notify the petitioner and those listed in Sec. 82.22(d)
when it begins review of a documented petition and will provide the
petitioner and those listed in Sec. 82.22(d) with:
(a) The name, office address, and telephone number of the staff
member with primary administrative responsibility for the petition;
(b) The names of the researchers conducting the evaluation of the
petition; and
(c) The name of their supervisor.
Sec. 82.26 How will OFA review a documented petition?
(a) Phase I. When reviewing a documented petition, OFA will first
determine if the petitioner meets the Governing Document Criterion
(Sec. 82.11(d)), Descent Criterion (Sec. 82.11(e)), Unique Membership
Criterion (Sec. 82.11(f)), and Termination Criterion (Sec. 82.11(g)),
in accordance with the following steps.
(1) OFA will conduct a Phase I technical assistance review and
notify the petitioner by letter of any deficiencies that would prevent
the petitioner from meeting the Governing Document, Descent, Unique
Membership, or Termination Criteria. Upon receipt of the letter, the
petitioner must submit a written response that:
(i) Withdraws the documented petition to further prepare the
petition;
(ii) Submits additional information and/or clarification; or
(iii) Asks OFA to proceed with the review.
(2) Following the receipt of the petitioner's written response to
the Phase I technical assistance review, OFA will provide the
petitioner with:
(i) Any comments and evidence OFA may consider that the petitioner
does not already have, to the extent allowable by Federal law; and
(ii) The opportunity to respond in writing to the comments and
evidence provided.
(3) OFA will publish a negative proposed finding if it issues a
deficiency letter under paragraph (a)(1)(i) of this section, and the
petitioner:
(i) Does not withdraw the documented petition or does not respond
with information or clarification sufficient to address the
deficiencies; or
(ii) Asks OFA in writing to proceed with the review.
(4) OFA will publish a positive proposed finding without a comment
period and proceed to Phase II if it determines that the petitioner
meets the Governing Document, Descent, Unique Membership, and
Termination criteria.
(5) If a criterion cannot be properly evaluated during Phase I, the
Phase I proposed finding will describe OFA's evaluation and findings
under that criterion but reserve its conclusion for the Phase II
proposed finding.
(b) Phase II. If the petitioner meets the Governing Document,
Descent, Unique Membership, and Termination criteria, OFA will next
review whether the petitioner meets the Alaska Native Entity
Identification Criterion (Sec. 82.11(a)), the Community Criterion
(Sec. 82.11(b)), and the Political Influence/Authority Criterion
(Sec. 82.11(c)).
(1) OFA will conduct a Phase II technical assistance review and
notify the petitioner by letter of any deficiencies that would prevent
the petitioner from meeting these criteria. Upon receipt of the letter,
the petitioner must submit a written response that:
(i) Withdraws the documented petition to further prepare the
petition;
(ii) Provides additional information and/or clarification; or
(iii) Asks OFA to proceed with the review.
(2) Following receipt of the petitioner's written response to the
Phase II technical assistance review, OFA will provide the petitioner
with:
(i) Any comments and evidence OFA may consider in preparing the
proposed finding that the petitioner does not already have, to the
extent allowable by Federal law; and
(ii) The opportunity to respond in writing to the comments and
evidence provided.
(3) OFA will then review the record to determine whether the Alaska
Native Entity Identification (Sec. 82.11(a)), Community (Sec.
82.11(b)) and Political Authority (Sec. 82.11(c)) Criteria are met.
(4) OFA will publish a negative proposed finding if it issues a
deficiency letter under paragraph (a)(1) of this section, and the
petitioner:
(i) Does not withdraw the documented petition or does not respond
with information or clarification sufficient to address the
deficiencies; or
(ii) Asks OFA in writing to proceed with the review.
(5) OFA will publish a positive proposed finding if it determines
that the petitioner meets the Alaska Native Entity Identification
(Sec. 82.11(a)), Community (Sec. 82.11(b)) and Political Authority
(Sec. 82.11(c)) Criteria.
Sec. 82.27 What are technical assistance reviews?
Technical assistance reviews are preliminary reviews for OFA to
tell the petitioner where there appear to be evidentiary gaps for the
criteria that will be under review in that phase and to provide the
petitioner with an opportunity to supplement or revise the documented
petition.
Sec. 82.28 [Reserved]
Sec. 82.29 What will OFA consider in its reviews?
(a) In any review, OFA will consider the documented petition and
evidence submitted by the petitioner, any comments and evidence on the
petition received during the comment period, and petitioners' responses
to comments and evidence received during the response period.
(b) OFA may also:
(1) Initiate and consider other research for any purpose relative
to analyzing the documented petition and obtaining additional
information about the petitioner's status; and
(2) Request and consider timely submitted additional explanations
and information from commenting parties to support or supplement their
comments on the proposed finding and from the petitioner to support or
supplement their responses to comments.
(c) OFA must provide the petitioner with the additional material
obtained in paragraph (b) of this section, and provide the petitioner
with the opportunity to respond to the additional material. The
additional material and any response by the petitioner will become part
of the record.
Sec. 82.30 Can a petitioner withdraw its documented petition?
A petitioner can withdraw its documented petition at any point in
the process but the petition will be placed at the end of the numbered
register of documented petitions upon re-submission and may not regain
its initial priority number.
Sec. 82.31 Can OFA suspend review of a documented petition?
(a) OFA can suspend review of a documented petition, either
conditionally or for a stated period, upon:
(1) A showing to the petitioner that there are technical or
administrative problems that temporarily preclude continuing review;
and
(2) Approval by the Assistant Secretary.
(b) Upon resolution of the technical or administrative problems
that led to the suspension, the documented petition will have the same
priority on the numbered register of documented petitions to the extent
possible.
(1) OFA will notify the petitioner and those listed in Sec.
82.22(d) when it
[[Page 52]]
suspends and when it resumes review of the documented petition.
(2) Upon the resumption of review, OFA will have the full six
months to issue a proposed finding.
Proposed Finding
Sec. 82.32 When will OFA issue a proposed finding?
(a) OFA will issue a proposed finding as shown in table 1:
Table 1 to Paragraph (a)
------------------------------------------------------------------------
OFA must within . . .
------------------------------------------------------------------------
(1) Complete its review under Phase I six months after notifying the
and either issue a negative proposed petitioner under Sec. 82.25
finding and publish a notice of that OFA has begun review of
availability in the Federal Register, the petition.
or proceed to review under Phase II.
(2) Complete its review under Phase II six months after the deadline
and issue a proposed finding and in paragraph (a)(1) of this
publish a notice of availability in section.
the Federal Register.
------------------------------------------------------------------------
(b) The times set out in paragraph (a) of this section will be
suspended any time the Department is waiting for a response or
additional information from the petitioner.
(c) OFA will strive to limit the proposed finding and any reports
to no more than 100 pages, cumulatively, excluding source documents.
Sec. 82.33 What will the proposed finding include?
The proposed finding will summarize the evidence, reasoning, and
analyses that are the basis for OFA's proposed finding regarding
whether the petitioner meets the applicable criteria.
(a) A Phase I negative proposed finding will address that the
petitioner fails to meet any one or more of the following criteria:
Governing Document (Sec. 82.11(d)), Descent (Sec. 82.11(e)), Unique
Membership (Sec. 82.11(f)), or Congressional Termination (Sec.
82.11(g)).
(b) A Phase II proposed finding will address whether the petitioner
meets the following criteria: Alaska Native Entity Identification
(Sec. 82.11(a)), Community (Sec. 82.11(b)), and Political Influence/
Authority (Sec. 82.11(c)).
Sec. 82.34 What notice of the proposed finding will OFA provide?
In addition to publishing notice of the proposed finding in the
Federal Register, OFA will:
(a) Provide copies of the proposed finding and any supporting
reports to the petitioner and those listed in Sec. 82.22(d); and
(b) Publish the proposed finding and reports on the OFA website.
Proposed Finding--Comment and Response Periods, Hearing
Sec. 82.35 What opportunity to comment will there be after OFA issues
the proposed finding?
(a) Publication of notice of the proposed finding will be followed
by a 120-day comment period. During this comment period, the petitioner
or any individual or entity may submit the following to OFA to rebut or
support the proposed finding:
(1) Comments, with citations to and explanations of supporting
evidence; and
(2) Evidence cited and explained in the comments.
(b) Any individual or entity that submits comments and evidence
must provide the petitioner with a copy of their submission.
Sec. 82.36 What procedure follows the end of the comment period on a
positive proposed finding?
(a) At the end of the comment period for a positive Phase II
proposed finding, AS-IA will automatically issue a final determination
acknowledging the petitioner as a federally recognized Indian Tribe if
OFA does not receive a timely objection with evidence challenging the
proposed finding that the petitioner meets the acknowledgment criteria.
(b) If OFA has received a timely objection and evidence challenging
the positive Phase II proposed finding, then the petitioner will have
60 days to submit a written response, with citations to and
explanations of supporting evidence, and the supporting evidence cited
and explained in the response. The Department will not consider
additional comments or evidence on the proposed finding submitted by
individuals or entities during this response period.
Sec. 82.37 What procedure follows the end of the comment period on a
negative proposed finding?
If OFA has received comments on the negative proposed finding, then
the petitioner will have 60 days to submit a written response, with
citations to and explanations of supporting evidence, and the
supporting evidence cited and explained in the response. The Department
will not consider additional comments or evidence on the proposed
finding submitted by individuals or entities during this response
period.
Sec. 82.38 What options does the petitioner have at the end of the
response period on a negative proposed finding?
(a) At the end of the response period for a negative proposed
finding, the petitioner will have 60 days to elect to challenge the
proposed finding before an ALJ by sending to the Departmental Cases
Hearings Division, Office of Hearings and Appeals, with a copy to OFA a
written election of hearing that lists:
(1) Grounds for challenging the proposed finding, including issues
of law and issues of material fact; and
(2) The witnesses and exhibits the petitioner intends to present at
the hearing, other than solely for impeachment purposes, including:
(i) For each witness listed, his or her name, address, telephone
number, and qualifications and a brief narrative summary of his or her
expected testimony; and
(ii) For each exhibit listed, a statement confirming that the
exhibit is in the administrative record reviewed by OFA or is a
previous final determination of a petitioner issued by the Department.
(b) The Department will not consider additional comments or
evidence on the proposed finding submitted by individuals or entities
during this period.
Sec. 82.39 What is the procedure if the petitioner elects to have a
hearing before an administrative law judge (ALJ)?
(a) OFA action if petitioner elects a hearing. If the petitioner
elects a hearing to challenge the proposed finding before an ALJ, OFA
will provide to the Departmental Cases Hearings Division, Office of
Hearings and Appeals, copies of the negative proposed finding, critical
documents from the administrative record that are central to the
portions of the negative proposed finding at issue, and any comments
and evidence and
[[Page 53]]
responses sent in response to the proposed finding.
(1) Within 5 business days after receipt of the petitioner's
hearing election, OFA will send notice of the election to each of those
listed in Sec. 82.22(d) and the Departmental Cases Hearings Division
by express mail or courier service for delivery on the next business
day.
(2) OFA will retain custody of the entire, original administrative
record.
(b) Hearing process. The assigned ALJ will conduct the hearing
process in accordance with 43 CFR part 4, subpart K.
(c) Hearing record. The hearing will be on the record before an
ALJ. The hearing record will become part of the record considered by
AS-IA in reaching a final determination.
(d) Recommended decision. The ALJ will issue a recommended decision
and forward it along with the hearing record to the AS-IA in accordance
with the timeline and procedures in 43 CFR part 4, subpart K.
AS-IA Evaluation and Preparation of Final Determination
Sec. 82.40 When will the Assistant Secretary begin review?
(a) AS-IA will begin his/her review in accordance with table 1:
Table 1 to Paragraph (a)
------------------------------------------------------------------------
AS-IA will begin
If the PF was: And: review upon:
------------------------------------------------------------------------
(1) Negative.................. The petitioner Expiration of the
did not elect a period for the
hearing, petitioner to elect
a hearing.
(2) Negative.................. The petitioner Receipt of the ALJ's
elected a recommended
hearing, decision.
(3) Positive.................. No objections Expiration of the
with evidence comment period for
were received, the positive PF.
(4) Positive.................. Objections with Expiration of the
evidence were period for the
received, petitioner to
respond to comments
on the positive PF.
------------------------------------------------------------------------
(b) AS-IA will notify the petitioner and those listed in Sec.
82.22(d) of the date he/she begins consideration.
Sec. 82.41 What will the Assistant Secretary consider in his/her
review?
(a) AS-IA will consider all the evidence in the administrative
record, including any comments and responses on the proposed finding
and the hearing transcript and recommended decision.
(b) AS-IA will not consider comments submitted after the close of
the comment period in Sec. 82.35, the response period in Sec. 82.36
or Sec. 82.37, or the hearing election period in Sec. 82.38.
Sec. 82.42 When will the Assistant Secretary issue a final
determination?
(a) AS-IA will issue a final determination and publish a notice of
availability in the Federal Register within 90 days from the date on
which he/she begins its review. AS-IA will also:
(1) Provide copies of the final determination to the petitioner and
those listed in Sec. 82.22(d); and
(2) Make copies of the final determination available to others upon
written request.
(b) AS-IA will strive to limit the final determination and any
reports to no more than 100 pages, cumulatively, excluding source
documents.
Sec. 82.43 How will the Assistant Secretary make the determination
decision?
(a) AS-IA will issue a final determination granting acknowledgment
as a federally recognized Indian Tribe when AS-IA finds that the
petitioner meets the Alaska Native Entity Identification (Sec.
82.11(a)), Community (Sec. 82.11(b)) and Political Authority (Sec.
82.11(c)), Governing Document (Sec. 82.11(d)), Descent (Sec.
82.11(e)), Unique Membership (Sec. 82.11(f)), and Congressional
Termination (Sec. 82.11(g)).
(b) AS-IA will issue a final determination declining acknowledgment
as a federally recognized Indian Tribe when he/she finds that the
petitioner:
(1) In Phase I, does not meet the Governing Document (Sec.
82.11(d)), Descent (Sec. 82.11(e)), Unique Membership (Sec.
82.11(f)), or Congressional Termination (Sec. 82.11(g)) Criteria: or;
(2) In Phase II, does not meet the Alaska Native Entity
Identification (Sec. 82.11(a)), Community (Sec. 82.11(b)) and
Political Authority (Sec. 82.11(c)) Criteria.
Sec. 82.44 Is the Assistant Secretary's final determination final for
the Department?
Yes. The AS-IA's final determination is final for the Department
and is a final agency action under the Administrative Procedure Act (5
U.S.C. 704).
Sec. 82.45 When will the final determination be effective?
The final determination will become immediately effective. Within
10 business days of the decision, the Assistant Secretary will submit
to the Federal Register a notice of the final determination to be
published in the Federal Register.
Sec. 82.46 How is a petitioner with a positive final determination
integrated into Federal programs as a federally recognized Indian
Tribe?
(a) Upon acknowledgment, the petitioner will be a federally
recognized Indian Tribe entitled to the privileges and immunities
available to federally recognized Indian Tribes. It will be included on
the list of federally recognized Indian Tribes in the next scheduled
publication.
(b) Within six months after acknowledgment, the appropriate Bureau
of Indian Affairs Regional Office will consult with the newly federally
recognized Indian Tribe and develop, in cooperation with the federally
recognized Indian Tribe, a determination of needs and a recommended
budget. These will be forwarded to the Assistant Secretary. The
recommended budget will then be considered with other recommendations
by the Assistant Secretary in the usual budget request process.
(c) While the newly federally acknowledged Indian Tribe is eligible
for benefits and services available to federally recognized Indian
Tribes, acknowledgment as a federally recognized Indian Tribe does not
create immediate access to existing programs. The newly federally
acknowledged Indian 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 will follow a
determination of the needs of the newly federally acknowledged Indian
Tribe.
Dated: November 15, 2019.
Tara Sweeney,
Assistant Secretary--Indian Affairs.
[FR Doc. 2019-27998 Filed 12-31-19; 8:45 am]
BILLING CODE 4337-15-P