30766 Federal Register / Vol. 79, No. 103 / Thursday, May 29, 2014 / Proposed Rules 

recorded video is available, you can 

access it at http://www.fda.gov/Food/. 

Dated: May 22, 2014. 

Leslie Kux, 

Assistant Commissioner for Policy. 

[FR Doc. 2014–12362 Filed 5–28–14; 8:45 am] 

BILLING CODE 4160–01–P 

DEPARTMENT OF THE INTERIOR 

Bureau of Indian Affairs 

25 CFR Part 83 

[K00103 12/13 A3A10; 134D0102DR– 

DS5A300000–DR.5A311.IA000113; Docket 

ID: BIA–2013–0007] 

RIN 1076–AF18 

Federal Acknowledgment of American 

Indian Tribes 

AGENCY: Bureau of Indian Affairs, 

Interior. 

ACTION: Proposed rule. 

SUMMARY: This proposed rule would 

revise regulations governing the process 

and criteria by which the Secretary 

acknowledges an Indian tribe. The 

revisions seek to make the process and 

criteria more transparent, promote 

consistent implementation, and increase 

timeliness and efficiency, while 

maintaining the integrity of the process. 

The current process has been criticized 

as ‘‘broken’’ or in need of reform. 

Specifically, the process has been 

criticized as too slow (a petition can 

take decades to be decided), expensive, 

burdensome, inefficient, intrusive, less 

than transparent and unpredictable. The 

proposed rule would reform the process 

by, among other things, 

institutionalizing a phased review that 

allows for faster decisions; reducing the 

documentary burden; allowing for a 

hearing on the proposed finding to 

promote transparency and process 

integrity; establishing the Assistant 

Secretary’s final determination as final 

for the Department to promote 

efficiency; and establishing objective 

standards, where appropriate, to ensure 

transparency and predictability. This 

publication also announces the dates 

and locations for tribal consultation 

sessions and public meetings on this 

proposed rule. 

DATES: Comments on this rule must be 

received by August 1, 2014. Comments 

on the information collections 

contained in this proposed regulation 

are separate from those on the 

substance of the rule. Comments on the 

information collection burden should be 

received by June 30, 2014 to ensure 

consideration, but must be received no 

later than August 1, 2014. Please see the 

SUPPLEMENTARY INFORMATION section of 

this notice for dates of tribal 

consultation sessions and public 

meetings. 

ADDRESSES: You may submit comments 

by any of the following methods: 

—Federal rulemaking portal: http://

www.regulations.gov. The rule is 

listed under the agency name ‘‘Bureau 

of Indian Affairs.’’ The rule has been 

assigned Docket ID: BIA–2013–0007. 

—Email: consultation@bia.gov. Include 

the number 1076–AF18 in the subject 

line. 

—Mail or hand delivery: Elizabeth 

Appel, Office of Regulatory Affairs & 

Collaborative Action, U.S. Department 

of the Interior, 1849 C Street NW., MS 

4141, Washington, DC 20240. Include 

the number 1076–AF18 on the 

envelope. 

Please note that none of the following 

will be considered or included in the 

docket for this rulemaking: comments 

received after the close of the comment 

period (see DATES); comments sent to an 

address other than those listed above; or 

anonymous comments. 

Comments on the information 

collections contained in this proposed 

regulation are separate from those on 

the substance of the rule. Send 

comments on the information collection 

burden to OMB by facsimile to (202) 

395–5806 or email to the OMB Desk 

Officer for the Department of the 

Interior at OIRA_Submission@

omb.eop.gov. Please send a copy of your 

comments to the person listed in the 

FOR FURTHER INFORMATION CONTACT

section of this notice. 

Please see the SUPPLEMENTARY

INFORMATION section of this notice for 

locations of tribal consultation sessions 

and public meetings. 

FOR FURTHER INFORMATION CONTACT: 

Elizabeth Appel, Director, Office of 

Regulatory Affairs & Collaborative 

Action, (202) 273–4680; 

elizabeth.appel@bia.gov. You may 

review the information collection 

request online at http://

www.reginfo.gov. Follow the 

instructions to review Department of the 

Interior collections under review by 

OMB. 

SUPPLEMENTARY INFORMATION: 

I. Executive Summary 

This proposed rule would 

comprehensively revise part 83 to 

comply with plain language standards, 

using a question-and-answer format. 

The proposed rule would update the 

Part 83 criteria to include objective 

standards and improve the processing of 

petitions for Federal acknowledgment of 

Indian tribes. The proposed rule is 

limited to Part 83 and does not affect 

federal acknowledgment under any 

other statutory or administrative 

authorities. Primary revisions to the 

process would: 

• Provide for a series of reviews that 

may result in the issuance of proposed 

findings and final determinations earlier 

in the process; 

• Separate the Departmental review 

into three main steps whereby: 

Æ The Office of Federal 

Acknowledgment (OFA) first reviews 

the petition and issues a proposed 

finding; 

Æ If the proposed finding is negative 

and the petitioner elects to have a 

hearing before a judge with the Office of 

Hearings and Appeals (OHA), the OHA 

judge issues a recommended decision to 

the Assistant Secretary-Indian Affairs; 

Æ The Assistant Secretary reviews the 

record, including (if applicable) an OHA 

judge’s recommended decision, and 

issues a final determination. The final 

determination is final for the 

Department and any challenges to the 

final determination would be pursued 

in United States District Court. 

• Remove the Interior Board of Indian 

Appeals (IBIA) process by which a final 

determination can be reconsidered on 

certain grounds. 

• Allow, in limited circumstances, a 

petitioner previously denied under the 

regulations to re-petition under the 

revised rules. 

Revisions to the criteria for 

acknowledgement would eliminate the 

need for a petitioner to demonstrate that 

third parties identified the petitioner as 

a tribe (although this evidence may be 

submitted in support of other criteria, 

including (b) (Community) and (c) 

(Political authority)). The proposed rule 

would require petitioners to provide a 

brief narrative with evidence of the 

group’s existence at some point during 

historical times. The revisions would 

also define ‘‘historical’’ to be prior to, 

but as late as, 1900, and require 

evidence of criteria (b) (Community) 

and (c) (Political Authority) from 1934 

to the present. 

The Department is defining historical 

as 1900 or earlier based in part on the 

Department’s experience over its nearly 

40 years in implementing the 

regulations that any group that has 

proven its existence in 1900 has proven 

its existence prior to that time. 

Accordingly, the Department seeks 

comment on easing the documentary 

and administrative burdens and 

providing flexibility by defining 

historical as 1900 or earlier rather than 


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requiring the documentation from as 

early as 1789 to the present. 

Updating the review period for 

criteria (b) and (c) to 1934 reflects the 

United States’ enactment of the Indian 

Reorganization Act (IRA), which 

reversed the Federal Indian policy of 

allotment and assimilation that was 

aimed at destroying tribal governments 

and their communities. The IRA 

expressly repudiated the failed 

allotment and assimilation policy and 

provided a statutory framework to 

promote and foster tribal governments. 

Consistent with the existing policies of 

the IRA, utilizing 1934 as the starting 

year to satisfy the community and 

political authority criteria will reduce 

the documentary burden on petitioners 

and the administrative burden on the 

Department, and avoid potential 

problems with locating historical 

records while maintaining the integrity 

of the process. This is more fully 

explained below in section II, 

Explanation of Rule, under the heading 

‘‘Criteria.’’ 

Other revisions would clarify 

‘‘substantial interruption’’ and clarify 

the existing burden of proof to reflect 

case law; provide that the Department 

will strive to abide by page limits for the 

proposed finding and final 

determination; and require the 

Department to post on the Internet those 

parts of the petition, proposed finding, 

recommended decision, and final 

determination that the Department is 

publically releasing in accordance with 

Federal law. 

II. Explanation of Rule 

The following summarizes revisions 

this proposed rule would make to part 

83. 

Definitions 

The proposed rule consolidates 

definitions, where possible, deletes 

unnecessary definitions, and adds 

appropriate definitions. 

Scope and Applicability 

The proposed rule would refer to 

petitioners as such, rather than as 

‘‘Indian groups’’—a term that some have 

objected to as offensive and that 

presumes Indian ancestry. The proposed 

rule would allow, in very limited 

circumstances, a petitioner previously 

denied under the regulations to repetition under the revised rules. If a 

third party individual or entity has 

participated in an IBIA or Secretarial 

reconsideration or an Administrative 

Procedure Act appeal in Federal court 

and ultimately prevailed, the denied 

petitioner may seek to re-petition only 

with the consent of the individual or 

organization. If the individual or 

organization consents, or a third party 

did not participate in a reconsideration 

or appeal, an OHA judge will determine 

whether the changes to the regulations 

warrant a reconsideration of that 

particular final determination or 

whether the wrong standard of proof 

was applied to the final determination. 

This determination will be made based 

on whether the petitioner proves, by a 

preponderance of the evidence, that repetitioning is appropriate. Because the 

changes to the regulations are generally 

intended to provide uniformity based on 

previous decisions, re-petitioning would 

be appropriate only in those limited 

circumstances where changes to the 

regulations would likely change the 

previous final determination. Having an 

OHA judge review re-petitioning 

requests promotes consistency, 

integrity, and transparency in resolving 

re-petition requests. Requiring thirdparty consent recognizes the equitable 

interests of third parties that expended 

sometimes significant resources to 

participate in the adjudication and have 

since developed reliance interests in the 

outcome of such adjudication. Having 

weighed these equity considerations, 

the Department has determined that the 

proposed rule must acknowledge these 

third-party interests in adjudicated 

decisions. 

Process 

The proposed rule would eliminate 

the requirement to file a letter of intent. 

The letter of intent is merely a statement 

of intent to petition and does not trigger 

any review by the Department; as such, 

it is unnecessary as a separate step. 

Under the proposed rule, the filing of a 

documented petition would begin the 

review process. 

For transparency, the proposed rule 

would require that the Department post 

to the Internet those portions of the 

petition and the proposed finding and 

reports throughout the process that the 

Department is publically releasing in 

accordance with Federal law. (‘‘Federal 

law’’ in this context refers to the 

Freedom of Information Act, Privacy 

Act, and any other Federal laws that 

may limit information the Department 

publicly releases). The proposed rule 

would also add a provision to provide 

the petitioner with the opportunity to 

respond to comments received during 

preparation of the proposed finding, 

before the proposed finding is issued. 

The proposed rule would delineate 

the roles of OFA and the Assistant 

Secretary in furtherance of 

transparency, and would revise the 

process to promote more timely 

decisions. Specifically, the proposed 

rule would allow for a Phase I review of 

criteria (e) (Descent), then (a) (Tribal 

Existence), (d) (Governing Document), 

(f) (Membership), and (g) (Congressional 

Termination) to allow for issuance of a 

negative proposed finding if any of 

these criteria are not met. A petitioner 

who satisfies these criteria, may obtain 

a review of whether the petitioner 

satisfies criteria (b) (Community) and (c) 

(Political Authority). A petitioner may 

satisfy criteria (b) and (c) through a 

number of ways, including if it has 

maintained a State reservation since 

1934 or if the United States has held 

land at any point in time since 1934 for 

the petitioner. These criteria are 

appropriate for favorable determinations 

based on the Department’s particular 

reliance on collective rights in tribal 

lands to conclude that an entity 

constitutes a tribe as explained in Felix 

Cohen’s 1945 Handbook of Federal 

Indian Law. This is more fully 

explained under the heading ‘‘Criteria.’’ 

If the proposed finding is negative, 

the proposed rule changes the process 

by providing the petitioner the right to 

a hearing before an OHA judge (who 

may be an administrative law judge 

with OHA, administrative judge with 

OHA, or an attorney designated by the 

OHA Director to serve as the OHA 

judge). If a hearing is held, individuals 

and organizations that can make a 

proper showing of interest or other 

factors for intervention may participate 

in the hearing, OFA staff shall be made 

available for testimony and the OHA 

judge shall issue a recommended 

decision to the Assistant Secretary. The 

rule does not require deference to OFA 

during the hearing process, but the 

Department’s final determination would 

continue to be entitled to Chevron 

deference given that the Assistant 

Secretary would continue to issue the 

final determination. The goals of the 

hearing process are to promote 

transparency and efficiency and to focus 

the potential issues for the Assistant 

Secretary’s consideration. Following the 

comment and response periods, and (if 

applicable) receipt of an OHA judge’s 

recommended decision, the Assistant 

Secretary would then consider the 

evidence and publish a final 

determination. The final determination 

would be final for the Department. 

The proposed rule would delete the 

IBIA reconsideration process because 

this process is the only instance in 

which the Assistant Secretary’s decision 

is subject to IBIA review, the IBIA’s 

jurisdiction for ordering reconsideration 

is limited, it has been exceedingly rare 

that IBIA has granted petitions for 

reconsideration, and the IBIA’s heavy 

caseload has resulted in even further 


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delays in the acknowledgment process. 

The finality of the Assistant Secretary’s 

decision will allow parties to challenge 

the decision in United States District 

Court where all appropriate grounds 

may be considered. 

The Department specifically requests 

comments on the proposed hearing 

process and the following questions: (1) 

Who is an appropriate OHA judge to 

preside over the hearing and issue a 

recommended decision—an 

administrative law judge appointed 

under 5 U.S.C. 3105, an administrative 

judge with OHA, or an attorney 

designated by the OHA Director to serve 

as the OHA judge (the proposed rule 

defines ‘‘OHA judge’’ broadly to include 

all three); (2) whether the factual basis 

for the OHA judge’s decision should be 

limited to the hearing record; and (3) 

whether the hearing record should 

include all evidence in OFA’s 

administrative record for the petition or 

be limited to testimony and exhibits 

specifically identified by the petitioner 

and OFA. Indian Affairs is working with 

the Office of Hearings and Appeals 

(OHA) on a new rule at 43 CFR 4, 

subpart K, that would establish 

procedures for such hearings including 

procedures and limitations on expert 

testimony. 

To promote efficiency, the proposed 

rule would allow the Assistant Secretary 

to automatically issue final 

determinations in those instances in 

which a positive proposed finding is 

issued and no timely comments or 

evidence challenging the proposed 

finding are received from the State or 

local government where the petitioner’s 

headquarters is located or any federally 

recognized tribe within 25 miles of the 

petitioner’s headquarters. This 25-mile 

radius is intended to include federally 

recognized tribes that may be across 

State lines but still be close enough to 

have evidence about the petitioner. 

Other process changes the proposed 

rule would make are: Allowing 

petitioners to withdraw their petitions 

after active consideration, to provide the 

petitioner with flexibility if time and 

resources are not available at that time; 

limiting the comment periods for 

proposed findings to 90 days and any 

potential extensions to 60 days; 

providing that the Department will 

strive to abide by page limits in 

proposed findings and final 

determinations; and lengthening the 

Assistant Secretary’s review time from 

60 to 90 days because the Assistant 

Secretary is not involved in the 

decision-making until the final 

determination stage. If the Department 

does not meet its deadlines, parties may 

file a motion to compel action, as 

appropriate. 

Burden of Proof 

The proposed rule would not change 

the burden of proof set forth in the 

existing regulations. In the 

acknowledgment context, courts have 

examined whether the Department 

correctly applied the ‘‘reasonable 

likelihood’’ standard but have not 

articulated what the standard actually 

requires. Muwekma Ohlone Tribe v. 

Salazar, 708 F.3d 209, 220–21 (D.C. Cir. 

2013). Instead, they have only stated 

that ‘‘conclusive proof’’ or ‘‘conclusive 

evidence’’ is not required. Muwekma 

Ohlone Tribe v. Salazar, 708 F.3d 209, 

212 (D.C. Cir. 2013). The proposed rule 

would incorporate the Supreme Court’s 

clarification—arising from criminal 

cases in which jury instructions are 

challenged—that the ‘‘reasonable 

likelihood’’ burden of proof standard 

does not require ‘‘more likely than not.’’ 

Boyde v. California, 494 U.S. 370, 380 

(1990) (explaining that the ‘‘reasonable 

likelihood’’ standard does not require 

something to be ‘‘more likely than not’’). 

Criteria 

Prior to the enactment of the Federal 

recognition regulations in 1978, the 

Department utilized an ad hoc approach 

to recognize tribes. The Department’s 

longstanding ad hoc approach 

recognized tribes utilizing criteria 

developed by Felix Cohen. Cohen has 

since been recognized as the most 

important Federal Indian law scholar in 

American history, sometimes known as 

the ‘‘Blackstone of Federal Indian law.’’ 

As explained in his 1945 Handbook of 

Federal Indian Law, the passage of the 

IRA in 1934 prompted ‘‘extensive’’ 

analysis by the Commissioner of Indian 

Affairs or the Solicitor’s Office of what 

groups or bands constituted Indian 

tribes for purposes of federal law. Cohen 

then summarized that analysis as 

follows. 

The considerations which, singly or jointly, 

have been particularly relied upon in 

reaching the conclusion that a group 

constitutes a ‘‘tribe’’ or ‘‘band’’ have been: 

(1) That the group has had treaty relations 

with the United States. 

(2) That the group has been denominated 

a tribe by act of Congress or Executive order. 

(3) That the group has been treated as 

having collective rights in tribal lands or 

funds, even though not expressly designated 

a tribe. 

(4) That the group has been treated as a 

tribe or band by other Indian tribes. 

(5) That the group has exercised political 

authority over its members, through a tribal 

council or other governmental forms. 

Other factors considered, though not 

conclusive, are the existence of special 

appropriation items for the group and social 

solidarity of the group. Ethnological and 

historical considerations, although not 

conclusive, are entitled to great weight[.] 

Handbook of Federal Indian Law at 

271 (1945) (emphasis added). The 

proposed rule would adhere to these 

foundational legal principles while 

substantially reducing the documentary 

burden on petitioners and the public 

and review time by the Department. 

The changes proposed in the 

proposed rule remain true to these 

fundamental standards and depart only 

in very modest ways from our existing 

Part 83 criteria. Consistent with the 

Federal policy of the IRA, the proposed 

rule would evaluate the community and 

political authority criteria from 1934 to 

the present. The starting year coincides 

with the 1934 passage of the IRA, which 

was a turning point in the Federal 

government’s relationship with Indian 

tribes, recognizing and promoting tribal 

sovereignty. When Congress enacted the 

IRA, it also provided an avenue for 

tribes to reorganize as political entities 

with a political structure that facilitated 

the government-to-government 

relationship with the Federal 

Government. In other words, the IRA 

represented a sea change in Federal 

policy that promoted tribal governments 

by providing a framework that would 

make it easier for the Federal 

Government to interact with the tribe as 

an independent sovereign nation. The 

passage of the IRA in 1934 was a 

communication to tribes that the 

Federal Government would no longer 

pursue destruction of tribal 

governments and communities. Prior to 

this date, tribes had little to gain, and 

much to lose, by making themselves 

known to the Federal Government. To 

the contrary, Federal governmental 

policies prior to the IRA were aimed at 

dissolving tribes. While tribes existed as 

communities governed by political 

structures prior to 1934, the IRA 

encouraged tribes to document this 

framework through a constitution or 

otherwise. Further, the Department 

recognizes the limitations inherent in 

documenting community and political 

authority prior to 1934 and maintains 

that it is logical to deduce that a tribe 

in existence when the IRA was passed 

was in existence historically. Tribes that 

survived decades of harsh government 

policies and treatment leading up to the 

passage of the IRA should not be 

required to show documentation of their 

continuous existence, in spite of such 

harsh policies and treatment, up to that 

point. 

Criteria (b) and (c) examine the 

internal community and the political 

authority of the petitioner. Consistent 


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Federal Register / Vol. 79, No. 103 / Thursday, May 29, 2014 / Proposed Rules 30769 

with the current regulations, the 

primary focus is on the petitioner and 

not the nature of the petitioner’s 

relationship, if any, with the Federal 

Government. By utilizing 1934 as a 

starting point of evaluation, this 

proposed rule does not intend to change 

current practice regarding the types of 

evidence that may be submitted to 

establish criteria (b) and (c). Consistent 

with previous decisions, petitioner’s 

may continue to submit evidence of 

interactions with Federal and other 

officials to the extent it illustrates 

community or political authority. While 

the Department previously considered 

utilizing the 1934 date but did not adopt 

it in the 1994 rulemaking, the 

Department’s 20 years of experience 

since then suggests that the heavy 

administrative burden both on the 

petitioner and the Department of 

submitting and reviewing 

documentation back to 1789 is not 

justified. 

The proposed rule would replace the 

existing criterion (a), currently at 

Section 83.7(a). Currently, criterion (a) 

requires parties external to the 

petitioner to identify the petitioner as an 

Indian entity from 1900 to the present. 

This requirement is being eliminated 

because the absence of such external 

identifications does not mean a tribe did 

not exist. Tribes may have insulated 

themselves from the outside world for 

protection, for example. While external 

identifications may provide evidence of 

the other criteria, the absence of 

external identifications alone is not 

appropriate for determining a tribe does 

not exist. The proposed rule would 

require the petitioner to provide a brief 

narrative, and evidence supporting the 

narrative, of its existence as an Indian 

tribe, band, nation, pueblo, village or 

community generally identified at some 

point in time during the historical 

period (prior to and including 1900). 

The proposed rule would continue to 

allow the submittal of evidence that 

would have been provided under the 

existing criterion (a) in support of 

criteria (a) (tribal existence), (b) (distinct 

community), and/or (c) (political 

influence or authority). 

The proposed rule would modify 

criterion (b) (distinct community) to 

include objective standards for clarity to 

petitioners and the public. For example, 

the proposed rule would clarify that the 

existing ‘‘predominant portion’’ 

standard in (b) is satisfied if 30 percent 

of the petitioner’s members constitute a 

distinct community. This 30 percent 

standard follows the percentage of a 

tribe’s eligible voters that Congress, in 

the IRA, required to vote on the tribe’s 

governing document. With this 

percentage requirement, Congress 

signaled that this is a sufficient 

percentage of a tribe’s membership to 

convene as a community to represent, 

and fulfill an official act on behalf of, 

the entire community. While the term 

‘‘predominant portion’’ may be 

understood in common usage to be a 

majority, here it can mean as low as 30 

percent in accordance with this 

standard established by Congress. 

Consistent with earlier decisions, the 

proposed rule would clarify that the 

Department may utilize statistically 

significant sampling, rather than 

examining every individual relationship 

for petitioners with large memberships. 

This sampling promotes efficiency in 

review of petitions. 

The proposed rule would add an 

example of evidence that may be 

submitted in support of criteria (b), 

particularly, placement of petitioners’ 

children at an Indian boarding school or 

other Indian educational institution. In 

the past, the Department may have 

accepted such evidence only when the 

child was identified as a member of a 

specific tribe in school enrollment 

records. Allowing for this evidence even 

where a specific tribe may not be 

identified reflects that the Federal 

Government identified those children as 

Indian, and where there are children 

from one area placed at an Indian 

boarding school, this is indicative of an 

Indian community in that area. 

The proposed rule would also add 

that a petitioner may satisfy criteria (b) 

and (c) if it has maintained a State 

reservation since 1934 or if the United 

States has held land at any point in time 

since 1934 for the petitioner. Regardless 

of what a State’s process or criteria are 

for acknowledging a tribe, if a State 

recognizes land as a reservation for a 

petitioner for nearly the past 80 years 

continuously, it indicates the existence 

of a community possessing the requisite 

political cohesiveness to maintain the 

tribal land base. Maintenance of a State 

reservation since 1934 until present 

indicates a high likelihood that the 

community actually interacted 

throughout this time period by 

providing a physical location for such 

interactions. Likewise, maintenance of a 

State reservation since 1934 also 

indicates the petitioner had political 

authority/influence during this time 

period because some governing 

structure was necessary to address 

activities on the land and interact with 

the State regarding the reservation. In 

short, a State reservation is a 

formalization of ‘‘collective rights in 

Indian land’’ that the Department 

identified as a dispositive indicator of 

an Indian tribe. Nevertheless, the 

proposed rule would require that the 

petitioner still meet the other criteria 

(e.g., criteria (a), (d), (e), (f) and (g)). 

The proposed rule would retain the 

current rule’s provisions that allow 

certain evidence of criterion (b) to serve 

as evidence of criterion (c) and vice 

versa (§ 83.7(b)(2)(v) and (c)(3) of the 

current rule). These cross-over 

provisions reflect that evidence of 

criteria (b) and (c) may combine to show 

the existence of a tribe. 

The proposed rule would define 

‘‘substantial interruption’’ in criteria (b) 

and (c) to mean generally more than 20 

years. This definition is intended to 

provide some clarity and uniformity 

with past practice in early Departmental 

acknowledgment decisions. 

Additionally, the proposed rule would 

allow petitioners to submit evidence for 

pre-1934 periods as relevant to (b) and 

(c), but would not require it. This is 

meant to provide flexibility in those 

instances where documentary evidence 

around 1934 may be lacking but pre1934 evidence is relevant to the criteria. 

We received several comments on the 

Discussion Draft that a bilateral political 

relationship should not be required for 

criterion (c) (Political Authority). The 

existing text of criterion (c) does not 

include such a requirement, and 

therefore the proposed rule makes no 

revision on this point. Political 

influence or authority does not mean 

that petitioner’s members must have 

actively participated in the political 

process or mechanism. Just as there are 

various levels of engagement in Federal 

and State government by Federal and 

State citizens, engagement by tribal 

members will vary throughout the tribe 

and active reciprocating political action 

is not required. 

The proposed rule would establish 

that 80 percent of the petitioner’s 

members must descend from a tribe that 

existed in historical times (prior to 

1900, as discussed above) to meet 

criterion (e). This quantification would 

make the standard more objective and is 

consistent with earlier decisions. 

Additionally, the proposed rule would 

clarify that criterion (e) may be satisfied 

by a roll prepared by the Department or 

at the direction of Congress, and the 

Department will rely on that roll as an 

accurate roll of descendants of the tribe 

that existed in historical times; 

otherwise, the petitioner may satisfy 

criterion (e) through the most recent 

evidence available for the historical 

time period (prior to 1900). The 

Department will not require evidence 

from years prior to that most recent 

evidence. The submission of a current 

membership list in support of this 

criterion has been moved to the section 


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30770 Federal Register / Vol. 79, No. 103 / Thursday, May 29, 2014 / Proposed Rules 

on what a documented petition must 

include. 

In criterion (f), requiring the 

petitioner to be composed principally of 

persons who are not members of already 

acknowledged tribes, the proposed rule 

would add that members of petitioners 

who filed a petition by a certain date 

(2010) and then joined a federally 

recognized tribe would not be counted 

against the petitioner. The reason for 

this addition is to ensure that 

petitioners are not penalized if their 

members choose to affiliate with a 

federally recognized tribe in order to 

obtain needed services because of the 

time the petitioning process takes. The 

reason 2010 was chosen as the date is 

because four years have passed since 

then, and ideally, a final decision would 

be issued within at least four years. For 

all other purposes, criterion (f) remains 

unchanged. 

The proposed rule would shift the 

burden of proof for criterion (g) to the 

Department to show that Congress has 

terminated or forbidden a relationship 

with the petitioner. 

Previous Federal Acknowledgment 

To align with current practice, the 

proposed rule would clarify the criteria 

a petitioner must meet after it has 

established that it was previously 

federally acknowledged. It would also 

delete the provision regarding petitions 

that seek to show previous Federal 

acknowledgment but are awaiting active 

consideration as of the date the 

regulations are adopted because this 

provision applied only at the adoption 

of the last version of the regulations in 

1994 when consideration of previous 

Federal acknowledgment was codified. 

III. Tribal Consultation Sessions and 

Public Meetings 

We will be hosting several tribal 

consultation sessions and public 

meetings throughout the country to 

discuss this proposed rule. Tribal 

consultations are for representatives of 

currently federally recognized tribes 

only, to discuss the rule on a 

government-to-government basis with 

us. These sessions may be closed to the 

public. The dates and locations for the 

tribal consultations are as follows: 

Date Time Location 

Tuesday 7/1/2014 ................... 1:00 p.m.—4:30 p.m. ........... Paragon Casino & Resort, 711 Paragon Pl, Marksville, LA 71351.

Tuesday 7/15/2014 ................. 1:00 p.m.—4:30 p.m. ........... BIA Regional Office, 911 NE 11th Ave, Portland, OR 97232.* 

Thursday 7/17/2014 ............... 1:00 p.m.—4:30 p.m. ........... Menominee Casino Resort, N277 Hwy. 47/55, P.O. Box 760, Keshena, WI 

54135. 

Tuesday 7/22/2014 ................. 1:00 p.m.—4:30 p.m. ........... Cache Creek Casino Resort, 14455 California 16, Brooks, CA 95606. 

Thursday 7/24/2014 ............... 8:30 a.m.—12:00 p.m. ......... Crowne Plaza Billings, 27 N 27th St, Billings, MT 59101. 

Tuesday 7/29/14 ..................... 1:00 p.m.—4:30 p.m. ........... Mashpee Wampanoag Tribe Community & Government Center Gymnasium, 483 

Great Neck Road—South, Mashpee, MA 02649. 

* Please RSVP for the Portland consultation to consultation@bia.gov, bring photo identification, and arrive early to allow for time to get through 

security, as this is a Federal building. No RSVP is necessary for the other consultation locations. 

Public meetings will be held on the 

following dates and locations: 

Date Time Location 

Tuesday 7/1/2014 ................... 8:30 a.m.—12:00 p.m. ......... Paragon Casino & Resort, 711 Paragon Pl, Marksville, LA 71351. 

Tuesday 7/15/2014 ................. 8:30 a.m.—12:00 p.m. ......... BIA Regional Office, 911 NE 11th Ave, Portland, OR 97232.* 

Thursday 7/17/2014 ............... 8:30 a.m.—12:00 p.m. ......... Menominee Casino Resort, N277 Hwy. 47/55, P.O. Box 760, Keshena, WI 

54135. 

Tuesday 7/22/2014 ................. 8:30 a.m.—12:00 p.m. ......... Cache Creek Casino Resort, 14455 California 16, Brooks, CA 95606. 

Thursday 7/24/2014 ............... 1:00 p.m.—4:30 p.m. ........... Crowne Plaza Billings, 27 N 27th St, Billings, MT 59101. 

Tuesday 7/29/14 ..................... 8:30 a.m.—12:00 p.m. ......... Mashpee Wampanoag Tribe Community & Government Center Gymnasium, 483 

Great Neck Road—South, Mashpee, MA 02649. 

* Please RSVP for the Portland meeting to consultation@bia.gov, bring photo identification, and arrive early to allow for time to get through security, as this is a Federal building. No RSVP is necessary for the other meeting locations. 

IV. Procedural Requirements 

A. Regulatory Planning and Review 

(E.O. 12866 and 13563) 

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 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, 

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. Regulatory Flexibility Act 

The Department of the Interior 

certifies that this rule 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.). 

C. 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. It 

will not result in the expenditure by 

State, local, or tribal governments, in the 

aggregate, or by the private sector of 

$100 million or more in any one year. 

The rule’s requirements will not result 

in a major increase in costs or prices for 

consumers, individual industries, 

Federal, State, or local government 

agencies, or geographic regions. Nor will 

this rule have significant adverse effects 

on competition, employment, 


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investment, productivity, innovation, or 

the ability of the U.S.-based enterprises 

to compete with foreign-based 

enterprises because the rule is limited to 

Federal acknowledgment of Indian 

tribes. 

D. 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. A 

statement containing the information 

required by the Unfunded Mandates 

Reform Act (2 U.S.C. 1531 et seq.) is not 

required. 

E. Takings (E.O. 12630) 

Under the criteria in Executive Order 

12630, this rule does not affect 

individual property rights protected by 

the Fifth Amendment nor does it 

involves a compensable ‘‘taking.’’ A 

takings implication assessment is 

therefore not required. 

F. Federalism (E.O. 13132) 

Under the criteria in Executive Order 

13132, this rule has no substantial direct 

effect on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government. 

G. Civil Justice Reform (E.O. 12988) 

This rule complies with the 

requirements of Executive Order 12988. 

Specifically, this rule has been reviewed 

to eliminate errors and ambiguity and 

written to minimize litigation; and is 

written in clear language and contains 

clear legal standards. 

H. Consultation with Indian Tribes (E.O. 

13175) 

In accordance with the President’s 

memorandum of April 29, 1994, 

‘‘Government-to-Government Relations 

with Native American Tribal 

Governments,’’ Executive Order 13175 

(59 FR 22951, November 6, 2000), and 

512 DM 2, we have evaluated the 

potential effects on federally recognized 

Indian tribes and Indian trust assets. 

The Department distributed a 

‘‘Discussion Draft’’ of this rule to 

federally recognized Indian tribes in 

June 2013, and hosted five consultation 

sessions with federally recognized 

Indian tribes throughout the country in 

July and August 2013. Several federally 

recognized Indian tribes submitted 

written comments; some strongly 

supportive of revising the regulations 

and others strongly opposed to 

revisions. We considered each tribe’s 

comments and concerns and have 

addressed them, where possible, in the 

proposed rule. 

I. Paperwork Reduction Act 

OMB Control Number: 1076–0104. 

Title: Federal Acknowledgment as an 

Indian Tribe, 25 CFR 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: 10 on 

average (each year). 

Number of Responses: 10 on average 

(each year). 

Frequency of Response: On occasion. 

Estimated Time per Response: (See 

table below). 

Estimated Total Annual Hour Burden: 

12,240 hours. 

Estimated Total Annual Non-Hour 

Cost: $21,000,000 

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 decrease by a 

minimum of 8,510 hours, for a total of 

12,240 hours. Because the proposed rule 

would change sections where the 

information collections occur, we are 

including a table showing the section 

changes. 

Current sec. New sec. Description of requirement 

Burden 

hours on 

respondents 

per 

response 

Annual 

burden hours 

(10 

respondents) 

83.7 (b)–(d) ....................... 83.21 (referring to 83.11 

(b)–(d).

Conduct the anthropological and historical research 

relating to the criteria (b)–(d) and (f)–(g).

869 8,690 

83.7 (f)–(g) ........................ 83.11 (f)–(g)); ................... Conduct the genealogical work to demonstrate tribal 

descent.

83.7 (e) .............................. 83.21 (referring to 83.11 

(e)).

83.7 (e) .............................. 83.21 ................................ Provide past membership rolls and complete a 

membership roll of about 333** members (BIA 

Form 8306).

38 380 

83.7 (e) .............................. 83.21 (referring to 83.11 

(e)).

Complete Individual History Chart (BIA Form 8304). 

On average, it takes 2 minutes per chart X 333** 

charts.

11 110 

83.7 (e) .............................. 83.21 (referring to 83.11 

(e)).

Complete the Ancestry Chart (BIA Form 8305). On 

average, it takes about 30 minutes per chart X 

333** charts.

166 1,660 

83.10(b) ............................. 83.27 ................................ Respond to the technical assistance letters which 

may require revising or adding to the above existing forms and overall petition.

140 1,400 

We invite comments on the 

information collection requirements in 

the proposed rule. You may submit 

comments to OMB by facsimile to (202) 

395–5806 or you may send an email to 

the attention of the OMB Desk Officer 

for the Department of the Interior: 

OIRA_Submission@omb.eop.gov. Please 

send a copy of your comments to the 

person listed in the FOR FURTHER

INFORMATION CONTACT section of this 

notice. Note that the request for 

comments on the rule and the request 

for comments on the information 

collection are separate. To best ensure 


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consideration of your comments on the 

information collection, we encourage 

you to submit them by June 30, 2014; 

while OMB has 60 days from the date 

of publication to act on the information 

collection request, OMB may choose to 

act on or after 30 days. Comments on 

the information collection should 

address: (a) The necessity of this 

information collection for the proper 

performance of the functions of the 

agency, including whether the 

information will have practical utility; 

(b) the accuracy of the agency’s estimate 

of the burden (hours and cost) of the 

collection of information, including the 

validity of the methodology and 

assumptions used; (c) ways we could 

enhance the quality, utility and clarity 

of the information to be collected; and 

(d) ways we could minimize the burden 

of the collection of the information on 

the respondents, such as through the 

use of automated collection techniques 

or other forms of information 

technology. Please note that an agency 

may not sponsor or request, and an 

individual need not respond to, a 

collection of information unless it 

displays a valid OMB Control Number. 

J. National Environmental Policy Act 

This rule does not constitute a major 

Federal action significantly affecting the 

quality of the human environment 

because it is of an administrative, 

technical, and procedural nature. See, 

43 CFR 46.210(i). No extraordinary 

circumstances exist that would require 

greater review under the National 

Environmental Policy Act. 

K. Effects on the Energy Supply (E.O. 

13211) 

This rule is not a significant energy 

action under the definition in Executive 

Order 13211. A Statement of Energy 

Effects is not required. 

L. 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 

‘‘COMMENTS’’ 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 are unclearly written, which 

sections or sentences are too long, the 

sections where you believe lists or 

tables would be useful, etc. 

M. 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 83 

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 

chapter I in Title 25 of the Code of 

Federal Regulations by revising part 83 

to read as follows: 

PART 83—PROCEDURES FOR 

ACKNOWLEDGMENT OF FEDERALLY 

RECOGNIZED INDIAN TRIBES 

Subpart A—General Provisions 

Sec. 

83.1 What terms are used in this part? 

83.2 What is the purpose of these 

regulations? 

83.3 Who does this part apply to? 

83.4 Who cannot be acknowledged under 

this part? 

83.5 How does a petitioner obtain Federal 

acknowledgment under this part? 

83.6 What are the Department’s duties? 

83.7 How does this part apply to 

documented petitions submitted before 

[INSERT EFFECTIVE DATE OF FINAL 

RULE]? 

83.8 How does the Paperwork Reduction 

Act affect the information collections in 

this part? 

Subpart B—Criteria for Federal 

Acknowledgment 

83.10 How will the Department evaluate 

each of the criteria? 

83.11 What are the criteria for 

acknowledgment as a federally 

recognized Indian tribe? 

83.12 What are the criteria for previously 

federally acknowledged petitioners? 

Subpart C—Process for Federal 

Acknowledgment 

Documented Petition Submission 

83.20 How does an entity request Federal 

acknowledgment? 

83.21 What must a documented petition 

include? 

83.22 What notice will OFA provide upon 

receipt of a documented petition? 

Review of Documented Petition 

83.23 How will OFA determine which 

documented petition to consider first? 

83.24 What opportunity will the petitioner 

have to respond to comments before 

OFA reviews the petition? 

83.25 Who will OFA notify when it begins 

review of a documented petition? 

83.26 How will OFA review a documented 

petition? 

83.27 What are technical assistance 

reviews? 

83.28 When does OFA review for previous 

Federal acknowledgment? 

83.29 What will OFA consider in its 

review? 

83.30 Can a petitioner withdraw its 

documented petition once review has 

begun? 

83.31 Can OFA suspend review of a 

documented petition? 

Proposed Finding 

83.32 When will OFA issue a proposed 

finding? 

83.33 What will the proposed finding 

include? 

83.34 What notice of the proposed finding 

will OFA provide? 

Comment and Response Periods, Hearing 

83.35 What opportunity will there be to 

comment after OFA issues the proposed 

finding? 

83.36 Can the Assistant Secretary extend 

the proposed finding comment period? 

83.37 What procedure follows the end of 

the comment period for a favorable 

proposed finding? 

83.38 What options are available to the 

petitioner at the end of the comment 

period for a negative proposed finding? 

83.39 What are the procedures if the 

petitioner elects to have a hearing before 

an OHA judge? 

Final Determination 

83.40 When will the Assistant Secretary 

begin review? 

83.41 What will the Assistant Secretary 

consider in his/her review? 

83.42 When will the Assistant Secretary 

issue a final determination? 

83.43 How will the Assistant Secretary 

make the final determination decision? 

83.44 Is the Assistant Secretary’s final 

determination final for the Department? 

83.45 When will the final determination be 

effective? 

83.46 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, 

479a–1; and 43 U.S.C. 1457. 

Subpart A—General Provisions 

§ 83.1 What terms are used in this part? 

As used in this part: 

Assistant Secretary or AS–IA means 

the Assistant Secretary—Indian Affairs 


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within the Department of the Interior, or 

that officer’s authorized representative, 

but does not include representatives of 

the Office of Federal Acknowledgment. 

Bureau means the Bureau of Indian 

Affairs within the Department of the 

Interior. 

Continental United States means the 

contiguous 48 states and Alaska. 

Department means the Department of 

the Interior, including the Assistant 

Secretary and OFA. 

Documented Petition means the 

detailed arguments and supporting 

documentary evidence submitted by a 

petitioner to substantiate its claim that 

it meets the Tribal Existence (§ 83.11(a)), 

Governing Document (§ 83.11(d)), 

Descent (§ 83.11(e)), Membership 

(§ 83.11(f)), and Congressional 

Termination (§ 83.11(g)) Criteria and: 

(1) Demonstrates previous Federal 

acknowledgment under § 83.12(a) and 

meets the criteria in § 83.12(b); or 

(2) Meets the Community (§ 83.11(b)) 

and Political Authority (§ 83.11(c) 

Criteria. 

Federally recognized Indian tribe 

means an entity listed on the Secretary’s 

list of federally recognized tribes, which 

the Secretary currently acknowledges as 

an Indian tribe for purposes of Federal 

law and with which he/she maintains a 

government-to-government relationship. 

OHA judge means an administrative 

law judge appointed under 5 U.S.C. 

3105, an administrative judge with the 

Office of Hearings and Appeals, or an 

attorney with the Office of Hearings and 

Appeals assigned to preside over the 

hearing process by the Office of 

Hearings Appeals. 

Historical means 1900 or earlier. 

Informed party means any person or 

organization who submits comments or 

evidence or requests to be kept informed 

of general actions regarding a specific 

petitioner. 

Member of a petitioner 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. 

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. 

Pages means pages containing 1-inch 

margins and type that is double-spaced 

and 12-point Times New Roman font. 

Petitioner means any entity that has 

submitted a documented petition to 

OFA requesting Federal 

acknowledgment as a federally 

recognized Indian tribe. 

Previous Federal acknowledgment 

means action by the Federal government 

clearly premised on identification of an 

entity that qualified as an Indian tribe 

for purposes of Federal law and 

indicating clearly the recognition of a 

government-to-government 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. 

Tribal roll means a list exclusively of 

those individuals who have been 

determined by the tribe to meet the 

tribe’s membership requirements as set 

forth in its governing document. In the 

absence of such a document, a tribal roll 

means a list of those recognized as 

members by the tribe’s governing body. 

In either case, those individuals on a 

tribal roll must have affirmatively 

demonstrated consent to being listed as 

members. 

Tribe means any Indian tribe, band, 

nation, pueblo, village or community. 

§ 83.2 What is the purpose of these 

regulations? 

These regulations implement Federal 

statutes for the benefit of Indian tribes 

by establishing procedures and criteria 

for the Department to use to determine 

whether a petitioner is an Indian tribe 

for purposes of Federal law and is 

therefore entitled to a government-togovernment relationship with the 

United States. A positive determination 

will result in Federal recognition status 

and the petitioner’s addition to the 

Department’s list of federally recognized 

Indian tribes. An entity may consider 

itself an Indian tribe and be considered 

an Indian tribe by other entities, but it 

does not possess federally recognized 

status and a government-to-government 

relationship with the United States 

unless it is placed on the Department’s 

list of federally recognized Indian tribes. 

Failure to be included on the list does 

not deny that the entity is an Indian 

tribe for purposes other than Federal 

law. It means only that the entity is not 

a federally recognized Indian tribe. 

Federal recognition: 

(a) Is a prerequisite to the protection, 

services, and benefits of the Federal 

Government available to those that 

qualify as Indian tribes for purposes of 

Federal law and possess a governmentto-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. 

§ 83.3 Who does this part apply to? 

This part applies only to entities that 

self-identify as Indian tribes, are located 

in the continental United States, and 

believe they meet the criteria for Federal 

acknowledgment in this part. This part 

does not apply to Indian or Alaska 

Native tribes, bands, pueblos, villages, 

or communities that are federally 

recognized. 

§ 83.4 Who cannot be acknowledged 

under this part? 

(a) The entities listed in the following 

table cannot be acknowledged under 

this part unless they meet the 

requirement in the second column. 

The Department will not acknowledge . . . Unless . . . 

(1) An association, organization, corporation, or entity of any character 

formed in recent times.

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.the entity can clearly demonstrate it has functioned from 1934 until the 

present as a politically autonomous community under this part, 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-togovernment relationship.N/A. 


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The Department will not acknowledge . . . Unless . . . 

(4) An entity that previously petitioned and was denied Federal acknowledgment under these regulations or under previous regulations 

in part 83 of this title (including reconstituted, splinter, spin-off, or 

component groups that were once part of previously denied petitioners).

the entity meets the requirements of paragraph (b) of this section. 

(b) A petitioner that has been denied 

Federal acknowledgment after 

petitioning under a previous version of 

the acknowledgment regulations at part 

54 or part 83 of this title may re-petition 

if it meets the requirements of this 

paragraph. 

(1) A petitioner may re-petition only 

if: 

(i) Any third parties that participated 

as a party in an administrative 

reconsideration or Federal Court appeal 

concerning the petitioner has consented 

in writing to the re-petitioning; and 

(ii) The petitioner proves, by a 

preponderance of the evidence, that 

either: 

(A) A change from the previous 

version of the regulations to the current 

version of the regulations warrants 

reconsideration of the final 

determination; or 

(B) The ‘‘reasonable likelihood’’ 

standard was misapplied in the final 

determination. 

(2) To initiate the re-petitioning 

process, the petitioner must submit to 

the Office of Hearings and Appeals a 

certification, signed and dated by the 

petitioner’s governing body, stating that 

it is the petitioner’s official request for 

re-petitioning and explaining how it 

meets the conditions of paragraph (b)(1) 

of this section. 

(i) The petitioner need not re-submit 

materials previously submitted to the 

Department but may supplement the 

petition. 

(ii) The OHA judge may receive 

pleadings, hold hearings, and request 

evidence from OFA and the petitioner, 

and will issue a decision regarding 

whether the petitioner may re-petition. 

(3) The OHA judge’s decision whether 

to allow re-petitioning is final for the 

Department and is a final agency action 

under the Administrative Procedure 

Act, 5 U.S.C. 704. 

§ 83.5 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 Tribal 

Existence (§ 83.11(a)), Governing 

Document (§ 83.11(d)), Descent 

(§ 83.11(e)), Membership (§ 83.11(f)), 

and Congressional Termination 

(§ 83.11(g)) Criteria and must: 

(a) Demonstrate previous Federal 

acknowledgment under § 83.12(a) and 

meet the criteria in § 83.12(b); or 

(b) Meet the Community (§ 83.11(b)) 

and Political Authority (§ 83.11(c)) 

Criteria. 

§ 83.6 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. 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 an example of a 

documented petition in the preferred 

format, though other formats are 

acceptable. 

(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. 

§ 83.7 How does this part apply to 

documented petitions submitted before 

[INSERT EFFECTIVE DATE OF FINAL 

RULE]? 

(a) Petitioners whose have not 

submitted complete documented 

petitions as of [INSERT EFFECTIVE 

DATE OF FINAL RULE] must proceed 

under these revised regulations. We will 

notify these petitioners and provide 

them with a copy of the revised 

regulations by [INSERT EFFECTIVE 

DATE OF FINAL RULE]. 

(b) By [INSERT EFFECTIVE DATE OF 

FINAL RULE + 30 DAYS], OFA will 

notify the following petitioners that they 

must choose by [INSERT DATE 60 

DAYS AFTER PUBLICATION OF 

FINAL RULE] to complete the 

petitioning process under these 

regulations. Otherwise, the following 

petitioners will proceed under the 

previous version of the acknowledgment 

regulations as published on February 

25, 1994, 59 FR 19293. 

(1) Petitioners who have submitted 

complete petitions or those petitioners 

that are under active consideration, 

including those that have received a 

proposed finding, as of [INSERT 

EFFECTIVE DATE OF FINAL RULE]; 

and 

(2) Petitioners who have not received 

a final agency decision as of [INSERT 

EFFECTIVE DATE OF FINAL RULE]. 

(c) Petitioners who have submitted a 

documented petition under the previous 

version of the acknowledgment 

regulations and who choose to proceed 

under these revised regulations do not 

need to submit a new documented 

petition. 

§ 83.8 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 

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 

§ 83.10 How will the Department evaluate 

each of the criteria? 

(a) The Department will consider a 

criterion to be met if the available 

evidence establishes a reasonable 

likelihood that the facts claimed by the 

petitioner are valid and that the facts 

demonstrate that the petitioner meets 

the criterion. 

(1) ‘‘Reasonable likelihood’’ means 

there must be more than a mere 

possibility, but does not require ‘‘more 

likely than not.’’ 

(2) The Department will not require 

conclusive proof of the facts relating to 

a criterion in order to consider the 

criterion met. 

(3) The petitioner may use the same 

evidence to establish more than one 

criterion. 


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(b) The Department will evaluate 

petitions: 

(1) Allowing criteria to be met by any 

suitable evidence, rather than requiring 

the specific forms of evidence stated in 

the criteria; 

(2) Taking into account situations and 

time periods for which evidence is 

limited or not available; 

(3) Taking into account the limitations 

inherent in demonstrating historical 

existence; 

(4) Requiring demonstration that these 

criteria are met on a substantially 

continuous basis, meaning without 

substantial interruption; 

(5) Interpreting ‘‘substantial 

interruption’’ to mean a gap, either as a 

fluctuation in tribal activity or a gap in 

evidence, of 20 years or less, unless a 

20-year or longer gap is reasonable given 

the history and the petitioner’s 

circumstances; 

(6) Applying these criteria 

consistently with threshold standards 

utilized to recognize other tribes under 

this Part; and 

(7) Applying these criteria in context 

with the history, geography, culture, 

and social organization of the petitioner. 

§ 83.11 What are the criteria for 

acknowledgment as a federally recognized 

Indian tribe? 

(a) Tribal Existence. The petitioner 

must describe its existence as an Indian 

tribe, band, nation, pueblo, village, or 

community at a point in time during the 

historical period. The petitioner must 

provide a brief narrative, and evidence 

supporting the narrative, of its existence 

as an Indian tribe, band, nation, pueblo, 

village or community generally 

identified at a point in time during the 

historical period. Such evidence can 

include, but is not limited to, types of 

evidence used to satisfy the remaining 

criteria in this section or types of 

evidence relied on by the Department 

prior to the promulgation of the Federal 

acknowledgment regulations. 

(b) Community. The petitioner must 

now constitute a distinct community 

and must demonstrate that it existed as 

a distinct community from 1934 until 

the present without substantial 

interruption. 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. The 

petitioner may demonstrate that it meets 

this criterion by providing evidence for 

known adult members or by providing 

evidence of relationships of a random, 

statistically significant sample of known 

adult members. 

(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 to show that at least 30 percent 

of the petitioner’s members constituted 

a distinct community at a given point in 

time. 

(i) Rates of known marriages within 

the entity, or, as may be culturally 

required, known patterned outmarriages; 

(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 nonmembers; 

(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. 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) Children of members from a 

geographic area were placed in Indian 

boarding schools or other Indian 

educational institutions; 

(x) A demonstration of political 

influence under the criterion in 

§ 83.11(c)(1), which is a form of 

evidence for demonstrating distinct 

community for that same time period; or 

(xi) Evidence that it has been 

identified as a community by 

individuals and entities external to the 

petitioner. 

(2) The petitioner will be considered 

to have provided sufficient evidence to 

demonstrate distinct community and 

political authority 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 known 

marriages in the entity are between 

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; 

(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 § 83.11(c) using evidence 

described in § 83.11(c)(2). 

(3) The petitioner will be considered 

to have provided sufficient evidence to 

demonstrate distinct community if it 

demonstrates either of the following 

factors: 

(i) The petitioner has maintained 

since 1934 to the present a State 

reservation; or 

(ii) The United States has held land 

for the petitioner or collective ancestors 

of the petitioner at any point in time 

from 1934 to the present. 

(c) Political Influence or Authority. 

The petitioner must have maintained 

political influence or authority from 

1934 until the present without 

substantial interruption. Political 

influence or authority means a council, 

leadership, internal process, or other 

mechanism which the entity has used 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 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 evidence or by other evidence 

that the petitioner meets the definition 

of political influence or authority in 

§ 83.1: 

(i) The entity is able to mobilize 

significant numbers of members and 

significant resources from its members 

for entity purposes. 

(ii) Most of the membership considers 

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 most of the 

entity’s members. 

(iv) The entity meets the criterion in 

§ 83.11(b) at greater than or equal to the 

percentages set forth under § 83.11(b)(2). 

(v) There are internal conflicts that 

show controversy over valued entity 


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goals, properties, policies, processes, or 

decisions. 

(vi) A federally recognized Indian 

tribe has a government-to-government 

relationship with the petitioner. 

(vii) Evidence that it has been 

identified as politically autonomous by 

individuals and entities external to the 

petitioner. 

(viii) Show a continuous line of entity 

leaders and a means of selection or 

acquiescence by a majority 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 § 83.11(b)(2) at a given 

time. 

(3) The petitioner will be considered 

to have provided sufficient evidence to 

demonstrate political influence and 

authority if it demonstrates either of the 

following factors: 

(i) The petitioner has maintained 

since 1934 to the present a State 

reservation; or 

(ii) The United States has held land 

for the petitioner or the collective 

ancestors of the petitioner at any point 

in time from 1934 to the present. 

(d) Governing Document. The 

petitioner must submit a copy of the 

entity’s present governing document, 

including its membership criteria. In the 

absence of a governing document, the 

petitioner must provide a written 

statement describing in full its 

membership criteria and current 

governing procedures. 

(e) Descent. At least 80 percent of the 

petitioner’s membership must consist of 

individuals who can demonstrate that 

they descend from a tribe that existed in 

historical times or tribes that combined 

and functioned in historical times. 

(1) The petitioner satisfies this 

criterion by demonstrating descent from 

a roll directed by Congress or prepared 

by the Secretary on a descendancy basis 

for purposes of distributing claims 

money, providing allotments, providing 

a tribal census, or other purposes. 

(2) If no roll was directed by Congress 

or prepared by the Secretary, the 

petitioner satisfies this criterion with 

the most recent evidence available for 

the historical time period, including, 

but not limited to: 

(i) Federal, State, or other official 

records or evidence identifying present 

members or ancestors of present 

members as being descendants of a tribe 

or tribes that existed in historical times; 

(ii) Church, school, or other similar 

enrollment records identifying the 

petitioner’s present members or 

ancestors of present members as being 

descendants of a tribe or tribes that 

existed in historical times; 

(iii) Historical records created by 

historians and anthropologists 

identifying the tribe in historical times 

or historians and anthropologists’ 

conclusions drawn from historical 

records identifying the petitioner’s 

present members or ancestors of present 

members as being descendants of a tribe 

or tribes existing in historical times; 

(iv) Affidavits of recognition by tribal 

elders, leaders, or the tribal governing 

body identifying present members or 

ancestors of present members as being 

descendants of a tribe or tribes existing 

in historical times; and 

(v) Other records or evidence 

identifying present members or 

ancestors of present members as 

descendants of a tribe or tribes existing 

in historical times. 

(f) Membership. The petitioner’s 

membership must be composed 

principally of persons who are not 

members of any federally recognized 

Indian tribe. 

(1) However, a petitioner may be 

acknowledged even if its membership is 

composed principally of persons whose 

names have appeared on rolls of, or who 

have been otherwise associated with, a 

federally recognized Indian tribe, if the 

petitioner demonstrates that: 

(i) It has functioned as a separate 

politically autonomous community by 

satisfying criteria (b) and (c); and 

(ii) Its members have provided written 

confirmation of their membership in the 

petitioner. 

(2) If a petitioner filed a letter of 

intent (under a previous version of the 

regulations) or filed a documented 

petition prior to 2010, the petitioner’s 

members who were not members of a 

federally recognized Indian tribe at the 

time the petitioner filed the documented 

petition, but who subsequently became 

members of a federally recognized 

Indian tribe, will not be considered as 

members of the federally recognized 

Indian tribe for purposes of this 

criterion. 

(g) Congressional Termination. 

Neither the petitioner nor its members 

are the subject of congressional 

legislation that has expressly terminated 

or forbidden the government-togovernment relationship. The 

Department must determine whether the 

petitioner meets this criterion, and the 

petitioner is not required to submit 

evidence to meet it. 

§ 83.12 What are the criteria for previously 

federally acknowledged petitioners? 

(a) If the petitioner meets the criteria 

in § 83.11(a) and (d) through (g), the 

petitioner may prove it was previously 

acknowledged as a federally recognized 

Indian tribe by providing unambiguous 

evidence that the United States 

Government recognized the petitioner as 

an Indian tribe for purposes of Federal 

law with which it carried on a 

government-to-government relationship 

at some prior date, including, but not 

limited to evidence that the petitioner 

had: 

(1) Treaty relations with the United 

States; 

(2) Been denominated a tribe by act of 

Congress or Executive Order; or 

(3) Been treated by the Federal 

Government as having collective rights 

in tribal lands or funds. 

(b) Once the petitioner establishes 

that it was previously acknowledged, it 

must: 

(1) Demonstrate that it meets the 

Community Criterion at present and 

Political Authority Criterion since the 

time of previous Federal 

acknowledgment to the present by 

demonstration of substantially 

continuous historical identification by 

authoritative, knowledgeable external 

sources of leaders and/or a governing 

body that exercises political influence 

or authority, together with 

demonstration of one form of evidence 

listed in § 83.11(c), or 

(2) Demonstrate that it meets the 

Community and Political Authority 

Criteria since the time of previous 

Federal acknowledgment. 

Subpart C—Process for Federal 

Acknowledgment 

Documented Petition Submission and 

Review 

§ 83.20 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: 

Office of Federal Acknowledgement, 

Assistant Secretary—Indian Affairs, 


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Department of the Interior, 1849 C Street 

NW., Washington, DC 20240. 

§ 83.21 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 

thorough explanations of, and citations 

to supporting documentation for how 

the petitioner meets each of the 

applicable criteria, except the 

Congressional Termination Criterion 

(§ 83.11 (g))— 

(i) If the petitioner chooses to provide 

explanations of and supporting 

documentation for the Congressional 

Termination Criterion (§ 83.11 (g)), the 

Department will accept it; but 

(ii) The Department will conduct the 

research necessary to determine 

whether the petitioner meets the 

Congressional Termination Criterion 

(§ 83.11 (g)). 

(3) Supporting documentation cited in 

the written narrative and containing 

specific, detailed evidence that the 

petitioner meets each of the criteria at 

§ 83.11; 

(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), 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. 

(b) Petitioners should exclude from 

the narrative portion of the documented 

petition any information that is 

protectable under Federal law such as 

the Privacy Act and Freedom of 

Information Act, as it will be published 

on the OFA Web site. If it is necessary 

to include this information, the 

petitioner must clearly identify, in 

writing, the specific information that 

should be redacted prior to publication 

on the OFA Web site and the basis for 

redacting. The Department will 

determine whether the redaction is 

appropriate under Federal law. 

§ 83.22 What notice will 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 60 days of receipt: 

(1) Publish notice of receipt of the 

documented petition in the Federal 

Register and publish the following on 

the OFA Web site: 

(i) The narrative portion of the 

documented petition, as submitted by 

the petitioner (with any redactions 

appropriate under § 83.21(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 organizations to submit comments 

supporting or opposing the petitioner’s 

request for acknowledgment within 90 

days of the date of the Web site posting; 

and 

(v) The opportunity for individuals 

and organizations to request to become 

informed parties. 

(2) Notify, in writing, the governor 

and attorney general of the State in 

which the petitioner is located and any 

federally recognized tribe within the 

State or within a 25-mile radius. 

(3) Notify any other 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 other portions of the 

documented petition to the OFA Web 

site, to the extent allowable under 

Federal law. 

Review of Documented Petition 

§ 83.23 How will OFA determine which 

documented petition to consider first? 

(a) OFA will begin reviews of 

documented petitions in the order of 

receipt of documented petitions. 

Petitioners whose documented petitions 

OFA has not yet begun to review may 

request that OFA estimate when review 

will begin. 

(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 

make completing reviews of 

documented petitions it has already 

begun to review the highest priority. 

(b) OFA will maintain a numbered 

register of documented petitions that 

have been received. 

(c) OFA will maintain a numbered 

register of any letters of intent, which 

were allowable prior to [INSERT 

EFFECTIVE DATE OF RULE], or 

incomplete petitions and the original 

dates of their filing with the 

Department. If two or more documented 

petitions are ready for review on the 

same date, this register will determine 

the order of consideration. 

§ 83.24 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 organizations under § 83.22(b) and 

provide the petitioner with at least 60 

days to respond to such comments. OFA 

will not begin review until it receives 

the petitioner’s response to the 

comments or the petitioner requests that 

OFA proceed without its response. 

§ 83.25 Who will OFA notify when it begins 

review of a documented petition? 

OFA will notify the petitioner and 

informed parties when it begins review 

of a documented petition and will 

provide the petitioner and informed 

parties 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. 

§ 83.26 How will OFA review a 

documented petition? 

(a) Phase I. 

(1) OFA will first determine if the 

petitioner meets the Descent Criterion 

(§ 83.11(e)). 

(i) OFA will conduct a technical 

assistance review and notify the 

petitioner by technical assistance letter 

of any deficiencies that would prevent 

the petitioner from meeting the Descent 

Criterion. Upon receipt of the letter, the 

petitioner may: 

(A) Withdraw the documented 

petition to further prepare the petition; 

(B) Submit additional information 

and/or clarification within an agreedupon timeframe; or 

(C) Ask OFA in writing to proceed 

with the review. 

(ii) OFA will publish a negative 

proposed finding if it issues a deficiency 

letter under paragraph (a)(1)(i) of this 

section and the petitioner: 


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(A) Does not withdraw the 

documented petition or does not 

respond with information or 

clarification sufficient to address the 

deficiencies within the agreed-upon 

timeframe; or 

(B) Asks OFA in writing to proceed 

with the review. 

(2) If the petitioner meets the Descent 

Criterion, OFA will next review whether 

the petitioner meets the Tribal Existence 

Criterion (§ 83.11(a)), Governing 

Document Criterion (§ 83.11(d)), the 

Membership Criterion (§ 83.11(f)), and 

the Congressional Termination Criterion 

(§ 83.11(g)). 

(i) OFA will conduct a technical 

assistance review and notify the 

petitioner by technical assistance letter 

of any deficiencies that would prevent 

the petitioner from meeting these 

criteria. Upon receipt of the letter, the 

petitioner may: 

(A) Withdraw the documented 

petition to further prepare the petition; 

(B) Submit additional information 

and/or clarification within an agreedupon timeframe; or 

(C) Ask OFA in writing to proceed 

with the review. 

(ii) OFA will publish a negative 

proposed finding if it issues a deficiency 

letter under paragraph (a)(2)(i) of this 

section and the petitioner: 

(A) Does not withdraw the 

documented petition; 

(B) Does not respond with 

information or clarification sufficient to 

address the deficiencies within the 

agreed-upon timeframe; or 

(C) Asks OFA in writing to proceed 

with the review. 

(iii) If the petitioner meets the Descent 

(§ 83.11(e)), Tribal Existence (§ 83.11(a)), 

Governing Document (§ 83.11(g)), 

Membership (§ 83.11(f)), and 

Congressional Termination (§ 83.11(g)) 

Criteria, OFA will either: 

(A) Proceed to Phase II–A, if the 

petitioner asserts that it meets either of 

the factors in § 83.11(b)(3) and (c)(3); or 

(B) Proceed to Phase II–B, if the 

petitioner does not assert that it meets 

the factors in § 83.11(b)(3) and (c)(3). 

(b) Phase II–A. 

(1) OFA will review whether the 

petitioner meets either of the factors in 

§ 83.11(b)(3) and (c)(3), if the petitioner 

asserts that it does. 

(2) If the petitioner meets either of the 

factors in § 83.11(b)(3) and (c)(3), OFA 

will publish a favorable proposed 

finding in the Federal Register. 

(3) If the petitioner does not meet 

either of the factors in § 83.11(b)(3) and 

(c)(3), OFA will proceed to Phase II–B. 

(c) Phase II–B. 

(1) If the petitioner does not meet 

either of the factors in § 83.11(b)(3) and 

(c)(3), or the petitioner does not assert 

that it meets those factors, OFA will 

conduct the technical assistance review 

for the Community (§ 83.11(b)) and 

Political Authority (§ 83.11(c)) Criteria 

(and for previous Federal 

acknowledgment, if asserted). 

(i) OFA will notify the petitioner by 

technical assistance letter of any 

obvious deficiencies or significant 

omissions apparent in the documented 

petition and provide the petitioner with 

an opportunity to withdraw the 

documented petition for further work or 

to submit additional information and/or 

clarification. 

(A) Petitioners can either respond in 

part or in full to the technical assistance 

review letter or ask OFA in writing to 

proceed with review of the documented 

petition using the materials already 

submitted. 

(B) If the petitioner requests that 

materials submitted in response to the 

technical assistance review letter be 

again reviewed for adequacy, OFA will 

provide the additional review. However, 

this additional review will occur only at 

the request of the petitioner and is 

available only once. 

(ii) If the documented petition claims 

previous Federal acknowledgment and/ 

or includes evidence of previous 

Federal acknowledgment, the technical 

assistance review will include a review 

to determine whether that evidence is 

sufficient to meet the requirements of 

previous Federal acknowledgment 

(§ 83.12). 

(2) Following the 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 hold, to the extent allowable by 

Federal law; and 

(ii) The opportunity to respond in 

writing to the comments and evidence 

petitioner did not already hold. 

(3) OFA will then review the record 

to determine: 

(i) For petitioners with previous 

Federal acknowledgment, whether the 

criteria at § 83.12(b) are met; or 

(ii) For petitioners without previous 

Federal acknowledgment, whether the 

Community (§ 83.11(b)) and Political 

Authority (§ 83.11(c)) Criteria are met. 

(4) OFA will then proceed with 

publication of a proposed finding. 

§ 83.27 What are technical assistance 

reviews? 

Technical assistance reviews are 

preliminary reviews for OFA to tell the 

petitioner where there appear to be 

documentary 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. 

§ 83.28 When does OFA review for 

previous Federal acknowledgment? 

(a) OFA reviews the documented 

petition for previous Federal 

acknowledgment during the technical 

assistance review of the documented 

petition for the Community (§ 83.11(b)) 

and Political Authority (§ 83.11(c)) 

Criteria. 

(b) If OFA cannot verify previous 

Federal acknowledgment during this 

technical assistance review, the 

petitioner must provide additional 

evidence. If a petitioner claiming 

previous Federal acknowledgment does 

not respond or does not demonstrate the 

claim of previous Federal 

acknowledgment, OFA will consider its 

documented petition on the same basis 

as documented petitions submitted by 

petitioners not claiming previous 

Federal acknowledgment. 

(c) OFA will notify petitioners that 

fail to demonstrate previous Federal 

acknowledgment after a review of any 

materials submitted in response to the 

technical assistance review. 

§ 83.29 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 received on the petition, and 

petitioners’ responses to comments. 

(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 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. 

§ 83.30 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 bottom of the numbered register 

of documented petitions upon resubmission and may not regain its 

initial priority number. 


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§ 83.31 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 with the documented petition 

that temporarily preclude continuing 

review; and 

(2) Approval by the Assistant 

Secretary of the suspension. 

(b) Upon resolving 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 

informed parties when it resumes 

review of the documented petition. 

(2) Upon the resumption of review, 

the time period for OFA to issue a 

proposed finding will begin anew. 

Proposed Finding 

§ 83.32 When will OFA issue a proposed 

finding? 

(a) OFA will issue a proposed finding 

as shown in the following table: 

OFA must within . . . 

(1) Complete its review under Phase I and either issue a negative proposed finding and 

publish a notice of availability in the Federal Register, or proceed to review under 

Phase II–A, if applicable, or Phase II–B.

six months after notifying the petitioner under § 83.25 

that OFA has begun review of the petition. 

(2) Complete its review under Phase II–A and either issue a favorable proposed finding 

and publish a notice of availability in the Federal Register, or proceed to Phase II–B.

two months after the deadline in paragraph (a)(1) of 

this section. 

(3) Complete its review under Phase II–B and issue a proposed finding and publish a notice of availability in the Federal Register.six months after the deadline in paragraph (a)(1) of 

this section. 

(b) AS–IA may extend these deadlines 

only if it has approved a suspension 

under § 83.31(a). 

(c) OFA will strive to limit the 

proposed finding and any reports to no 

more than 100 pages, cumulatively, 

excluding source documents. 

§ 83.33 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: Descent (§ 83.11(e)), 

Tribal Existence (§ 83.11(a)), Governing 

Document (§ 83.11(d)), Membership 

(§ 83.11(f)), or Congressional 

Termination (§ 83.11(g)). 

(b) A Phase II–A favorable proposed 

finding will address that the petitioner 

meets one of the factors in § 83.11(b)(3) 

and (c)(3) and that the petitioner meets 

all of the following criteria: the Descent 

(§ 83.11(e)), Tribal Existence (§ 83.11(a)), 

Governing Document (§ 83.11(d)), 

Membership (§ 83.11(f)), and 

Congressional Termination (§ 83.11(g)) 

Criteria. 

(c) A Phase II–B proposed finding will 

address whether the petitioner meets 

either the Community (§ 83.11(b)) and 

Political Authority (§ 83.11(c)) Criteria 

or the previous Federal 

acknowledgment criteria (§ 83.12(b)) 

and whether the petitioner meets all of 

the following criteria: Descent 

(§ 83.11(e)), Tribal Existence (§ 83.11(a)), 

Governing Document (§ 83.11(d)), 

Membership (§ 83.11(f)), and 

Congressional Termination (§ 83.11(g)) 

Criteria. 

§ 83.34 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 informed parties; and 

(b) Publish the proposed finding and 

reports available on the OFA Web site. 

Proposed Finding—Comment and 

Response Periods, Hearing 

§ 83.35 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 

90-day comment period. During this 

comment period, the petitioner or any 

individual or organization may submit 

the following to AS–IA 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 parties that submit comments 

and evidence must provide the 

petitioner with a copy of their 

submission. 

§ 83.36 Can the Assistant Secretary extend 

the comment period on the proposed 

finding? 

(a) AS–IA can extend the comment 

period for a proposed finding for up to 

an additional 60 days upon a finding of 

good cause. 

(b) If AS–IA grants a time extension, 

it will notify the petitioner and 

informed parties. 

§ 83.37 What procedure follows the end of 

the comment period on a favorable 

proposed finding? 

(a) At the end of the comment period 

for a favorable proposed finding, AS–IA 

will automatically issue a final 

determination acknowledging the 

petitioner as a federally recognized 

Indian tribe if AS–IA does not receive 

timely comments or evidence 

challenging the proposed finding from 

either: 

(1) The State or local government 

where the petitioner’s office is located; 

or 

(2) Any federally recognized Indian 

tribe within the State or within a 25- 

mile radius of the petitioner’s 

headquarters. 

(b) If AS–IA has received timely 

comments and evidence challenging the 

proposed finding from any of the parties 

listed in paragraph (a) of this section, 

then the petitioner will have 60 days to 

respond with responses, with citations 

to and explanations of supporting 

evidence, and supporting evidence cited 

and explained in the responses. AS–IA 

can extend the comment response 

period if warranted by the extent and 

nature of the submitted comments and 

evidence and will notify the petitioner 

and informed parties by letter of any 

extension. AS–IA will not consider 

further comments or evidence on the 

proposed finding submitted by 

individuals or organizations during this 

period. 

§ 83.38 What options does the petitioner 

have at the end of the comment period on 

a negative proposed finding? 

(a) At the end of the comment period 

for a negative proposed finding, the 

petitioner will have 60 days to: 

(1) Elect to challenge the proposed 

finding in a hearing before an OHA 


emcdonald on DSK67QTVN1PROD with PROPOSALS
30780 Federal Register / Vol. 79, No. 103 / Thursday, May 29, 2014 / Proposed Rules 

judge by sending a written election of 

hearing to OFA that lists: 

(i) The issues of material fact; and 

(ii) The witnesses and exhibits the 

petitioner intends to present at the 

hearing, other than solely for 

impeachment purposes, including: 

(A) 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 

(B) For each exhibit listed, a statement 

specifying whether the exhibit is in the 

administrative record reviewed by OFA; 

and/or 

(2) Respond to any comments and 

evidence made during the comment 

period with responses, with citations to 

and explanations of supporting 

evidence, and evidence cited and 

explained in the responses. 

(b) AS–IA can extend the comment 

response period if warranted by the 

extent and nature of the comments and 

will notify the petitioner and informed 

parties by letter of any extension. AS– 

IA will not consider further comments 

or evidence on the proposed finding 

submitted by individuals or 

organizations during this period. 

§ 83.39 What is the procedure if the 

petitioner elects to have a hearing before an 

OHA judge? 

(a) Case referral. 

(1) If the petitioner elects to challenge 

the proposed finding in a hearing before 

an OHA judge, OFA will refer the case 

to the Office of Hearings and Appeals. 

(2) The case referral will consist of the 

entire record, including any comments 

and evidence and responses sent to AS– 

IA, and a notice of referral containing: 

(i) The name, address, telephone 

number, and facsimile number of the 

Office of Hearings and Appeals; 

(ii) The name, address, and other 

contact information for the 

representatives of the petitioner and 

OFA; and 

(iii) The date on which OFA is 

referring the case. 

(3) Within 5 business days after 

receipt of the petitioner’s hearing 

election, OFA will send the case referral 

to the Office of Hearings and Appeals 

and the notice of referral to the 

petitioner and each informed party by 

express mail or courier service for 

delivery on the next business day. 

(b) Hearing Process. The Office of 

Hearings and Appeals 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 OHA judge. 

The hearing record will become part of 

the record considered by AS–IA in 

reaching a final determination. 

(d) Recommended decision. The OHA 

judge will issue a recommended 

decision and forward it along with the 

rest of the 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 

§ 83.40 When will the Assistant Secretary 

begin review? 

(a) AS–IA will begin his/her review: 

(1) Upon expiration of the period for 

the petitioner to respond to comments 

or upon expiration of the comment 

period for a positive proposed finding if 

no comments were submitted; or 

(2) If a hearing is held, upon receipt 

of the OHA judge’s recommended 

decision. 

(b) AS–IA will notify the petitioner 

and informed parties of the date he/she 

begins consideration. 

§ 83.41 What will the Assistant Secretary 

consider in his/her review? 

(a) AS–IA will consider all the 

evidence in the administrative record. 

(b) AS–IA will not consider comments 

submitted after the close of the response 

period established in § 83.35 and 

§ 83.38. 

§ 83.42 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 

informed parties; and 

(2) Make copies of the final 

determination available to others upon 

written request. 

(b) If the proposed finding was 

positive, AS–IA may not issue a 

negative final determination unless and 

until AS–IA remands the matter to OFA 

for the petitioner to receive technical 

assistance addressing new evidence that 

would be the basis for the negative final 

determination. 

(1) If OFA concludes that the 

technical assistance does not resolve the 

issue presented by the new evidence, 

OFA will issue a negative proposed 

finding and individuals and 

organizations will have the opportunity 

to comment, and the petitioner will 

have the opportunity to respond to 

comments and elect to have a hearing, 

under the procedures in §§ 83.35 to 

83.38; 

(2) If the technical assistance resolves 

the issue presented by the new 

evidence, then the Assistant Secretary 

will proceed with § 83.41, and 

incorporate resolution of the new 

evidence in the final determination. 

(c) AS–IA will strive to limit the final 

determination and any reports to no 

more than 100 pages, cumulatively, 

excluding source documents. 

§ 83.43 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 Tribal Existence (§ 83.11(a)), 

Governing Document (§ 83.11(d)), 

Descent (§ 83.11(e)), Membership 

(§ 83.11(f)), and Congressional 

Termination (§ 83.11(g)) Criteria and: 

(1) Demonstrates previous Federal 

acknowledgment under § 83.12(a) and 

meets the criteria in § 83.12(b); or 

(2) Meets the Community (§ 83.11(b)) 

and Political Authority (§ 83.11(c)) 

Criteria. 

(b) AS–IA will issue a final 

determination declining 

acknowledgement as a federally 

recognized Indian tribe when he/she 

finds that the petitioner does not meet 

the criteria in paragraph (a) of this 

section. 

§ 83.44 Is the Assistant Secretary’s final 

determination final for the Department? 

Yes. The final determination is final 

for the Department and is a final agency 

action under the Administrative 

Procedure Act (5 U.S.C. 704). 

§ 83.45 When will the final determination 

be effective? 

The final determination will become 

immediately effective. Within 10 

business days of the decision, the 

Assistant Secretary shall submit to the 

Federal Register a notice of the final 

determination to be published in the 

Federal Register. 

§ 83.46 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. 


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Federal Register / Vol. 79, No. 103 / Thursday, May 29, 2014 / Proposed Rules 30781 

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 

recognized 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 federally recognized 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 recognized Indian tribe. 

Dated: May 22, 2014. 

Kevin K. Washburn, 

Assistant Secretary—Indian Affairs. 

[FR Doc. 2014–12342 Filed 5–28–14; 8:45 am] 

BILLING CODE 4310–W7–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 117 

[Docket No. USCG–2013–0711] 

RIN 1625–AA09 

Drawbridge Operation Regulation; 

Raccoon Creek, Bridgeport, NJ 

AGENCY: Coast Guard, DHS. 

ACTION: Notice reopening comment 

period; Correction. 

SUMMARY: The Coast Guard is reopening 

the comment period to solicit additional 

comments concerning its notice of 

proposed rulemaking to change the 

regulation governing the U.S. Route 130 

lift bridge across Raccoon Creek at mile 

1.8 at Bridgeport, New Jersey. This 

notice corrects a misstatement in the 

notice of proposed rulemaking regarding 

the bridge data and responds to the 

initial comments received. 

DATES: Comments and related material 

must be received by June 30, 2014. 

ADDRESSES: You may submit comments 

identified by docket number USCG– 

2013–0711 using any one of the 

following methods: 

(1) Federal eRulemaking Portal: 

http://www.regulations.gov. 

(2) Fax: 202–493–2251. 

(3) Mail or Delivery: Docket 

Management Facility (M–30), U.S. 

Department of Transportation, West 

Building Ground Floor, Room W12–140, 

1200 New Jersey Avenue SE., 

Washington, DC 20590–0001. Deliveries 

accepted between 9 a.m. and 5 p.m., 

Monday through Friday, except federal 

holidays. The telephone number is 202– 

366–9329. 

See the ‘‘Public Participation and 

Request for Comments’’ portion of the 

SUPPLEMENTARY INFORMATION section 

below for instructions on submitting 

comments. To avoid duplication, please 

use only one of these methods. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this rule, call or 

email Mrs. Jessica Shea, Fifth Coast 

Guard District Bridge Administration 

Division, Coast Guard; telephone 757– 

398–6422, email jessica.c.shea2@

uscg.mil. If you have questions on 

viewing or submitting material to the 

docket, call Cheryl Collins, Program 

Manager, Docket Operations, telephone 

202–366–9826. 

SUPPLEMENTARY INFORMATION: 

A. Public Participation and Request for 

Comments 

The Coast Guard encourages you to 

participate in this rulemaking by 

submitting comments and related 

materials. All comments received will 

be posted, without change to http://

www.regulations.gov and will include 

any personal information you have 

provided. 

1. Submitting Comments 

If you submit a comment, please 

include the docket number for this 

rulemaking (USCG–2013–0711), 

indicate the specific section of this 

document to which each comment 

applies, and provide a reason for each 

suggestion or recommendation. You 

may submit your comments and 

material online (http://

www.regulations.gov), or by fax, mail or 

hand delivery, but please use only one 

of these means. If you submit a 

comment online via http://

www.regulations.gov, it will be 

considered received by the Coast Guard 

when you successfully transmit the 

comment. If you fax, hand deliver, or 

mail your comment, it will be 

considered as having been received by 

the Coast Guard when it is received at 

the Docket Management Facility. We 

recommend that you include your name 

and a mailing address, an email address, 

or a phone number in the body of your 

document so that we can contact you if 

we have questions regarding your 

submission. 

To submit your comment online, type 

the docket number [USCG–2013–0711] 

in the ‘‘SEARCH’’ box and click 

‘‘SEARCH.’’ Click on ‘‘Submit a 

Comment’’ on the line associated with 

this rulemaking. If you submit your 

comments by mail or hand delivery, 

submit them in an unbound format, no 

larger than 81⁄2 by 11 inches, suitable for 

copying and electronic filing. If you 

submit them by mail and would like to 

know that they reached the Facility, 

please enclose a stamped, self-addressed 

postcard or envelope. We will consider 

all comments and material received 

during the comment period and may 

change the rule based on your 

comments. 

2. Viewing Comments and Documents 

To view comments, as well as 

documents mentioned in this preamble 

as being available in the docket, go to 

http://www.regulations.gov, type the 

docket number (USCG–2013–0711) in 

the ‘‘SEARCH’’ box and click 

‘‘SEARCH.’’ Click on Open Docket 

Folder on the line associated with this 

rulemaking. You may also visit the 

Docket Management Facility in Room 

W12–140 on the ground floor of the 

Department of Transportation West 

Building, 1200 New Jersey Avenue SE., 

Washington, DC 20590, between 9 a.m. 

and 5 p.m., Monday through Friday, 

except Federal holidays. We have an 

agreement with the Department of 

Transportation to use the Docket 

Management Facility. 

3. Privacy Act 

Anyone can search the electronic 

form of comments received into any of 

our dockets by the name of the 

individual submitting the comment (or 

signing the comment, if submitted on 

behalf of an association, business, labor 

union, etc.). You may review a Privacy 

Act notice regarding our public dockets 

in the January 17, 2008, issue of the 

Federal Register (73 FR 3316). 

4. Public Meeting 

The Coast Guard does not plan to 

hold a public meeting. But you may 

submit a request for one to the docket 

using one of the four methods specified 

under ADDRESSES. Please explain why 

one would be beneficial. If we 

determine that one would aid this 

rulemaking, we will hold one at a time 

and place announced by a later notice 

in the Federal Register. 

B. Background and Purpose 

On October 28, 2013, the Coast Guard 

published a notice of proposed 

rulemaking (NPRM) entitled, 

Drawbridge Operation Regulation; 

Raccoon Creek, Bridgeport, NJ in the 

Federal Register (78 FR 64189). The 

original comment period, in which the 


emcdonald on DSK67QTVN1PROD with PROPOSALS