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Our firm defended a tribal absentee ballot law (denying absentee ballots to non-resident members) against constitutional attack in Jacobson v. Eastern Band of Cherokee Indians, No. CV-05-101 (Supreme Court of the Eastern Band of Cherokee Indians, Nov. 29, 2006).

General Memorandum 14-047

General Memorandum 14-047
Federal Acknowledgment Developments

The Department of the Interior recently published two proposed rules in the FEDERAL REGISTER which would amend regulations governing the federal acknowledgment process. The first proposed rule would revise regulations governing the process and criteria by which the Secretary of the Interior acknowledges an Indian tribe. Dates and locations for tribal consultation sessions and public hearings are provided below. Comments on this proposed rule are due by August 1, 2014. The second proposed rule would establish procedures for a new category of hearing for petitioners who receive a negative proposed finding for federal acknowledgment and would establish procedures for a new re-petition authorization process for petitioners whose petitions have been denied. Comments on this proposed rule are due by August 18, 2014.

1. Federal Acknowledgment of American Indian Tribes. The first proposed rule would reform the federal acknowledgment process found at 25 C.F.R. Part 83 "Procedures for Acknowledgment of Federally Recognized Indian Tribes." The publication of this proposed rule was preceded by a series of consultation sessions held with tribes and meetings held with the public in the summer of 2013 regarding a preliminary discussion draft of the proposed rule (see our General Memorandum 13-058 of June 28, 2013). The proposed rule would:
• Provide for a series of reviews that may result in the issuance of a proposed finding and a final determination earlier in the process.
• Separate the Departmental review into three main steps whereby:
- The Office of Federal Acknowledgment (OFA) would first review the petition and issue a proposed finding.
- 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 would issue a recommended decision to the Assistant Secretary-Indian Affairs.
- The Assistant Secretary would review the record, including (if applicable) an OHA judge's recommended decision, and would issue a final determination for the Department. Any challenges to this final determination would be 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 the opportunity to re-petition under the revised rules.
• Define "historical" to be prior to, but as late as, 1900, and would require evidence of criteria (b) (Community) and (c) (Political Authority) from 1934 to the present. The Department explains:
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. . . .
The starting year [for evaluation] coincides with the 1934 passage of the IRA [Indian Reorganization Act], which was a turning point in the Federal government's relationship with Indian tribes, recognizing and promoting tribal sovereignty. . . . By utilizing 1934 as a starting point of evaluation, this proposed rule does not intend to change the current practice regarding the types of evidence that may be submitted to establish criteria (b) and (c).

Specific Comments Sought. Comments on any provision of the proposed rule may be filed; however, the Department of Interior is particularly interested in receiving comments on the following provisions in the proposed rule:
• Whether to ease the documentary and administrative burdens and provide flexibility by defining "historical" as 1900 or earlier rather than requiring the documentation from as early as 1789 to the present.
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).

• Whether the factual basis for the OHA judge's decision should be limited to the hearing record.
• 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.

Tribal Consultation and Public Meetings will take place across the country throughout the month of July. In all but one instance the Public Meeting will take place from 8:30 a.m. – 12:00 p.m. and the Tribal Consultation (open only to representatives of federally recognized tribes) will follow from 1:00 p.m. – 4:30 p.m. At the July 24th event the order will be reversed. An RSVP to consultation@bia.gov and a government-issued photo identification are required to attend the July 15th event. The dates and locations are as follows:

July 1 Paragon Casino & Resort, 711 Paragon Pl, Marksville, LA 71351
July 15 BIA Regional Office, 911 NE 11th Ave, Portland, OR 97232
July 17 Menominee Casino Resort, N277 Hwy. 47/55, P.O. Box 760, Keshena, WI 54135
July 22 Cache Creek Casino Resort, 14455 California 16, Brooks, CA 95606
July 24 Crowne Plaza Billings, 27 N 27th St, Billings, MT 59101
July 29 Mashpee Wampanoag Tribe Community & Government Center Gymnasium, 483 Great Neck Road—South, Mashpee, MA 02649
A copy of the proposed rule is available here: http://www.gpo.gov/fdsys/pkg/FR-2014-05-29/pdf/2014-12342.pdf

2. Hearing and Re-Petition Authorization Process Concerning Acknowledgment of American Indian Tribes. The second proposed rule would amend 43 C.F. R. Part 4 "Department Hearings and Appeals Procedures" by adding a Subpart K titled "Hearing and Re-Petition Authorization Process Concerning Acknowledgment of American Indian Tribes." The new Subpart would:
• Establish procedures for a new category of expedited hearing for petitioners who receive a negative proposed finding for federal acknowledgment and request a hearing, most notably by:
- Requiring petitioners to submit direct testimony in writing before the hearing to shorten the length of the hearing and limiting the hearing to cross-examination of witnesses.
- Requiring the issuance of a recommended decision within 180 days of the initiation of the process unless the judge finds good cause for extending this deadline.
• Incorporate the Supreme Court's clarification that satisfaction of the "reasonable likelihood" standard does not require proof that a claimed fact is "more likely than not" to be true but would not change the "reasonable likelihood" burden of proof standard in 25 C.F.R. Part 83.10(a) for determining whether the facts claimed by the petitioner are valid and that the criteria for federal acknowledgment have been met.
• Establish procedures for a new re-petition authorization process for petitioners whose petitions have been denied.

Specific Comments Sought. Comments on any provision of the proposed rule may be filed; however, the Department of Interior in this notice has republished the Office of Hearings and Appeals-related questions from the first notice. The Department of Interior is also particularly interested in receiving comments on the following provisions in the proposed rule:
• Any revisions to these regulations that might better balance the parties' need for an adequate opportunity to prepare and present their cases and the substantial need to resolve each petition as expeditiously as possible.
• The propriety of requiring direct testimony to be submitted in writing before the hearing and setting a 180-day time limit for completion of the hearing process and issuance of a recommended decision.
• Whether the final rule should include summary decision procedures, i.e., procedures for issuing a recommended decision without a hearing based on the absence of any genuine disputed issue of material fact in the record.
A copy of the proposed rule is available here: http://www.gpo.gov/fdsys/pkg/FR-2014-06-19/pdf/2014-13817.pdf

Please let us know if we may provide additional information regarding these proposed rules or if we may be of assistance preparing comments.

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Inquiries may be directed to:
F. Michael Willis (mwillis@hobbsstraus.com)
Stephen Quesenberry (squesenberry@hobbsstraus.com)

Available Documents for Download ( any referenced attachments are included in download )


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