regulation

Bureau of Indian Affairs, Interior

§ 83.10

of intent and the documented petition
may be examined.
(b) The Assistant Secretary shall notify, in writing, the governor and attorney general of the state in which a
petitioner is located. The Assistant
Secretary shall also notify any recognized tribe and any other petitioner
which appears to have a historical or
present relationship with the petitioner or which may otherwise be considered to have a potential interest in
the acknowledgment determination.
(c) The Assistant Secretary shall also
publish the notice of receipt of the letter of intent, or documented petition if
a letter of intent has not been previously received, in a major newspaper
or newspapers of general circulation in
the town or city nearest to the petitioner. The notice will include all of
the information in paragraph (a) of this
section.
§ 83.10 Processing of the documented
petition.
(a) Upon receipt of a documented petition, the Assistant Secretary shall
cause a review to be conducted to determine whether the petitioner is entitled to be acknowledged as an Indian
tribe. The review shall include consideration of the documented petition and
the factual statements contained
therein. The Assistant Secretary may
also initiate other research for any
purpose relative to analyzing the documented petition and obtaining additional information about the petitioner’s status. The Assistant Secretary may likewise consider any evidence which may be submitted by interested parties or informed parties.
(b) Prior to active consideration of
the documented petition, the Assistant
Secretary shall conduct a preliminary
review of the petition for purposes of
technical assistance.
(1) This technical assistance review
does not constitute the Assistant Secretary’s review to determine if the petitioner is entitled to be acknowledged
as an Indian tribe. It is a preliminary
review for the purpose of providing the
petitioner an opportunity to supplement or revise the documented petition
prior to active consideration. Insofar
as possible, technical assistance reviews under this paragraph will be con-

ducted in the order of receipt of documented petitions. However, technical
assistance reviews will not have priority over active consideration of documented petitions.
(2) After the technical assistance review, the Assistant Secretary shall notify the petitioner by letter of any obvious deficiencies or significant omissions apparent in the documented petition and provide the petitioner with an
opportunity to withdraw the documented petition for further work or to
submit additional information and/or
clarification.
(3) If a petitioner’s documented petition claims previous Federal acknowledgment and/or includes evidence of
previous Federal acknowledgment, the
technical assistance review will also
include a review to determine whether
that evidence is sufficient to meet the
requirements of previous Federal acknowledgment as defined in § 83.1.
(c) Petitioners have the option of responding in part or in full to the technical assistance review letter or of requesting, in writing, that the Assistant
Secretary proceed with the active consideration of the documented petition
using the materials already submitted.
(1) If the petitioner requests that the
materials submitted in response to the
technical assistance review letter be
again reviewed for adequacy, the Assistant Secretary will provide the additional review. However, this additional
review will not be automatic and will
be conducted only at the request of the
petitioner.
(2) If the assertion of previous Federal acknowledgment under § 83.8 cannot be substantiated during the technical assistance review, the petitioner
must respond by providing additional
evidence. A petitioner claiming previous Federal acknowledgment who
fails to respond to a technical assistance review letter under this paragraph, or whose response fails to establish the claim, shall have its documented petition considered on the
same basis as documented petitions
submitted by groups not claiming previous Federal acknowledgment. Petitioners that fail to demonstrate previous Federal acknowledgment after a

275

VerDate Aug<31>2005

13:23 Apr 17, 2006

Jkt 208082

PO 00000

Frm 00285

Fmt 8010

Sfmt 8010

Y:\SGML\208082.XXX

208082

§ 83.10

25 CFR Ch. I (4–1–06 Edition)

review of materials submitted in response to the technical assistance review shall be so notified. Such petitioners may submit additional materials concerning previous acknowledgment during the course of active consideration.
(d) The order of consideration of documented petitions shall be determined
by the date of the Bureau’s notification
to the petitioner that it considers that
the documented petition is ready to be
placed on active consideration. The Assistant Secretary shall establish and
maintain a numbered register of documented petitions which have been determined ready for active consideration. The Assistant Secretary shall
also maintain a numbered register of
letters of intent or incomplete petitions based on the original date of filing with the Bureau. In the event that
two or more documented petitions are
determined ready for active consideration on the same date, the register of
letters of intent or incomplete petitions shall determine the order of consideration by the Assistant Secretary.
(e) Prior to active consideration, the
Assistant Secretary shall investigate
any petitioner whose documented petition and response to the technical assistance review letter indicates that
there is little or no evidence that establishes that the group can meet the
mandatory criteria in paragraph (e), (f)
or (g) of § 83.7.
(1) If this review finds that the evidence clearly establishes that the
group does not meet the mandatory
criteria in paragraph (e), (f) or (g) of
§ 83.7, a full consideration of the documented petition under all seven of the
mandatory criteria will not be undertaken pursuant to paragraph (a) of this
section. Rather, the Assistant Secretary shall instead decline to acknowledge that the petitioner is an Indian tribe and publish a proposed finding to that effect in the FEDERAL REGISTER. The periods for receipt of comments on the proposed finding from petitioners, interested parties and informed parties, for consideration of
comments received, and for publication
of a final determination regarding the
petitioner’s status shall follow the
timetables established in paragraphs
(h) through (l) of this section.

(2) If the review cannot clearly demonstrate that the group does not meet
one or more of the mandatory criteria
in paragraph (e), (f) or (g) of § 83.7, a
full evaluation of the documented petition under all seven of the mandatory
criteria shall be undertaken during active consideration of the documented
petition pursuant to paragraph (g) of
this section.
(f) The petitioner and interested parties shall be notified when the documented petition comes under active
consideration.
(1) They shall also be provided with
the name, office address, and telephone
number of the staff member with primary administrative responsibility for
the petition; the names of the researchers conducting the evaluation of the
petition; and the name of their supervisor.
(2) The petitioner shall be notified of
any substantive comment on its petition received prior to the beginning of
active consideration or during the
preparation of the proposed finding,
and shall be provided an opportunity to
respond to such comments.
(g) Once active consideration of the
documented petition has begun, the Assistant Secretary shall continue the review and publish proposed findings and
a final determination in the FEDERAL
REGISTER pursuant to these regulations, notwithstanding any requests by
the petitioner or interested parties to
cease consideration. The Assistant Secretary has the discretion, however, to
suspend active consideration of a documented petition, either conditionally
or for a stated period of time, upon a
showing to the petitioner that there
are technical problems with the documented petition or administrative
problems that temporarily preclude
continuing active consideration. The
Assistant Secretary shall also consider
requests by petitioners for suspension
of consideration and has the discretion
to grant such requests for good cause.
Upon resolution of the technical or administrative problems that are the
basis for the suspension, the documented petition will have priority on
the numbered register of documented

276

VerDate Aug<31>2005

13:23 Apr 17, 2006

Jkt 208082

PO 00000

Frm 00286

Fmt 8010

Sfmt 8010

Y:\SGML\208082.XXX

208082

Bureau of Indian Affairs, Interior

§ 83.10

petitions insofar as possible. The Assistant Secretary shall notify the petitioner and interested parties when active consideration of the documented
petition is resumed. The timetables in
succeeding paragraphs shall begin anew
upon the resumption of active consideration.
(h) Within one year after notifying
the petitioner that active consideration of the documented petition has
begun, the Assistant Secretary shall
publish proposed findings in the FEDERAL REGISTER. The Assistant Secretary has the discretion to extend
that period up to an additional 180
days. The petitioner and interested
parties shall be notified of the time extension. In addition to the proposed
findings, the Assistant Secretary shall
prepare a report summarizing the evidence, reasoning, and analyses that are
the basis for the proposed decision.
Copies of the report shall be provided
to the petitioner, interested parties,
and informed parties and made available to others upon written request.
(i) Upon publication of the proposed
findings, the petitioner or any individual or organization wishing to challenge or support the proposed findings
shall have 180 days to submit arguments and evidence to the Assistant
Secretary to rebut or support the proposed finding. The period for comment
on a proposed finding may be extended
for up to an additional 180 days at the
Assistant Secretary’s discretion upon a
finding of good cause. The petitioner
and interested parties shall be notified
of the time extension. Interested and
informed parties who submit arguments and evidence to the Assistant
Secretary must provide copies of their
submissions to the petitioner.
(j)(1) During the response period, the
Assistant Secretary shall provide technical advice concerning the factual
basis for the proposed finding, the reasoning used in preparing it, and suggestions regarding the preparation of materials in response to the proposed finding. The Assistant Secretary shall
make available to the petitioner in a
timely fashion any records used for the
proposed finding not already held by
the petitioner, to the extent allowable
by Federal law.

(2) In addition, the Assistant Secretary shall, if requested by the petitioner or any interested party, hold a
formal meeting for the purpose of inquiring into the reasoning, analyses,
and factual bases for the proposed finding. The proceedings of this meeting
shall be on the record. The meeting
record shall be available to any participating party and become part of the
record considered by the Assistant Secretary in reaching a final determination.
(k) The petitioner shall have a minimum of 60 days to respond to any submissions by interested and informed
parties during the response period.
This may be extended at the Assistant
Secretary’s discretion if warranted by
the extent and nature of the comments. The petitioner and interested
parties shall be notified by letter of
any extension. No further comments
from interested or informed parties
will be accepted after the end of the
regular response period.
(l) At the end of the period for comment on a proposed finding, the Assistant Secretary shall consult with the
petitioner and interested parties to determine an equitable timeframe for
consideration of written arguments
and evidence submitted during the response period. The petitioner and interested parties shall be notified of the
date such consideration begins.
(1) Unsolicited comments submitted
after the close of the response period
established in § 83.10(i) and § 83.10(k),
will not be considered in preparation of
a final determination. The Assistant
Secretary has the discretion during the
preparation of the proposed finding,
however, to request additional explanations and information from the petitioner or from commenting parties to
support or supplement their comments
on a proposed finding. The Assistant
Secretary may also conduct such additional research as is necessary to
evaluate and supplement the record. In
either case, the additional materials
will become part of the petition record.
(2) After consideration of the written
arguments and evidence rebutting or
supporting the proposed finding and
the petitioner’s response to the comments of interested parties and informed parties, the Assistant Secretary

277

VerDate Aug<31>2005

13:23 Apr 17, 2006

Jkt 208082

PO 00000

Frm 00287

Fmt 8010

Sfmt 8010

Y:\SGML\208082.XXX

208082

§ 83.11

25 CFR Ch. I (4–1–06 Edition)

shall make a final determination regarding the petitioner’s status. A summary of this determination shall be
published in the FEDERAL REGISTER
within 60 days from the date on which
the consideration of the written arguments and evidence rebutting or supporting the proposed finding begins.
(3) The Assistant Secretary has the
discretion to extend the period for the
preparation of a final determination if
warranted by the extent and nature of
evidence and arguments received during the response period. The petitioner
and interested parties shall be notified
of the time extension.
(4) The determination will become effective 90 days from publication unless
a request for reconsideration is filed
pursuant to § 83.11.
(m) The Assistant Secretary shall acknowledge the existence of the petitioner as an Indian tribe when it is determined that the group satisfies all of
the criteria in § 83.7. The Assistant Secretary shall decline to acknowledge
that a petitioner is an Indian tribe if it
fails to satisfy any one of the criteria
in § 83.7.
(n) If the Assistant Secretary declines to acknowledge that a petitioner
is an Indian tribe, the petitioner shall
be informed of alternatives, if any, to
acknowledgment under these procedures. These alternatives may include
other means through which the petitioning group may achieve the status
of an acknowledged Indian tribe or
through which any of its members may
become eligible for services and benefits from the Department as Indians, or
become members of an acknowledged
Indian tribe.
(o) The determination to decline to
acknowledge that the petitioner is an
Indian tribe shall be final for the Department.
(p) A petitioner that has petitioned
under this part or under the acknowledgment regulations previously effective and that has been denied Federal
acknowledgment may not re-petition
under this part. The term ‘‘petitioner’’
here includes previously denied petitioners that have reorganized or been
renamed or that are wholly or primarily portions of groups that have
previously been denied under these or
previous acknowledgment regulations.

§ 83.11 Independent review, reconsideration and final action.
(a)(1) Upon publication of the Assistant Secretary’s determination in the
FEDERAL REGISTER, the petitioner or
any interested party may file a request
for reconsideration with the Interior
Board of Indian Appeals. Petitioners
which choose under § 83.3(g) to be considered under previously effective acknowledgment regulations may nonetheless request reconsideration under
this section.
(2) A petitioner’s or interested party’s request for reconsideration must
be received by the Board no later than
90 days after the date of publication of
the Assistant Secretary’s determination in the FEDERAL REGISTER. If no request for reconsideration has been received, the Assistant Secretary’s decision shall be final for the Department
90 days after publication of the final
determination in the FEDERAL REGISTER.
(b) The petitioner’s or interested party’s request for reconsideration shall
contain a detailed statement of the
grounds for the request, and shall include any new evidence to be considered.
(1) The detailed statement of grounds
for reconsideration filed by a petitioner or interested parties shall be
considered the appellant’s opening
brief provided for in 43 CFR 4.311(a).
(2) The party or parties requesting
the reconsideration shall mail copies of
the request to the petitioner and all
other interested parties.
(c)(1) The Board shall dismiss a request for reconsideration that is not
filed by the deadline specified in paragraph (a) of this section.
(2) If a petitioner’s or interested party’s request for reconsideration is filed
on time, the Board shall determine,
within 120 days after publication of the
Assistant Secretary’s final determination in the FEDERAL REGISTER, whether
the request alleges any of the grounds
in paragraph (d) of this section and
shall notify the petitioner and interested parties of this determination.
(d) The Board shall have the authority to review all requests for reconsideration that are timely and that allege
any of the following:

278

VerDate Aug<31>2005

13:23 Apr 17, 2006

Jkt 208082

PO 00000

Frm 00288

Fmt 8010

Sfmt 8010

Y:\SGML\208082.XXX

208082