What is the purpose of Federal acknowledgment regulations?
The purpose of the Federal acknowledgment regulations is to acknowledge that a government-to-government relationship exists between the United States and tribes which have existed since first contact with non-Indians. Through the process, the Government determines whether it should extend such a relationship to a particular petitioner. The acknowledgment regulations do not apply to Indian tribes that are now acknowledged. They apply only to those tribes which have not yet established such a government-to-government relationship.
Is my tribe recognized?
A list of Federally recognized tribes is published periodically in the FEDERAL REGISTER. Currently, the Federal Government recognizes tribes. If the name of your tribe is not on this list, your tribe is not now recognized by the Federal Govern-ment. This is true even for groups which have been recognized in the past, and for groups which have been recognized in the past.
Who makes acknowledgment decisions?
The Secretary of the Interior has delegated authority to make acknowledgment decisions to the Assistant Secretary – Indian Affairs.
What are Federal regulations?
Regulations are written rules that the government and petitioners follow. They tell you and the government what to do.
Most Federal regulations expand on a specific law or statute. The Federal regulations are based upon the general authority delegated to the Secretary of the Interior to deal with Indians. Regulations are stronger than policy statements because they have gone through a process of public comment.
How was Federal acknowledgment done before the regulations went into effect?
Before 1978, requests from Indian groups for Federal acknowledgment as tribes were determined on an ad hoc basis. Some tribes were acknowledged by Congressional action. Others were done by various forms of administrative decision within the Executive Branch of the Federal Government, or through cases brought in the courts.
How were the Federal acknowledgment regulations developed?
Requests for Federal acknowledgment increased in the 1970’s. As a result, the Federal Acknowledgment Project (FAP) was started in the Department of the Interior. Regulations governing the administrative process for Federal acknowledgment first became effective October 2, 1978. The regulations were designed to provide a uniform process to review acknowledgment claimants whose character and history varied widely.
When the Federal Acknowledgment Project was first established, the regulations were designated as Part 54 of Title 25 of the Code of Federal Regulations (abbreviated as 25 CFR Part 54). The regulations were officially redesignated as Part 83 of Title 25 of the Code of Federal Regulations (abbreviated as 25 CFR Part 83) by Final Rule which was published in the FEDERAL REGISTER, Vol. 47, No. 61, pages 13326-13328, Tuesday, March 30, 1982.
After an extensive process of public consultation and comment, the Federal acknowledgment regulations under 25 CFR Part 83 were revised in 1994. The revised regulations were published in the FEDERAL REGISTER, Vol. 59, No. 38, pages 9280-9300, Friday, February 25, 1994. The revisions became effective March 25, 1994 and are designated 25 CFR Part 83.
Did the revised 1994 regulations make changes which would result in groups that would have been acknowledged under the 1978 regulations not being acknowledged?
No.
Did revised 1994 regulations make changes which will result in the acknowledgment of groups which would not have been acknowledged under the 1978 regulations?
No.
May petitioners who were turned down under the 1978 regulations re-petition under the revised 1994 regulations?
No.
What are the procedures under the Federal acknowledgment regulations?
The regulations are administered by the Branch of Acknowledgment and Research (BAR) in the Bureau of Indian Affairs (BIA).
Every group which inquires about petitioning for Federal acknowledgment is sent a packet which includes a copy of the regulations (25 CFR Part 83). Petitions are evaluated under mandatory criteria, or standards described in the regulations.
Does the BIA limit acknowledgment of new tribes to protect the interests of recognized tribes?
No. The Federal Government is obligated to acknowledge unrecognized tribes which have continued to exist and which meet the criteria, established in the acknowledgment regulations.
The function of the Federal acknowledgment process is to extend acknowledgment to those petitioners who meet the criteria, and to deny acknowledgment to those petitioners who do not meet the criteria.
Are politics involved in applying the regulations?
No. Part of the purpose of the administrative procedures is to remove the influence of political pressures from the acknowledgment process. Opposition by state and local governments or by recognized tribes is not taken into account if it is not based on the criteria. Only evidence relating to the criteria is considered in the decision.
Letter-writing campaigns by local citizens, whether in support of or in opposition to a petition, do not influence the recommendations that are made to the Assistant Secretary – Indian Affairs.
Are there any alternatives to going through the process in the 25 CFR Part 83 regulations?
Congress has the power to acknowledge tribes through legislation.
The President has the power to acknowledge tribes by Executive Order. However, since 1978, Presidents have relied on the BIA to acknowledge tribes through the Federal Acknowledgment Process, 25 CFR Part 83.
The Federal Courts have the power to acknowledge tribes through litigation. However, once the Federal acknowledgment process was established (FAP), courts have directed petitioners to exhaust their administrative remedy (go through the FAP) before seeking a remedy through the courts.
What is the Purpose of the Guidelines? What is the purpose of having guidelines on top of the regulations?
These guidelines are intended to explain the Federal acknowledgment regulations, and to provide suggestions to groups which are interested in petitioning for acknowledgment.
These guidelines are aimed primarily at the officers and members of petitioning groups. Persons who are researching and writing petitions will also find them useful.
Do the guidelines make changes in the published regulations?
No. The guidelines cannot change the regulations.
Will the guidelines be revised and updated?
Since the guidelines are not additional regulations or requirements, they will be expanded and updated periodically as new, or frequently asked questions are received from petitioners and their researchers. For this reason, the guidelines are provided in a loose-leaf format, so updated pages can be sent to you and the old versions can be removed and replaced with updated versions.
If we follow the guidelines exactly, will our group be acknowledged?
Not necessarily. A petition that has been prepared exactly in accordance with the guidelines, but which cannot demonstrate that the petitioner meets all of the mandatory criteria, will not result in a determination that the petitioner is entitled to be acknowledged as a tribe.
The guidelines are intended to assist petitioners and their researchers. However, the guidelines do not provide a check list or form for you to fill out which will automatically result in Federal acknowledgment.
How Do We Become a Petitioner?
Who can petition for Federal acknowledgment?
Any group of Indian descendants can petition for Federal acknowledgment as an Indian tribe.
Are there any exceptions?
There is one exception. Any group which previously petitioned for acknowledgment but has been denied Federal acknowledgment under 25 CFR Part 83 may not re-petition under a new name and leadership.
How do we submit a Petition?
You begin by writing a letter stating your intent to petition and mail it to the Assistant Secretary – Indian Affairs 1849 C Street, N.W., Washington, D.C. 20240. It doesn’t need to be elaborate, and you don’t need letterhead paper, etc.
Who should sign the Letter of Intent to Petition?
The governing body of the petitioning group — the leaders.
What will happen after we send in the Letter of Intent to Petition?
The Branch of Acknowledgment and Research (BAR) in the Bureau of Indian Affairs (BIA) will arrange all of the following items:
– Publication of a notice in the FEDERAL REGISTER;
– Publication of a legal notice in a local newspaper;
– Notification to the Governor of your State;
– Notification to the Attorney General of your State;
– A letter of response to the leader of your group; and
– Establishment of an administrative file in the BAR.
The name of your group will be added to the next Status Report issued by BAR.
BAR will send your group a “petition packet” containing information and sample forms to guide the research which your group will need to undertake.
After we file a Letter of Intent to Petition, how long do we have to prepare our documented petition?
After you file a letter of intent to petition, your group has unlimited time under the regulations in which to prepare and submit a documented petition, which includes the evidence and arguments showing that your group meets the requirements for acknowledgment.
It is important to keep the BIA advised of your group’s current address and leadership. Some groups which submitted letters of intent to petition in 1978 haven’t been heard from since. The BIA has not been able to find them during “locator projects,” undertaken every four or five years. They are still on the list of petitioners.
What is the Branch of Acknowledgment
and Research (BAR)?
The Branch of Acknowledgment and Research, or “BAR”, is the government office principally responsible for administering the acknowledgment regulations, 25 CFR 83.
Where is the Branch of Acknowledgment and Research (BAR) located in the Federal Government’s organization?
BAR is in the Executive Branch, under the President; in the Department of the Interior, under the Secretary of the Interior; and under the Assistant Secretary – Indian Affairs; in the Bureau of Indian Affairs, under the Deputy Commissioner. for Indian Affairs; under the Director of the Office of Tribal Government Services; and under the Chief of the Division of Tribal Services.
Does BAR establish acknowledgment policy?
The Branch of Acknowledgment and Research (BAR) does not make policy. The duty of its staff is to evaluate petitions under the policies established by the regulations and to make recommendations to the Assistant Secretary – Indian Affairs.
What does BAR do?
The primary mission of the BAR is to evaluate the evidence presented by petitioners to determine if they meet the criteria to be acknowledged as a Federal tribe. They base their recommendations to senior managers in the BIA and the Department of the Interior on this evaluation. The BAR staff also provides technical assistance to petitioners, administrates the regulations and defends the decisions in appeals and court.
What kind of technical assistance is provided to petitioners?
BAR provides technical assistance to the petitioner and/or its researchers throughout the Acknowledgment process to ensure that the petitioner presents the strongest case possible and is not turned down for technical reasons. The amount of technical assistance available depends in part on the resources available to the BIA, which is determined by the budget.
BAR may not conduct research for the petitioner.
Examples of technical assistance (T.A.) are:
– Conference calls with petitioners and petition researchers;
– Meetings with petitioners and researchers at the BAR office;
– Workshops for potential petitioners, petitioners, and researchers;
– Technical Assistance letters reviewing the documented petition;
– On-site visits to petitioners; and
– These guidelines.
What kind of evaluation does BAR do?
After the petitioner provides a documented petition, the BAR verifies, evaluates, and, to a limited extent, expands petitions. The BAR staff conducts an independent analysis of the petition’s narrative text and its supporting documents. The BAR staff members assigned to your case will make a short research trip to the petitioner’s home area to do this. BAR’s original research is primarily to answer questions arising from the evaluation of the petition.
The BIA cannot take the petitioner’s statements on face value, as much as the petitioners themselves may believe in them. This is why petitioners must document their claims, and professional staff employed by the BIA must verify the claims.
BAR makes its recommendations based solely on the available evidence. As such, the team assigned to the case reviews the petition thoroughly, conducts limited additional research, performs the required analysis, and evaluates the evidence. BAR then prepares technical reports which discuss the available evidence as well as a summary recommendation which discusses whether the group meets the seven mandatory criteria for acknowledgment (25 CFR 83.7(a) – (g)).
What administrative duties does BAR perform?
The BAR performs various administrative duties concerning petitioners. BAR is assigned responsibility for processing letters of intent to petition and documented petitions.
The Branch Chief is responsible for overall management, ensuring that the responsibilities assigned by the regulations are carried out.
Regional petition administrators are professional staff members who are assigned the additional responsibility of keeping track of petitioners in a particular area of the country.
Status reports, available to the public, are issued periodically, but not on a regular schedule.
How big is BAR?
BAR does not qualify as a large, faceless, government bureaucracy. It is currently authorized to have 10 full-time employees. Sometimes, because of staff turnover and hiring procedures, it has fewer than that. You will get to know your contact person.
Can we talk directly to the BAR staff?
Yes! The BAR telephone number is (202) 208-3592.
What kind of professional staff does BAR use to evaluate petitions?
BAR employs professional staff in the following three disciplines:
– Anthropology,
– Genealogy, and
– History.
How are BAR staff assigned to particular petitions?
Basically, on a time-available basis. Some staff members have special expertise in different parts of the country or time periods, but they are capable of providing professional review of any petition to which they are assigned.
What are field visits?
During the active consideration period, the BAR staff members assigned to evaluate a petition will make field visits to the area where the petitioning group is located. While they are in the field, they will conduct in-depth interviews with selected members of your group and gather additional information.
Is the BAR staff intrusive during field visits?
Sometimes petitioners think so.
If so, why?
Sometimes BAR researchers ask questions about topics that are uncomfortable to the petitioner, but which are necessary to obtain evidence to evaluate the merits of the petition.
Other times, they ask questions the petitioner has not previously considered. Sometimes the member being interviewed mistakenly thinks that he or she is expected to have a lot of specialized information.
If BAR asks for additional information during the active consideration period for a proposed finding or while preparing a final determination report, the simplest and fastest thing for the petitioner to do is just to provide it, if it is at hand. It may not be easy to explain how the information requested clarifies the overall description of the petitioner, but the staff won’t ask for it if they don’t need it.
Do the petitioners have to answer the questions?
No, but the purpose of the questions is to gather information to describe the petitioners as fully as possible, not to build a case for or against them. As often as not, it is a benefit for the petitioners to answer the questions because the answers may help to resolve contradictions between what the petitioner maintains and what other documentation seems to suggest.
Who reviews the recommendations made by BAR staff
before a decision is issued?
There is “peer review” of the technical reports by other members of BAR staff and the Branch Chief to ensure that they are clear and consistent. Once the peer review is completed, the technical reports and recommendation are reviewed by the:
– Office of the Solicitor, Division of Indian Affairs:
– Office of Tribal Services;
– Office of the Deputy Commissioner of Indian Affairs; and
– Office of the Assistant Secretary – Indian Affairs.
How Does a Petitioner Prepare a
Documented Petition?
“The Burden of Proof is on the Petitioner.”
A successful petitioner must meet all seven mandatory criteria. Failure to meet any one of the mandatory criteria will result in a negative decision.
Why do we have to document our existence?
Mainly because the Department is obligated to provide services and maintain a government-to-government relationship with all tribes that have continued to exist. Federal acknowledgment does not just say that your ancestry is Indian or that your cultural heritage is Indian. It acknowledges your tribe’s status as a government with independent sovereignty derived from your historical status as a tribe before European contact and maintenance of your government without break since then.
Positive decisions acknowledge that a perpetual government-to-government relationship exists between your tribe and the United States and have fundamental legal, social and economic impacts on your tribe, your neighbors, and Federal, state, and local governments. Therefore, the petitioning process is necessarily very thorough.
How long do we have to prepare the petition?
Under the regulations, the time between the filing of the letter of intent and the submission of the documented petition is not limited.
How much is this going to cost us?
There is no one answer to this question because the petitioners vary greatly in the extent to which their history has previously been documented. Cost also depends to some extent on the size of your group. It is simply less expensive to document a petition covering 200 members than a petition covering 2,000 members; it is cheaper to document 2,000 members than 20,000 members.
The more of the work your members do themselves on a volunteer basis, the cheaper it will be. The more consultants and lawyers you employ, the more expensive the process becomes.
Go to the library and borrow or buy a couple of basic books about how to write local history, how to write family history, how to do interviews, and how to write research papers. Keep them in the tribal office. Read them! In the long run, they will be a good investment.
Read about recruiting, training, and using volunteers.
How much is enough?
Some petitioners think that if more than half (51 percent) of their documents supports their case, they will be recognized. If you submit 100 documents and 51 support your acknowledgment, you will not always be recognized. Acknowledgment is not a numbers game.
This is because the pieces of evidence you submit do not carry equal weight. Some documents, such as a ratified treaty, prove a tribe’s existence at the time the treaty was signed. Others, such as a state driver’s license with an individual identified as “Indian,” prove virtually nothing about a tribe’s existence.
The BIA considers factors such as the reliability of the observer or witness, what is known about a document’s origin, and the social and historical context of the document. What counts in the long run is the overall picture that emerges.
It’s not the volume of evidence, but the quality of evidence which counts.
Why doesn’t the government just accept the documents we send them?
It’s a matter of accountability. A petition may omit significant information, not address all of the necessary factual questions, or present factual conclusions inaccurately.
The BIA is responsible for defending acknowledgment decisions, whether the decision does or doesn’t acknowledge a tribe. The BIA makes the strongest case possible so that the government’s decision stands up on appeal or in court.
A decision to acknowledge a tribe based on weak evidence or analysis may jeopardize the tribe’s status in the long run if the decision can not be defended.
Why is this all so complicated?
It does seem complicated. However, the regulations try to ensure that each petitioner’s case will be treated fairly, that the review will be complete, and that all parties have a chance to present information and to get access to information about the case.
Where do we start?
An Indian tribe is a group of people of American Indian descent who have moved along together through time, and sometimes, also, through various places along migration routes.
To trace this movement, start with your group as it exists today and complete the following steps:
– Define it (who are your members?);
– Describe it (where do they live and what do they do together as a tribe?);
– Move backwards in time to show how your group developed; and
– Finally, reach its origins.
This is your “historic tribe.”
Avoid leaving undocumented gaps in time by overlapping your documentation whenever possible. You can do this by showing that the people in one document also appear on earlier and later documents.
For example, show that your mother, who was listed on your tribe’s roll in 1978, appeared with her parents on the 1920 Federal census. Show then that her parents — your grandparents — were listed with their siblings on the 1910 Federal Indian population schedule and with their parents — your great grandparents — on the 1900 Federal Indian population schedule.
Continue to link the generations using the documents available. Show on the 1880 Federal census where your great grandparents lived with their parents — your great great grandparents. The 1880 Federal census would also show when and where your great great grandparents were born.
These documents not only show how you as an individual descend from your great great grandparents, but also show with whom your ancestors lived “in tribal relations”. These neighbors of your ancestors may have been tribal members.
Use documentation to connect each generation until you locate your historic tribe. Once you determine who your ancestors were and where they were living, you will be able to locate many other documents that tell you about their lives as tribal members and their tribe’s activities.
What Documents Do We Need?
What should we include?
Here are some basic tips:
Include records from the modern period. Many petitioners forget to document the period after World War II. Apparently, they assume that since they themselves remember what has been going on during the lifetimes of their oldest members, everyone else (specifically the BIA’s researchers) must know it also.
Include records from all time periods so that the generations are linked. For example, don’t leave a gap between the Civil War and 1900.
Make photocopies of all the documents you used. Make sure the photocopies are legible.
What shouldn’t we include?
Don’t put original documents in the petition. Make photocopies.
Make photocopies of everything you submit and keep them.
Remember that everything you submit becomes the property of the government.
Can we use oral history?
Oral history is the spoken record of a group, from the mouths of its members, its non-Indian neighbors, local officials, and others.
You may use oral history as direct evidence for the modern period. For example, interviews with your tribe’s leaders about their tribal activities during the last ten years, may be very useful evidence for showing that your tribe exists as a political entity today.
You may also use oral history when people are talking about their own lifetimes. If someone came and interviewed members of your group in the 1920’s or 1900’s, you may use those interviews for direct evidence about those times.
When people talk about what they have heard — what their grandparents told them, for example — this evidence is not as strong as personal, first-hand accounts of actual experiences. But you can use such stories about long-past events as guideposts to finding written documentation.
For example, if a person says that her great-grandma rode an ox-cart to the state line every autumn to visit friends and relatives, go search the records of the counties she visited on both sides of the state boundary. You might find her tribe.
How do we keep a record of the information we find?
This is where that manual about writing research papers that you bought will be very helpful. Basically, it will tell you, in more detail, to do the following things:
Use footnotes. Using footnotes is a good way to tie your documents to your narrative.
Provide a bibliography. List books and articles giving the title, author, publisher, and place and date of publication. List newspapers by name and location. Providing page numbers is always a good idea.
The regulations do not require any particular style or format for your footnotes and bibliography. Try to be consistent and make sure the form you choose provides a full identification for the source cited. Other people should be able to locate the documents using the information you provide.
Are there any suggestions for the exhibits?
When photocopying excerpts from published works:
– Be sure to include the title page and copyright page for books and articles;
– Don’t copy so extensively that you violate the copyright laws; and
– Be sure to include the name, issue, and page of newspaper items.
When photocopying documents from archives, on the document’s face (front side) write the name of the archives and the information used by the archives to retrieve documents from their shelves.
Include the information you need to find the document again, such as where you found it, the record group number or name of the collection, any file numbers, subject headings or file locations.
Each archive has its own way of filing documents. Some organize them in “record groups” and others in manuscript collections.
If the information is from a member’s scrapbook, etc., write down:
– The name of the member;
– The date you made the copy; and
– What your member says about the document and the scrapbook’s origins.
If she was given the scrapbook by her father’s sister, for example, clearly indicate this on or with the document.
How do we cite oral interviews as sources?
If the information was given orally, note:
– Who gave it;
– When he/she gave it;
– His or her address; and
– Why this person was interviewed.
Be specific about who was interviewed, the date and place of the interview, and who was present. If possible, make a tape recording or video for your group’s own permanent records.
You may want to transcribe some or all of the interviews and submit them as exhibits to the petition.
The appendix lists some basic manuals and reference books which answer these questions in much more detail.
Do We Need Professional Help?
The expense of preparing a petition for Federal acknowledgment is increased a lot if the group decides to employ professional researchers, consultants, lawyers, and a staff that more or less parallels that of the BAR: a genealogist, a historian, and an anthropologist. A staff this size is clearly beyond the resources of many small groups.
How much outside assistance in preparing a petition is necessary depends a lot on the individual circumstances of the petitioning group. For example, is one of your members a retired high school history teacher who is willing to volunteer for two or three years as project coordinator? Can you get your teenagers into the tribal office to do the filing?
The members of your governing body (council, board, or elders) should read the regulations (including the definitions), consult with BAR staff, and decide this question.
What should we do if we decide we don’t need outside help and want to do it ourselves?
The main advantage to doing the petition yourself is that you know your group better than anyone else does. If you decide to take this approach:
– Appoint a coordinator;
– Make a plan about how to proceed and have it approved by the governing body or group.
Why should we start at the present and move backward? I always thought history started in the past and moved forward!
Because this is a narrative about your group which is petitioning. You should already have a pretty good idea of who your members are as you start your petition. The petitioner — as defined by its members — should be the focus of the petition.
Where should we begin looking for evidence?
Close-by. Consider the ripple effect: just as those circles closest to the rock thrown into the water are clearest and best-defined, so are the records closest and most recent to your group the most informative about it.
First use local records: family, church, school, county;
Second, state records; and
Finally, Federal records (remember the census and use it fully).
Even if you hire consultants, your group’s petition will probably proceed faster if you and your consultant work together. Just because you hire consultants doesn’t mean you can’t do many of the things in this section.
Will there be anything in the records of the Bureau of Indian Affairs?
If your group sent its children to Indian schools, received services from the BIA, collected annuity payments under treaties, etc.– probably, yes.
They may be found at the National Archives or the regional Federal Record Center. Historical BIA records are known as “RG75.” RG stands for the “Record Group.” Current files of the BIA are found in the agency in your area and in Washington headquarters.
If we can’t find any BIA records, why not?
There are many possible reasons. For example, it may be that an east coast tribe came to terms with the colonial government before the United States was established, and never was under the supervision of the BIA.
What kind of training do we need?
– Keep using and referring to the research manuals you bought or borrowed.
– Call BAR for technical assistance and advice.
If you need more, consider trying to get further training for your members who are doing the research.
Where can our members find training?
– Workshops–local historical societies, genealogical societies, etc.;
– Your local community college;
– Consultation with successful petitioners
Attempt to get professionals in your town or county who are not your members to volunteer time to train your members. The BAR is glad to talk to these volunteers also.
How do we learn more about acknowledgment?
– Make sure you understand the regulations. Read them often.
– Talk to BAR’s researchers; ask questions; ask for technical assistance.
– Read past acknowledgment decisions for groups that might be similar to yours.
Copies of these earlier decisions are available free of charge from BAR. Some are also available from BAR’s home page which is on the BIA’s home page at http://www.doi.gov/index.cfm.
Call or e-mail your regional petition administrator at BAR and ask which ones will be most applicable to your case. For instance, if your group is located in New England, you will probably find the decisions about the Narragansett in Rhode Island or the Mohegan in Connecticut more helpful than reading everything that was said about the Death Valley Timbi-Sha Shoshone in California or the San Juan Southern Paiute who were located in the middle of the Navajo Nation.
Obtain copies of past petitions that might be similar to yours. BAR staff can suggests which ones might be useful to your case.
You may also want to read court decisions concerning acknowledgment. BAR staff can point you to the most relevant ones.
What’s the cost for getting copies of other petitions?
The first 100 pages are free; then 13 cents per page for the remainder. Write to BAR for specific cost estimates. You may also read the petitions in person in the BAR offices. Call ahead to make sure the staff is ready when you arrive.
What if we decide that we’re in over our heads?
Keep your options open: be prepared to seek professional assistance if you decide you need it.
Preparing a Petition
with Professional Assistance
If we decide that we do need professional assistance, how do we find it? How do we locate professionals who can help us?
The BIA will not tell you who to hire, and the BIA does not recommend specific researchers. However, the BIA will advise you what types of skills the researchers will need.
Start with the genealogy. Hire a genealogist first. They will try to trace your ancestry to a historic tribe. A historian will next build on what the genealogist has found by placing the ancestors in a historical context. Finally, the anthropologist describes the social and political entity your ancestors maintained in the past, and you maintain today. Don’t hire them all at once. Stagger their work. This is generally how BIA researchers work too.
Most state archives and state libraries keep lists of professional researchers who specialize in the records of that state. Sometimes the lists are even by county. Call and ask if they can send you a list.
Take full advantage of your county library, county historical society, etc. Their staffs have often been very helpful to petitioners and have considerable knowledge.
Contact professional organizations: call your state historical society; ask the American Anthropological Association for a list of anthropological societies in your state; and contact the Board for Certification of Genealogists for a list of certified genealogical record searchers or certified American Indian lineage specialists in your area.
Contact nationwide American Indian organizations for recommendations.
If we decide that we do need professional assistance, how do we pay for it?
Contact the Administration for Native Americans (ANA) in the Department of Health and Human Services. They fund petitioners. See the list of addresses in the appendix.
Locate other funding sources: these may be private foundations, church groups, etc. Some petitioners have received grants from local businesses and developers.
Conduct fund-raising events. Actual examples of fund-raisers include petitioners who have: run a salmon bake at the state fair, a pow-wow, or charity bingo, offered community education classes, held box socials, and charged admission to the petitioner’s museum.
What is the relationship between BAR staff and our petition researchers?
BAR staff will be glad to provide technical assistance to your petition researchers, whether they are members of your group, outside employees, contractors or volunteers.
Can we use professional researchers and do petition research ourselves?
Yes! Think of ways you can use volunteers and professional consultants.
The more your members do themselves, the cheaper it will be. Also, you will have a better idea of what information is in the petition and why it is there. See if the genealogist you hire is willing to hold a workshop that teaches your members to fill out their own Individual History Charts and Ancestry Charts. See if an anthropologist will teach your members how to hold oral interviews with each other. See if your historian will help you hold a family and tribal history fair for your teenagers to do projects, be judged, and receive prizes.
Many consultants can train your members to do important research. They can hold workshops, run training sessions or employ interns.
Use the acknowledgment process to develop the human resources of your tribe.
How Do We Keep Control of the Petition Process?
– Set up a flow chart;
– Keep research records;
– Keep financial records; and
– Decide if you want to computerize some records, such as membership or genealogy.
If you do decide to computerize, decide which computer programs (software) you want to get and which mechanical computer system (hardware) you need to run the programs.
How do we get our money’s worth?
Most consultants want to do a good job for you. The best working situations for both petitioner and consultants results when both parties explicitly agree (put in writing) on what product is being purchased and set up a work and payment schedule. Communicate often with your consultants and researchers.
Remember. You get out of a consultant what you put in. Expecting a consultant to do the work on his or her own will not help you and your members understand how to develop a well-documented petition, how to interpret Federal regulations, how to present your argument in public or to your own people, or how to preserve your own history — all activities of Federally recognized tribes.
What can we do specifically?
Have your group’s lawyer check over the contract terms before you hire a researcher;
Make sure the “scope of work” detailed in the contract is directly related to showing you meet the acknowledgment criteria.
Make sure the researchers follow the “scope of work.”
If your researcher decides to deviate from the “scope of work,” make sure he or she gets your “okay” in writing.
Evaluate progress on a regular basis.
Who owns the records and documents?
Who owns the records and documents located by researchers should be expressly covered by the contract. It is best if your tribe owns and makes sure that your researchers turn all records and documents they locate over to the tribe. This requirement should be in the contract.
How Can the Governing Body Deal with Conflicts between Discoveries Made during Petition Research and the Group’s View of Itself and Its Own History?
Your researchers may find, as they work, that not all of your group’s traditions about its history and development can be supported with written records.
They may even find out that some of the traditions are directly contradicted by the written records. For instance, they may find that some families do not descend from the same historic tribe which the group claims, but from another tribe that joined your community at a later point in time. They may identify non-Indian ancestry.
These situations can lead to controversies and hard feelings within your group’s membership. In extreme cases, they can lead to splits and the development of splinter groups, or to the suspension of the petition process.
It is the responsibility of the group’s governing body to deal with these situations as the petition research is in progress.
– Take on an active, educational role;
– Make sure everyone in the group knows what has been found;
– Make sure everyone in the group knows how the information will affect the petition; and
If you think that your consultant’s research findings may be faulty, seek a second or even third opinion from qualified researchers who can evaluate the evidence
Remember that the petitioning process almost always results in surprises. Many times these surprises have been of great fascination to the membership. The BIA staff will work with you to try to help explain or reconcile contradictions in the findings.
The IBIA decision is issued by an administrative law judge.
How Can We Demonstrate the
Existence of Our Tribe?
The petition is evaluated by BAR staff who work for the BIA. The BIA recommends a decision to the Assistant Secretary for Indian Affairs in the Department of Interior. Prepare the petition in a factual, business-like way so that these people who work for these government agencies can understand it. Experimental or overly sentimental writing may only end up lowering the overall credibility of your petition.
To move the evaluation and review of your petition faster, you should focus on explaining how your group meets the regulations (which will get you acknowledged through the process the way it exists now). Arguing against the regulations (if you or your lawyers don’t agree with them, philosophically or legally) may not matter in the end and will often take valuable energy, time and resources away from advancing your goal of acknowledgment.
Who may be acknowledged under the regulations?
Basically, the following types of petitioner may be acknowledged under the 25 CFR Part 83 regulations:
– Historic tribes which have continued to exist;
– Amalgamated historic tribes, such as the Tunica-Biloxi; and
– Groups that represent a continuing portion of a historic tribe, such as the Jena Choctaw and the Huron Potawatomi.
Does BIA expect an unacknowledged group to be organized like a reservation tribe?
No. But a successful petitioner does have to demonstrate continued tribal existence.
Does the BIA take historical circumstances into consideration?
Yes. This requirement is written specifically into the regulations.
What is the impact of cultural assimilation (conversion to Christianity, taking on nine-to-five jobs, and eating “Big Mac’s”, etc.)?
As long as the group has continued to maintain tribal existence, cultural assimilation is not a problem. For example, the communities of several successful petitioners have long been focused around the churches of several Christian denominations. Virtually all petitioners, like many Indians throughout the country, have taken on characteristics of the dominant society and culture.
What is the impact of marriage to non-Indians?
As long as the Indian spouse and his or her children and their descendants have maintained contact with the tribal community, marriage outside the group does not represent a problem.
However, if the Indian spouses left the tribal community and their families have not maintained continued contact with the tribe, it may represent a problem for the petitioner, especially if most of the petitioner’s ancestors followed a similar pattern of out marriage and movement away from the tribe.
The BIA researchers assume that people marry those they associate with. So if succeeding generations marry non-Indians, it suggests that they are no longer bound to an Indian community.
The question is not whether your ancestors married non-Indians. The issue is whether their descendants maintained contact, or “tribal relations,” with the tribe.
What is the impact of not having a land base?
The regulations under 25 CFR Part 83 do not require that the petitioner have a land base.
The acknowledgment regulations do not have the same requirement for land that was imposed in the 1930’s for reorganizing under the Indian Reorganization Act (IRA, or Wheeler-Howard Act).
What is the minimum Indian blood quantum we need for acknowledgment?
The BIA sets no minimum blood quantum requirement for acknowledgment purposes, but does require descent from a historic tribe. If your group decides to establish a blood quantum requirement for membership, that is your own decision. However, it is not required by the acknowledgment regulations.
Who can’t be acknowledged as tribes under the regulations?
Generally, the following cannot be acknowledged under the 25 CFR Part 83 regulations because they would not meet all seven mandatory criteria:
– Individual Indian descendants;
– The descendants of one Indian ancestor (a “lineage”) who became separated from his or her tribe and now has many descendants;
– Groups of “Indian descendants” of one historic tribe who are no longer in tribal relations;
– “Reconstructed” Indian groups who have gathered together scattered remnants of colonial Indian tribes that ceased to exist for long intervals;
– Recently created Indian groups that gather together Indians of many tribal origins, either locally or nationally; and
– Newly organized groups of off-reservation Indian descendants who no longer meet the membership requirements of the recognized tribe from which they descend.
If we go through the whole acknowledgment process and are denied recognition, may we try again?
No. The acknowledgment regulations, 25 CFR Part 83, forbids re-petitioning by:
Groups that have previously petitioned under these or earlier regulations and were denied Federal acknowledgment;
Reorganized or reconstituted petitioners which were previously denied Federal acknowledgment under these or earlier regulations; and
Splinter groups, spin-offs, or component groups of any type which were once part of petitioners previously denied.
What is an expedited negative finding?
When BIA believes that for some reason a petitioner can not possibly qualify, it may issue an “expedited negative” finding without doing a full evaluation. The purpose is to save time and money and get right to essential issues.
As specified in the regulations, an expedited negative Proposed Finding may be issued before a “ready” petition is placed on active consideration if the government’s analysis clearly finds that:
The petitioner’s members lack Indian ancestry and/or tribal descent;
Most of the petitioner’s members are members of an already recognized tribe;
The petitioner is a tribe whose relationship to the United States government has been terminated
or otherwise legally barred by Congress.
Have all of the petitioners who have been turned down been turned down for pretty much the same reasons?
No, there has not been any one universal reason.
Some unsuccessful petitioners have shown the existence of strong modern community, but have not been able to show that their ancestors were American Indians.
Some unsuccessful petitioners were undoubtedly descended from historic tribes, but their members have not stayed in tribal relations throughout time. Their tribes have basically disbanded.
What are the “Criteria”?
Federal acknowledgment is based on a set of required standards which are called “criteria.” These standards are located in § 83.7 of the acknowledgment regulations.
There are seven mandatory criteria. The rest of this section describes the criteria.
83.7(a) Requires that the petitioning entity have been identified by reliable external sources on a substantially continuous basis as an Indian entity since 1900.
What is the difference between a “tribe” and an “entity?”
Some Indian governments are called “tribes” and others are called “bands,” “pueblos,” “villages,” or “communities,” and each term has a special meaning. We use “entity” to describe generally a political, self-governing group.
What does it mean to be “identified. . . as an Indian entity”?
Basically, the external identifications of your group should not just say, “Joe Blow is an Indian” or “Jane Doe’s family had Indian ancestry.” Ideally, it should say something such as, “There is an Indian settlement located on Whitewicker Creek” or “The Indians around here run that church on Stonewall Road,” or “There’s a group of Creeks who have been here for as long as anyone remembers.” A group is identified, not only an individual.
What’s substantially continuous?
There are no long interruptions in the tribe’s members doing things together such as living together, worshiping together or meeting and making decisions on behalf of the group.
Activity levels may rise and fall, and the degree of involvement may vary from total involvement of most of the members to involvement of fewer members. However, there should not have been a period when an entire generation lost contact with one another.
There should not appear in a group’s history a scenario, for example, that played out when all the families moved away from what may have been viewed as an Indian village or neighborhood and lost touch with one another. After a generation or two, one couple retired, came back, and repurchased the old family farm. Their presence then encouraged other relatives, either from their own lineage or from several lineages to move back to the “old homesteads.” This kind of gap in a group’s activities has not be viewed in past decisions as “substantially continuous,” under the regulations
Why does this requirement start in 1900 in the revised regulations?
In the original regulations, the petitioner was required to show they met this criterion [and also criteria (b) and (c)] from first contact with non-Indians.
The regulations adopted in 1994 set 1900 as a start date for criterion (a) in order to:
– reduce the burden of research for all petitioners;
– avoid certain problems with the historical record in some regions of the country; and
– cut out duplication of materials.
Does there have to be some kind of documentation from each decade since 1900?
Yes.
83.7(b) Requires that the petitioner has maintained a continuous community from historical times to the present day.
What were “historical times”?
They vary with the time of contact with non-Indians. For an east coast tribe who dealt with the English colonists of Jamestown or Plymouth Bay, the first sustained contact with non-Indians could have happened in the first half of the 17th century. For a Michigan tribe that dealt with the French in Quebec, it could also be the 17th century. For a New Mexico tribe that was contacted by the Spanish, it could be even earlier.
However, some tribes did not have sustained contact with non-Indians until the middle of the 19th century. For example, some northern California tribes did not experience sustained contact until the Gold Rush of 1849.
Do we need an archaeologist?
No.
Why not?
Because archeological excavations can show that Indians with a certain kind of material culture lived in a given area, but provide no way to link that material culture to known ancestors of the petitioning group.
Archaeological excavations often date to the time before non-Indian settlement occurred. The acknowledgment criteria only concern the time after Europeans settled a region. Even historical archaeology, which is concerned with post contact sites, provides little information which would be useful to acknowledgment petitioners. Only when researchers are able to link named people to the sites using documentary research methods would archaeological research be relevant.
Do we need to have kept:
Native language?
No, but if you have done so, it is very strong evidence for tribal continuity.
Native religion?
No. However, a common religious belief and activities may be important evidence of a community, and several successful petitioners have had their communities centered around Christian churches of various denominations.
Native culture?
No. The regulations require that your group be in some way distinct from the wider society, but this does not require that it have maintained your ancestors’ pre-contact life style or even a separate culture.
What’s the easy way to show that we have a modern community and had a tribal community in the past?
Do you have, or did you have at some past time:
– A geographical settlement where more than half your members lived?
– Maintenance and use of the tribal language?
– More than half of your group’s members marrying each other?
If so, have your petition researchers take a look at the provisions of 25 CFR 83.7(b)(2).
What if we can’t do it using the short cut?
Then follow the standard requirements in 83.7(b)(1).
How do we show “interaction” among our members?
What are some activities that show a group maintains tribal relations? Positive answers to the following questions indicate that your group may maintain tribal relations.
– Do we know each other for a long time and in different aspects?
– Do we visit each other, including distant relatives?
– Do we attend each other’s funerals, weddings, graduation parties, etc.?
– Do we argue with each other over issues that are important to the tribe?
– Do we share information so that we know about each other’s problems and triumphs? Do we quickly pass information from one person to another until the entire group is informed of important news?
What are some activities that do not show a group maintains tribal relations? Positive answers indicate a lack of tribal relations.
– Do you have to introduce your council members to each other before you introduce them to the BAR representative?
– Do they only see one another annually at the tribal meeting, if then?
– Do they attend this kind of function only for their own nuclear families but almost never for other members?
– Are almost all their social contacts with non-members?
– You don’t seem to know or care what the other members do when they aren’t at your meetings?
– Are you content to let a dozen of the 2,000 people on the membership list make all the decisions and carry them out?
If we have serious conflicts within our group does this mean we don’t have a unified tribal community?
No, not necessarily. It may mean that members are informed and concerned about what is going on. Sometimes members see serious conflicts as embarrassing. However, the BIA does not automatically classify them as negative evidence.
83.7(c) Requires that the group show that it has maintained political authority or influence on a substantially continuous basis from historical times until the present day.
Does this require the group to have had a formal structure (councils and elections) throughout time?
No. The Acknowledgment regulations do not require a political structure like an IRA constitution, or an authoritarian chief. Leadership may be informal, and may be found in churches, schools, etc.
What is informal leadership?
Informal leadership means that certain individuals in your group not holding an office or title are able to influence the behavior of other members. Such individuals may be old or young, male or female. Informal leadership is often based on kinship and extends outside one’s own family.
If almost no one in the group would dream of making a significant decision (moving to Omaha, going to Harvard, or joining the army) without checking with “great-aunt Bertha,” you have informal leadership.
What kind of activities show leadership?
Leaders may on occasion:
– Resolve conflicts among members;
– Represent the opinions of a part of the group to the council;
– Organize group efforts to restore a group’s building, such as an “Indian Church;”
– Raise funds on behalf of the group; and
– Mediate between the group and outsiders such as the local school system or fish cannery.
Don’t forget that women may be leaders. Examples from actual cases include the Mohegan women’s sewing circles which marshaled opinion, raised money and organized activities and the Jena Choctaw midwife/care giver who organized welfare projects for her community.
Why is it required that there be followers as well as leaders?
There is a recurring problem of the self-appointed chief among petitioners. He or she may mail a lot of letters to public officials, march in local parades wearing a headdress or beadwork, and even make speeches about the group’s history at the Kiwanis Club. But almost nobody on his membership list knows or cares what he does. Do his or her actions demonstrate political activity and influence? Not according to the acknowledgment regulations, the way they have been applied and court decisions. Leaders by definition must have followers.
83.7(d) Requires that the group submit a copy of its governing document, or if it does not have a formal governing document, a statement describing its membership criteria and how they are applied.
What if we have a governing document, but it doesn’t discuss how people qualify for membership?
If the governing document does not include a statement of how your group determines its membership, you must provide a separate, written statement in your petition.
What if we don’t have a governing document?
If there is no written governing document, write up a statement describing how your group governs its affairs, determines its membership, and keeps a record of its actions and decisions.
How could anybody possibly fail to have a governing document or statement?
Actually, no petitioner ever has failed this criterion. Those petitioners who did not have a written governing document when they began the process either adopted one or developed a written statement describing a traditional form of government. If you are acknowledged, the BIA will use these documents to help you define your relationship to the U.S. government.
83.7(e) Requires that the current members of the petitioning group, as a whole, descend from a historic tribe or tribes which amalgamated.
What do you mean by “amalgamated?”
“Amalgamated” means that two or more Indian tribes, or bands, or villages joined together and acted politically as a single group.
How do we show that we are descended from a historic tribe?
The basic requirement is that you submit a current membership list, copies of any available past membership lists, and ancestry charts for all members showing their Indian tribal ancestry.
What information should be on the membership list?
The membership list should be a current list of all members. This list must contain the following items of information according to the regulations:
– Full name of member;
– Date of birth;
– Current residential address (including ZIP code); and
– Maiden name of married women.
The BAR staff evaluating the petition finds it very useful if the membership list also contains the following items of information:
– Enrollment number;
– Place of birth;
– Any former names of persons who have married more than once, changed their names legally, etc.;
– Name of father;
– Tribe of father and enrollment number;
– Maiden name of mother; and
– Tribe of mother and enrollment number.
What is the membership list used for?
The current membership list is used by BIA researchers in several ways. It is not just used by the genealogist. For example, the anthropologist can use this information to identify residential patterns, migration patterns, age distribution patterns, etc. Additionally, it is used to determine that the membership does not substantially duplicate that of another tribe or petitioner.
The past membership lists are used in determining whether or not the group’s membership has been consistent over time — the same family lines, etc. — and whether or not the current petitioner represents only one part of the group’s historical membership.
What are the ancestry charts used for?
The genealogical information concerning the members’ ancestry is used by the BIA researchers, together with the membership list, to verify family relationships within the group, to determine that the group’s members are Indian and descended from a historical tribe or tribes which combined.
However, the genealogical information is also used to verify other criteria: to determine that the petitioners are not substantially enrolled in other Indian tribes, and have not individually or as a group been terminated or otherwise forbidden the Federal relationship.
Do we need to submit a separate ancestry chart for every single person?
No, nuclear families (that is — parents and their sons and daughters) may be grouped together.
What are “historic” or “historical” Indian tribes?
These are tribes that existed when non-Indians settled in the petitioner’s immediate territory — or parts of these tribes, or combinations of them. Basically, you can find them listed in the standard reference manuals like Hodge, Swanton, or the Smithsonian Handbook (see the appendix, which lists these books).
How many Indian ancestors do we need?
Since tribes are political institutions, you certainly need more than one person or one nuclear family (wife, husband, and their children). It is important to understand the relationship between membership and showing you have maintained your tribe’s social and political entity.
Do we have to look for descendants of the people who left?
No. The principles behind the regulations discourage this. Their ancestors were part of your group’s history and should be discussed as part of your group’s history.
But if they chose to leave, and no one in your group knows their great-grandchildren any more, they are no longer part of your group, and their presence on the membership list will make it much harder for you to show the existence of modern community. This applies equally to people who left voluntarily and those who were forced to leave.
Do we have to take them if they find us and want back in?
Not if you write the membership qualifications to require continuing tribal relations or descent from a relatively recent list.
Do we have to throw out members who can’t prove Indian ancestry?
Not in order to meet the 25 CFR Part 83 regulations. The regulations do not require that 100 per cent of your individual members demonstrate Indian ancestry in order for your group to qualify for acknowledgment. Is it the case of an adopted child? Is it the case of an Indian family, who joined your community in 1855, and has been active ever since? If the answer is yes, then depending on the specific circumstances, acknowledgment may not be negatively affected. We discourage adopting non-Indian spouses and step-children.
83.7(f) Requires that a petitioner’s members not be mostly members of an already recognized tribe.
If a majority of your group’s members have never been enrolled in a federally acknowledged tribe, you only need to present a short statement saying so.
Why was this criterion included?
The Federal Acknowledgment Process cannot be used to break up acknowledged tribes. Even though unrelated groups may have been put together on one reservation, they must seek Congressional action or some other route to be separated.
The 1994 regulations clarify that a group MAY be acknowledged even it its membership is composed principally of persons whose names have appeared on the rolls of, or who have been otherwise associated with, acknowledged North American Indian tribes if it meets criteria 83.7(a) – (e) and (g) and if the group establishes that :
It has functioned throughout history until the present as a separate and autonomous Indian tribal entity;
Its members do not maintain a bilateral political relationship with a federally acknowledged North American Indian tribe; and
Its members have provided written confirmation of their membership in the petitioning group.
An even more detailed, technical discussion may be found in the proposed finding on the Yuchi Tribal Organization on the BAR home page, the San Juan Southern Paiute final determination and court decisions following that decision.
Individuals should be urged not to give up their membership in federally-recognized tribes believing the unrecognized group may be acknowledged. If the petitioner is not acknowledged, the individuals will be without tribal affiliation. After acknowledgment, the individuals may change their affiliation, depending on the provisions of the individual tribal constitutions.
83.7(g) Forbids the Federal Acknowledgment Process to acknowledge groups which were terminated by legislation.
What is the reason for this?
The administrative process can’t undo what Congress has done.
What do we do if our group was terminated by Congress?
If you have legislation from the 1950’s or 1960’s which terminated your tribe’s relationship to the United States, the BAR staff can advise you on what other groups have done to be restored. You will have to contact your Member of Congress and seek legislation to restore your group.
Congress usually consults with the BIA on restorations, so it may speed up Congressional consideration of restoration legislation if you work with the BIA on restorations.
What if our group had prior Federal acknowledgment? When is this determined?
During the Technical Assistance phase of preparing your petition.
What does making this decision involve?
During the Technical Assistance process, the BIA researchers provisionally determine three things:
Whether the historic tribe claimed by the petitioner was federally acknowledged;
Whether the petitioner is the same group, or derives from the group, which was federally acknowledged; and
When was the last point of unambiguous previous Federal acknowledgment.
What kinds of activities represent unambiguous prior acknowledgment of a tribe?
Very briefly, examples would be:
– Negotiating or signing a treaty with the Federal Government;
– The Federal Government declaring war on or removing a tribe;
– Placement on a reservation by the Federal government;
– Being denominated a tribe by Congressional action or Executive Order; and
– Having collective rights in tribal lands or funds administered by the Federal Government.
What kinds of activities don’t represent
unambiguous prior acknowledgment of a tribe?
Very briefly, examples would be:
– Pursuing claims against the Federal Government even if that effort results in a Court of Claims or Indian Claims Commission decision;
– Having the names of persons in your group or their ancestors appear on judgment rolls; and
– Having members of your group receive health or educational benefits on the basis of their individual status as Indians.
The BIA distinguishes between government actions involving Indian tribes and government actions involving Indian individuals. To qualify as a tribe, you must show government actions involving your tribe as a political entity, not merely individuals who are members of your tribe or group. The BIA staff can advise you on this.
What are the advantages to a petitioner
of using this prior acknowledgment provision?
If your group has unambiguous previous Federal acknowledgment, your burden of proof is reduced, and the time period during which you need to show criteria 83.7(b) and 83.7(c) is considerably reduced.
Read section 83.10 of the regulations to learn more about previous recognition and how it affects your petition.
Stop and Review
Does our Group Meet the Criteria?
A successful petitioner must meet all seven mandatory criteria.
Failure to meet any one of the mandatory criteria will result in a negative proposed finding and a negative final determination. Because of this, it is useful for each petitioning group to make a preliminary feasibility review and decide whether or not to continue the preparation of a full, documented, petition.
Why should a petitioner make a preliminary feasibility review?
The completion of a documented petition by any group can be a hard and time-consuming process, which can also be expensive. Each petitioner must decide whether petitioning for Federal acknowledgment is the best use of the group’s resources.
What is a preliminary feasibility review based on?
The petitioner should make a preliminary evaluation of the group’s genealogy, history, and contemporary organization and functioning.
How do we decide whether or not to continue?
The governing body of the petitioning group — the board of elders, officers and council, or other leadership structure — should take the responsibility of familiarizing themselves with the Federal acknowledgment criteria. At this point, the governing body should compare the petitioning group’s genealogy, history, and contemporary organization to the requirements of the mandatory criteria, consult with the membership, and decide whether or not it is a responsible use of the group’s resources to proceed further in the petition process.
The decision as to whether or not to continue with the preparation of a complete, documented, petition should not be left to consultants and professional researchers: it should be made by the group itself.
Is there any procedure for withdrawing our letter of intent to petition, if we decide not to finish the process?
You may withdraw your letter of intent at anytime, but your group will remain on the BAR Status Report. Once your documented petition is placed on active consideration, you may not withdraw from the process. the Assistant Secretary – Indian Affairs will issue a decision.
How Should We Arrange
Our Documented Petition?
Is there a required format for arranging and submitting our petition materials?
No. A petition may be filed in any form which the petitioner believes most strongly presents the group’s case.
Who gets to read the documented petition after we submit it?
Submitted petitions become public documents, available to any member of the public, including interested and informed parties, on the same basis as other records of the Bureau of Indian Affairs. Petitions are used by:
– Consultants for other petitioning groups;
– Congressional Staff;
– State Governor’s Offices;
– People who do not want you to be recognized and are preparing comments on your case;
– BIA officials working with your tribe after recognition; and
– Many others.
Does this mean that everyone can look at our personal papers?
No, not necessarily. Some materials are protected under the Privacy Act. These include:
– Membership lists;
– Genealogical materials covering the last 72 years;
– Addresses;
– Phone numbers;
– Dates and places of birth, marriage and death;
– Social security numbers;
– Health and benefit records; and
– Military service records covering the last 72 years.
As exception may occur if in the course of litigation, a judge orders records, normally protected by the Privacy Act, made available.
When you prepare the exhibits, try to separate privacy materials from those that will be publicly available.
What should be the major sections of a documented petition?
The following organization is recommended:
– Certification of the petition by your governing body;
– Introduction;
– Chronological Narrative (brief);
– Description of the Current Group;
– Short discussion under the criteria;
– List of Sources (formal bibliography);
– Exhibits;
– Certification of the membership list by your governing body;
– Membership list;
– Ancestry charts and individual history forms;
This arrangement is not a requirement.
How Do We Submit the Documented Petition?
Before you send in your petition, make sure that you have done the following things:
– Make sure all the parts are there;
– Have the governing body certify it;
– Make three copies to submit, and
– Keep a copy yourself!
A lot of petitioners forget to do these four simple things and problems result.
We also recommend that you then send the petition by certified mail with a return receipt requested.
What Happens to the Documented
Petition after We Submit It?
After we send in our documented petition, what is the timetable for getting the Technical Assistance review back?
The regulations don’t have a deadline for issuing the Technical Assistance letter. BAR has set up an informal three-month in-house deadline. It usually meets this deadline.
Do we only get one Technical Assistance letter?
When you send in material in response to the Technical Assistance letter, you may request another Technical Assistance review. This is optional. If you don’t ask for it, you won’t get it.
How long do we have to respond to the Technical Assistance letter?
You have unlimited time to send in your response to the Technical Assistance letter. Some groups respond in three months; other groups respond in three years; and some never respond at all.
What does it mean to be “ready for active consideration?”
It means that you have submitted everything that you believe is necessary for the BIA researchers to evaluate your documented petition. It does not mean that a decision has been made. At this point your petition is placed on a waiting list for your case to be evaluated by BIA staff.
Who determines when it is “ready for active consideration”?
The BIA looks at the material you have sent and decides whether or not you are “ready.”
If something essential is still missing, like an up-to-date current membership list, or information about your modern community and its political activities, you will be told that you are not “ready.”
How long do we have to wait after our petition is “ready”?
It depends on how many other groups are ahead of you on the list, on when you are declared “ready,” and on the availability of BIA professional staff to work on evaluating your petition.
Can we submit more material while we are waiting?
Yes.
Does BIA do any work on the petition while it is one the “ready” list?
A genealogist or assistant will begin entering your membership list into a data bass and your genealogical information into a genealogy program, if you have not submitted these in computer-readable format. It is during this stage of the procedure that the BIA may decide to issue an expedited negative proposed finding if the government believes it can show that the petitioner clearly does not meet criteria (e), (f) or (g).
What does it mean to be placed on “active consideration?”
Your petition is being evaluated by BIA researchers. The clock is ticking.
How long will it take before we get an initial decision?
It should be within one year, with a possible 180-day extension. The initial decision is called a “proposed finding,”
In some complex cases, the BIA has requested additional time. BIA has also requested additional time in unusual cases because of changes in staff.
What is a Proposed Finding?
It is a preliminary decision issued by the Assistant Secretary – Indian Affairs, and contains the formal notification as to whether or not, on the basis of the documented petition, the petitioner has been determined to meet the criteria.
The official portions are the:
– Summary Under the Criteria; and
– Federal Register Notice.
– These are accompanied by the:
– Technical Reports;
– List of Sources; and
– Any additional materials such as a map supplement.
Is a proposed finding ever changed?
Yes, although a proposed finding is a complete decision, based on available information. However, it may be reversed if new information is discovered or a new argument is made which changes the initial finding. The government has reversed two negative proposed findings — the Gay Head Wampanoag and the Mohegan — in the final determinations. New information may be located by the petitioners, interested parties, experts who are interested in the case, and the BIA staff.
What happens after the Proposed Finding?
There is a 180-day comment period from publication of the FEDERAL REGISTER notice, a possible 180-day extension, and a possible additional extension for good cause if progress is demonstrated.
Comments on the proposed finding are accepted from both the petitioner and third parties.
At the end of the comment period, the petitioner has 60 days to respond to third-party comments. Extensions are possible if a lot of new material has been submitted by the public during the comment period.
The petitioner has the last say during the comment periods.
What happens to the Public Comments? How are they treated?
Public comments, are accepted from members of the public either as interested parties or informed parties. They are considered in the preparation of the final determination if they pertain to the facts and argument of the case.
Political comments, such as those dealing with the economic impact of acknowledgment on the surrounding non-Indian population, would not be relevant to the acknowledgment decision; decisions are not based on political factors.
When do we receive a final determination?
The BIA consults with the petitioner and interested parties to set up a schedule for preparing the final determination. The Assistant secretary – Indian Affairs decides when the BIA will begin work on the final determination based mainly on the availability of staff.
BIA researchers prepare the recommendation, taking into account the petitioner’s response to the finding, any public comments received, and the petitioner’s response to the public comments.
The Assistant Secretary – Indian Affairs issues the final determination, within 60 days of the negotiated date. The Assistant Secretary may extend the time if a lot of new material has been submitted.
When the final determination is issued, a notice of the final determination is published in the FEDERAL REGISTER.
When are decisions final?
The effective date is 90 days after publication of Notice of the Final Determination in the FEDERAL REGISTER, unless reconsideration is requested.
How Can We Appeal the Decision?
If we don’t agree with the final determination, do we have any recourse?
The regulations provide for a review of requests for reconsideration in the IBIA.
Who or what is the IBIA?
It’s the Interior Board of Indian Appeals. The IBIA is part of the Department of the Interior, but it is independent of the BIA and the Assistant Secretary — Indian Affairs.
What can IBIA do?
They can return the decision to the BIA for reconsideration, or affirm the BIA decision; or refer the decision to the Secretary of the Interior, who has discretion to ask the Assistant Secretary to reconsider the final determination..
Who can ask for reconsideration?
The petitioner or an interested party.
What if we still don’t like the results?
If you don’t agree with the decision, you may sue in the Federal courts. Some petitioners have done so.
Do we have to go to IBIA before going to court?
No. requesting reconsideration before IBIA is optional.
