Thursday, August 13, 2015

INTERIOR DEPARTMENT Finalizes New Rule for Federal Recognition Appeals

The Interior Department has finalized a rule that addresses appeals in federal recognition cases.
In the past, challenges to final determinations went through the Interior Board of Indian Appeals. But the board's powers are limited and cases were usually referred back to the Bureau of Indian Affairs.
In hopes of streamlining the process, the new rule cuts the IBIA out of the process and establishes guidelines for a hearing before an administrative law judge. The change was first noted when the BIA finalized the Part 83 federal recognition reforms in June.

The judge will be able to receive evidence, conduct hearings and call witnesses under the new rule. A recommended decision will then be sent to the Assistant Secretary for Indian Affairs within 180 days.
"Rather than making the process more adversarial, a hearing will help crystalize the issues in preparation for consideration by the AS-IA," the BIA said in a fact sheet when it finalized the Part 83 reforms. "Since it occurs before an objective forum without any preconceived notion of an outcome, it will further insulate the process from criticisms of perceived bias."

The DOI rule also establishes an optional process for groups that receive a negative proposed finding from the BIA. An administrative law judge will be able to conduct an expedited hearing and take testimony from these petitioners and interested parties before sending a recommended decision to the Assistant Secretary.

In the past, petitioners and interested parties could not challenge a proposed finding and had to wait until the Assistant Secretary issued a final determination to file appeals. The BIA believes the optional hearing will improve transparency and due process.

The BIA's federal acknowledgment process formally began in 1978. Since then, only 18 groups have won recognition while 35 have been denied, underscoring the difficult nature of the process.
The Pamunkey Tribe of Virginia was the last group to gain recognition. The BIA's final determination will become effective on October 6.

Prior to the Pamunkey case, there was a four-year gap in favorable decisions. The Shinnecock Nation of New York gained recognition in October 2010.

Before that, the Mashpee Wampanoag Tribe of Massachusetts was the last to gain recognition. That decision was finalized in May 2007.

DOI's new rule was published in the Federal Register today and is effective immediately. It adds Subpark K -- titled "Hearing Process Concerning Acknowledgment of American Indian Tribes" -- to 43 CFR Part 4, Department Hearings and Appeals Procedures.
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