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.
7 comments:
How does this effect the federally recognized Temecula Band of Luiseno Mission Indians? Members in this band have been disenrolled by a faction who has taken away all the rights of these members and says it does not matter now if you were ever recognized by the band or others. Then this Band now wants to be referred to only as the Pechanga Band of mission Indians. The Federal land Allotted family that was disenrolled was recognized by the bands Ancestors and Federally during the reservation creation both ways Temecula Indian and Pechanga Indian. How can a faction take away their rights?
The Part 83 regulations violate the intent of Santa Clara Pueblo because the BIA involves itself in every step of a tribe determining its membership. It even says that at least 50% of the members of tribe must live within particular zone. It is for this reason the regulations should be declared null and void. When you become a tribe the BIA tells you who the tribal members are. Most of the new members are johnny come latelies and not really from the tribe. The BIA then helps these members ascend to power then the disenrollments begin. Then the BIA says they can't get involved in enrollment matters. Somebody needs to just sue the crap out of the BIA starting with Amy Duncebag, Ray Fry, Doug Rollins and the rest of the gang. If you can find them. Understand Howard Dickstein has rewarded them with nice retirements. Amy is still waiting for her best offer.
The federal recognition process has several requirements that involve "membership" issues, but these are not designed to dictate how a tribe is to define itself once recognized, they are in place because in order for a group of people to gain federal recognition as a tribe they need to establish a continuously occupied space that assumes a tribal community exists from historical times. Once this is satisfied snd thd group gains recognition, they can establish and define membership eligibility how ever they want. This has nothing to do with disenrollment or Pechanga.
@ 12:41 Tell your story to Buena Vista Rancheria, Sheep Ranch, Redding Rancheria, Jackson Valley, Paskenta, Robinson Rancheria, Pinoleville. The list goes on and on where the BIA had directly interfered with membership. The BIA forces many of these groups to vote on a constitution with people not even eligible to be members within a tribe. True membership may be 12 people yet as many as 800 are invited to vote on the governing documents of the tribe. Do you think those 800 ineligibles are going to vote themselves out? No! It is the 12 true tribal members that get voted out. The BIA uses a tactic designed by Howard Dickstein to decimate competition. So why use regs for Indians when you allow non-Indians to have the final influence in the process. Simply put, it is like developing a new constitution for USA but only the Chinese will be allowed to vote for its approval. It is that bad and the culprits that conduct BIA business this way need to go to jail.
Tribes seeking recognition have the option to allow BIA input or not. Tribes seeking recognition do not have to adopt a Constitution written by the federal government, in fact in order to be recognized they should already have a written document and be conducting tribal meetings and business like a tribal community, thst is a requirement. Unfortunately, the tribes you mentioned above obviously did not know what they were doing. The federal recognition process is not controlled by the BIA or any one man.
Exactly the point. If a Band "Pechanga" wants to not follow bylaws, custom or tradition unless is suits factions who are in control of the band, then why should the Federal government honor a settlement with the Band that does not settle issues within the band legally? Pechanga Ancestors did not always get along or agree, but once an issue was voted on it was accepted by ALL members and they moved along. Pechanga votes and lets a Band adopt a member, that's legal and custom and tradition. Pechanga votes on a petition that is legal and passes to stop ALL disenrollments and keep ALL currently enrolled members in the Band, then a council with threats to others goes against the Band and allows an Allotted family to be disenrolled and goes against at least three Elders certified depositions who recognized this family and their ties to Pechanga. Shame on you Pechanga, and the federal government should not settle anything with this Band until the Band corrects their mistakes and honors it's Ancestors and custom and tradition.
In the case of Buena Vista, the BIA accepted then later rejected the constitution of Lucille Lucero. This action denied Lucille Lucero the right to determine her tribe's membership. The BIA then allowed a known enemy of Lucille Lucero to take control of the Buena Vista Rancheria with no proof of lineal descent. Using the BIA's term "Putative Member" the individual now controlling Buena Vista was commonly known not to have any interest in Buena Vista. That is the true putative nature of this individual. She was backed by Howard Dickstein via one of his fake law offices to thwart any potential competition to Jackson Rancheria. Yes the BIA did this, regardless of regulations. Where was this individuals compliance with the regulations? None. It was done completely through discretionary decisions and complete avoidance of the regulations. Oh yes, and the traditional complimentary brown envelope. The BIA has one of the most unique retirement programs in government.
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