H. R. 3690
IN THE HOUSE OF REPRESENTATIVES
October 1, 2009
Mr. Faleomavaega (for himself, Mr. Rahall, Ms. Hirono, and Mr. Abercrombie) introduced the following bill; which was referred to the Committee on Natural Resources
To establish a Commission on Recognition of Indian Tribes to review and act on petitions by Indian groups applying for Federal recognition, and for other purposes.
Short title, table of contents
This Act may be cited
Indian Tribal Federal
Recognition Administrative Procedures Act.
Table of contents
The table of contents for this Act is as follows:
Sec. 1. Short title, table of contents.
Sec. 2. Purposes.
Sec. 3. Definitions.
Sec. 4. Commission on Recognition of Indian Tribes.
Sec. 5. Documented petitions for recognition.
Sec. 6. Notice of receipt of documented petition.
Sec. 7. Processing the documented petition.
Sec. 8. Preliminary hearing.
Sec. 9. Adjudicatory hearing.
Sec. 10. Reconsideration by Commission; final decision.
Sec. 11. Effect of determinations.
Sec. 12. Implementation of decisions.
Sec. 13. Recognition or restoration of Indian tribes.
Sec. 14. Indian Reorganization Act.
Sec. 15. Needs determination and budget request.
Sec. 16. Annual report concerning Commission’s activities.
Sec. 17. Actions by petitioners for enforcement.
Sec. 18. Regulations.
Sec. 19. Guidelines and advice.
Sec. 20. Assistance to petitioners.
Sec. 21. Protection of certain privileged information.
Sec. 22. Authorization of appropriations.
The purposes of this Act are as follows:
To transfer the responsibility for the Federal acknowledgment process from the Bureau of Indian Affairs to an independent Commission on Recognition of Indian Tribes.
To establish a Commission on Recognition of Indian Tribes to review and act upon documented petitions submitted by Indian groups that apply for Federal recognition.
To establish an administrative procedure under which petitions for Federal recognition filed by Indian groups will be considered.
To provide clear and consistent standards of administrative review of documented petitions for Federal acknowledgment.
To clarify evidentiary standards and expedite the administrative review process by providing adequate resources to process documented petitions.
To ensure that when the Federal Government extends acknowledgment to an Indian tribe, the Federal Government does so with an internally consistent legal, factual, and historical basis.
To extend to Indian groups that the Commission determines to be Indian tribes the protection, services, and benefits available from the Federal Government pursuant to the Federal trust responsibility with respect to Indian tribes.
To assure that Indian groups that are determined to be Indian tribes are recognized as having the immunities and privileges available to other federally acknowledged Indian tribes by virtue of their status as Indian tribes with a government-to-government relationship with the United States.
To preserve the integrity of the government-to-government relationship between the United States and federally recognized Indian tribes by insuring that only self-governing Indian peoples are recognized by the United States.
In this Act:
The term acknowledgment means a determination by the Commission on Recognition of Indian Tribes that an Indian group constitutes an Indian tribe with a government-to-government relationship with the United States.
The term autonomous means the exercise of political influence or authority independent of the control of any other Indian governing entity.
Context of term
With respect to a petitioner, the term shall be understood in the context of the history, geography, culture, and social organization of the petitioner.
The term Bureau means the Bureau of Indian Affairs of the Department.
The term Commission means the Commission on Recognition of Indian Tribes established under this Act.
The term community refers to a group of related individuals that is distinct from surrounding communities. A tribal community may be found to be distinct, even though some of its members are also members of other tribes. The term shall be understood in the context of the history, culture, and social organization of the group, the intra-tribal marriage patterns of the group, and the geography and economy of the region in which the group resides.
Continuous or continuously
With respect to a period of history of a group, the term continuous or continuously means extending from 1900 to the present without interruption as demonstrated by evidence of the fact or condition no less than once every ten years.
The term Department means the Department of the Interior.
The term documented petition means the detailed, factual exposition and arguments, including all documentary evidence, necessary to demonstrate that those arguments specifically address the mandatory criteria established in this Act.
Historically, historical, history
The terms historically, historical, and history refer to the persectioniod dating from 1900.
The term Indian group means any Indian band, pueblo, village, or community that is not acknowledged to be an Indian tribe by the Federal Government.
The term interested party means any person, organization, or other entity who can establish a legal, factual, or property interest in an acknowledgment determination and who requests an opportunity to submit comments or evidence or to be kept informed of Federal actions regarding a specific petitioner. The term includes the Governor and attorney general of the State in which a petitioner is located, and may include, but is not limited to, local governmental units, and any recognized Indian tribes and unrecognized Indian groups that might be affected by an acknowledgment determination.
Letter of intent
The term letter of intent means an undocumented letter or resolution that—
is dated and signed by the governing body of an Indian group;
is submitted to the Commission; and
indicates the intent of the Indian group to submit a documented petition for Federal acknowledgment.
The term petitioner means any group that submits a letter of intent to the Commission requesting acknowledgment as an Indian tribe.
The term Secretary means the Secretary of the Interior.
The term treaty means any treaty—
negotiated and ratified by the United States on or before March 3, 1871, with, or on behalf of, any Indian group or tribe;
negotiated by the United States with, or on behalf of, any Indian group in California, whether or not the treaty was subsequently ratified; or
made by any government with, or on behalf of, any Indian group or tribe, prior to that government’s entry into the United States, or when the United States acquired jurisdiction over land and territory by purchase, conquest, annexation, or cession and the predecessor government had entered into treaties with any Indian group or tribe without regard to whether the treaty was expressly acceded to or adopted by the successor government.
The term tribal roll means a list exclusively of those individuals who—
have been determined by the tribe to meet the membership requirements of the tribe, as set forth in the governing document of the tribe; or
in the absence of a governing document that sets forth those requirements, have been recognized as members by the governing body of the tribe; and
have affirmatively demonstrated consent to being listed as members of the tribe.
The tribal roll shall be composed principally of persons who are not members of any recognized Indian tribe, provided that the Commission shall not deny recognition to any petitioner if no more than 20 percent of the individuals listed on the tribal roll were at the time that the petition was submitted to either the Secretary or the Commission enrolled as a member of a federally recognized Indian tribe.
Commission on Recognition of Indian Tribes
There is established the Commission on Recognition of Indian Tribes. The Commission shall be an independent establishment (as defined in section 104 of title 5, United States Code).
The Commission shall consist of 7 members appointed by the President, by and with the advice and consent of the Senate.
Individuals to be considered for membership
In making appointments to the Commission, the President shall give careful consideration to—
recommendations received from Indian groups and Indian tribes; and
individuals who have a background or who have demonstrated expertise and experience in Indian law or policy, anthropology, genealogy, or Native American history.
No individual shall be eligible for any appointment to, or continue service on the Commission, who—
has been convicted of a felony; or
has any financial interest in, or management responsibility for, any Indian group, except merely by virtue of membership in such group.
Not more than 4 members of the Commission may be members of the same political party.
Each member of the Commission shall be appointed for a term of 6 years.
Any vacancy in the Commission shall not affect the powers of the Commission, but shall be filled in the same manner in which the original appointment was made. Any member appointed to fill a vacancy occurring before the expiration of the term for which the predecessor of the member was appointed shall be appointed only for the remainder of that term. A member may serve after the expiration of the term of that member until a successor has taken office.
Each member of the Commission shall receive compensation at a rate equal to the daily equivalent of the annual rate of basic pay prescribed for level V of the Executive Schedule under section 5316 of title 5, United States Code, for each day, including travel time, that the member is engaged in the actual performance of duties authorized by the Commission.
All members of the Commission shall be reimbursed for travel and per diem in lieu of subsistence expenses during the performance of duties of the Commission while away from their homes or regular places of business, in accordance with subchapter I of chapter 57 of title 5, United States Code.
Each member of the Commission shall serve on the Commission as a full-time employee of the Federal Government. No member of the Commission may, while serving on the Commission, be otherwise employed as an officer or employee of the Federal Government. Service by a member who is an employee of the Federal Government at the time of nomination as a member shall be without interruption or loss of civil service status or privilege.
the time appointments are made under paragraph (1), the President shall
designate a Chairperson of the Commission (referred to in this section as the
Chairperson) from among the appointees.
Meetings and procedures
The Commission shall hold its first meeting not later than 30 days after the date on which all members of the Commission have been appointed and confirmed by the Senate.
A panel of any 3 members of the Commission may conduct any proceedings authorized herein, except those authorized under section 10 which shall be conducted by no fewer than 5 commissioners.
The Commission may adopt such rules (consistent with the provisions of this Act) as may be necessary to establish the procedures of the Commission and to govern the manner of operations, organization, and personnel of the Commission.
The principal office of the Commission shall be in the District of Columbia.
The Commission shall carry out the duties assigned to the Commission by this Act, and shall meet the requirements imposed on the Commission by this Act.
Powers and authorities
Powers and authorities of chairperson
Subject to such rules and regulations as may be adopted by the Commission, the Chairperson may—
appoint, terminate, and fix the compensation (without regard to the provisions of title 5, United States Code), governing appointments in the competitive service, and without regard to the provisions of chapter 51 and subchapter III of chapter 53 of that title, or of any other provision of law, relating to the number, classification, and General Schedule rates) of an Executive Director of the Commission and of such other personnel as the Chairperson considers advisable to assist in the performance of the duties of the Commission, at a rate not to exceed a rate equal to the daily equivalent of the annual rate of basic pay prescribed for level V of the Executive Schedule under section 5316 of title 5, United States Code; and
procure, as authorized by section 3109(b) of title 5, United States Code, temporary and intermittent services to the same extent as is authorized by law for agencies in the executive branch, but at rates not to exceed the daily equivalent of the annual rate of basic pay prescribed for level V of the Executive Schedule under section 5316 of that title.
General powers and authorities of commission
The Commission may hold such hearings and sit and act at such times as the Commission considers appropriate.
As the Commission may consider advisable, the Commission may—
have printing and binding done;
enter into contracts and other arrangements, subject to the availability of funds;
make expenditures; and
take other appropriate actions as authorized by this Act.
Oaths and affirmation
Any member of the Commission may administer oaths or affirmations to witnesses appearing before the Commission.
The Commission may secure directly from any officer, department, agency, establishment, or instrumentality of the Federal Government such information as the Commission may require to carry out this Act. Each such officer, department, agency, establishment, or instrumentality shall furnish, to the extent permitted by law, such information, suggestions, estimates, and statistics directly to the Commission.
Facilities, services, and details
Upon the request of the Chairperson, to assist the Commission in carrying out its duties of the department, agency, or instrumentality may—
make any of the facilities and services of that department, agency, or instrumentality available to the Commission; and
detail any of the personnel of that department, agency, or instrumentality to the Commission, on a nonreimbursable basis.
The Commission may use the United States mails in the same manner and under the same conditions as other departments and agencies of the United States.
Federal advisory committee act
The provisions of the Federal Advisory Committee Act (5 U.S.C. App.) shall not apply to the Commission.
Termination of commission
The Commission shall terminate not later than the date that is 12 years after the date of the first meeting of the Commission unless such date is otherwise shortened or extended by an Act of Congress.
Notwithstanding any other provision of this Act, the Secretary shall continue to exercise those authorities vested in the Secretary relating to the supervision of Indian recognition regulated under part 83 of title 25 of the Code of Federal Regulations until such time as the Commission is organized and prescribes regulations. The Secretary shall provide staff and support assistance to facilitate an orderly transition to regulation of recognition of Indian tribes by the Commission.
Documented petitions for recognition
Letters of intent and documented petitions
Subject to subsection (d) and except as provided in paragraph (3), any Indian group may submit to the Commission letters of intent and a documented petition requesting that the Commission recognize the group as an Indian tribe.
Transfer of documented petition
Notwithstanding any other provision of law, not later than 30 days after publication of formal regulations governing the operation of the Commission, the Secretary shall transfer to the Commission all documented petitions, all administrative files related thereto, and letters of intent pending before the Department that request the Secretary to recognize or acknowledge an Indian group as an Indian tribe.
Cessation of certain authorities of secretary
Notwithstanding any other provision of law, on the date of the transfer under subparagraph (A), the Secretary and the Department shall cease to have any authority to recognize or acknowledge, on behalf of the Federal Government, any Indian group as an Indian tribe under part 83 of title 25, Code of Federal Regulations, and its successors.
Determination of order of submission of transferred documented petitions
Documented petitions transferred to the Commission under subparagraph (A) shall, for purposes of this Act, be considered as having been submitted to the Commission in the same order as those documented petitions were submitted to the Department.
The following groups and entities shall not be eligible to submit a documented petition for recognition by the Commission under this Act:
Entities that are eligible to receive services from the bureau
Indian tribes, organized bands, pueblos, communities, and Alaska Native entities that are recognized by the Secretary as of the date of enactment of this Act as eligible to receive services from the Bureau.
Splinter groups, political factions, and communities
Splinter groups, political factions, communities, or groups of any character that separate from the main body of an Indian tribe that, at the time of that separation, is recognized as an Indian tribe by the Secretary, unless the group, faction, or community is able to establish clearly that the group, faction, or community has functioned since 1900 as an autonomous Indian tribal entity.
Groups that have previously submitted documented petitions
Groups, or successors in interest of groups, that before the date of enactment of this Act, have petitioned for and been denied or refused recognition based on the merits of their petition as an Indian tribe under regulations prescribed by the Secretary (other than an Indian group described in subsection (d)(1). Nothing in this subparagraph shall be construed as excluding any group that Congress has identified as Indian, but has not identified as an Indian tribe.
Indian groups subject to termination
Any Indian group whose relationship with the Federal Government was expressly terminated by an Act of Congress.
Documented petition form and content
Except as provided in subsection (c), any documented petition submitted under subsection (a) by an Indian group shall be in any readable form that clearly indicates that the documented petition is a documented petition requesting the Commission to recognize the Indian group as an Indian tribe and that contains detailed, specific evidence concerning each of the following items:
List of members who descend from historic tribe(s)
A list of all then current members of the petitioner, including the full name (and maiden name, if any), date, and place of birth, and then current residential address of each member, a copy of each available former list of members based on the criteria defined by the petitioner, and a statement describing the methods used in preparing those lists.
Requirements for membership
In order for the Commission to consider the members of the group to be members of an Indian tribe for the purposes of the documented petition, that membership shall be required to consist of established descendancy from an Indian group that existed historically, or from historical Indian groups that combined and functioned as a single autonomous entity.
Evidence of tribal membership
Evidence of tribal membership required by the Commission for a determination of tribal membership shall include the following items:
Descendancy rolls prepared by the Secretary for the petitioner for purposes of distributing claims money, providing allotments, or other purposes.
Certain official records
Federal, State, or other official records or evidence identifying then present members of the petitioner, or ancestors of then present members of the petitioner, as being descendants of a historic tribe or historic tribes that combined and functioned as a single autonomous political entity.
Church, school, and other similar enrollment records identifying then present members or ancestors of then present members as being descendants of a historic tribe or historic tribes that combined and functioned as a single autonomous political entity.
Affidavits of recognition
Affidavits of recognition by tribal elders, leaders, or the tribal governing body identifying then present members or ancestors of then present members as being descendants of 1 or more historic tribes that combined and functioned as a single autonomous political entity.
Other records or evidence
Other records or evidence based upon analysis by historians, anthropologists, and genealogists with established expertise on the petitioner or Indian entities in general, identifying then present members or ancestors of then present members as being descendants of 1 or more historic tribes that combined and functioned as a single autonomous political entity.
Evidence of community
A statement of facts and an analysis of such facts establishing that the group comprises a community of related members distinct from surrounding communities continuously since 1900.
Evidence of distinct community
Evidence that the Commission may rely upon in determining that the petitioner meets the distinct community criterion may include one or more of the following items:
Political structures or processes limited to the group by which decisions that affect the group are made, such as the allocation of resources or the settlement of disputes among members.
Political disagreements among the individual members of the group over group policies, processes, or decisions.
Significant rates of informal social interaction, social relationships, such as marriage or shared economic activity, among members of the group.
Cultural patterns among a significant portion of the group’s members such as language, religious beliefs and practices, or religious organizations.
The majority of the group’s members exhibits collateral as well as lineal kinship ties through generations to the third degree.
Other evidence deemed relevant or probative by the Commission.
Conclusive evidence of distinct community
A petitioner shall be considered to have conclusively established a distinct community for any period in which it establishes one of the following:
Not less than 1/3 of the members of the group who are married are married to other members of the group.
Not less than 50 percent of the members of the group reside in geographical area(s) that are exclusively or almost exclusively composed of members of the group.
The State in which the petitioner principally resides has continuously since 1900 recognized the group as a self-governing Indian community or has held a reservation for the group.
A continuous line of group leader(s) with a description of the means of selection or acquiescence by a majority of the group’ s members.
A copy of the then present governing document of the petitioner that includes the membership criteria of the petitioner. In the absence of a written document, the petitioner shall be required to provide a statement describing in full the membership criteria of the petitioner and the then current governing procedures of the petitioner.
Petitioner burden of proof
At all levels of Commission consideration of a petition, and upon any reconsideration of appellate review of such petition, the Petitioner shall be considered to have satisfied any requirement if the evidence submitted, taken together, establishes a reasonable likelihood of the validity of the facts establishing the satisfaction of that requirement. No higher level of proof shall be required, and conclusive proof of a single fact relating to a requirement shall not be necessary for the requirement to be considered met.
Within 6 months of receipt of a documented petition, the Commission shall, where appropriate, publish a notice of determination that the petitioner shall not be recognized upon a determination that the petitioner failed to demonstrate Indian ancestry as required by subsection (b)(3);
Within 6 months of receipt of a documented petition the Commission, upon the request of the petitioner, shall publish a notice of determination that the petitioner shall be acknowledged as an Indian tribe upon the Commission’s determination that the petitioner has demonstrated that it has comprised a distinct community for a time depth of 10 years prior to the date upon which the petitioner filed a completed petition before either the Secretary or the Commission, and any of the following:
Where 90 percent or more of its members descend from a tribe recognized by treaty with the United States.
Where 90 percent or more of its members descend from a historic tribe for which the State in which the petitioner principally resides has since 1900 recognized a reservation for that petitioner.
Where 90 percent or more of its members descend from a historic tribe and are members of a tribe held to constitute an Indian tribe under Federal law by a Federal court or a State court of last resort.
Where 90 percent or more of its members descend from a historic tribe that the United States has at one time unambiguously acknowledged.
Effect of an expedited determination
A noticed expedited determination shall be deemed a final decision by the Commission, unless the expedited determination is rebutted as follows:
Within 60 days after the publication of the notice of expedited determination an interested party or the petitioner submits comments on the notice.
Such comments pertain to the basis of the expedited determination.
In the event such comments are submitted, the notice of expedited determination shall not constitute a final decision of the Commission and the petitioner shall be entitled to an adjudicatory hearing under section 9.
Hearing for previously denied groups
Indian groups that have been denied or refused recognition as an Indian tribe under regulations prescribed by the Secretary shall be entitled to an adjudicatory hearing under section 9 before the Commission, if the Commission determines that the criteria established by this Act changes the evaluation of the merits of the Indian group’s documented petition submitted to the Department.
For purposes of paragraph (1), the Commission shall review the administrative record containing the documented petition that formed the basis of the determination to the Indian group by the Secretary.
Treatment of secretary’s final determination
For purposes of the adjudicatory hearing under section 9, the Secretary’s final determination shall be considered a preliminary determination under section 8(b)(1)(B).
Official government actions to be considered concerning evidence of criteria
A statement and an analysis of facts submitted under this section may establish that, for any given period of time for which evidence of criteria is lacking, such absence of evidence corresponds in time with official acts of the Federal or relevant State Government which prohibited or penalized the expression of Indian identity. For such periods of time, the absence of evidence shall not be the basis for declining to acknowledge the petitioner.
Deadline for Submission
No Indian group may submit a documented petition to the Commission later than 8 years after the date of the first meeting of the Commission.
Letters of intent
In the case of a letter of intent, the Commission shall publish in the Federal Register a notice of such receipt, including the name, location, and mailing address of the petitioner. A petitioner who has submitted a letter of intent or had a letter of intent transferred to the Commission under section 5 shall be required to submit a documented petition within 3 years after the date of the first meeting of the Commission to the Commission. No letters of intent will be accepted by the Commission later than 3 years after the date of the first meeting of the Commission.
Notice of receipt of documented petition
Not later than 30 days after a documented petition is submitted or transferred to the Commission under section 5(a), the Commission shall—
send an acknowledgment of receipt in writing to the petitioner; and
publish in the Federal Register a notice of that receipt, including the name, location, and mailing address of the petitioner and such other information that—
identifies the entity that submitted the documented petition and the date the documented petition was received by the Commission;
indicates where a copy of the documented petition may be examined; and
indicates whether the documented petition is a transferred documented petition that is subject to the special provisions under paragraph (2).
Special provisions for the transferred documented petitions
With respect to a documented petition that is transferred to the Commission under section 5(a)(4), the notice provided to the petitioner, shall, in addition to providing the information specified in paragraph (1), inform the petitioner whether the documented petition constitutes a documented petition that meets the requirements of section 5.
If the petition described in subparagraph (A) is not a documented petition, the Commission shall notify the petitioner that the petitioner may, not later than 120 days after the date of the notice, submit to the Commission an amended petition that is a documented petition for review under section 7.
Effect of amended petition
To the extent practicable, the submission of an amended petition by a petitioner by the date specified in this paragraph shall not affect the order of consideration of the petition by the Commission.
In addition to providing the notification required under subsection (a), the Commission shall notify, in writing, the Governor and attorney general of, and each federally recognized Indian tribe within, any State in which a petitioner resides.
Publication; Opportunity for Supporting or Opposing Submissions
The Commission shall publish the notice of receipt of each documented petition (including any amended petition submitted pursuant to subsection (a)(2)) in a major newspaper of general circulation in the town or city located nearest the location of the petitioner.
Opportunity for supporting or opposing submissions
Each notice published under paragraph (1) shall include, in addition to the information described in subsection (a), notice of opportunity for interested parties to submit factual or legal arguments in support of, or in opposition to, the documented petition.
Copy to petitioner
A copy of any submission made under subparagraph (A) shall be provided to the petitioner within 90 days upon receipt by the Commission.
The petitioner shall be provided an opportunity to respond within 90 days to any submission made under subparagraph (A) before a determination on the documented petition by the Commission.
Processing the documented petition
Upon receipt of a documented petition submitted or transferred under section 5(a) or submitted under section 6(a)(2)(B), the Commission shall conduct a review to determine whether the petitioner is entitled to be recognized as an Indian tribe.
Content of review
The review conducted under paragraph (1) shall include consideration of the documented petition, supporting evidence, and the factual statements contained in the documented petition.
In conducting a review under this subsection, the Commission may—
initiate other research for any purpose relative to analyzing the documented petition and obtaining additional information about the status of the petitioner; and
consider such evidence as may be submitted by interested parties.
Access to library of congress and national archives
Upon request by the petitioner, the appropriate officials of the Library of Congress and the National Archives shall allow access by the petitioner to the resources, records, and documents of those entities, for the purpose of conducting research and preparing evidence concerning the status of the petitioner.
Except as otherwise provided in this subsection, documented petitions submitted or transferred to the Commission shall be considered on a first come, first served basis, determined by the date of the original filing of each such documented petition with the Commission (or the Department if the documented petition is transferred to the Commission pursuant to section 5(a)(4) or is an amended petition submitted pursuant to section 6(a)(2)(B)). The Commission shall establish a priority register that includes documented petitions that are pending before the Department as of the date of the first meeting of the Commission.
Each documented petition (that is submitted or transferred to the Commission pursuant to section 5(a) or that is submitted to the Commission pursuant to section 6(a)(2)(B)) of an Indian group that meets 1 or more of the requirements set forth in section 5(c) shall receive priority consideration over a documented petition submitted by any other Indian group.
Not later than 60 days after the receipt of a documented petition by the Commission submitted or transferred under section 5(a) or submitted to the Commission pursuant to section 6(a)(2)(B), the Commission shall—
set a date for a preliminary hearing at which the Commission shall preside which shall in no instance be held later than 180 days after receipt of the documented petition, and at which the petitioner and any other interested party may provide evidence concerning the status of the petitioner; or
publish its expedited decision under section 5(d).
Not later than 30 days after the conclusion of a preliminary hearing under subsection (a), the Commission shall make a determination—
to extend Federal acknowledgment of the petitioner as an Indian tribe to the petitioner; or
that the petitioner should proceed to an adjudicatory hearing at which the Commission shall preside.
Information To be provided preparatory to an adjudicatory hearing
If the Commission makes a determination under subsection (b)(2) that the petitioner should proceed to an adjudicatory hearing, the Commission shall—
not later than 30 days after the date of such determination, make available to the petitioner all records relied upon by the Commission and its staff in making the preliminary determination to assist the petitioner in preparing for the adjudicatory hearing;
include such guidance as the Commission considers necessary or appropriate to assist the petitioner in preparing for the hearing; and
not later than 30 days after the conclusion of the preliminary hearing under subsection (a), provide a written notification to the petitioner that includes a list of any deficiencies or omissions that the Commission relied on in making a determination under subsection (b)(2).
Subject of adjudicatory hearing
The list of deficiencies and omissions provided by the Commission to a petitioner under paragraph (1)(B) shall be the subject of the adjudicatory hearing. The Commission may not make any additions to the list after the Commission issues the list.
Not later than 180 days after the conclusion of a preliminary hearing under section 8(a), the Commission shall afford a petitioner who is subject to section 8(b)(2) an adjudicatory hearing at which the Commission shall preside. The subject of the adjudicatory hearing shall be the list of deficiencies and omissions provided under section 8(c)(1)(B) and shall be conducted pursuant to sections 554, 556, and 557 of title 5, United States Code.
Testimony from staff of commission
In any hearing held under subsection (a), the Commission shall require testimony from the acknowledgment and research staff of the Commission or other witnesses involved in the preliminary determination. Any such testimony shall be subject to cross-examination by the petitioner.
Evidence by petitioner
In any hearing held under subsection (a), the petitioner may provide such evidence as the petitioner considers appropriate.
Determination by Commission
Not later than 60 days after the conclusion of any hearing held under subsection (a), the Commission shall—
make a determination concerning the extension or denial of Federal acknowledgment of the petitioner as an Indian tribe to the petitioner;
publish the determination of the Commission under paragraph (1) in the Federal Register; and
deliver a copy of the determination to the petitioner, and to every other interested party to that petitioner.
Reconsideration by Commission; final decision
Request for reconsideration
Upon publication of a determination by a Commission panel under section 9(d) in the Federal Register, or determination under section 5(d), the petitioner or any interested party may file a request for reconsideration with the Commission.
A petitioner’s or interested party’s request for reconsideration must be received by the Commission no later than 90 days after the date of publication of the Commission panel’s determination under section 9(d) and 30 days under section 5(d). The Commission shall dismiss a request for reconsideration that is not filed by the deadline.
Determination of valid request
If a petitioner’s or interested party’s request for reconsideration is timely filed, the Commission shall determine, within 120 days after publication of the Commission panel’s final determination in the Federal Register under section 9(d), and 90 days under section 5(d), whether the request alleges any of the grounds in subsection (d) and shall notify the petitioner and interested parties of it reconsidered determination.
If no request for reconsideration has been received, the Commission panel’s decision under section 9(d) and section 5(d) shall be final 90 days after publication of the final determination in the Federal Register.
The petitioner’s or interested party’s request for reconsideration shall contain a detailed statement of the grounds for the request.
Statement considered opening brief
The detailed statement of grounds for reconsideration filed by a petitioner or interested parties shall be considered the appellant’s opening brief.
The party or parties requesting the reconsideration shall mail copies of the request to the petitioner and all other interested parties.
The Commission shall review all requests for reconsideration that are timely filed and that allege any of the following:
That there is new evidence that could affect the determination.
That a substantial portion of the evidence relied upon in the Commission panel’s determination was unreliable or was of little probative value.
That petitioner’s or the Commission panel’s research appears inadequate or incomplete in some material respect.
That there are reasonable alternative interpretations, not previously considered, of the evidence used for the determination under section 9(d) or under section 5(d), that would substantially affect the determination that the petitioner meets or does not meet one or more of the criteria in section 5(b)(1) to (3) or is eligible for an expedited decision under section 5(c).
Commission oversight of request for reconsideration
Authority to review
The Commission shall have authority to review determinations of a Commission panel made pursuant to section 9(d) and section 5(d).
Procedures for full and fair evaluation
The Commission may establish such procedures as it deems appropriate to provide a full and fair evaluation of a request for reconsideration under this section to the extent they are not inconsistent with this Act.
The Commission, at its discretion, may request experts not associated with the Commission, any panel of the Commission, the petitioner, or interested parties to provide comments, recommendations, or technical advice concerning the determination, the administrative record, or materials filed by the petitioner or interested parties. The Commission may also request, at its discretion, comments or technical assistance from the Commission panel concerning the final determination under section 9(b) or under section 5(d) and the record used for either determination.
For purposes of review by the Commission, the administrative record shall consist of all appropriate documents held by the Commission relevant to the determination involved in the request for reconsideration. The Commission panel shall designate and make available to the Commission copies of critical documents central to the portions of the determination under a request for reconsideration. The Commission panel shall retain custody of the remainder of the administrative record, to which the Commission shall have unrestricted access.
Panel’s determination affirmed
The Commission shall affirm the Commission panel’s determination if the Commission finds that the petitioner or interested party has failed to establish, by a preponderance of the evidence, at least one of the grounds under subsection (c).
Panel’s determination vacated
The Commission shall vacate the Commission panel’s determination and remand it to the Commission panel for further work and reconsideration if the Commission finds that the petitioner or an interested party has established, by a preponderance of the evidence, one or more of the grounds under subsectukion (c).
Effect of determinations
A determination by the Commission under section 9(d) that an Indian group is recognized by the Federal Government as an Indian tribe shall not have the effect of depriving or diminishing—
the right of any other Indian tribe to govern the reservation of such other tribe as that reservation existed before the recognition of that Indian group, or as that reservation may exist thereafter;
any property right held in trust or recognized by the United States for any other Indian tribe as that property existed before the recognition of that Indian group; or
any previously or independently existing claim by a petitioner to any such property right held in trust by the United States for any other Indian tribe before the recognition by the Federal Government of that Indian group as an Indian tribe.
Implementation of decisions
Upon recognition by the Commission of a petitioner as an Indian tribe under this Act, the Indian tribe shall—
be eligible for the services and benefits from the Federal Government that are available to other federally recognized Indian tribes by virtue of their status as Indian tribes with a government-to-government relationships with the United States;
have the responsibilities, obligations, privileges, and immunities of those Indian tribes; and
be included on the list of federally recognized tribes under the Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 479a et seq.; Public Law 103–454) (as amended by section 12 of this Act).
Recognition or restoration of Indian tribes
The Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 479a et seq.; Public Law 103–454) is amended by striking section 103 and inserting the following:
Recognition and restoration of Indian Tribes
Indian tribes may be recognized or restored by—
the Commission on Recognition of Indian Tribes;
reorganization under the Indian Reorganization Act or the Alaska Indian Reorganization Act; and
any final decision of a United States court.
Indian Reorganization Act
The Act of
June 18, 1934 (25 U.S.C. 461 et seq.; popularly known as the
Reorganization Act), is applicable to all tribes recognized by the
Commission, without regard to whether such tribe was under Federal jurisdiction
as of June 18, 1934.
Needs determination and budget request
Not later than 180 days after an Indian group is recognized by the Commission as an Indian tribe under this Act, the appropriate officials of the Bureau and the Indian Health Service of the Department of Health and Human Services shall consult and develop in cooperation with the Indian tribe, and forward to the Secretary or the Secretary of Health and Human Services, as appropriate, a determination of the needs of the Indian tribe and a recommended budget required to serve the newly recognized Indian tribe.
Submission of budget request
Upon receipt of the information described in paragraph (1), the appropriate Secretary shall submit to the President a recommended budget along with recommendations, concerning the information received under paragraph (1), for inclusion in the annual budget submitted by the President to the Congress pursuant to section 1108 of title 31, United States Code.
Annual report concerning Commission’s activities
Beginning on the date that is 1 year after the date of the first meeting of the Commission, and annually thereafter, the Commission shall prepare and submit a report to the Committee on Indian Affairs of the Senate and the Committee on Natural Resources of the House of Representatives that describes the activities of the Commission.
Content of reports
Each report submitted under this subsection shall include, at a minimum, for the year that is the subject of the report—
the number of documented petitions pending at the beginning of the year and the names of the petitioners;
the number of documented persons received during the year and the names of petitioners;
the number of documented petitions the Commission approved for acknowledgment during the year and the names of the acknowledged petitioners;
the number of documented petitions the Commission denied for acknowledgment during the year and the names of the petitioners; and
the status of all pending documented petitions on the date of the report and the names of petitioners.
Actions by petitioners for enforcement
Any petitioner may bring an action in the district court of the United States for the district in which the petitioner resides, or the United States District Court for the District of Columbia, to enforce the provisions of this Act, including any time limitations within which actions are required to be taken, or decisions made, under this Act. The district court shall issue such orders (including writs of mandamus) as may be necessary to enforce the provisions of this Act.
The Commission may, in accordance with applicable requirements of title 5, United States Code, promulgate and publish such regulations as may be necessary to carry out this Act.
Guidelines and advice
Not later than 90 days after the date of the first meeting of the Commission, the Commission shall make available to Indian groups suggested guidelines for the format of documented petitions, including general suggestions and guidelines concerning where and how to research information that is required to be included in a documented petition. The examples included in the guidelines shall not preclude the use of any other appropriate format.
The Commission may, upon request, provide suggestions and advice to any petitioner with respect to the research of the petitioner concerning the historical background and Indian identity of that petitioner. The Commission shall not be responsible for conducting research on behalf of the petitioner.
Assistance to petitioners
The Secretary of Health and Human Services may award grants to Indian groups seeking Federal recognition as Indian tribes to enable the Indian groups to—
conduct the research necessary to substantiate documented petitions under this Act; and
prepare documentation necessary for the submission of a documented petition under this Act.
Treatment of grants
The grants made under this subsection shall be in addition to any other grants the Secretary of Health and Human Services is authorized to provide under any other provision of law.
The grants made under subsection (a) shall be awarded competitively on the basis of objective criteria prescribed in regulations promulgated by the Secretary of Health and Human Services.
Protection of certain privileged information
Notwithstanding any other provision of law, upon the effective date of this Act, when responding to any requests for information on petitions and related materials filed by a group seeking Federal recognition as an Indian tribe pursuant to part 83 of title 25 of the Code of Federal Regulations, including petitions and related materials transferred to the Commission from the Department under section 5(a)(2), as well as related materials located within the Department that have yet to be transferred to the Commission, the Department and the Commission shall exclude materials identified by the petitioning group as information related to religious practices or sacred sites, and which the group is forbidden to disclose except for the limited purpose of Department and Commission review.
Authorization of appropriations
There are authorized to be appropriated to the Commission to carry out this Act (other than section 17) such sums as are necessary for each of fiscal years 2010 through 2018.
Secretary of HHS
There are authorized to be appropriated to the Secretary of Health and Human Services to carry out section 17 such sums as are necessary for each fiscal years 2010 through 2018.