Ramapough Mountain Indians, Inc., In re Federal Acknowledgement of, 31 IBIA 61 (1997)

Request for reconsideration of a final determination against Federal acknowledgment.

Affirmed. Four issues referred to the Secretary of the Interior.

1. Indians: Federal Recognition of Indian Tribes: Acknowledgment

   In considering a request for reconsideration of a final determination concerning Federal acknowledgement of an entity as an Indian tribe, the Board of Indian Appeals has authority to determine whether the request for reconsideration has established, by a preponderance of the evidence, one or more of the grounds for reconsideration in 25 C.F.R. § 83.11(d)(1)-(4).

2. Indians: Federal Recognition of Indian Tribes: Acknowledgment

   In considering a request for reconsideration of a final determination concerning Federal acknowledgement of an entity as an Indian tribe, the Board of Indian Appeals has authority, under 25 C.F.R. § 83.11(f)(2), to refer certain grounds for reconsideration to the Secretary of the Interior. The Board finds that its authority under this provision includes the authority to refer matters requiring clarification, whether or not they constitute grounds for reconsideration.

3. Indians: Federal Recognition of Indian Tribes: Acknowledgment

   For purposes of reconsideration of a final determination concerning

   Federal acknowledgment of an entity as an Indian tribe, a "reasonable alternative interpretation[ ], not previously considered, of the evidence used for the final determination" does not include an interpretation, however reasonable, which has been considered and rejected. 25 C.F.R. § 83.11(d)(4).

   IBIA 96-61-A

   Village of Hillburn, New York; David M. Wagner, Esq., New City, New York, for the Legislature of Rockland County, New York. 1/

   OPINION BY ADMINISTRATIVE JUDGE VOGT

   The Ramapough Mountain Indians, Inc. (Petitioner, RMI) seeks reconsideration of a "Final Determination Against Federal Acknowledgment of [Petitioner]," notice of which was published at 61 Fed. Reg. 4476 (Feb. 6, 1996). For the reasons discussed below, the Board affirms the Final Determination but refers four issues to the Secretary of the Interior pursuant to 25 C.F.R. § 83.11(f)(2).

   Background

   In 1978, Petitioner submitted a letter of intent to petition for Federal acknowledgment as an Indian tribe. In 1990, it submitted a documented petition. After preliminary discussions with the Branch of Acknowledgment and Research, Bureau of Indian Affairs (BAR; BIA), Petitioner submitted a revised petition. The BIA began active consideration of the revised petition in July 1992.

   On December 6, 1993, the Assistant Secretary - Indian Affairs published a "Proposed Finding Against Federal Acknowledgment of [Petitioner]." 58 Fed. Reg. 64,662 (Dec. 8, 1993). Following a period for response and comments, the Assistant Secretary issued her Final Determination on February 6, 1996, concluding that Petitioner failed to satisfy the criteria in 25 C.F.R. §§ 83.7(b),(c), and (e), three of the seven mandatory criteria for Federal acknowledgment. 2/

   Petitioner filed a Request for Reconsideration under 25 C.F.R. § 83.11. The request was received by the Board on May 6, 1996. Petitioner alleged:

   [T]here is new evidence which could affect the outcome of the proceeding that must be considered; the record reveals that the BIA has disregarded probative evidence and based its decision on unreliable evidence; and there are reasonable alternative inter 1/ In addition, a filing which might be construed as an entry of appearance was made by Beverly Tanenhaus, Esq., for the State of New Jersey. However, no brief or other position statement was filed on behalf of the State of New Jersey.

   2/ The Proposed Finding was issued under regulations promulgated in 1978, 43 Fed. Reg. 39,361 (Sept 5, 1978), 25 C.F.R. Part 83 (1993), which remained in effect until replaced by new regulations effective Mar. 28, 1994, 59 Fed. Reg. 9293 (Feb. 25, 1994). Pursuant to Petitioner's request, the Final Determination concerning its petition was issued under the 1994 regulations.

   Except where otherwise noted, all citations to the regulations in 25 C.F.R. Part 83 are to the 1994 revision.

   IBIA 96-61-A

   pretations which the BIA failed to consider that could affect the outcome of the proceeding.

   Request for Reconsideration at 2-3.

   On May 7, 1996, the Board determined, pursuant to 25 C.F.R. § 83.11(c)(2), that

   Petitioner had alleged grounds for reconsideration under 25 C.F.R. § 83.11(d).

   Interested Parties

   Lists of potential interested parties were submitted by the Assistant Secretary and by Petitioner. Briefing was suspended to allow for a determination of interested parties for purposes of the proceedings before the Board. The Governors and Attorneys General of the States of New Jersey and New York were determined to be interested parties by the terms of the definition of "interested party" in 25 C.F.R. § 83.1. 3/ Other individuals and entities included on either of the two lists were given an opportunity to request interested party status before the Board. Of those requesting interested party status, the Legislature of Rockland County, New York, and the Village of Hillburn, New York, were determined to be interested parties. 4/

   The briefing schedule was reinstated on September 26, 1996. Answer briefs were filed by the Legislature of Rockland County, New York, and the Village of Hillburn, New York, both supporting Petitioner's Request for Reconsideration. No briefs were filed by the New Jersey or New York State

   3/ Section 83.1 provides:

   "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 general actions regarding a specific petitioner. "Interested party" 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."

   4/ There were three other requests for interested party status. Two were from individuals who failed to show that they qualified under the definition in § 83.1. The third was from the Town of Ramapo, New York, which failed to serve its request on the other parties after being given two opportunities to do so.

   The two individuals and the Town of Ramapo, as well as a number of other persons who requested to be informed of the Board's decision, are included on the distribution list for this decision.

   IBIA 96-61-A

   officials. Neither the Assistant Secretary nor BIA has participated as an active party in this

   proceeding. 5/

   Petitioner's Motions and Requests

   Petitioner has filed a number of motions and requests upon which the Board has not yet acted.

   By a request dated May 23, 1996, Petitioner sought to supplement its Request for Reconsideration. Petitioner stated that the materials included in its Supplement to Request for Reconsideration (Petitioner's Supplement) were more legible copies of documents already submitted or materials specifically referred to in the Request for Reconsideration.

   The Board initially intended to rule on this request prior to the reinstatement of briefing. However, in light of subsequent filings made by Petitioner, the Board postponed its ruling and gave the parties an opportunity to respond to all of the materials submitted by Petitioner.

   No party has objected to the materials in Petitioner's Supplement. Therefore, except to the extent that materials in Petitioner's Supplement constitute untimely new evidence (see discussion below), the Board admits these materials into the record.

   Under 25 C.F.R. § 83.11(e)(8), the Assistant Secretary designated and transmitted a number of documents to the Board as Critical Documents. 6/ The documents were received by the Board on June 14, 1996. On August 9, 1996, the Board received from Petitioner a filing entitled "Comments on Administrative Record and Motion to Supplement Record" (Petitioner's Comments). 7/ Attached to the filing were four volumes of exhibits and 5/ The preamble to the 1994 regulations states: "[BIA] under the regulations does not participate as an active party [in proceedings before the Board] opposing or supporting the submissions of petitioner or interested parties or defending the determination." 59 Fed. Reg. at 9292.

   6/ Subsection 83.11(e)(8) provides:

   "For purposes of review by the Board, the administrative record shall consist of all appropriate documents in the [BAR] relevant to the determination involved in the request for reconsideration. The Assistant Secretary shall designate and transmit to the Board copies of critical documents central to the portions of the determination under a request for reconsideration. The [BAR] shall retain custody of the remainder of the administrative record, to which the Board shall have unrestricted access."

   7/ Arguably Petitioner's filing, insofar as it constitutes an objection to the record, is untimely under 43 C.F.R. § 4.336, which allows only 15 days for objections to the record. However, the procedures in acknowledgement cases, as well as the records in those cases, are more complex than in other appeals, making the 15-day limit somewhat unrealistic. Further, in this

   IBIA 96-61-A

   a videotape. The Board requested the Assistant Secretary to review the materials submitted by Petitioner and to advise the Board whether these materials had been a part of the administrative record when this matter was pending before her.

   The Assistant Secretary's response listed each document submitted by Petitioner and indicated whether each was a part of the administrative record before the Assistant Secretary and whether each had been transmitted to the Board as a part of the Critical Documents. The response indicated that the great majority of the documents were, either in whole or in part, a part of the administrative record before the Assistant...