Judge grants delay in rule-making on federal recognition re-petitions

Department of Interior: ‘There was not a sufficient basis for imposing a deadline at all, much less a deadline requiring the Department to act within six weeks’

By: - August 24, 2023 4:15 am

St. Mary’s Catholic Church on the Bad River Ojibwe reservation in Wisconsin. (Photo by Mary Annette Pember / Indian Country Today)

D.C. District Judge Amy German Jackson has given the Department of Interior another two months to submit a new rule on federal recognition of tribes. Department regulations ban tribes from re-applying for federal recognition if they were once denied. In July Jackson had ordered the department to take the next step in the rule-making process by Aug. 31, 2023.

At the department’s request, it now has until Oct. 31, 2023 to either issue a proposed rule that’s been through the notice and comment process or to issue an altogether new rule.

The judge’s action comes in a lawsuit filed by the Burt Lake Band of Ottawa and Ojibwe. The Band has been denied federal recognition and as the rules stand now, cannot re-petition.

The Burt Lake Band said allowing the postponement is a “no-win situation for the band.” The Band said the department’s already been through a four-year process of public notice and review of draft regulations.

“DOI (Department of Interior) has placed the Band between a rock and a hard place. The Band does not want to force DOI to finalize a rule banning re-petitioning when neither the Band nor apparently DOI want this result,” the Band said in court documents.

“…But soliciting a “fresh round” of public comments on re-petitioning is neither necessary nor warranted here when these factors have already been satisfied by prior notice-and-comment rounds and DOI has had years to consider the existing comments. This would be the third time in recent years that DOI has engaged in notice-and-comment rulemaking on the same re-petitioning issue,” the Band said.

For its part, the department said “there was not a sufficient basis for imposing a deadline at all, much less a deadline requiring the Department to act within six weeks.”

“…The Department is currently giving serious consideration to allowing at least some exceptions to the re-petitioning ban, contrary to the 2022 proposed rule. Should the Department decide to go that route, the Department would issue a new proposed rule to allow for public comment rather than immediately issuing a final rule. By requiring submission of a final rule less than a month from now, the Order would force the Department to finalize its 2022 proposed rule (even though it has not settled on that policy option), which presumably is the very opposite of what Plaintiff wants.”

Judge Jackson also ordered a status report to the court from the department due on Nov. 1, 2023.

This story was first published at ICT.com. It is republished here with permission.

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