25 C.F.R. § 83.38

What options does the petitioner have at the end of the response period on a negative proposed finding?

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(a) At the end of the response period for a negative proposed finding, the petitioner will have 60 days to elect to challenge the proposed finding before an ALJ by sending to the Departmental Cases Hearings Division, Office of Hearings and Appeals, with a copy to OFA a written election of hearing that lists:

(1) Grounds for challenging the proposed finding, including issues of law and issues of material fact; and

(2) The witnesses and exhibits the petitioner intends to present at the hearing, other than solely for impeachment purposes, including:

(i) For each witness listed, his or her name, address, telephone number, and qualifications and a brief narrative summary of his or her expected testimony; and

(ii) For each exhibit listed, a statement confirming that the exhibit is in the administrative record reviewed by OFA or is a previous final determination of a petitioner issued by the Department.

(b) The Department will not consider additional comments or evidence on the proposed finding submitted by individuals or entities during this period.

Notes of Decisions

Cited in 2 cases (1 in the last 5 years), 2017–2023 · leading case: Mdewakanton Sioux Indians of Minnesota v. Jewell, 264 F. Supp. 3d 116 (D.D.C. 2017).

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Mdewakanton Sioux Indians of Minnesota v. Jewell, 264 F. Supp. 3d 116 (D.D.C. 2017). “If a group is unsatisfied with the result of the Part 83 process, they may seek review before an ALJ,' 25 C.F.R. § 83.38 , and subsequently by the Assistant Secretary, id, § 83.”

Historical E. Pequot Tribe v. Off. of Fed. Acknowledgment, Bureau of Indian Affairs (D.D.C. 2023). · cites it 2× “Treating that letter as if it were a “negative proposed finding” published in the Federal Register and invoking the regulation authorizing a 4 petitioner receiving such a finding to elect a hearing before an ALJ, see 25 C.F.R. § 83.38 , the Tribe sought such a hearing.”

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