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Comments and Responses Summary (Rulemaking Hearing 10/28/2006) Tennessee Commission of Indian Affairs New Rule Chapter 0785-1 Recognition Criteria For Native American Indians |
DRAFT
proposed by TDEC |
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| Comment [1]: | Comments were received questioning the expertise of the unfunded TCIA to make effective responsible determinations about a group's validity. It was indicated that they would not contest the claim of an individual to be of Cherokee descent. However, they felt that Cherokee tribal status should only be in Oklahoma and North Carolina and that tribal matters are exclusively federal. They requested that the State of Tennessee defer to the federal government and make federal recognition the only criteria for recognition of an individual or a group as Native American in the State of Tennessee. |
| Response: | ( The Commission disagrees. See the Response to the third comment. The proposed Rules do not provide for individual recognition. In regard as to whether federal laws preempt the states' authority to recognize tribes, it is the Attorney General's opinion that ... ) |
| Note: | Response pending issuance of Attorney General's Opinion. [February 27, 2007: Opinion No. 07-21: State of Tennessee's Authority to Recognize Indian Tribes] |
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| Comment [2]: | |
| Response: | The Commission disagrees. Rule 0785-1-.02(2)(c) requires a documented history from 1900, similar to 25 CFR 83.7(a). |
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| Comment [3]: | Rule 0785-1-.02(1)(b) "... documented descendency ..." can only be investigated and verified by nationally accredited genealogists and trained historians and anthropologists independent from political whims and pressures and not be subject to the whims of the Commission. In regard to "... viewed as Native American Indian ... ", who shall make such a determination and how will it be determined that a group is viewed as Native and by whom? |
| Response: | The Commission disagrees. The Commission is placing the burden of proof on the applicant since the Commission is not funded. The Commission will rule based upon information provided and certified as true and accurate. |
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| Comment [4]: | Rule 0785-1-.02(1)(c) "... throughout their history until the present ..." allows any group to fabricate a history and culture and declare themselves a tribe using governmental documents which are not their own documents created by federally recognized tribes or nations. |
| Response: | The Commission disagrees. The burden of proof is placed upon the applicant. The Commission must then determine if the submittals are good documents. 25 CFR 83.7(c) is a similar requirement. |
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| Comment [5]: | Rules 0785-1-.02(2)(a) and (b) allow the tribe to define Indian. The Commission should establish at least minimum criteria to define "Indian" to compare against a "tribe's" criteria. |
| Response: | The Commission disagrees. Rule 0785-1-.02(2) does not say what an Indian is, but what an applicant must submit to prove that they are Indian. 25 CFR 83.1 defines Member of an Indian Group, member of an Indian Tribe and Tribal Roll as meeting the Group's or Tribe's criteria. |
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| Comment [6]: | Rule 0785-1-.02(2)(c) requires a history of the applicant which can be fabricated. Limiting this history to 2000 words can not offer the Commission sufficient information for evaluation. Professional petitions are often thousands of pages long. |
| Response: | The Commission disagrees in part. Regarding "fabrication", Rule 0785-1-.02(2)(e) requires a certification as to the truth and accuracy of information submitted. The submittal is capped at 2,000 words so as to not overburden the Commission. However, the language is being modified so that the applicant may request an "exception" from the Commission for longer submittals if necessary. There are no caps on other documents. |
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| Comment [7]: | Rule 0785-1-.02(2)(d) is vague and does not state for what purpose the additional documentation is being submitted. |
| Response: | The Commission disagrees. This Rule is requesting for the submittal primarily of "outside" documentation for legitimacy. |
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| Comment [8]: | Rule 0785-1-.02(2)(d)4 containing provision for "other compelling documentation" leaves the matter so open and subjective as to make all other requirements meaningless. |
| Response: | The Commission disagrees. The Commission is trying to be inclusive vs. exclusive of information that may be available but not referenced in a rule. Documents may be rejected if determined frivolous by the Commission. The term "other" is also used in 25 CFR 83.7(a) and (b). "Alternative suitable evidence" is also provided for in 25 CFR 83.6(g) to meet criteria. |
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| Comment [9]: | Proposed Rule 0785-1-.02(2)(e) regarding the officers of the applicant affirming that the information provided in the application is true and accurate should be deleted. Very few written records currently exist that would support any information as being "true and accurate". Court houses burned, written records were destroyed and most Indian families did not acknowledge that they were Indian for fear of being killed, sent to other areas of the country or persecuted in other ways as by not being allowed to own land, testify in court, attend school, vote, or marry outside their race. Therefore, in many cases, Indian ancestors left no paper trail. Traditions and heritage were passed verbally to children and grandchildren. Tennessee tribes have their own criteria of membership which should be relied upon for enrollment. |
| Response: | The Commission disagrees. The applicant should be responsible for the truth and accuracy of the contents of any application submitted to the Commission. |
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| Comment [10]: | Proposed Rule 0785-1-.02(2)(e) regarding the officers of the applicant affirming that the information provided in the application is true and accurate should be modified by adding the phrase "..to the best of their knowledge, information and belief." A lot of people only have "oral" family history and few, if any, actual documents. It would be impossible to verify all information with total accuracy. |
| Response: | The Commission agrees. See the modified proposed language in the revised draft. |
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| Recognition Criteria C&R DRAFT Am. Indian.doc | |