PRIMER ON FEDERAL RECOGNITION

AND CURRENT ISSUES AFFECTING THE PROCESS

 

Prepared For NCAI Winter Session

February 22, 2001

 

Jennifer P. Hughes, Esq.

 

I.                   The Branch of Acknowledgment and Research.

A.                 The Office.

The Branch of the Acknowledgment and Research (BAR) is a division of the Bureau of Indian Affairs (BIA) which implements 25 C.F.R. Part 83, Procedures for Establishing that an American Indian Group Exists as an Indian Tribe. These regulations, known as the Federal Acknowledgment Process (FAP), set forth the administrative process by which tribal groups are given federal recognition as an Indian tribe. Federal recognition acknowledges the tribe's eligibility to receive federal services provided to tribes and to enjoy other privileges of federally recognized tribes.

 

The BAR consists of approximately eleven (11) staff persons -- professional anthropologists, genealogists and historians -- who evaluate petitions for federal recognition and make recommendations to the Assistant Secretary for Indian Affairs on whether to approve or deny each petition. If the Assistant Secretary approves the petition, he acknowledges tribal existence and establishes a government-to-government relationship between the tribe and the United States.

B.                 The Volume of Petitions and Letters of Intent.

As of February 6, 2001, the BAR has received 250 letters of intent and petitions from tribal groups seeking federal recognition. Of these, 51 have been resolved: 34 by the Department of the Interior (15 acknowledged, 15 denied, one whose status was clarified by legislation, two whose statuses were clarified by other means and one whose status is pending).

 

There are currently 12 petitioners on active status and 11 ready, waiting for active status. There are 175 not yet ready for evaluation: 55 of which have submitted partial documentation for their petitions; 105 of which have submitted only a letter of intent to petition without any other documentation; and nine that are no longer in touch with the Department of the Interior.

 

The FAP process is rigorous, demanding and time-consuming. Exceptional anthropological, genealogical and historical research is required. The cases on active consideration, including those with proposed findings, have been in the process for anywhere from 2 to 9 years.(1) Many petitions have been in the process much longer. The BAR processes, on average, two petitions each year.(2) The cry for more resources for the BAR, however, has always been overshadowed by other priority needs in Indian Country.(3)

II.                The Regulations: 25 C.F.R. Part 83.

A.                 Development of the Regulations.

Prior to 1978, federal acknowledgment of Indian tribes was accomplished by Congressional action, various forms of administrative decisions and the courts. It became clear, however, that a uniform process was necessary to address the several acknowledgment claimants whose characters and histories varied widely. The regulations were developed in response to the ad hoc, inconsistent and sometimes arbitrary determinations of tribal status.

 

Proposed recognition regulations were released on June 16, 1977. The BIA had "approximately 400 meetings, discussions and conversations about federal recognition with other federal agencies, state government officials, tribal groups, petitioners, congressional staff members, and legal representatives of petitioning groups."(4) The BIA also received over 60 comments on the proposed regulations, and 32 comments on the revised regulations which were issued a year later.(5) The final acknowledgment regulations, which were published in September 1978, represented a compromise of diverse interests committed to establishing an equitable process for determining whether a group warranted federal recognition as an Indian tribe.

 

The regulations established the first detailed, systematic process for reviewing petitions from groups seeking federal recognition. While some tribes still receive federal recognition or restoration of previous federal recognition from Congress, the courts have generally deferred to the Department of Interior for questions of tribal status.(6)

 

The regulations were revised in 1994 to clarify the criteria for acknowledgment and make more explicit the kinds of evidence which could be used to meet the criteria. Other changes were made to increase the speed at which petitions were processed. The 1994 regulations also gave a lesser burden to previously acknowledged tribes. The general standards for interpreting the evidence and the standard of continuity of tribal existence, however, remained unchanged.(7)

B.                 The Petition Process.

1.                  Who can Petition and How Does the Process Start?

Under 25 C.F.R. Part 83, an Indian group that believes it should be acknowledged by the federal government as an Indian tribe and can satisfy the mandatory criteria for acknowledgment can submit a letter of intent to the Assistant Secretary for Indian Affairs requesting such acknowledgment.(8) The group must also submit a documented petition containing detailed evidence in support of its request for acknowledgment and thorough explanations of how it meets all of the criteria for tribal existence.(9) The letter and the petition must be signed by the group's governing body.(10)

2.                  Who Cannot Petition?

Tribes, organized bands, pueblos, Alaska native villages, and communities which are already recognized as such and receive services from the BIA cannot be reviewed under the FAP process.(11) Neither can associations, organizations, corporations or groups of any character that have been formed in recent times (the fact that a group that meets the mandatory criteria under the regulations has recently incorporated or formalized its existing autonomous political process does not affect the Assistant Secretary's final decision on its petition).(12) Splinter groups, political factions or groups of any nature that separate from the main body of a currently recognized tribe cannot be acknowledged under the FAP process unless the group can establish that it has functioned throughout history until the present as an autonomous tribal entity.(13) Groups that are subject to federal legislation terminating or forbidding federal recognition as a tribe cannot be acknowledged under the FAP process.(14) Lastly, groups that have previously petitioned and were denied cannot petition.(15)

3.                  How Does the Assistant Secretary Process the Petition?

a)                  Notice and Interested/Informed Parties.

The Assistant Secretary will acknowledge the receipt of the letter of intent of the documented petition (if a letter has not previously been received and noticed) and publish notice of such receipt in the Federal Register.(16) This notice serves to announce the opportunity for interested parties and informed parties to submit factual or legal arguments in support of or in opposition to the petitioner's request for acknowledgment and/or to request to be kept informed of general actions affecting the petition.(17) The Assistant Secretary will also notify the governor and the attorney general of the state in which a petitioner is located, and any recognized tribe and other petitioner which appears to have a historical or present relationship with the petitioner or may otherwise have a potential interest in the acknowledgment determination.(18)

 

Under the regulations, an "interested party" is any party that has a legal or property interest in the outcome of the acknowledgment determination. The governor and attorney general of the state in which a petitioner is located are automatically included in this category. It may also include, but is not limited to, local governmental units and any recognized Indian tribes and unrecognized groups that might be affected by an acknowledgment determination.(19)

 

An informed party is any person or organization, other than an interested party who requests an opportunity to submit comments or evidence or to be kept informed of general actions regarding a specific petitioner.(20)

b)                  Review of the Petition and Technical Assistance.

The Assistant Secretary, through the BAR, then begins the review of the documented petition. He may consider any evidence submitted by interested parties and informed parties.(21) Prior to placing the petition on active consideration, however, the BAR conducts a technical assistance review of the petition to provide the petitioner with an opportunity to supplement or revise the petition.(22) The Assistant Secretary will notify the petitioner of any obvious deficiencies or significant omissions in the petition and will allow the petitioner to supply additional information or clarification on the petition.(23) Once the deficiencies have been addressed, the petition is then placed on active consideration.

c)                  Proposed Finding.

After reviewing the materials submitted, the Assistant Secretary will publish a proposed finding on the petition in the Federal Register.(24) The petitioner or any individual or organization wishing to challenge or support the proposed finding has 180 days from this publication to submit arguments and evidence to the Assistant Secretary to rebut or support the proposed finding.(25) During this comment period, the petitioner or any interested party can request a formal technical assistance meeting to discuss the reasoning, analysis and factual bases for the proposed finding on the record. This is an opportunity primarily for third parties to have their questions and concerns be addressed by the BAR staff on the record.(26) The petitioner has sixty (60) days after the comment period ends to respond to the arguments and evidence that were submitted.(27) The Assistant Secretary will then consult with the petitioner and the interested parties to determine a schedule for consideration of the comments and responses.(28)

 

60 days after the Assistant Secretary begins the review of these materials, he shall publish a final determination of the petitioner's status.(29) If the petitioner meets all of the criteria under 25 C.F.R. '83.7, the Assistant Secretary must acknowledge it as an Indian tribe.(30) Upon publication of the Assistant Secretary's determination in the Federal Register, the petitioner or any interested party may file a request for reconsideration with the Interior Board of Indian Appeals.(31)

C.                 The Criteria for Federal Acknowledgment (25 C.F.R. Part 83.7)

1.                  What the Petitioner Must Show.

The Assistant Secretary must acknowledge the existence of the petitioner as an Indian tribe if it satisfies all of the following criteria:

 

a.                   The petitioner has been identified as an American Indian entity on a substantially continuous basis since 1900. ' 83.7(a)

 

b.                  A predominant portion of the petitioning group comprises a distinct community and has existed as a community from historical times until the present. ' 83.7(b)

 

c.                   The petitioner has maintained political influence or authority over its members as an autonomous entity from historical times until the present. ' 83.7(c)

 

d.                  It submits to the BAR a copy of the group's present governing document including its membership criteria. ' 83.7(d)

 

e.                   The petitioner's membership consists of individuals who descend from a historical Indian tribe or from historical Indian tribes which combined and functioned as a single autonomous political entity. ' 83.7(e)

 

(The petitioner must provide an official membership list certified by the group's governing body. It must also submit a copy of each available former list of members based on the group's own criterion).

 

f.                    The membership of the petitioning group is composed principally of persons who are not members of any acknowledged North American Indian tribe. ' 83.7(f)

 

(It can meet the criteria if: 1) the petitioner can establish that it has functioned throughout history until the present as a separately autonomous tribal entity; 2) that its members do not maintain a bilateral political relationship with the acknowledged tribe; and 3) that its members have provided written confirmation of their membership in the petitioning group).

 

g.                   Neither the petitioner nor its members are the subject of congressional legislation that has expressly terminated or forbidden the federal relationship. ' 83.7(g).

 

A criterion is met if the available evidence establishes a reasonable likelihood of the validity of the facts relating to that criterion.(32) Conclusive proof of the facts is not required. While the regulations list specific types of evidence that can be used to show that the petitioner has met the criterion, the specific forms of evidence are not mandatory requirements. The criteria may be met alternatively by any suitable evidence that demonstrates that the petitioner meets the requirements of the criteria.(33)

2.                  Lesser Burden For Those Previously Acknowledged (Part 83.8)

If a petitioner can provide substantial evidence of unambiguous previous federal acknowledgment, its evidentiary burden of meeting the mandatory criteria is lessened.(34) Evidence to demonstrate a previously acknowledged group must show that it meets criterion 83.7(a) only since the point of last federal acknowledgment. It must show that it meets the requirements of criterion 83.7(b) to demonstrate that it comprises a distinct community at present and that it meets the requirements of '83.7(c) to demonstrate that political influence is exercised within the group at present. The petitioner must meet the rest of the criteria as set forth in part 83.7.(35)

III.             Legislation in the 106th Congress to Amend the Process for Acknowledging Tribes.

A.                 S. 611.

1.                  Background.

Senator Campbell (R-CO), Chairman of the Senate Committee on Indian Affairs, introduced S. 611 on March 15, 1999, to amend the process by which the federal government would recognize Indian tribes. The Senate Committee held a hearing on the bill on May 24, 2000, and the Committee reported the bill out favorably on September 6, 2000, with an amendment in the nature of a substitute. We expect similar legislation to be re-introduced in the 107th Congress.

2.                  What the Bill Would Do.

a)                  Transfer of Duties to Commission.

S. 611 would have transferred the federal acknowledgment process from the BIA to an independent Commission on Indian Recognition (the "Commission"). The Commission would have consisted of three members each appointed by the President.

 

Under S. 611, an Indian group seeking federal recognition would submit a documented petition to the Commission. Similar to the existing regulations, tribes that were already receiving services from the BIA, splinter groups and political factions of recognized tribes, groups who had previously petitioned and were denied, and groups whose relationships with the federal government were expressly terminated would not be allowed to petition.

 

S. 611 would have required the Secretary of the Interior to transfer all petitions and letters of intent pending before the Department of the Interior to the Commission. They would have been deemed submitted to the Commission in the same order they were submitted to Interior. The Secretary would continue to have the authority to recognize tribes under 25 C.F.R. Part 83 until the Commission is established.

 

The Commission would have a sunset date twelve (12) years after its establishment. Groups seeking recognition would be required to submit their documented petitions to the Commission no later than eight years after the date of the first meeting of the Commission. Letters of intent would only be received for one year after the date of the first meeting of the Commission, and petitioners whose letters were transferred from Interior would have only three years after the date of the first meeting of the Commission to submit their documented petitions.

b)                  Criteria for Recognition under S. 611.

The mandatory criteria to receive federal recognition under S. 611 were:

 

(1) a statement of facts establishing that the petitioner has been identified as an American Indian entity on a substantially continuous basis since 1900;

 

(2)               a statement of facts and an analysis of such facts establishing that a predominant portion of the membership of the petitioner (a) comprises a community distinct from those communities surrounding that community and (b) has existed as a community from historical times to the present;

 

(3)               a statement of facts and analysis of such facts establishing that the petitioner has maintained political influence or authority over its members as an autonomous entity from historical times until the time of the documented petition;

 

(4)               a copy of the then present governing document of the petitioner that includes the membership criteria; and

 

(5)               a list of all then current members of the petitioner, a copy of each available former membership list and a statement of the methods used in preparing the lists. Membership would have been 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.

 

S. 611 would have provided a lesser burden for petitioners who could demonstrate previous federal acknowledgment. Further, similar to the existing regulations, S. 611 set forth forms of evidence that would have been acceptable for proving that a criterion had been met.

3.                  Process under S. 611.

a)                  Comments.

S. 611 would allow other parties to submit factual or legal arguments in support of or in opposition to the documented petition. The petitioner would receive copies of all such submissions and have 90 days to respond to them. The Commission would conduct a review of the petition, and, in so doing, could initiate other research relative to analyzing the petition and consider evidence submitted by other parties.

b)                  Preliminary Hearing/Adjudicatory Hearing/Determination.

The Commission would have been required to hold a preliminary hearing at which the petitioner and any other interested party could provide evidence concerning the status of the petitioner. After this preliminary hearing, the Commission would decide whether the petitioner warranted federal acknowledgment or whether it should proceed to an adjudicatory hearing to address the obvious deficiencies and omissions in the petitioner's materials. During the adjudicatory hearing, testimony from the Commission's research staff and others involved in the preliminary determination could be taken. This testimony would be subject to cross-examination by the petitioner. The petitioner could also provide additional evidence to the Commission.

 

The Commission would then make a determination concerning the extension or denial of federal recognition and publish it in the Federal Register. The petitioner could appeal the decision in the United States District Court for the District of Columbia.

4.                  Other Duties and Authorizations in S. 611.

S. 611 would also require the Commission to publish an annual list of recognized Indian tribes and prepare and submit an annual report describing its activities to the Senate Committee on Indian Affairs and the House Resources Committee.

 

Finally, S. 611 would have authorized the Secretary of Health and Human Services to award grants to groups seeking federal recognition to help them conduct the necessary research and prepare a documented petition. The bill would have also authorized appropriations for this purpose.

B.                 H.R. 361.

1.                  Background.

H.R. 361 was introduced by Representative Faleomavaega (D-AS) on January 19, 1999. The House Resources Committee held a hearing on it on September 15, 1999. The bill also proposed to establish the three-member Commission on Indian Recognition to assume the BIA's authority to federally recognize tribes and set forth generally the same process and procedures as S. 611 did.

2.                  Criteria under H.R. 361.

H.R. 361, however, had different criteria for a petitioner to meet in order to be federally recognized than its sister bill, S. 611. These criteria were:

 

a.                   the petitioner has been identified as an American Indian entity on a substantially continuous basis since 1934.

 

b.                  a predominant portion of the petitioning group comprises a distinct community and has existed as a community from 1934 to the present.

 

c.                   the petitioner has maintained political influence or authority over its members as an autonomous entity from 1934 until the present.

 

d.                  a governing document or description of membership criteria is submitted.

 

e.                   the petitioner's membership consists of individuals who descend from an historical Indian tribe or from tribes which combined and functioned as a single autonomous political entity.

 

f.              the membership of the petitioning group is composed principally of persons who are not members of any acknowledged North American Indian tribe.

3.                  Process under H.R. 361.

Similar to S. 611, H.R. 361 would have required the Commission to conduct preliminary hearings on the petitions. The Commission would have had the option of conducting an adjudicatory hearing to address deficiencies and omissions in a petition before it issued its final determination. It also would have required the Commission to publish an annual list of recognized tribes and prepare an annual report of Commission activities. H.R. 361 would also have authorized the Secretary of Health and Human Services to award petition assistance grants and authorized appropriations for this purpose.

IV.              Litigation Attacking the Process for Acknowledging Tribes.

On January 18, 2001, the State of Connecticut and three Connecticut towns (Ledyard, North Stonington, and Preston) filed a Complaint against the Department of the Interior, the Bureau of Indian Affairs, Bruce Babbitt, the Secretary of Interior (in his official capacity), Kevin Gover, Assistant Secretary for Indian Affairs (in his official capacity), and Sharon Blackwell, Deputy Commissioner for Indian Affairs (in her official capacity). The Complaint claims that the defendants behaved in an arbitrary and capricious manner that has unfairly prevented the state and the towns from participating in the BAR process with respect to specific petitions.

 

The lawsuit is an open attack on the BAR process and an effort to gain more state and local government influence over a significant issue in Indian affairs. They allege that the BAR process deprived the state and towns of their right to be heard. For their relief they are requesting, among other things, that the proposed findings of two petitioners that were recently released be withdrawn. They are also calling for a moratorium on recognitions until the BAR process is fixed, claiming that it is currently biased in favor of recognizing tribes.

 

The relief called for would punish petitioners who have spent enormous time and effort following the letter of the law and meeting the rigorous requirements of the recognition regulations. The lawsuit is simply a way to delay the process, to derail the petitions, and to win support for a moratorium.

 

The lawsuit has other implications too. If the state and local governments are allowed to derail this federal regulatory process because they fear sovereign powers of tribes, we fear their sentiments and threats to tribal sovereignty will spillover into other areas, such as land-into-trust and land claim issues.

V.                 Current Political Activity on Federal Recognition and Related Issues.

A.                 February 9, 2001 Hearing on Federal Recognition/Representative Simmons' Initiatives.

To fulfill a campaign promise to address Indian issues in Connecticut, newly elected Representative Simmons held a hearing on February 9, 2001, in Hartford, Connecticut, to discuss land-into-trust issues of the Mashantucket Pequot Tribe and federal recognition. The hearing lasted seven (7) hours. Over 200 people attended and approximately 70 people testified. Those who testified included the State Attorney General, the Secretary of State, Tribal Leaders of recognized tribes and of those pursuing federal recognition, and the general public. The hearing encouraged dialogue among the parties about the land-into-trust and federal recognition processes. Such efforts, however, are overshadowed by the State's lawsuits against the BAR process and the Mashantucket Pequot's effort to put land into trust.

 

After the hearing, Representative Simmons promised to introduce legislation to reform the BIA. One provision would be to push for a revolving door law that would prevent any BIA official from subsequently being employed by a tribe.

B.                 Senator Dodd's Initiative.

Senator Dodd has called for moratorium on federal recognition until the BAR process can be fixed. He has also asked Secretary Norton to re-examine the proposed findings on two petitioners from Connecticut. Senator Dodd co-chaired the February 9, 2001, hearing.

 

Senator Dodd stated that he will introduce legislation to reform the BAR process. His initiative would include: (a) doubling the BAR's appropriations so it can hire more staff and have more resources available; (b) requiring BIA to notify a state when a tribal entity within its borders applies for recognition; (c) requiring BIA to accept and consider testimony and evidence from any person or entity, including neighboring towns, that have information bearing on whether to recognize the tribal entity; and (d) requiring that any decision conferring recognition must be accompanied by a written set of findings as to how all the criteria were met. (Provisions (b)-(d) of Senator Dodd's proposal are already required under the current regulations).

 

Representative Shays (R-CT) and Wolf (R-VA) have asked the General Accounting Office to investigate the BIA's recognition functions.

C.                 Implications for Other Issues.

The activity in Connecticut on federal recognition has spilled over into other areas important to all tribes -- specifically, land-into-trust issues and land claims. The new land-into-trust regulations are being reviewed by the new Administration pursuant to the President's order to delay the effective date of regulations published in the final days of President Clinton's Administration. These regulations make it much harder for tribes to take off-reservation land into trust than under the current regulations. Impacts on local communities will be given more consideration. Further, they treat contiguous land as off-reservation.

 

It is our understanding that Representative Johnson (D-15th-IL) is planning to introduce legislation that will require any land claim for Illinois land to be brought in the United States Court of Claims where the relief is money damages, not the return of land to the tribe. It would also seek to extinguish treaty rights and aboriginal title to land in Illinois.

 

Senator Fitzgerald introduced S. 2909 last year that would have allowed defendant landowners in a land claim by an Indian tribe to assert any affirmative defense under state law, regardless if Federal Indian law and policy has always held otherwise.

 

Representative Tom Reynolds (R-NY) has asked Attorney General Ashcroft to adopt a new policy to withdraw the federal government from land claim lawsuits involving American Indians.

 

We believe that as the 107th Congress unfolds we will see other issues affected by the current debate over the federal recognition process. We ask you to continue to monitor this issue and support the BAR process in the face of the litigation.

 

 

NOTES

 

1. S. Hrg. 106-569, p. 77, July 11, 2000, Letter from Assistant Secretary Gover to Senator Campbell, Chairman of the Senate Committee on Indian Affairs in response to written questions following the May 24, 2000, on S. 611, a bill to provide for the administrative procedures to extend federal recognition to certain Indian groups.

 

2. Id. at 76.

 

3. S. Hrg. 106-569, p. 54, Statement of Honorable Kevin Gover, Assistant Secretary , Indian Affairs.

 

4. 43 Fed. Reg. 39361 (1978).

 

5. Id.

 

6. See e.g. , Western Shoshone Business Council v. Babbitt, 1 F.3d 1052 (10th Cir. 1993) ("we conclude that the limited circumstances under which ad hoc judicial determinations of recognition were appropriate have been eclipsed by federal regulation."); Golden Hill Paugussett Tribe v. Weicker, 39 F.3d 51 (2nd Cir. 1994) ("The Department of the Interior's creation of a structured administrative process to acknowledge nonrecognized Indian tribes using uniform criteria, and its experience and expertise in applying these standards, has now made deference to the primary jurisdiction of the agency appropriate."); United States v. 43.47 Acres of Land, 855 F. Supp. 549 (D. Conn. 1994) (noting that after Mashpee, where a "jury decided the issue of tribal status somewhat confusedly," the "BIA, as authorized and directed by Congress, has established criteria and a procedure for determining [tribal status]").

 

7. 59 Fed. Reg. 9293 (February 25, 1994).

 

8. 25 C.F.R. ' 83.4(a)-(b).

 

9. 25 C.F.R. ' 83.6(a); 83.6(c).

 

10. 25 C.F.R. ' 83.4(c); 83.6(b).

 

11. 25 C.F.R. ' 83.3(b).

 

12. 25 C.F.R. ' 83.3(c).

 

13. 25 C.F.R. ' 83.3(d).

 

14. 25 C.F.R. ' 83.3(e).

 

15. 25 C.F.R. ' 83.3(f).

 

16. 25 C.F.R. ' 83.9(a).

 

17. 25 C.F.R. 83.9(a).

 

18. 25 C.F.R. 83.9(b).

 

19. 25 C.F.R. ' 83.1.

 

20. Id.

 

21. 25 C.F.R. ' 83.10(a).

 

22. 25 C.F.R. ' 83.10(b)(1).

 

23. 25 C.F.R. ' 83.10(b0(2).

 

24. 25 C.F.R. ' 83.10(h)(the regulation states that a proposed finding will be published within a year of the petition being placed on active consideration. It notes, however, that the Assistant Secretary may extend this period up to an additional 180 days The extension is usually invoked, and, in most instances, it takes even longer for a proposed finding to be published).

 

25. 25 C.F.R. ' 83.10(I) (the period for comments may be extended by the Assistant Secretary for an additional 180 days upon a finding of good cause).

 

26. 25 C.F.R. ' 83.10(j)(2).

 

27. 25 C.F.R. ' 83.10(k).

 

28. 25 C.F.R. ' 83.10(I).

 

29. 25 C.F.R. ' 83.10(l)(1)-(3) (this period may be extended if warranted by the extent and nature of the evidence and arguments received).

 

30. 25 C.F.R. ' 83.10(m).

 

31. 25 C.F.R. ' 83.11.

 

32. 25 C.F.R. ' 83.6(d)

 

33. 25 C.F.R. ' 83.6(g)

 

34. 25 C.F.R. ' 83.8(a) (Previous federal acknowledgment includes: (1) that the group had treaty relations with the United States; (2) that the group has been denominated a tribe by act of Congress or Executive Order; and (3) that the group has been treated by the federal government as having collective rights in tribal lands or funds.)

 

35. 25 C.F.R. ' 83.7 (d).

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