Rule2025-00709
Federal Acknowledgment of American Indian Tribes
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
January 15, 2025
Effective
February 14, 2025
Issuing agencies
Interior DepartmentIndian Affairs Bureau
Abstract
The United States Department of the Interior (Department) revises the regulations governing the process through which the Secretary acknowledges an Indian Tribe, creating a conditional, time- limited opportunity for denied petitioners to re-petition for Federal acknowledgment.
Full Text
<html>
<head>
<title>Federal Register, Volume 90 Issue 9 (Wednesday, January 15, 2025)</title>
</head>
<body><pre>
[Federal Register Volume 90, Number 9 (Wednesday, January 15, 2025)]
[Rules and Regulations]
[Pages 3627-3645]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-00709]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 83
[BIA-2022-0001; 256A2100DD/AAKC001030/A0A501010.999900]
RIN 1076-AF67
Federal Acknowledgment of American Indian Tribes
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The United States Department of the Interior (Department)
revises the regulations governing the process through which the
Secretary acknowledges an Indian Tribe, creating a conditional, time-
limited opportunity for denied petitioners to re-petition for Federal
acknowledgment.
DATES: This rule is effective on February 14, 2025.
ADDRESSES: On request to the program contact person listed under FOR
FURTHER INFORMATION CONTACT, individuals can obtain this document in an
alternate format, usable by people with disabilities, at the Office of
Federal Acknowledgment, Room 4071, 1849 C Street NW, Washington, DC
20240.
FOR FURTHER INFORMATION CONTACT: Oliver Whaley, Director, Office of
Regulatory Affairs and Collaborative Action, Office of the Assistant
Secretary--Indian Affairs, (202) 738-6065. Individuals in the United
States who are deaf, deafblind, hard of hearing, or have a speech
disability may dial 711 (TTY, TDD, or TeleBraille) to access
telecommunications relay services.
SUPPLEMENTARY INFORMATION: Since 1994, the regulations governing the
Federal acknowledgment process, located at 25 CFR part 83 (part 83),
have included an express prohibition on re-petitioning (ban). When the
Department revised the part 83 regulations in 2015 (2015 regulations),
the Department decided to retain the ban; however, two Federal district
courts held that the Department's stated reasons for doing so, as
articulated in the final rule updating the regulations, were arbitrary
and capricious under the Administrative Procedure Act. The courts
remanded the ban to the Department for further consideration. In a 2022
notice of proposed rulemaking (2022 proposed rule), the Department
initially proposed to retain the ban. Subsequently, in a second notice
of proposed rulemaking published at 89 FR 57097 on July 12, 2024 (2024
proposed rule), the Department proposed to create a limited exception
to the ban, through implementation of a re-petition authorization
process. In this final rule, the Department adopts a limited exception
to the ban.
I. Background
A. Federal Acknowledgment Process
B. 1994 and 2015 Revisions of Part 83
C. Ban on Re-Petitioning
D. Remand of the Ban
E. 2022 Proposed Rule
F. 2024 Proposed Rule
II. Summary of the Final Rule
A. Re-Petition Authorization Process
B. Additional, Related Revisions
C. Technical Revisions
III. Discussion of the Comments on the 2024 Proposed Rule
A. Overview
B. Comments Citing Fairness as a Justification for the Re-
Petition Authorization Process
C. Additional Discussion of Third-Party Opposition To Re-
Petitioning
D. Comments Citing Departmental Workload as a Justification for
Retaining the Ban on Re-Petitioning
E. Comments on the Standard Applied in the Re-Petition
Authorization Process
F. Comments on the Conditions for Obtaining Authorization To Re-
Petition
1. Comments on the ``Change'' Condition
2. Comments on the ``New Evidence'' Condition
3. Comments on Possible Other Conditions for Obtaining
Authorization To Re-Petition
G. Comments on the Processing of a Re-Petition Request
1. Comments on the Time Limit for Submitting a Re-Petition
Request
2. Comments on Third-Party Notice-and-Comment Provisions
3. Comments on the Finality of a Grant of Authorization To Re-
Petition
IV. Procedural Requirements
A. Regulatory Planning and Review (E.O. 12866 and 13563)
B. Regulatory Flexibility Act
C. Congressional Review Act
D. Unfunded Mandates Reform Act
E. Takings (E.O. 12630)
F. Federalism (E.O. 13132)
G. Civil Justice Reform (E.O. 12988)
H. Consultation With Indian Tribes (E.O. 13175)
I. Paperwork Reduction Act
[[Page 3628]]
J. National Environmental Policy Act (NEPA)
K. Effects on the Energy Supply (E.O. 13211)
L. Privacy Act of 1974, Existing System of Records
M. Clarity of This Regulation
I. Background
A. Federal Acknowledgment Process
Congress granted the Secretary of the Interior, as delegated to the
Assistant Secretary--Indian Affairs (AS-IA), authority for ``the
management of all Indian affairs and of all matters arising out of
Indian relations.'' \1\ This authority includes the authority to
implement an administrative process to acknowledge Indian Tribes.\2\ As
the congressional findings that support the Federally Recognized Indian
Tribe List Act of 1994 indicate, Indian Tribes may be recognized ``by
the administrative procedures set forth in part 83 of the Code of
Federal Regulations.'' \3\
---------------------------------------------------------------------------
\1\ 25 U.S.C. 2; see also 25 U.S.C. 9; 43 U.S.C. 1457.
\2\ See, e.g., Muwekma Ohlone Tribe v. Salazar, 708 F.3d 209,
211 (D.C. Cir. 2013); James v. United States Dep't of Health & Human
Servs., 824 F.2d 1132, 1137 (D.C. Cir. 1987).
\3\ See Public Law 103-454, section 103(3) (1994).
---------------------------------------------------------------------------
Part 83 codifies the process through which a group may petition the
Department for acknowledgment as a federally recognized Indian Tribe.
Part 83 requires groups petitioning for Federal acknowledgment to meet
seven mandatory criteria, the satisfaction of which has been central to
the Federal acknowledgment process since its inception.\4\ The
Department refers to the seven criteria as the (a) ``Indian Entity
Identification'' criterion, (b) ``Community'' criterion, (c)
``Political Authority'' criterion, (d) ``Governing Document''
criterion, (e) ``Descent'' criterion, (f) ``Unique Membership''
criterion, and (g) ``Congressional Termination'' criterion.\5\
---------------------------------------------------------------------------
\4\ 25 CFR 83.11(a) through (g) (2015 version of the criteria);
25 CFR 83.7(a) through (g) (1994) (1994 version); 25 CFR 54.7(a)
through (g) (1978) (1978 version).
\5\ 25 CFR 83.5.
---------------------------------------------------------------------------
B. 1994 and 2015 Revisions of Part 83
First promulgated in 1978 at 25 CFR part 54 (1978 regulations),\6\
the Federal acknowledgment regulations were subsequently moved to part
83 \7\ and revised in 1994 (1994 regulations),\8\ in part, ``to clarify
requirements for acknowledgment and define more clearly standards of
evidence.'' \9\ The 1994 regulations also implemented procedural
changes to the acknowledgment process, including ``an independent
review'' of a final determination on a part 83 petition by the Interior
Board of Indian Appeals and an ``opportunity for a formal hearing on
proposed findings.'' \10\ In the final rule promulgating the 1994
regulations, the Department explained that, notwithstanding the
revisions, ``the standards of continuity of tribal existence that a
petitioner must meet remain unchanged'' and that ``none of the changes
. . . will result in the acknowledgment of petitioners which would not
have been acknowledged under the [1978] regulations.'' \11\
---------------------------------------------------------------------------
\6\ 43 FR 39361 (Sept. 5, 1978).
\7\ 47 FR 13326 (Mar. 30, 1982).
\8\ 59 FR 9280 (Feb. 25, 1994).
\9\ Id.
\10\ Id.; see also 25 CFR 83.11 (1994) (describing the process
for IBIA review).
\11\ 59 FR 9280.
---------------------------------------------------------------------------
The Department revised part 83 again in 2015 (2015 regulations). In
the final rule promulgating the 2015 regulations (2015 final rule), the
Department explained that the purpose of the revision was to ``increase
timeliness and efficiency, while maintaining the integrity and
substantive rigor of the [Federal acknowledgment] process.'' \12\ To
that end, the Department introduced several process-related reforms,
including a two-phased review of the seven mandatory criteria. In Phase
I, the Office of Federal Acknowledgment (OFA) reviews criteria (d)
(Governing Document) through (g) (Congressional Termination), and in
Phase II, OFA evaluates criteria (a) (Indian Entity Identification)
through (c) (Political Authority).\13\ If a petitioner does not satisfy
any of the Phase I criteria, then, instead of moving to Phase II, OFA
publishes a negative proposed finding, which can then serve as the
basis for a final determination on the Phase I criteria alone,\14\
saving time and resources.\15\ Additionally, to promote efficiency, the
Department limited the number of technical assistance reviews that OFA
can provide to a petitioner, permitting only one during each phase.\16\
---------------------------------------------------------------------------
\12\ 80 FR 37862 (July 1, 2015).
\13\ 25 CFR 83.26.
\14\ 25 CFR 83.43(b)(1).
\15\ 80 FR 37862 (explaining that the ``two-phased review of
petitions . . . establishes certain criteria as threshold criteria,
potentially resulting in the issuance of proposed findings and final
determinations earlier in the process''); 80 FR 37877 (explaining
that the two-phased review ``is likely to produce any negative
decisions in a quicker manner, thereby resolving petitions sooner,
reducing time delays, increasing efficiency, and preserving
resources'').
\16\ 80 FR 37877.
---------------------------------------------------------------------------
The Department emphasized in the 2015 final rule that the rule
``clarifies the criteria'' but ``does not substantively change the Part
83 criteria, except in two instances.'' \17\ In the first instance, the
Department revised criterion (a) (Indian Entity Identification) to
accept ``the petitioner's own contemporaneous records, as evidence that
the petitioner has been an Indian entity since 1900,'' \18\ not only
the records of external observers.\19\ Second, the Department revised a
provision under criterion (b) (Community) describing how the Department
evaluates evidence of endogamy (that is, marriages within a
petitioner's membership).\20\ Other changes to the criteria in the 2015
regulations include the following:
---------------------------------------------------------------------------
\17\ 80 FR 37863.
\18\ Id.
\19\ 80 FR 37866.
\20\ 80 FR 37863.
---------------------------------------------------------------------------
1. A new evaluation start date for criterion (b) (Community) and
(c) (Political Authority), from 1789 or the time of first sustained
contact, to 1900, consistent with the 1900 start date for criterion (a)
(Indian Entity Identification); \21\
---------------------------------------------------------------------------
\21\ Id.
---------------------------------------------------------------------------
2. A change to criterion (e) (Descent) to emphasize the ``great
weight'' that the Department places on ``tribal Federal rolls prepared
at the direction of Congress or by the Department'' during the
evaluation of the criterion; \22\
---------------------------------------------------------------------------
\22\ 80 FR 37867.
---------------------------------------------------------------------------
3. The deletion of a condition in criterion (f) (Unique Membership)
that required a petitioner to show that its members do not maintain a
``bilateral political relationship'' with a federally recognized Indian
tribe, in the event that the petitioner's membership is composed
principally of members of the federally recognized tribe; \23\ and
---------------------------------------------------------------------------
\23\ 80 FR 37873.
---------------------------------------------------------------------------
4. The insertion of a new provision under criteria (b) (Community)
and (c) (Political Authority), clarifying that evidence of ``land set
aside by a State for the petitioner or collective ancestors of the
petitioner'' may be used to satisfy the criteria.\24\
---------------------------------------------------------------------------
\24\ 80 FR 37865.
---------------------------------------------------------------------------
In proposed rules published in April 2022 and July 2024, the
Department discussed each of the changes identified above,\25\ as well
as the Department's view that none of the 2015 final rule's changes to
part 83 ``would affect the outcome of the Department's previous,
negative final determinations.'' \26\ The 2022 and 2024 proposed rules
are discussed in subsequent sections of this rule.
---------------------------------------------------------------------------
\25\ 87 FR 24908, 24912-14 (Apr. 27, 2022).
\26\ 89 FR 57097, 57102-03 (July 12, 2024) (citation omitted).
---------------------------------------------------------------------------
C. Ban on Re-Petitioning
The 1978 regulations were silent on the question of re-petitioning,
but since the 1994 revision of part 83, the Federal
[[Page 3629]]
acknowledgment regulations have expressly prohibited petitioners that
receive a negative final determination from the Department from re-
petitioning.\27\ The final rule updating the regulations in 1994 notes
that although some commenters had expressed concern that ``undiscovered
evidence which might change the outcome of decisions could come to
light in the future,'' the Department reasoned that ``there should be
an eventual end to the present administrative process.'' \28\
Additionally, the Department pointed out that ``petitioners who were
denied went through several stages of review with multiple
opportunities to develop and submit evidence.'' \29\ The Department
also explained that ``[t]he changes in the regulations are not so
fundamental that they can be expected to result in different outcomes
for cases previously decided.'' \30\ Finally, the Department observed
that ``[d]enied petitioners still have the opportunity to seek
legislative recognition if substantial new evidence develops.'' \31\
---------------------------------------------------------------------------
\27\ 25 CFR 83.3(f) (1994); 59 FR 9294.
\28\ 59 FR 9291.
\29\ Id.
\30\ Id.
\31\ Id.
---------------------------------------------------------------------------
In a 2014 notice of proposed rulemaking (2014 proposed rule), the
Department proposed giving previously denied petitioners a conditional
opportunity to re-petition.\32\ The 2014 proposed rule would have
allowed re-petitioning only if:
---------------------------------------------------------------------------
\32\ 79 FR 30766, 30767 (May 29, 2014).
---------------------------------------------------------------------------
(i) Any third parties that participated as a party in an
administrative reconsideration or Federal Court appeal concerning the
petitioner has consented in writing to the re-petitioning; and
(ii) The petitioner proves, by a preponderance of the evidence,
that either:
(a) A change from the previous version of the regulations to the
current version of the regulations warrants reconsideration of the
final determination; or
(b) The ``reasonable likelihood'' standard was misapplied in the
final determination.\33\
---------------------------------------------------------------------------
\33\ 25 CFR 83.4(b)(1) (proposed 2014); see also 79 FR 30774
(containing the proposed provision).
---------------------------------------------------------------------------
In the preamble of the 2014 proposed rule, the Department explained
that the requirement of third-party consent would ``recognize[ ] the
equitable interests of third parties that expended sometimes
significant resources to participate in the adjudication [of a final
determination in a reconsideration or appeal] and have since developed
reliance interests in the outcome of such adjudication.'' \34\ The
Department did not discuss the extent to which the third-party consent
condition might limit the number of re-petitioners.\35\
---------------------------------------------------------------------------
\34\ 79 FR 30767.
\35\ See Burt Lake Band of Ottawa and Chippewa Indians v.
Bernhardt, 613 F. Supp. 3d 371, 385 (D.D.C. 2020) (noting that the
record ``does not provide statistics to show . . . how many
[petitioners] would be able to re-apply under the limited proposed
exception''). The Department has since identified eleven denied
petitioners that would have been subject to the third-party consent
condition under the 2014 proposed rule: the Duwamish Tribe, the
Tolowa Nation, the Nipmuc Nation (Hassanamisco Band), the Webster/
Dudley Band of Chaubunagungamaug Nipmuck Indians, the Eastern Pequot
Indians of Connecticut and Paucatuck Eastern Pequot Indians of
Connecticut (collectively, the ``Eastern Pequot Indians''), the
Schaghticoke Tribal Nation, the Golden Hill Paugussett Tribe, the
Snohomish Tribe of Indians, the Chinook Indian Nation, and the
Ramapough Mountain Indians.
---------------------------------------------------------------------------
Similarly, the Department did not specify the extent to which the
other conditions listed above--requiring an unsuccessful petitioner to
prove that either a change in the regulations or a misapplication of
the reasonable likelihood standard warrants reconsideration--might
limit the number of re-petitioners. However, as a general matter, the
Department noted that ``the changes to the regulations are generally
intended to provide uniformity based on previous decisions'' (that is,
uniformity between decisions predating and postdating the revision), so
the circumstances in which re-petitioning might be ``appropriate''
would be ``limited.'' \36\ The proposed rule did not identify any
change to the seven mandatory criteria that ``would likely change [any
negative] previous final determination[s].'' \37\
---------------------------------------------------------------------------
\36\ 79 FR 30767.
\37\ Id.
---------------------------------------------------------------------------
Ultimately, in the 2015 final rule updating part 83, the Department
expressly retained the ban on re-petitioning.\38\ In the preamble of
the rule, the Department summarized its reasoning as follows: ``The
final rule promotes consistency, expressly providing that evidence or
methodology that was sufficient to satisfy any particular criterion in
a previous positive decision on that criterion will be sufficient to
satisfy the criterion for a present petitioner. The Department has
petitions pending that have never been reviewed. Allowing for re-
petitioning by denied petitioners would be unfair to petitioners who
have not yet had a review, and would hinder the goals of increasing
efficiency and timeliness by imposing the additional workload
associated with re-petitions on the Department, and OFA in particular.
The part 83 process is not currently an avenue for re-petitioning.''
\39\
---------------------------------------------------------------------------
\38\ 25 CFR 83.4(d); see 80 FR 37888-89.
\39\ 80 FR 37875.
---------------------------------------------------------------------------
D. Remand of the Ban
In 2020, two Federal district courts--one in a case brought by a
former petitioner seeking acknowledgement as the Chinook Indian Nation
\40\ and one in a case brought by a former petitioner seeking
acknowledgement as the Burt Lake Band of Ottawa and Chippewa Indians
\41\--held that the Department's reasons for implementing the ban, as
articulated in the preamble to the 2015 final rule revising part 83,
were arbitrary and capricious under the Administrative Procedure Act
(APA). As an initial matter, both courts agreed with the Department
that the Department's authority over Indian affairs generally
authorized a re-petition ban.\42\ Additionally, both courts noted that
their review was highly deferential to the agency's decision under
applicable tenets of administrative law.\43\ As a result, the narrow
question left for the courts to decide was whether the Department, in
retaining the ban, ``examine[d] the relevant data and articulate[d] a
satisfactory explanation for its action including a `rational
connection between the facts found and the choice made.' '' \44\
---------------------------------------------------------------------------
\40\ Chinook Indian Nation v. Bernhardt, No. 3:17-cv-05668-RBL,
2020 WL 128563 (W.D. Wash. Jan. 10, 2020).
\41\ Burt Lake Band of Ottawa and Chippewa Indians v. Bernhardt,
613 F. Supp. 3d 371 (D.D.C. 2020).
\42\ Chinook, 2020 WL 128563, at *6 (stating that ``the Court
agrees with DOI that its expansive power over Indian affairs
encompasses the re-petition ban'' (citation omitted)); Burt Lake,
613 F. Supp. 3d at 378 (stating that ``the regulation [banning re-
petitioning] comports with the agency's authority'').
\43\ Chinook, 2020 WL 128563, at *7 (citation omitted); Burt
Lake, 613 F. Supp. 3d at 379 (citation omitted).
\44\ Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck
Lines v. United States, 371 U.S. 156, 168 (1962)).
---------------------------------------------------------------------------
Both courts concluded that the Department had not satisfied this
standard. The Chinook court held that the Department's reasons were
``illogical, conclusory, and unsupported by the administrative
record,'' as well as not ``rationally connect[ed] . . . to the evidence
in the record.'' \45\ Similarly, the Burt Lake court concluded that the
Department's reasons were ``neither well-reasoned nor rationally
connected to the facts in the record.'' \46\ Both courts concluded
that, despite the Department's argument that the 2015 revisions to part
83 did not make any substantive changes to the criteria other
[[Page 3630]]
than those specifically identified, the Department had failed to
explain why the Department could permissibly maintain the ban given
those changes and others, after having proposed a limited re-petition
process in the 2014 proposed rule.\47\ The Chinook court focused in
particular on a provision introduced in the 2015 final rule that sought
to promote consistent implementation of the criteria and stated that
``[t]here is no reason why new petitioners should be entitled to this
`consistency' while past petitioners are not.'' \48\ The Burt Lake
court linked reform of the Federal acknowledgment process generally
with an ``opportunity to re-petition and to seek to satisfy the new
criterion.'' \49\
---------------------------------------------------------------------------
\45\ Chinook, 2020 WL 128563, at *8.
\46\ Burt Lake, 613 F. Supp. 3d at 386.
\47\ See Chinook, 2020 WL 128563, at *4-5 (identifying five
``notable'' changes in the 2015 version of part 83); Burt Lake, 613
F. Supp. 3d at 383-84 (highlighting two changes that the court
deemed ``not minor'').
\48\ Chinook, 2020 WL 128563, at *8.
\49\ Burt Lake, 613 F. Supp. 3d at 384.
---------------------------------------------------------------------------
Neither the Chinook nor Burt Lake courts struck down the 2015 final
rule in whole or in part. Rather, both courts remanded the ban to the
Department for further consideration.\50\
---------------------------------------------------------------------------
\50\ Chinook, 2020 WL 128563, at *10; Burt Lake, 613 F. Supp. 3d
at 387.
---------------------------------------------------------------------------
E. 2022 Proposed Rule
Pursuant to the courts' orders, on December 18, 2020, the
Department announced an intent to reconsider the ban and invited
federally recognized Indian Tribes to consult on whether to allow or
deny re-petitioning. On February 25, 2021, the Department held a Tribal
consultation session. The Department also solicited written comments on
the ban through March 31, 2021. On April 27, 2022, the Department
published a proposed rule (2022 proposed rule) to retain the ban,
albeit based on revised justifications in light of the courts'
rejection of the reasoning set forth in the 2015 final rule.\51\ The
2022 proposed rule highlighted the following in proposing to retain the
ban:
---------------------------------------------------------------------------
\51\ 87 FR 24908.
---------------------------------------------------------------------------
(1) The substantive integrity of the Department's previous,
negative determinations;
(2) The due process that has already been afforded to unsuccessful
petitioners;
(3) The non-substantive nature of the revisions to part 83 in the
2015 final rule;
(4) The interests of the Department and third parties in finality;
and
(5) The inappropriateness of allowing re-petitioning based on new
evidence.\52\
---------------------------------------------------------------------------
\52\ 87 FR 24910-16.
---------------------------------------------------------------------------
F. 2024 Proposed Rule
Following publication of the 2022 proposed rule, the Department
held two Tribal consultation sessions with federally recognized Indian
Tribes and a listening session with present, former, and prospective
petitioners for Federal acknowledgment. The Department also solicited
written comments through July 6, 2022, and received approximately 270
comments from federally recognized Indian Tribes and a wide range of
stakeholders, including former and prospective part 83 petitioners,
various State and local government representatives, individuals, and
others.
After reviewing the written comments, as well as the transcripts of
the consultation and listening sessions, the Department engaged in
further deliberation of three options: (1) keeping the ban in place;
(2) creating a limited avenue for re-petitioning; and (3) creating an
open-ended avenue for re-petitioning, with few or no limitations. On
July 12, 2024, the Department published a proposed rule (2024 proposed
rule) to create a limited exception to the ban,\53\ in line with the
second option, through implementation of a re-petition authorization
process.\54\ In the preamble of the rule, the Department explained that
its proposal ``reflect[ed] a reconsidered policy on re-petitioning for
Federal acknowledgment.'' \55\
---------------------------------------------------------------------------
\53\ 89 FR 57097.
\54\ See 89 FR 57097, 57100-02 (summarizing the proposed re-
petition authorization process).
\55\ 89 FR 57100.
---------------------------------------------------------------------------
Following publication of the 2024 proposed rule, the Department
again held two Tribal consultation sessions with federally recognized
Indian Tribes and a listening session with present, former, and
prospective petitioners for Federal acknowledgment. The Department also
solicited written comments through September 13, 2024, and received 163
comments from federally recognized Indian Tribes and a wide range of
stakeholders.\56\ What follows is a summary of this final rule, as well
as a discussion of the comments that informed the Department's
deliberations.
---------------------------------------------------------------------------
\56\ <a href="https://www.regulations.gov/document/BIA-2022-0001-0194/comment">https://www.regulations.gov/document/BIA-2022-0001-0194/comment</a>.
---------------------------------------------------------------------------
II. Summary of the Final Rule
A. Re-Petition Authorization Process
This final rule appends a new subpart titled ``Subpart D--Re-
Petition Authorization Process'' to the end of the current part 83
regulations. The new subpart applies to ``unsuccessful petitioner[s],''
which is a new term defined in Sec. 83.1.\57\ Pursuant to the new
subpart, an unsuccessful petitioner that seeks to re-petition must
first plausibly allege that the outcome of the previous, negative final
determination would change to positive on reconsideration based on one
or both of the following: (1) a change in part 83 (from the 1978 or
1994 regulations to the 2015 regulations); and/or (2) new evidence.\58\
---------------------------------------------------------------------------
\57\ 25 CFR 83.1 (defining an ``unsuccessful petitioner'' as
``an entity that was denied Federal acknowledgment after petitioning
under the acknowledgment regulations at part 54 of this chapter (as
they existed before March 30, 1982) or part 83''). The term
``unsuccessful petitioner'' applies only to those that have received
a final agency decision, not to those that have received only a
proposed finding or that have withdrawn from the process prior to
receiving a final agency decision. For a complete list of
unsuccessful petitioners, see Petitions Denied Through 25 CFR part
83 (34 Petitions), Office of Fed. Acknowledgment, <a href="https://www.bia.gov/as-ia/ofa/petitions-resolved/denied">https://www.bia.gov/as-ia/ofa/petitions-resolved/denied</a> (last visited Jan.
7, 2025) (listing thirty-four unsuccessful petitioners as of
November 9, 2024).
\58\ 25 CFR 83.48.
---------------------------------------------------------------------------
This standard, requiring a petitioner to state a plausible claim
for re-petitioning based on one of the conditions above, is similar to
the standard for surviving a motion to dismiss,\59\ except that the
Department may conduct limited fact-finding to assess the
reasonableness of the claim (for example, cross-referencing alleged
facts with facts discussed during the original evaluation of a
petition, if able to be done in a timely manner). Under the standard, a
petitioner's allegations regarding changes in part 83 and/or new
evidence must address the deficiencies that, according to the
Department, prevented the petitioner from satisfying all seven
mandatory criteria (located at Sec. 83.11(a) through (g) in the 2015
regulations). Otherwise, even if the allegations were taken as true,
they would not change the previous, negative outcome and, therefore,
would not justify reconsideration. That is, because Federal
acknowledgment requires satisfaction of all seven criteria,\60\ the
petitioner's re-petition request must address all of the criteria that
the petitioner did not satisfy. For example, if the Department
determined in the previous, negative final determination that the
petitioner did not satisfy criteria (a) (Indian Entity Identification),
(b) (Community), and (c) (Political Authority), then the petitioner
must plausibly allege that application of the 2015 regulations,
consideration of new
[[Page 3631]]
evidence, or both would address the deficiencies relating to all three
criteria, not only one or two.
---------------------------------------------------------------------------
\59\ See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining
that, ``[t]o survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to `state a claim to
relief that is plausible on its face''' (quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007)).
\60\ 25 CFR 83.43(a); 25 CFR 83.5.
---------------------------------------------------------------------------
A decision granting authorization to re-petition (grant of
authorization to re-petition) is not the same as a final agency
decision granting Federal acknowledgment. Rather, a decision granting
authorization to re-petition simply permits the petitioner to proceed
with a new documented petition through the Federal acknowledgment
process.\61\ Upon authorization to re-petition, the petitioner must
submit a complete documented petition under Sec. 83.21 to request
Federal acknowledgment and will then receive substantive review of the
petitioner's claims and evidence.
---------------------------------------------------------------------------
\61\ 25 CFR 83.61(a).
---------------------------------------------------------------------------
In the interest of finality, any petitioner denied prior to the
effective date of this final rule must request to re-petition within
five years of the effective date of the rule.\62\ Any petitioner denied
after the effective date of the final rule will have to request to re-
petition within five years of the date of issuance of the petitioner's
negative final determination.\63\ However, the five-year time limit
applicable to a petitioner denied after the effective date of the final
rule will be tolled during any period of judicial review of the
negative final determination.\64\ Additionally, any petitioner denied
authorization to re-petition under the re-petition authorization
process--or denied Federal acknowledgment upon re-petitioning, after
receiving authorization to do so--will be prohibited from submitting a
new re-petition request based on new evidence.\65\
---------------------------------------------------------------------------
\62\ 25 CFR 83.49(a).
\63\ 25 CFR 83.49(b).
\64\ 25 CFR 83.49(b)(1).
\65\ 25 CFR 83.47(c). This provision does not prevent a
petitioner from resubmitting a re-petition request withdrawn prior
to receipt of a decision on the request. 25 CFR 83.56.
---------------------------------------------------------------------------
In many respects, the Department's processing of a re-petition
request will mirror the processing of a group's documented petition,
particularly the procedures relating to notice and comment. To initiate
the re-petition authorization process, an unsuccessful petitioner must
submit a complete re-petition request to OFA, explaining how the
petitioner meets the conditions of Sec. Sec. 83.47 through 83.49.\66\
Upon receipt of a request containing all of the documentation required
under Sec. 83.50, OFA will publish notice of the request in the
Federal Register and on the OFA website.\67\ Additionally, OFA will
provide notice to certain third parties, including specific government
officials of the State in which the petitioner is located, federally
recognized Indian Tribes that may have an interest in the petitioner's
acknowledgment determination, and any third parties that participated
in an administrative reconsideration or Federal Court appeal concerning
the petitioner's original documented petition.\68\ OFA will also
provide notice to individuals and entities that had interested-party or
informed-party status under the 1994 regulations,\69\ with the
understanding that those individuals and entities previously
``request[ed] to be kept informed of general actions regarding a
specific petitioner'' and presumably wish to remain informed.\70\ The
Department will then allow for comment on the re-petition request and
give the petitioner an opportunity to respond to comments received.\71\
---------------------------------------------------------------------------
\66\ 25 CFR 83.50(a)(2).
\67\ 25 CFR 83.51(b)(1).
\68\ 25 CFR 83.51(b)(2).
\69\ 25 CFR 83.1 (1994) (defining ``[i]nterested party'' and
``[i]nformed party''); 59 FR 9293.
\70\ 25 CFR 83.22(d)(5).
\71\ 25 CFR 83.52 (stating that publication of notice of the re-
petition request will be followed by a 120-day comment period and
that, if OFA receives a timely objection and evidence challenging
the request, then the petitioner will have 60 days to submit a
written response).
---------------------------------------------------------------------------
After the close of the comment-and-response period, the Department
will consider the re-petition request ready for active consideration,
and within 30 days of the close of the comment-and-response period, OFA
will place the request on a register listing all requests that are
ready for active consideration.\72\ The order of consideration of re-
petition requests will be determined by the date on which OFA places
each request on OFA's register.
---------------------------------------------------------------------------
\72\ 25 CFR 83.52(d); see also 25 CFR 83.53(a) (describing the
register of re-petition requests that OFA will maintain and make
available on its website).
---------------------------------------------------------------------------
Pursuant to Sec. 83.23(a)(2), the Department's highest priority is
to complete reviews of documented petitions already under review, and
those reviews will take precedence over reviews of re-petition
requests.\73\ Pursuant to this final rule, the Department will also
prioritize review of documented petitions awaiting review and new
documented petitions over review of re-petition requests, at least
initially.\74\ Re-petition requests pending on OFA's register for more
than two years will have priority over any subsequently filed
documented petitions.\75\
---------------------------------------------------------------------------
\73\ 25 CFR 83.53(c) (stating, in part, that ``the Department
will prioritize review of documented petitions over review of re-
petition requests'').
\74\ See 25 CFR 83.53(c).
\75\ 25 CFR 83.53(c).
---------------------------------------------------------------------------
Once AS-IA is ready to begin review of a specific request, OFA will
notify the petitioner and third parties accordingly.\76\ In making a
decision, AS-IA will consider the claims and evidence in the re-
petition request and in any comments and responses received.\77\ AS-IA
may also consider other information,\78\ such as documentation
contained in the record associated with the petitioner's denied
petition and additional explanations and information requested by AS-IA
from commenting parties or the petitioner. Any such additional material
considered by AS-IA will be added to the record and shared with the
petitioner.\79\ The petitioner then will have an opportunity to respond
to any additional material considered.\80\
---------------------------------------------------------------------------
\76\ 25 CFR 83.54.
\77\ 25 CFR 83.55(a).
\78\ 25 CFR 83.55(b).
\79\ 25 CFR 83.55(c).
\80\ 25 CFR 83.55(c) (providing the petitioner with a 60-day
opportunity to respond to the additional material).
---------------------------------------------------------------------------
AS-IA will issue a decision on a re-petition request within 180
days of the date on which OFA notifies the petitioner that AS-IA has
begun review, subject to any suspension period.\81\ AS-IA will grant
the petitioner authorization to re-petition if AS-IA finds that the
petitioner meets the conditions of Sec. Sec. 83.47 through 83.49.\82\
Conversely, AS-IA will deny authorization to re-petition if AS-IA finds
that the petitioner has not met the conditions of Sec. Sec. 83.47
through 83.49.\83\ OFA will then provide notice of AS-IA's decision to
the petitioner and third parties.\84\ Additionally, OFA will publish
notice of the decision in the Federal Register and on the OFA
website.\85\
---------------------------------------------------------------------------
\81\ See 25 CFR 83.57 and 83.58 (discussing suspension of
review). The way that the clock runs during the review of a re-
petition request is similar to the way that it runs during the
review of a documented petition. See, e.g., 25 CFR 83.32 (requiring
OFA to complete its review under Phase I ``within six months after
notifying the petitioner . . . that OFA has begun review of the
petition,'' subject to suspension ``any time the Department is
waiting for a response or additional information from the
petitioner'').
\82\ 25 CFR 83.59(b).
\83\ 25 CFR 83.59(c).
\84\ 25 CFR 83.60.
\85\ 25 CFR 83.60.
---------------------------------------------------------------------------
AS-IA's decision will become effective immediately and will not be
subject to administrative appeal.\86\ Furthermore, a grant of
authorization to re-petition is not final for the Department. Rather,
as noted above, it simply permits the petitioner to proceed through the
Federal acknowledgment process with a new documented
[[Page 3632]]
petition.\87\ By contrast, a decision denying a re-petition request
(denial of authorization to re-petition) represents the consummation of
the Department's decision-making about the petitioner's recognition
status, is final for the Department, and is a final agency decision
under the APA.\88\
---------------------------------------------------------------------------
\86\ 25 CFR 83.61.
\87\ 25 CFR 83.61(a).
\88\ 25 CFR 83.61(b).
---------------------------------------------------------------------------
B. Additional, Related Revisions
Consistent with the introduction of a new re-petition authorization
process, this final rule inserts new definitions for ``re-petition
authorization process'' and ``re-petitioning'' in Sec. 83.1, as well
as a new definition for ``unsuccessful petitioner,'' as noted above.
This rule also makes a change to Sec. 83.4(d), the provision that
previously prohibited re-petitioning. The change notes a limited
exception to the re-petition ban for unsuccessful petitioners that meet
the conditions of Sec. Sec. 83.47 through 83.49, as determined by AS-
IA in the re-petition authorization process.
This final rule also gives any petitioner currently proceeding
under the 1994 regulations the choice to proceed instead under the 2015
regulations.\89\ In doing so, the rule presents a choice similar to the
one given to pending petitioners in the 2015 regulations.\90\ Absent
the choice, a petitioner proceeding under the 1994 regulations that
wants to proceed under the 2015 regulations would have to await a final
determination and then receive authorization to re-petition if the
determination is negative. By allowing a petitioner to switch directly
to the current regulations, the relevant provision promotes efficiency.
---------------------------------------------------------------------------
\89\ 25 CFR 83.47(b).
\90\ See 25 CFR 83.7(b) (giving ``each petitioner that . . . has
not yet received a final agency decision'' the choice ``to proceed
under these revised regulations'' or ``to complete the petitioning
process under the previous version of the acknowledgment regulations
as published in 25 CFR part 83, revised as of April 1, 1994'').
---------------------------------------------------------------------------
Finally, this final rule clarifies the Department's position on the
severability of the provisions in the regulations promulgated here.\91\
Notwithstanding the Department's position that the provisions, taken
together, properly balance competing interests, the Department
considered whether the provisions could stand alone and has concluded
that they could. Specifically, the Department considered whether, if
one of the conditions on re-petitioning set forth at Sec. Sec. 83.47
through 83.49 were held to be invalid, the other conditions should
remain valid. The Department's position is that they should because
each provision could ``function sensibly'' without the others.\92\ For
example, a change in part 83 would remain a valid basis for a re-
petition request under Sec. 83.48(a) even if a court held Sec.
83.48(b) (allowing new evidence to be basis for a re-petition request)
to be invalid, and vice versa. The Department also considered whether
the provisions describing the processing of a re-petition request, set
forth at Sec. Sec. 83.50 through 83.61, could stand alone, and the
Department's position is that they could. For example, provisions
relating to notice and comment and the order of priority for review
could each function independently if other requirements were determined
to be invalid.
---------------------------------------------------------------------------
\91\ 25 CFR 83.62.
\92\ Belmont Mun. Light Dep't v. FERC, 38 F. 4th 173, 188 (D.C.
Cir. 2022) (citation omitted).
---------------------------------------------------------------------------
C. Technical Revisions
Finally, this final rule makes technical revisions to the legal
authority citation for part 83 because 25 U.S.C. 479a-1 has been
transferred to 25 U.S.C. 5131 and Public Law 103-454 Sec. 103 (Nov. 2,
1994) has been reprinted in the United States Code at 25 U.S.C. 5130
note (Congressional Findings). This final rule also makes a technical
revision to the mailing address listed in Sec. 83.9.
III. Discussion of the Comments on the 2024 Proposed Rule
A. Overview
The Department conducted three virtual sessions to seek input on
the 2024 proposed rule. The Department hosted two virtual consultation
sessions with federally recognized Indian Tribes and a listening
session with present, former, and prospective petitioners. In each
virtual session, the AS-IA engaged with participants, provided
background on the proposed changes to part 83, and provided a detailed
explanation of the proposed changes.
The sessions and written comment period (which closed on September
13, 2024) garnered comments from the following federally recognized
Indian Tribes: (1) Santa Ynez Band of Chumash Mission Indians; (2) the
Morongo Band of Mission Indians; (3) the Puyallup Tribe; (4) the
Confederated Tribes of Siletz Indians; (5) the Yuhaaviatam of San
Manuel Nation; (6) the Tunica-Biloxi Indian Tribe; (7) the Tulalip
Tribes; (8) the Eastern Band of Cherokee Indians; (9) the Swinomish
Indian Tribal Community; (10) the Suquamish Indian Tribe; (11) the
Muckleshoot Indian Tribe; (12) the Shawnee Tribe; (13) the Seneca
Nation of Indians; (14) the Delaware Nation; (15) the Federated Indians
of Graton Rancheria; and (16) the Shinnecock Indian Nation.
Others that participated in the listening session and that
submitted written comments included State-recognized Tribes; non-
federally recognized groups (including unsuccessful petitioners for
Federal acknowledgment); national associations (including inter-Tribal
organizations), State and local government representatives,
congressional delegations and coalitions; and individuals associated
with educational institutions, including Yale University, Stanford
University, and the Indian Legal Clinic of Arizona State University's
College of Law.
The federally recognized Indian Tribes that commented either
verbally or through written comments generally oppose re-petitioning,
with the exception of the Tunica-Biloxi Indian Tribe and the Shinnecock
Indian Nation. By contrast, non-federally recognized groups (including
unsuccessful petitioners) support an avenue for re-petitioning.
State and local government representatives mostly aligned with the
federally recognized Indian Tribes that oppose re-petitioning. Those
commenters noted the resources already expended to oppose petitions for
Federal acknowledgment and that would have to be spent opposing
requests to re-petition. They also highlighted the potential
consequences of Federal acknowledgment on local communities, including
detrimental economic impacts. However, not all of the State and local
government representatives who submitted comments oppose re-
petitioning. A Connecticut State senator and group of State
representatives submitted a letter in support of the 2024 proposed
rule, as well as in support of three unsuccessful petitioners based in
Connecticut: the Golden Hill Paugussett Tribe, the Schaghticoke Tribal
Nation, and the Eastern Pequot Indians. The Mayor of Charlestown,
Indiana, also submitted a comment in support of the 2024 proposed rule
and of unsuccessful petitioners, stating that ``[i]t is important for .
. . all of Indiana to acknowledge and respect the legacy and resilience
of the Indigenous communities that occupied the land where our cities
were established.'' Indiana Senators Todd Young and Mike Braun
similarly submitted a letter in support of the 2024 proposed rule,
while also asserting that the rulemaking has taken too much time to
complete.
Over one hundred individuals submitted either written comments or
verbal comments in support of re-
[[Page 3633]]
petitioning, often in support of specific groups previously denied
Federal acknowledgment. Many individual commenters expressed support
for the Golden Hill Paugussett Tribe, the Schaghticoke Tribal Nation,
and the Eastern Pequot Indians. Individual commenters also expressed
support for the Chinook Indian Nation, the Muwekma Ohlone Tribe, and
the Ma-Chis Lower Creek Indian Tribe.
The consultations, listening session, and comment period provided a
valuable opportunity for federally recognized Indian Tribes and
stakeholders, including non-federally recognized groups and State and
local government representatives, to offer comments on whether the
Department should implement a re-petition authorization process. The
comments ranged from wholly supportive to strongly opposed. Although
most federally recognized Indian Tribes that commented oppose re-
petitioning, many offered constructive feedback on the 2024 proposed
rule. The majority of non-Tribal commenters were supportive of a re-
petition authorization process.
What follows is a summary of the comments received, organized by
issue, and the Department's responses to the comments.
B. Comments Citing Fairness as a Justification for the Re-Petition
Authorization Process
Numerous commenters cited fairness as a justification for allowing
re-petitioning. Commenters emphasized the significant impact of Federal
recognition on the lives of a petitioner's members, for example,
linking recognition with increased access to federal funding for
housing, healthcare, and education. Some cited the potential economic
benefit of recognition, like a boost in tourism that would benefit
surrounding communities as well, while others focused on the ``dignity
and respect'' accorded through Federal acknowledgment. The Indian Legal
Clinic of Arizona State University's College of Law commented that a
``lack of recognition can negatively impact a Tribe's ability to
exercise its self-determination in areas such as defending sovereignty,
protecting culture, accessing resources, and ensuring the survival of
tribal ways of life.'' The Shinnecock Indian Nation commented that
leaving any Tribe entitled to acknowledgment off of the Department's
list of federally recognized Indian Tribes is a ``horrible mistake that
lasts for generations.'' The Haliwa-Saponi Indian Tribe (a State-
recognized Tribe in North Carolina) relatedly stated that the re-
petitioning process ``safeguards against unintentional error in the
evaluation of evidence from petitioners.'' The MOWA Band of Choctaw
Indians (an unsuccessful petitioner) stated that implementing a re-
petition authorization process ``not only aligns with the principles of
justice and fairness but also provides a necessary administrative
pathway for tribes to seek reconsideration without resorting to the
courts.''
Several commenters stated that prohibiting unsuccessful petitioners
denied under the previous regulations from re-petitioning under the
2015 regulations would be unfair given that the changes in the 2015
regulations were intended to promote consistency, efficiency, and
fairness. For example, one unsuccessful petitioner (the Muwekma Ohlone
Tribe) stated that the proposed process will ensure ``equal protection
to all tribal petitioners.'' Echoing that point, another unsuccessful
petitioner (the Miami Nation of Indians) asserted that ``all
petitioners'' should be allowed to avail themselves of the process set
forth in the 2015 regulations. The Alliance of Colonial Era Tribes, an
inter-Tribal organization, similarly stated that ``all petitions''
should be ``measured against the same written standards,'' to ``improve
the consistency and integrity of the process as a whole.''
Others asserted that the Department should allow re-petitioning
because of the difficulty of satisfying the seven mandatory criteria
under the previous regulations. The Tunica-Biloxi Indian Tribe, for
example, stated that many unsuccessful petitioners ``may not have had
the resources or expertise required to meet the [Department's]
evidentiary standards at the time of their initial petitions.''
Several petitioners claimed that they were treated unfairly during
the review of their respective petitions. Based on the allegedly unfair
treatment of unsuccessful petitioners, a number of commenters expressed
support for a re-petition process broader than that in the 2024
proposed rule. For example, the Steilacoom Tribe (an unsuccessful
petitioner) stated that all petitioners ``harmed by this broken system
should have an opportunity to re-petition.'' Other unsuccessful
petitioners shared similar comments, as did individual supporters of
those petitioners.
By contrast, those opposed to re-petitioning defended the integrity
of the Federal acknowledgment process. The Swinomish Indian Tribal
Community explained that the process afforded to unsuccessful
petitioners was ``extensive, lengthy, [and] fact-intensive'' and
involved ``an exhaustive review of facts and claims.'' Quoting language
from the preambles of the 2022 proposed rule and 2024 proposed rules,
the Eastern Band of Cherokee Indians similarly stated that the
Department's previous, negative determinations are ``substantively
sound.'' The Tribe emphasized that unsuccessful petitioners had ample
opportunities to address apparent deficiencies in their materials,
respond to the Department's preliminary findings, and appeal their
negative determinations administratively and in Federal court. The
Santa Ynez Band of Chumash Mission Indians and the Morongo Band of
Mission Indians likewise noted that unsuccessful petitioners had
opportunities for redress through the Federal courts, and they noted
that unsuccessful petitioners retain the option to seek Federal
recognition through Congress. The Connecticut Towns of Ledyard, North
Stonington, and Preston (Connecticut Towns) echoed that point,
asserting the Department ``ignore[d] that unsuccessful petitioners
still have the option of seeking congressional acknowledgment.''
The Connecticut Towns otherwise described the re-petition
authorization process in the 2024 proposed rule as ``illogical, unfair,
and time-consuming.'' Other commenters shared that sentiment and
proposed alternatives to the process. The Eastern Band of Cherokee
Indians, for example, stated that, to comply with the Chinook and Burt
Lake decisions, ``the Department need only provide a fuller, more
detailed explanation for its already sound policy'' banning re-
petitioning. Another commenter suggested that, instead of removing the
ban, the Department should withdraw the 2015 final rule revising the
regulations and reinstate the 1994 regulations.
Response: As the Department explained in the 2024 proposed rule,
the Department considers fairness to unsuccessful petitioners to be a
valid justification for implementing a re-petition authorization
process, particularly given the high-stakes nature of the Federal
acknowledgment process. Even if the reasons for upholding the ban in
the 2022 proposed rule were valid, the Department has decided to create
a conditional, time-limited opportunity to re-petition based on a
reconsidered policy that reflects greater consideration of the
interests of unsuccessful petitioners. The Department's reconsidered
policy, in turn, aligns more closely with the decisions in Chinook and
Burt Lake than the policy underlying the 2022 proposed rule. Both
courts suggested
[[Page 3634]]
that fairness is a valid justification for re-petitioning, particularly
given the Department's references to ``reforms'' made in the 2015
revision to part 83.\93\ The Burt Lake court noted, for example, that
the plaintiff in that case ``persuasively contend[ed] that the only way
for previously-denied petitioners to get `fair' and `consistent'
results would be by allowing them to re-petition.'' \94\ Additionally,
``although it is true that, in the absence of a re-petition
authorization process, unsuccessful petitioners could still `seek
legislative recognition if substantial new evidence develops,'' \95\
the Department believes that the part 83 process, as conditioned by
this rule, ``should continue to be an option given the Department's
familiarity with the petitioner, expertise in evaluating evidence, and
management of all Indian affairs, including decisions regarding Federal
acknowledgment.'' \96\
---------------------------------------------------------------------------
\93\ 80 FR 37862.
\94\ Burt Lake, 613 F. Supp. 3d at 384.
\95\ 89 FR 57103 (quoting 87 FR 24916).
\96\ 89 FR 57103 (citing 25 U.S.C. 2).
---------------------------------------------------------------------------
In response to comments recommending that the Department withdraw
or vacate the 2015 final rule, the Department rejects that suggestion
in light of the interests in fairness mentioned above. As stated in the
preamble of the 2015 final rule, there was ``wide agreement by the
public'' that the part 83 process prior to the 2015 revision was
``broken,'' \97\ a point that both the Chinook and Burt Lake courts
highlighted.\98\ Although the Department does not adopt that
characterization and maintains the validity of Department's process
under the previous regulations, as well as the validity of Departmental
precedent, the Department is nevertheless willing to give unsuccessful
petitioners a path for arguing why reconsideration under the 2015
regulations is warranted. Furthermore, the Department considers a
threshold, re-petition authorization process an appropriate way to
balance interests in re-petitioning with third-party interests in
keeping the ban in place. Those interests are discussed further below.
---------------------------------------------------------------------------
\97\ 80 FR 37864.
\98\ Burt Lake, 613 F. Supp. 3d at 380; Chinook, 2020 WL 128563,
at *2.
---------------------------------------------------------------------------
C. Additional Discussion of Third-Party Opposition to Re-Petitioning
Most federally recognized Indian Tribes and State and local
government representatives that submitted comments on the 2024 proposed
rule oppose re-petitioning. Numerous Tribes recommended that the
Department keep in place the Department's longstanding ban on re-
petitioning.
Several Tribes explained that the re-petition authorization process
undermines their ability to protect their respective Tribal identities.
The Shawnee Tribe, for example, commented that the appropriation of
Shawnee Tribal identity by non-federally recognized groups is an
ongoing problem and that ``the Federal acknowledgment process provides
some protection against groups . . . that make false claims'' to
Shawnee sovereignty and culture. Similarly, the Eastern Band of
Cherokee Indians highlighted the threat posed by ``six groups that have
falsely and fraudulently claimed to be Cherokee and that have already
undergone and completed the Part 83 process.'' The Tribe expressed
concern about the burden that opposing re-petition requests will impose
on the Tribe's resources, resources that the Tribe ``should be able to
utilize . . . to improve the lives of [its] citizens rather than . . .
to repeatedly defend our identifies against fraudulent groups.''
Several other Tribes echoed the Eastern Band of Cherokee Indians'
concern about the threat that re-petitioning would pose to their
limited resources. The Santa Ynez Band of Chumash Mission Indians
asserted that re-petitioning would unfairly subject third parties to
``the burden of responding to petitioners' arguments,'' even though
those third parties already expended considerable resources to oppose
the petitions. The Tribe also highlighted the considerable resources
that State and local governments in Connecticut expended to oppose
petitions submitted by various Connecticut-based petitioners.
Additionally, the Tribe highlighted the resources that several Tribes
in Washington expended to monitor or oppose petitions that potentially
threaten their ``sovereignty, membership, and/or treaty fishing
rights.'' The Morongo Band of Mission Indians similarly emphasized the
considerable investment of ``time, energy, and resources over many
years'' by Tribes and other third parties ``to protect their legitimate
interests'' in safeguarding ``their economies, jurisdiction, or
membership.''
Consistent with the concerns discussed above, the Tulalip Tribes
described the 2024 proposed rule as ``fatally flawed'' and asserted
that it ``contravenes settled expectations of finality for those
parties who fought--sometimes for decades--in favor of negative final
determinations.'' The Suquamish Indian Tribe, Muckleshoot Indian Tribe,
and Puyallup Tribe likewise asserted that the finality interests of
third parties weigh strongly against what they perceive as
``[e]ndless'' opportunities to re-petition. They stated that, ``[a]fter
almost 50 years of decisions under the Part 83 process, States, local
governments, federally recognized Indian Tribes, and the federal
government have a compelling interest in repose and the finality of
tribal acknowledgment decisions.''
State and local government representatives in Connecticut shared
similar concerns about the perceived threat that re-petitioning would
pose to their interests in finality. The Connecticut Attorney General
asserted that the 2024 proposed rule fails to ``meaningfully consider
or address any of the consequences Federal acknowledgment has on State
and local communities.'' The commenter identified ``renewed threats
resulting from acknowledged tribes,'' including ``extensive land
claims, federal trust and reservation land, loss of state and local
government jurisdiction and tax base, adverse environmental and land
use impacts, casino development, and other issues.'' Connecticut's
congressional delegation expressly supported the Connecticut Attorney
General's comments. Other Connecticut-based commenters (the Kent School
and the Town of Kent) stated that they ``have spent over three decades
and hundreds of thousands of dollars reluctantly participating in DOI's
acknowledgment process and a lands claim suit filed by the Schaghticoke
Tribal Nation,'' an unsuccessful petitioner.
Numerous commenters objected to the notion that third-party
interests should influence the Department's decision on whether to
implement a re-petition authorization process. For example, the Muwekma
Ohlone Tribe (an unsuccessful petitioner) stated in the listening
session that the interests of groups denied Federal acknowledgment
outweigh those of third parties and expressed support for the 2024
proposed rule. Other unsuccessful petitioners, like the Chinook Indian
Nation and Eastern Pequot Indians, contended that third parties should
not be allowed to exert political influence on the proposed re-petition
authorization process. The Chinook Indian Nation stated that third-
party involvement should be limited to commenting on re-petition
requests and that the Department should prohibit ``ex parte contacts or
other attempts to influence the agency's decision'' on a re-petition
request or on a subsequently filed re-petition.
Response: The Department recognizes that third parties often
expended
[[Page 3635]]
considerable time and resources participating in the Federal
acknowledgment process and agrees that third parties have significant,
legitimate interests in the finality of the Department's final
determinations. As explained in the 2024 proposed rule, those interests
informed the Department's decision not to give unsuccessful petitioners
an open-ended opportunity to re-petition that might ``make[ ]
worthless'' third parties' substantial past investment.\99\ Relevant
here, a petitioner's disagreement with the Department's evaluation of
the petitioner's claims and evidence in a previous, negative final
determination is not a basis for requesting to re-petition. By
maintaining the integrity of the Department's past determinations, the
Department by extension recognizes the value of third-party investment
in the Federal acknowledgment process, specifically, the value of
third-party comments and evidence that informed those past
determinations.
---------------------------------------------------------------------------
\99\ Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 220 (1988).
---------------------------------------------------------------------------
Although the Department's proposal in the 2022 proposed rule (which
would have retained the longstanding, blanket ban on re-petitioning)
would have aligned more closely with third-party interests in finality,
the approach that the Department adopts in this final rule seeks to
balance those interests with competing, compelling interests in re-
petitioning (discussed above). The re-petition authorization process
will subject prospective re-petitioners to a threshold review. By
limiting the types of arguments that unsuccessful petitioners can raise
in the threshold review, the Department seeks to minimize the burden on
third parties that choose to participate in the process and respond to
those arguments. Additionally, by imposing a limit on the amount of
time that unsuccessful petitioners will have to request to re-petition,
the Department seeks to account for third-party interests in finality.
By subjecting prospective re-petitioners to a threshold review,
this final rule not only seeks to balance third-party interests with
denied petitioners' interests but also seeks to be responsive to the
Chinook court's ``skeptic[ism] that res judicata is applicable in a
situation such as this where legal standards changed between the 1994
and 2015 regulations.'' \100\ As discussed at length in the 2022
proposed rule,\101\ and as stated in the 2024 proposed rule,\102\ the
Department maintains that the legal standards in the 2015 regulations
are not significantly different from those in the previous regulations
and do not compel the Department to allow re-petitioning. However, in
the interest of fairness to unsuccessful petitioners, the Department
has decided to give those petitioners an opportunity to argue that
specific changes warrant reconsideration of their respective negative
final determinations.
---------------------------------------------------------------------------
\100\ See Chinook, 2020 WL 128563, at *9 (explaining that ``res
judicata does not apply when legal standards governing the issues
are `significantly different''' (citing Golden Hill Paugussett Tribe
of Indians v. Rell, 463 F. Supp. 2d 192, 199 (D. Conn. 2006))).
\101\ See 87 FR 24911-14.
\102\ 89 FR 57105.
---------------------------------------------------------------------------
Finally, in response to third-party concerns about the potential
consequences of Federal acknowledgment on local communities (for
example, land claims, loss of tax bases, and gaming development),
affected third parties will be able to avail themselves of due process
afforded in connection with those specific issues.\103\ A review of a
re-petition request, a grant of authorization to re-petition, or even a
positive final determination would not result in the adverse impacts
described by third parties. In general, the part 83 process concerns
only whether a group constitutes a distinct social and political entity
entitled to a government-to-government relationship with the United
States.\104\
---------------------------------------------------------------------------
\103\ See, e.g., City of Sherrill v. Oneida Indian Nation, 544
U.S. 197, 220 (2005) (explaining that ``Congress has provided a
mechanism for the acquisition of lands for Tribal communities that
takes account of the interests of others with stakes in the area's
governance and well-being''); 80 FR 37881 (explaining that ``if the
newly acknowledged tribe seeks to have land taken into trust and
that application is approved, state or local governments may
challenge that action under the land-into-trust process (25 CFR part
151), an entirely separate and distinct decision from the Part 83
process'').
\104\ See 25 CFR 83.2 (describing the purpose of part 83).
---------------------------------------------------------------------------
D. Comments Citing Departmental Workload as a Justification for
Retaining the Ban on Re-Petitioning
Several commenters expressed concern about the impact of re-
petitioning on the Department's workload and ability to process
petitions and re-petition requests efficiently. For example, the Burt
Lake Band of Ottawa and Chippewa Indians (an unsuccessful petitioner)
generally supports a re-petition process but fears that the process
proposed in the 2024 proposed rule would result in significant delays.
The commenter estimated that the time frame to receive a decision on a
re-petition request ``could approach 44 years,'' a time frame that
would provide ``insufficient justice for re-petitioners.''
Among those that oppose re-petitioning, the Swinomish Indian Tribal
Community commented that re-petitioning would create ``an ongoing cycle
of review'' that would exhaust not only the resources of federally
recognized Indian Tribes but also Departmental resources and delay or
prevent the review of new petitions. The Shawnee Tribe similarly
commented on the amount of additional work required to implement a re-
petition authorization process, stating that the process would ``more
than double[ ] the amount of resources required.'' According to the
Tribe, ``[t]he Department and Indian country would be better served by
allocation of the Department's precious, limited resources to existing
areas of need--of which there are many,'' as well as to the review of
new and pending petitions.
The Eastern Band of Cherokee Indians likewise asserted that re-
petitioning would be ``unfair to pending and future petitioners who may
have legitimate petitions.'' According to the Tribe, ``[r]equiring
groups with valid claims to wait their turn for review of their
original documented petitions while [re-petition] requests from
unsuccessful petitioners are considered would be an affront to
legitimate sovereign nations whose status has not yet been recognized
by the United States.''
Response: The Department considers implementation of a threshold
review, limiting the types of arguments that unsuccessful petitioners
can raise in their re-petition requests, to be an appropriate way to
address concerns about the effect of re-petitioning on the Department's
workload. By allowing prospective re-petitioners to raise only certain
arguments in their re-petition requests, namely, arguments relating to
(1) changes in the 2015 regulations or (2) the availability of new
evidence--both developments likely to postdate the date of the
petitioners' previous, negative final determinations--the Department
seeks to avoid the overwhelming administrative burdens that would be
associated with an open-ended re-petitioning process, including the
potential reopening of decades-old administrative records that
``rang[e] in excess of 30,000 pages to over 100,000 pages.'' \105\
---------------------------------------------------------------------------
\105\ Barbara N. Coen, Tribal Status Decision Making: A Federal
Perspective on Acknowledgment, 37 NEW ENG. L. REV. 491, 495 (2003)
(citing Work of the Department of the Interior's Branch of
Acknowledgment and Research within the Bureau of Indian Affairs:
Hearing Before the S. Comm. on Indian Affs., 107th Cong. 2, 19-20
(2002) (statement of Michael R. Smith, Dir., Office of Tribal
Servs., U.S. Dep't of the Interior)).
---------------------------------------------------------------------------
[[Page 3636]]
This final rule gives AS-IA oversight over the re-petition
authorization process, in line with the 2024 proposed rule. Although
AS-IA's oversight over the process might increase the workload within
the Office of the AS-IA, AS-IA is in the best position to review re-
petition requests efficiently given AS-IA's expertise and experience in
evaluating part 83 petitioners' claims and evidence. In response to
commenters' concerns about the effect of re-petitioning on the review
of new and pending petitions, AS-IA oversight will also ensure that the
Department ``prioritize[s] review of documented petitions over review
of re-petition requests,'' at least initially.\106\ The Department
notes that prospective petitioners have had notice of the opportunity
to petition for Federal acknowledgment since 1978, when the Department
first promulgated regulations governing the Federal acknowledgment
process, and still have a time window under this final rule to proceed
through the part 83 process ahead of prospective re-petitioners.
---------------------------------------------------------------------------
\106\ 25 CFR 83.53(c).
---------------------------------------------------------------------------
E. Comments on the Standard Applied in the Re-Petition Authorization
Process
Most of the federally recognized Indian Tribes that submitted
comments on the 2024 proposed rule oppose any re-petition authorization
process. However, many nevertheless suggested changes that, in their
view, would improve the process, should the Department finalize it.
In particular, several of the Tribes that commented focused on the
standard that the Department would apply in the Department's threshold
review. Some questioned whether the standard would indeed create a
``limited'' or ``narrow'' path to re-petition, as the Department stated
in the 2024 proposed rule, and argued that the standard was improperly
low. For example, the Puyallup Tribe commented that the standard
``throws the door wide open to re-petitioning by unnecessarily limiting
the Department's ability to evaluate the truth of previously denied
petitioners' allegations in support of a request to re-petition and
excluding only re-petition requests that are facially frivolous.'' The
Muckleshoot Indian Tribe echoed that comment and also asserted that the
```plausibly allege' threshold standard'' in the 2024 proposed rule is
lower than the standard that the Department had proposed in the 2014
proposed rule (which also would have allowed limited re-petitioning).
By contrast, the Duwamish Tribe (an unsuccessful petitioner) described
the ``plausible allegation'' requirement as an ``undue and burdensome
restriction[].''
Both the Puyallup Tribe and Muckleshoot Indian Tribe commented that
the Department's reference to the ``plausibly allege'' standard as
``akin'' to that for surviving a motion to dismiss is unclear, and they
requested clarification on whether the standard is the same as that for
surviving a motion to dismiss or different in some respect. The
Muckleshoot Indian Tribe specifically asked whether the Department
``would engage in fact finding at the threshold stage.''
Several Tribes suggested that the Department should adopt a
different standard. For example, the Eastern Band of Cherokee Indians
recommended that the Department adopt a ```preponderance of the
evidence'/`more likely than not''' standard. The Swinomish Indian
Tribal Community recommended that the Department adopt a ``clear and
convincing evidence'' standard. Others recommended adoption of the
standard for a new trial or relief from a judgment under Federal Rule
of Civil Procedure (FRC.P.) 59 or 60, respectively. The Federated
Indians of Graton Rancheria described that standard as stricter and,
therefore, more appropriate given that ``there has already been a
lengthy agency review process and final determination.'' According to
the Tribe, a standard akin to that under FRC.P. 59 or 60 would allow
petitions to be ``reopen[ed]'' only in ``limited situations, to be used
sparingly and in extraordinary circumstances.'' The Puyallup Tribe and
the Connecticut Attorney General similarly recommended adoption of the
standard under FRC.P. 60 in lieu of the standard for surviving a motion
to dismiss under FRC.P. 12(b)(6), with the Puyallup Tribe specifically
citing FRC.P. 60(b)(6).
Finally, several commenters took issue with the discretion afforded
to AS-IA under the ``plausibly allege'' standard in the 2024 proposed
rule. The Connecticut Towns of Ledyard, North Stonington, and Preston
asserted that the Department does not have the authority to allow re-
petitioning (or even to acknowledge Indian Tribes) but that, if the
Department implements a re-petition authorization process, OFA is
better suited to the review re-petition requests than AS-IA. The Seneca
Nation of Indians likewise commented that the reviewer of re-petition
requests should be OFA, not AS-IA.
Conversely, the Burt Lake Band of Ottawa and Chippewa Indians
stated that an ``Independent Reviewer,'' like an administrative law
judge or retired judge, should oversee the re-petition authorization
process. The commenter also recommended that ``[t]he decision on
whether there is a factual basis to grant an application for
repetitioning [should] be shortened to 90 days'' and that, ``[i]f the
Independent Reviewer does not decide the matter in 90 days, the
application for repetitioning [should be] approved and [the] petitioner
move[d] to the next step.''
Response: The Department does not consider the ``plausibly allege''
standard in the 2024 proposed rule to be improperly low. Although the
standard for obtaining authorization to re-petition in the 2014
proposed rule might seem higher because it would have required a
petitioner to prove ``by a preponderance of the evidence'' that ``[a]
change from the previous version of the regulations to the current
version of the regulations warrants reconsideration of the final
determination'' \107\--that is at best unclear because the 2014
proposed rule did not clarify what was meant by ``warrants
reconsideration.''
---------------------------------------------------------------------------
\107\ 79 FR 30774.
---------------------------------------------------------------------------
In the 2024 proposed rule, the Department proposed alternative
language--adopted here--to make the standard more precise than that in
the 2014 proposed rule. Pursuant to this final rule, to warrant
reconsideration, a petitioner must first plausibly allege that the
outcome of the petitioner's previous, negative final determination
would change to positive based on one or both of the following: (1) a
change in part 83 (from the 1978 or 1994 regulations to the 2015
regulations); and/or (2) new evidence.\108\ Because Federal
acknowledgment requires satisfaction of all seven criteria,\109\ the
petitioner's re-petition request would have to address all of the
criteria that the petitioner did not satisfy. Otherwise, even if the
allegations were taken as true, they would not change the previous,
negative outcome and, therefore, would not justify reconsideration.
---------------------------------------------------------------------------
\108\ 25 CFR 83.48.
\109\ 25 CFR 83.43(a); 25 CFR 83.5.
---------------------------------------------------------------------------
Application of a ``plausibly allege'' standard is appropriate.
Under the standard, fact-finding in the Department's threshold review
will be limited, which will help ensure that the re-petition
authorization process proceeds efficiently. To the extent that
assessment of a petitioner's claims and evidence requires a complex or
in-depth analysis, AS-IA would reserve that analysis for the eventual
evaluation of a re-petition, at which point the
[[Page 3637]]
Department would apply part 83's ``reasonable likelihood'' standard.
In response to comments expressing confusion about whether the
``plausibly allege'' standard in the 2024 proposed rule is identical to
that for surviving a motion to dismiss under FRC.P. 12(b)(6), the
Department clarifies here that the Department intended for the standard
to be slightly different, in that the Department envisioned AS-IA
conducting limited fact-finding during the threshold review. For
example, pursuant to Sec. 83.55(b)(1) (as proposed and adopted here),
AS-IA may refer to the administrative record created during the
evaluation of a petitioner's original petition to assess the
plausibility of certain, alleged facts. However, the comparison to the
standard for surviving a motion to dismiss remains apt because, at a
minimum, the petitioner must present allegations that, if taken as
true, would change the outcome of the petitioner's previous, negative
final determination to positive.
The Department does not consider application of the standard for a
new trial or relief from a judgment under FRC.P. 59 or 60,
respectively, to be a more appropriate alternative. The purpose of the
threshold review is not to determine whether a petitioner's previous,
negative final determination is contrary to the ``clear or great weight
of the evidence'' \110\ or is ``clearly erroneous.'' \111\ That kind of
determination would require a thorough assessment of the strength of
the evidence both for and against acknowledgment, better suited for the
eventual evaluation of a re-petition.
---------------------------------------------------------------------------
\110\ Standard Havens Prods., Inc. v. Gencor Indus., Inc., 953
F.2d 1360, 1367 (Fed. Cir. 1991) (explaining the standard for a new
trial).
\111\ Am. Council of the Blind v. Mnuchin, 977 F.3d 1, 5 (DC
Cir. 2020) (explaining the standard of review of a motion filed
pursuant to FRC.P. 60(b)).
---------------------------------------------------------------------------
In response to comments asserting that either OFA or an official
other than AS-IA should be the decision-maker, AS-IA is in the best
position to review re-petition requests efficiently given AS-IA's
expertise and experience in evaluating part 83 petitioners' claims and
evidence, as discussed above. Furthermore, AS-IA can solicit OFA's
assistance throughout the process given that OFA is located within the
Office of the AS-IA.\112\ Finally, the Department's authority to
acknowledge Indian Tribes through part 83, discussed in section I above
and supported by relevant legal authorities, is well-established.\113\
---------------------------------------------------------------------------
\112\ See 110 DM 8.4(C) (listing OFA as under the oversight of
the Deputy Assistant Secretary--Policy and Economic Development, who
reports to the Principal Deputy Assistant Secretary and AS-IA).
\113\ See, e.g., James v. U.S. Dep't of Health & Hum. Servs.,
824 F.2d 1132, 1139 (D.C. Cir. 1987) (requiring appellants to
exhaust administrative remedies on the issue of Federal recognition
prior to seeking judicial review); Miami Nation of Indians of Ind.,
Inc. v. U.S. Dep't of the Interior, 255 F.3d 342, 346 (7th Cir.
2001) (stating that the appellants' argument that Part 83 is invalid
``because not authorized by Congress'' is ``clearly incorrect'' and
also noting that ``[r]ecognition is . . . traditionally an executive
function'').
---------------------------------------------------------------------------
F. Comments on the Conditions for Obtaining Authorization To Re-
Petition
Numerous commenters submitted comments on the conditions for re-
petitioning, located at Sec. 83.48. Pursuant to that provision, as
noted above, an unsuccessful petitioner would be allowed to re-petition
if the petitioner plausibly alleged that the outcome of the
petitioner's previous, negative final determination would change to
positive based on one or both of the following: (1) a change in part 83
(from the 1978 or 1994 regulations to the 2015 regulations); and/or (2)
new evidence.
1. Comments on the ``Change'' Condition
Commenters that oppose re-petitioning were divided on the
significance of the changes to part 83 in the 2015 regulations. On the
one hand, the Yuhaaviatam of San Manuel Nation contended that the
Department should retain the ban on re-petitioning because the changes
are ``unlikely to result in any change'' to the outcome of a negative
final determination. On the other hand, the Kent School and the Town of
Kent contended that the Department should retain the ban on re-
petitioning because the changes weakened the criteria for Federal
acknowledgment. The Puyallup Tribe similarly criticized the proposal to
allow limited re-petitioning given what it described as ``truncated''
standards for satisfying criteria (b) (Community) and (c) Political
Authority under the 2015 regulations (a reference to the potentially
shorter time frame subject to evaluation under the 2015 regulations,
beginning in 1900 instead of 1789 or ``the time of first sustained
contact'' \114\). According to the Tribe, the Department does not have
the authority to acknowledge a petitioner under the 2015 regulations if
that petitioner was previously denied acknowledgment for failing to
satisfy criterion (b) (Community) or (c) (Political Authority) for any
time period prior to 1900.
---------------------------------------------------------------------------
\114\ 80 FR 37863.
---------------------------------------------------------------------------
Others commented on the provision located at Sec. 83.48(b) in the
2024 proposed rule, which would have allowed unsuccessful petitioners
to request to re-petition a second time if the Department were to
revise part 83 again in the future. The Shawnee Tribe cautioned that,
in light of that provision, the Department ``should expect new requests
for authorization to re-petition each time it revises the
regulations.'' The Tulalip Tribes similarly stated that the 2024
proposed rule would allow ``unending'' re-petitioning, ``as any future
changes to or interpretations of Part 83 [would] allow for denied
petitioners to initiate the entire process again and again.''
Response: As the Department indicated in the 2024 proposed rule,
the Department does not anticipate that any of the 2015 final rule's
changes to part 83 will affect the outcome of the Department's
previous, negative final determinations,\115\ including the change in
the evaluation start date.\116\ However, in the interest of fairness to
unsuccessful petitioners, the Department has decided to give those
petitioners a narrow path for arguing, on a case-by-case basis, why
specific changes warrant reconsideration of their specific final
determinations.\117\ By conditioning re-petitioning in the manner set
forth in Sec. 83.48(a), this rule is responsive to the Chinook court's
observation that some of the changes in the 2015 final rule constitute
``significant revisions that could prove dispositive for some re-
petitioners.'' \118\ Additionally, it is responsive to the Burt Lake
court's opinion that ``the agency's breezy assurance . . . that nothing
has changed'' in the 2015 regulations is an insufficient basis to keep
the ban in place.\119\ Pursuant to this rule, if an unsuccessful
petitioner plausibly alleges that a change in part 83 would, if applied
on reconsideration, change the outcome of the previous, negative
determination to positive, then the petitioner may re-petition.
---------------------------------------------------------------------------
\115\ 89 FR 57102-03.
\116\ See 80 FR 37863 (stating that ``[t]he Department does not
classify the start date change, from 1789 or the time of first
sustained contact to 1900, as a substantive change to the existing
criteria,'' for reasons discussed in the preamble).
\117\ See 25 CFR 83.48(a).
\118\ Chinook, 2020 WL 128563, at *8.
\119\ Burt Lake, 613 F. Supp. 3d at 384.
---------------------------------------------------------------------------
In response to the comments that are expressly or impliedly
critical of the provision in the 2024 proposed rule at Sec. 83.48(b),
the Department agrees that the provision risks undermining finality and
has removed the provision from this final rule accordingly. If the
Department decides to revise part 83 again in the future, it can decide
then whether to give unsuccessful petitioners a new opportunity to
request to re-petition in light of the revision.
[[Page 3638]]
2. Comments on the ``New Evidence'' Condition
The Department received many comments on the Department's proposal
in the 2024 proposed rule to include the availability of new evidence
as a justification for re-petitioning. As a preliminary matter, several
commenters expressed confusion about what constitutes new evidence. The
Shawnee Tribe commented that ``the term `new evidence' is not defined''
and that ``the proposed rule sets forth no standard a petitioner must
meet regarding what constitutes `new' evidence.'' The Swinomish Indian
Tribal Community commented that, based on the description of new
evidence in 2024 proposed rule, unsuccessful petitioners could argue
that ``new evidence'' includes evidence previously submitted during the
evaluation of a petitioner's original petition but allegedly not
``considered by the Department.'' \120\
---------------------------------------------------------------------------
\120\ 25 CFR 83.48(a)(2) (proposed 2024).
---------------------------------------------------------------------------
The Federated Indians of Graton Rancheria suggested that the
Department refer to F.R.C.P. 59 and 60 for guidance on what constitutes
new evidence. According to the Tribe, in line with the standard applied
under those rules, a petitioner should have to show that the evidence
``was discovered after the previous, negative final determination and
could not have been discovered by the unsuccessful petitioner through
the exercise of reasonable diligence.''
Many commenters stated their objection to the ``new evidence''
condition in the 2024 proposed rule. The Eastern Band of Cherokee
Indians argued that new evidence is not a valid basis for allowing re-
petitioning because petitioners had notice of the criteria and evidence
required for Federal acknowledgment, received technical assistance
identifying evidentiary gaps in their materials, and had the
opportunity to supplement or revise their petitions. Relatedly, the
Suquamish Indian Tribe and the Muckleshoot Indian Tribe commented that
petitioners had ``unlimited time to research and assemble documentation
for their claims before seeking Departmental consideration.''
Commenters also stated that the availability of new evidence is not a
valid basis for allowing re-petitioning because, under the 2015
regulations, petitioners have the option to withdraw and resubmit their
petitions if new evidence arises, pursuant to Sec. 83.30.
Several commenters asserted that allowing re-petitioning based on
new evidence would undermine finality. For example, the Seneca Nation
of Indians asked rhetorically how the Department could justify ``a one-
time opportunity to re-petition based on `new evidence' and not grant
another opportunity to re-petition based on new evidence 10 or 20 years
later.'' The Eastern Band of Cherokee Indians similarly expressed
concern about ``limitless opportunities to re-petition.'' The Tribe
explained that if ``improved technology'' is the rationale for allowing
re-petitioning based on new evidence, the five-year time limit on
submitting a re-petition request is arbitrary because ``technology can
improve in ten years or two months and will only continue to improve
thereafter.''
Other commenters expressed support for the ``new evidence''
condition. For example, the Shinnecock Indian Nation, although
generally critical of the Federal acknowledgment process (particularly
the evidentiary burden on petitioners), suggested that the Department
should allow re-petitioning based on alleged new evidence because
``[t]he search for truth must be the most important goal of the federal
acknowledgment process.'' The Tribe commented in one of the
consultation sessions that ``in the Jim Crow era . . . [Tribal] records
were either destroyed or [Tribes] were not even allowed to acknowledge
themselves as being Indians,'' making it ``difficult . . . to find
documents'' to support petitions. Another commenter similarly stated
that ``[c]olonial practices, including forced relocations and boarding
school policies, caused many tribes to lose essential documents and
evidence needed for federal acknowledgment'' and that ``there should be
additional ways for Tribes to make up for those gaps.'' Finally, many
commenters stated that technological advancements would help
petitioners retrieve historical records.
Response: The Department considers improved technology to be a
compelling justification for allowing unsuccessful petitioners to
request to re-petition, particularly those denied Federal
acknowledgment decades ago. Since the evaluation of those petitions,
there have been numerous technological advancements that would aid
petitioners in their research, like user-friendly, electronic databases
containing genealogical information and tools that make old records
text-searchable.
Another significant technological advancement is the digitization
of countless records. Digitization has increased petitioners' ability
to access and search potentially relevant records. For petitioners with
limited resources, digitization will help them retrieve records that
might have been cost-prohibitive to retrieve manually in the past (for
example, because of the costs associated with hiring experts, paying
for travel to and from research sites, and paying for research time).
As noted in the 2024 proposed rule, ``[t]he application of improved
technology, particularly in the context of a shorter evaluation period,
might lead to the discovery of new evidence, and there is at least some
possibility that the new evidence could affect the outcome of a
previous, negative final determination.'' \121\ However, for reasons
stated in section III.G.1. (``Comments on the Time Limit for Submitting
a Re-Petition Request'') below, the Department considers a five-year
time limit appropriate, notwithstanding the likelihood of further
technological advancements after expiration of the five-year time
limit.
---------------------------------------------------------------------------
\121\ 89 FR 57103.
---------------------------------------------------------------------------
In response to the assertion that new evidence should constitute
only evidence that ``with reasonable diligence, could not have been
discovered'' during the original evaluation of a petition, the
Department does not consider that limitation appropriate. The lengthy
administrative records associated with part 83 petitions indicate that,
in general, unsuccessful petitioners exercised diligence in pursuing
their respective claims. Additionally, application of the standard
above would likely lead to arguments about the reasonableness of an
unsuccessful petitioner's research efforts (potentially conducted
decades ago), distracting the parties from the review of the evidence.
Furthermore, the Department deems it appropriate to give petitioners
the opportunity to argue that evidence previously discovered but not
submitted during the evaluation of the petitioner's original petition
is now relevant because of a change to part 83.
In response to another comment above, which noted that an
unsuccessful petitioner might try to claim that evidence previously
submitted during the evaluation of a petitioner's original petition
constitutes new evidence because it was allegedly not ``considered by
the Department,'' \122\ the Department clarifies here that evidence
submitted during the evaluation of a petitioner's original petition and
contained in the corresponding administrative record does not
constitute new evidence. To address the potential for misunderstanding
noted by the commenter, the Department has removed the language quoted
above from Sec. 83.48(a)(2), as it appeared in the
[[Page 3639]]
2024 proposed rule.\123\ Allegations that the Department failed to
consider previously submitted evidence amount to ``mere criticism of a
past final determination,'' which is ``not a sufficient or appropriate
basis, standing alone, to justify re-petitioning'' under this final
rule.\124\
---------------------------------------------------------------------------
\122\ 25 CFR 83.48(a)(2) (proposed 2024).
\123\ See 25 CFR 83.48(b) (containing the relevant provision, as
revised by this final rule).
\124\ 89 FR 57104.
---------------------------------------------------------------------------
3. Comments on Possible Other Conditions for Obtaining Authorization To
Re-Petition
Several commenters stated that the Department should impose
additional conditions on prospective re-petitioners beyond those
contained in the 2024 proposed rule. For example, Connecticut's
congressional delegation, which opposes a re-petition authorization
process, stated that, should the Department finalize a process, ``any
re-petitioning should exclude those Tribes where a U.S. District Court
has reviewed the denial and upheld it.'' The delegation stated that, in
those instances, ``not only has the [Department] determined the
petitioner has failed to provide sufficient evidence to meet all the
regulatory criteria, but an independent judicial body has also made a
similar determination.''
Citing the Department's proposal in the 2014 proposed rule, the
Shawnee Tribe commented that the Department should condition re-
petitioning on the consent of interested parties, ``regardless of
whether they participated in a prior proceeding involving the original
petition.'' According to the Tribe, a third-party consent condition
would ``protect the vested interests of such third parties who have
already sunk significant time and expense into participating in the
exhaustive part 83 process and/or who have reliance interests based on
the outcome of the original proceeding.'' The Eastern Band of Cherokee
Indians likewise supported a third-party consent condition. Other
commenters expressly opposed a third-party consent condition.
Response: That courts have consistently upheld the Department's
final determinations on the merits reinforces the integrity of the
Federal acknowledgment process. However, those decisions do not prevent
the Department from reconsidering the final determinations if there are
good reasons for doing so; agencies have inherent authority to
reconsider past decisions and to revise, replace, or repeal decisions
to the extent permitted by law and supported by a reasoned explanation,
even ``when its prior policy has engendered serious reliance
interests.'' \125\ If an unsuccessful petitioner plausibly alleges that
consideration of a change in part 83 (from the 1978 or 1994 regulations
to the 2015 regulations) or new evidence would change the outcome of
the petitioner's previous, negative final determination, then there is
a good reason to reconsider the determination, even if previously
upheld by a court.\126\
---------------------------------------------------------------------------
\125\ FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515
(2009); see also Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983).
\126\ See Canonsburg Gen. Hosp. v. Burwell, 807 F.3d 295, 306
(D.C. Cir. 2015) (explaining that ``issue preclusion is
inappropriate if there has been an intervening ``change in
controlling legal principles''); Early v. Comm'r of Soc. Sec., 893
F.3d 929, 930 (6th Cir. 2018) (explaining that the ``key
principles'' protected by res judicata, including ``finality with
respect to resolved applications,'' ``do not prevent the agency from
giving a fresh look to a new application containing new evidence or
satisfying a new regulatory threshold''); cf. Cal. Dump Truck Owners
Ass'n v. Davis, 302 F. Supp. 2d 1139 (E.D. Cal. 2002) (explaining
that ``reconsideration of a final judgment is appropriate, in part,
where ``the court is presented with newly-discovered evidence'' or
``there is an intervening change in the controlling law'' (quoting
Sch. Dist. No. 1J v. AC&S, Inc., 5 F.3d 1255, 1262 (9th Cir.
1993))).
---------------------------------------------------------------------------
In response to the suggestion that the Department subject
prospective re-petitioners to a third-party consent condition, the
Department does not consider a third-party consent condition
appropriate. The purpose of the part 83 process is to determine whether
a group constitutes a distinct social and political entity entitled to
a government-to-government relationship with the United States.\127\
Third-party participation in the Federal acknowledgment process is
valuable, in part, because third parties often provide arguments and
evidence that shed light on the merits of a petition. However, the
question whether a group ``is an Indian tribe eligible for the special
programs and services provided by the United States to Indians because
of their status as Indians'' does not hinge on third-party support or
opposition.\128\
---------------------------------------------------------------------------
\127\ See 25 CFR 83.2; see also 59 FR 9287 (``Distinctness is an
essential requirement for the acknowledgment of tribes which are
separate social and political entities.''); 25 CFR 54.3(a) (1978)
(explaining the Department's intent to acknowledge as Indian tribes
``groups which can establish a substantially continuous tribal
existence and which have functioned as autonomous entities
throughout history until the present'').
\128\ 25 CFR 83.2.
---------------------------------------------------------------------------
G. Comments on the Processing of a Re-Petition Request
Numerous commenters provided comments on the procedures set forth
in the 2024 proposed rule for processing a re-petition request.
1. Comments on the Time Limit for Submitting a Re-Petition Request
Commenters shared varying opinions on the five-year time limit for
submitting a re-petition request. For example, the Shawnee Tribe and
the Seneca Nation of Indians commented that the Department provided no
explanation for the five-year time limit in the 2024 proposed rule and
that the limit is arbitrary. The Tulalip Tribes, which opposes any re-
petition authorization process, stated that, if the Department
nevertheless implements a process, the five-year time limit should be
reduced to one year. The Eastern Band of Cherokee Indians argued that
``there should be no tolling [of the five-year period] pending judicial
review.''
Other commenters expressed support for a longer time limit, to give
unsuccessful petitioners additional time to conduct research,
especially given some petitioners' limited resources. For example, the
Haliwa-Saponi Indian Tribe (a State-recognized Tribe in North Carolina)
recommended that the time limit be increased from five years to ten
years. The North Carolina Commission of Indian Affairs advocated
against ``any time limits for a denied petitioner to submit a request
to re-petition.'' The Steilacoom Tribe (an unsuccessful petitioner)
relatedly asserted that ``[t]here should not be a moratorium on our
rights to be federally recognized.''
Response: In the 2024 proposed rule, as in the 2022 proposed rule,
the Department noted the difficulty of imposing a time limit on the
submission of requests to re-petition, particularly in light of the
``new evidence'' condition. The Department acknowledged that ``such
evidence is not static but could be discovered at any point.'' \129\
Nevertheless, the Department considers the five-year time limit to
submit a re-petition request an appropriate way to balance the
petitioners' interests in using improved technology and rationing
limited resources to conduct additional research with legitimate
interests in finality. Like a statute of limitations, the five-year
time limit ``encourage[s] diligence.'' \130\ Although it may be true
that technological advancements could facilitate the discovery of new
evidence after the five-year time limit, ``there should be an eventual
end to the . . . administrative process,'' as the Department explained
in the final rule promulgating the 1994 regulations.\131\
---------------------------------------------------------------------------
\129\ 89 FR 57103 (quoting 87 FR 24916).
\130\ Schweihs v. Burdick, 96 F.3d 917, 920 (7th Cir. 1996)
(citation omitted).
\131\ 59 FR 9291.
---------------------------------------------------------------------------
[[Page 3640]]
In response to the recommendation that the Department not toll the
five-year time limit during judicial review of a negative final
determination, the Department considers tolling appropriate given that
litigation can take many years to resolve. Moreover, it is unlikely
that the Department will need to toll the time limit for many
petitioners. The time limit for seeking judicial review has long since
expired for most unsuccessful petitioners reviewed under the 1978 and
1994 regulations, and any petitioner seeking judicial review of a
negative final determination after the effective date of this final
rule will most likely have been reviewed under the 2015 regulations.
Those petitioners, in turn, are less likely than petitioners denied in
the past (under the previous versions of the part 83 regulations) to
request to re-petition based on a change to part 83 or new evidence.
The ``change'' condition does not apply to petitioners already
proceeding under the 2015 regulations, and the ``new evidence''
condition will be of limited value to current and prospective
petitioners that not only can take advantage of modern technology to
discover relevant evidence but also withdraw and resubmit their
petitions if new evidence arises during the Federal acknowledgment
process, pursuant to Sec. 83.30, as some commenters noted.
2. Comments on Third-Party Notice-and-Comment Provisions
Several commenters stated that the Department should provide notice
of re-petition requests to more parties than those entitled to notice
under the 2024 proposed rule. For example, the Puyallup Tribe,
Suquamish Indian Tribe, and Muckleshoot Indian Tribe commented that
notices provided under Sec. 83.51 should be provided to ``[a]ctive
[p]articipants in [a]ny [p]revious [a]dministrative [p]roceeding or
[f]ederal [c]ourt [p]roceeding [c]oncerning a [p]reviously [d]enied
[p]etitioner,'' including any that participated as an amicus curiae or
were granted formal intervention.
Additionally, several commenters stated that the 90-day time frame
to comment on re-petition requests in the 2024 proposed rule should be
longer. The Yuhaaviatam of San Manuel Nation highlighted the contrast
between the 90-day comment period and the five-year time limit for
submitting a re-petition request. The Tulalip Tribes, Puyallup Tribe,
Suquamish Indian Tribe, Muckleshoot Indian Tribe, and the Connecticut
Towns of Ledyard, North Stonington, and Preston commented that the time
frame for submitting comments should be extended to at least 180 days,
or six months. The Seneca Nation of Indians stated that the time frame
should be extended to at least one year from the date of notice of the
re-petition request in the Federal Register.
The Connecticut Towns also noted their objection to the
Department's practice of withholding ``personal information'' contained
in part 83 petitioners' materials from third parties, including
personal information contained in any forthcoming re-petition
requests.\132\ The Connecticut Towns asserted that, before any comment
period begins, the Department must ensure that ``information directly
relevant to the decision being made [is] made available to interested
parties.''
---------------------------------------------------------------------------
\132\ See, e.g., 25 CFR 83.50(b) (stating that ``[t]he
Department will not publicly release information that is protectable
under Federal law'').
---------------------------------------------------------------------------
Response: The Department agrees with the commenters above that any
third parties that participated in an administrative or judicial
proceeding relating to a final determination on a part 83 petition,
whether technically a party or not, should receive notice of any
associated re-petition request. For that reason, the Department has
deleted the phrase ``as a party'' from Sec. 83.51(b)(2). Additionally,
the Department clarifies here that OFA will also provide notice to
individuals and entities that had interested-party or informed-party
status under the 1994 regulations,\133\ with the understanding that
those individuals and entities previously ``request[ed] to be kept
informed of general actions regarding a specific petitioner'' and
presumably wish to remain informed.\134\
---------------------------------------------------------------------------
\133\ 25 CFR 83.1 (1994) (defining ``[i]nterested party'' and
``[i]nformed party''); 59 FR 9293.
\134\ 25 CFR 83.22(d)(5).
---------------------------------------------------------------------------
The Department also agrees with the commenters above that a longer
comment period than that in the 2024 proposed rule is warranted to
ensure that third parties have a meaningful opportunity to provide
their input on re-petition requests. Accordingly, the Department
extends the comment period from 90 days to 120 days, which is the
amount of time that third parties have to comment on a new documented
petition.\135\ Based on the Department's experience processing new
documented petitions under the 2015 regulations and receiving comments
on those petitions, a 120-day comment period is sufficient.
Additionally, the length of comment period is subject to extension for
good cause.\136\
---------------------------------------------------------------------------
\135\ See 25 CFR 83.22(b)(1)(iv).
\136\ 25 CFR 83.8(a).
---------------------------------------------------------------------------
Finally, in response to the comment requesting that personal
information contained in re-petition requests be disclosed prior to the
beginning of the comment period, the Department has decided to
implement a procedure consistent with that for processing a new
documented petition under the 2015 regulations. Pursuant to that
procedure, the publication of notice in the Federal Register, the
posting of certain petition materials to the OFA website (with any
redactions appropriate under Sec. 83.21(b)), and the delivery of
notice to third parties occur at approximately the same time. Based on
the Department's experience processing new documents petitions, that
procedure gives third parties sufficient notice and a meaningful
opportunity to comment, while also protecting ``information that is
protectable under Federal law such as the Privacy Act and Freedom of
Information Act.'' \137\
---------------------------------------------------------------------------
\137\ 25 CFR 83.21(b) (stating also that ``[t]he Department will
not publicly release information that is protectable under Federal
law''); see also 25 CFR 83.50(b) (stating the same).
---------------------------------------------------------------------------
3. Comments on the Finality of a Grant of Authorization To Re-Petition
Several commenters that opposed the Department's proposed re-
petition authorization process stated that a grant of authorization to
re-petition should be subject to judicial review.
Response: A grant of authorization to re-petition simply allows an
unsuccessful petitioner to proceed with a new documented petition
through the Federal acknowledgment process. It does not confer any
substantive right on the petitioner analogous to the rights extended to
newly acknowledged Indian Tribes; rather, it only results in additional
due process afforded to the unsuccessful petitioner. Allowing third
parties to challenge a grant of authorization would frustrate the
Department's goal to promote efficiency in a process already
``criticized as too slow.'' \138\ Third parties that disagree with a
decision allowing an unsuccessful petitioner to re-petition will have
several opportunities after that decision to oppose the re-
petition.\139\
---------------------------------------------------------------------------
\138\ 80 FR 37862.
\139\ See, e.g., 25 CFR 83.22(b)(1)(iv) (giving third parties
the opportunity to ``submit comments and evidence supporting or
opposing the petitioner's request for acknowledgment'' upon notice
of receipt of a documented petition); 25 CFR 83.35 (giving ``any
individual or entity'' the opportunity to ``rebut or support'' a
Phase I negative proposed finding or Phase II proposed finding); 25
CFR 83.44 (deeming AS-IA's final determination a ``final agency
action'' subject to judicial review).
---------------------------------------------------------------------------
[[Page 3641]]
IV. Procedural Requirements
A. Regulatory Planning and Review (E.O. 12866 and 13563)
Executive Order (E.O.) 12866, as amended by E.O. 14094, provides
that the Office of Information and Regulatory Affairs (OIRA) at the
Office of Management and Budget (OMB) will review all significant
rules. This rule will not have an annual effect on the economy of $200
million. OIRA has determined that this rule is a significant regulatory
action.
E.O. 14094 amends E.O. 12866 and reaffirms the principles of E.O.
12866 and E.O. 13563 and states that regulatory analysis should
facilitate agency efforts to develop regulations that serve the public
interest, advance statutory objectives, and be consistent with E.O.
12866, E.O. 13563, and the Presidential Memorandum of January 20, 2021
(Modernizing Regulatory Review). Regulatory analysis, as practicable
and appropriate, shall recognize distributive impacts and equity, to
the extent permitted by law.
E.O. 13563 reaffirms the principles of E.O. 12866 while calling for
improvements in the Nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The E.O. directs agencies to consider regulatory approaches that reduce
burdens and maintain flexibility and freedom of choice for the public
where these approaches are relevant, feasible, and consistent with
regulatory objectives. E.O. 13563 emphasizes further that regulations
must be based on the best available science and that the rulemaking
process must allow for public participation and an open exchange of
ideas. We have developed this rule in a manner consistent with these
requirements.
This rulemaking is necessary to comply with the orders of the
Chinook and Burt Lake courts, both of which remanded the re-petition
ban in part 83 to the Department for further consideration. It affects
federally recognized Indian Tribes and a variety of stakeholders in the
Federal acknowledgment process, including previously denied part 83
petitioners, State and local governments, current and prospective
petitioners, and others. To date, there have been eighteen acknowledged
petitioners and thirty-four denied petitioners through part 83.\140\ By
implementing a limited exception to the re-petition ban, the
regulations promulgated in this final rule benefit unsuccessful
petitioners that previously had no avenue to re-petition for Federal
acknowledgment. However, it is unclear how many of the petitioners will
submit a request to re-petition or how many can meet the conditions set
forth at proposed Sec. Sec. 83.47 through 83.49.
---------------------------------------------------------------------------
\140\ See Petitions Resolved, Office of Fed. Acknowledgment,
<a href="https://www.bia.gov/as-ia/ofa/petitions-resolved">https://www.bia.gov/as-ia/ofa/petitions-resolved</a> (last visited Jan.
7, 2025).
---------------------------------------------------------------------------
The costs of the Department's re-petition authorization process
include the additional workload on the Department that will stem from
reviewing requests to re-petition for Federal acknowledgment and
preparing decisions granting or denying authorization to re-petition.
Implementation of the process also may result in an increase in the
number of requests that the Department receives pursuant to the Freedom
of Information Act, from federally recognized Indian Tribes and various
stakeholders seeking copies of documents associated with part 83
petitions.\141\ Furthermore, the process may result in an increase in
litigation, particularly given that a denial of authorization to re-
petition would be a final agency action under the APA. Additional costs
include the time and resources that unsuccessful petitioners will have
to spend reviewing this final rule and preparing re-petition requests,
as well as the time and resources that others invested in the Federal
acknowledgment process (including federally recognized Indian Tribes
and State and local governments that oppose certain petitions) will
have to spend reviewing this rule and commenting on re-petition
requests. In regard to the ``speculative consequences'' of a positive
determination on a re-petition, like the pursuit of land in trust or
the pursuit of gaming on trust land, the processes relating to those
actions are ``entirely separate and distinct . . . from the Part 83
process,'' and ``administrative and judicial review is available for
those separate decisions,'' \142\ for example, under 25 CFR parts 151
and 292.\143\
---------------------------------------------------------------------------
\141\ See 87 FR 24915-16 (discussing the potential for a
``marked increase'' in the number of FOIA requests received as a
result of the creation of a re-petitioning process).
\142\ 80 FR 37880-81.
\143\ See, e.g., 88 FR 86222 (Dec. 12, 2023) (providing ``the
procedures governing the discretionary acquisition of lands into
trust''); 73 FR 29354 (May 20, 2008) (establishing ``a process for
submitting and considering applications from Indian tribes seeking
to conduct class II or class III gaming activities on lands acquired
in trust after October 17, 1988'').
---------------------------------------------------------------------------
In accordance with 5 U.S.C. 553(b)(4), a summary of this rule may
be found at <a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket ID BIA-2022-0001 or
by searching for ``RIN 1076-AF67.''
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) (RFA)
requires Federal agencies to prepare a regulatory flexibility analysis
for rules subject to notice-and-comment rulemaking requirements under
the Administrative Procedure Act (5 U.S.C. 500 et seq.) to determine
whether a regulation would have a significant economic impact on a
substantial number of small entities.
The Department's analysis leads to a finding that this final rule
will not have a significant economic impact on a substantial number of
small entities (including small businesses, not-for-profit
organizations, and ``small governmental jurisdictions,'' defined in 5
U.S.C. 601 to include ``governments of cities, counties, towns,
townships, villages, school districts, or special districts, with a
population of less than fifty thousand''). The final rule minimizes the
burden on unsuccessful petitioners (one type of small entity) by
narrowing the scope of arguments at issue in the re-petition
authorization process. Although petitioners preparing re-petition
requests might incur non-hour cost burdens for contracted services,
such as anthropologists, attorneys, genealogists, historians, and law
clerks, the narrow scope of arguments at issue--focused on changes in
part 83 and/or new evidence--would reduce the risk of petitioners
incurring excessive costs for contracted services.
Additionally, by limiting the types of arguments that unsuccessful
petitioners can raise in the re-petition authorization process, the
final rule minimizes the economic impacts on small entities that oppose
Federal acknowledgment of the petitioners and that might prepare
arguments in rebuttal. Although those entities might later incur
additional costs to challenge actions taken by a newly acknowledged
Indian Tribe following a positive determination on a re-petition (like
the pursuit of land in trust or the pursuit of gaming on trust land),
those costs would arise in processes ``entirely separate and distinct .
. . from the Part 83 process'' at issue here,\144\ as discussed above.
---------------------------------------------------------------------------
\144\ 80 FR 37881.
---------------------------------------------------------------------------
Finally, the limit on the amount of time that unsuccessful
petitioners have to request to re-petition will help small entities
participating in the Federal acknowledgment process (including small
government jurisdictions) plan for the allocation and expenditure of
limited resources accordingly. By contrast, an open-ended avenue for
re-
[[Page 3642]]
petitioning, with few or no limitations, would have increased
uncertainty about those burdens. Additional discussion of the
conditional, time-limited opportunity to re-petition created here, and
the alternatives that the Department considered, is contained in
sections I through III of the preamble, above.
The Department certifies that the regulations promulgated in this
final rule will not have a significant economic impact on a substantial
number of small entities. Accordingly, a regulatory flexibility
analysis is not required by the RFA.
C. Congressional Review Act
This final rule is does not meet the criteria set forth in 5 U.S.C.
804(2).
D. Unfunded Mandates Reform Act
This rule would not impose an unfunded mandate on State, local, or
Tribal governments or the private sector of more than $100 million per
year. The rule would not have a monetarily significant or unique effect
on State, local, or Tribal governments or the private sector. A
statement containing the information required by the Unfunded Mandates
Reform Act (2 U.S.C. 1531 et seq.) is not required.
E. Takings (E.O. 12630)
This rule does not effect a taking of private property or otherwise
have taking implications under E.O. 12630. A takings implication
assessment is not required.
F. Federalism (E.O. 13132)
Under the criteria in section 1 of E.O. 13132, this rule does not
have sufficient federalism implications to warrant the preparation of a
federalism summary impact statement. A federalism summary impact
statement is not required.
G. Civil Justice Reform (E.O. 12988)
This rule complies with the requirements of E.O. 12988.
Specifically, this rule: (a) meets the criteria of section 3(a)
requiring that all regulations be reviewed to eliminate errors and
ambiguity and be written to minimize litigation; and (b) meets the
criteria of section 3(b)(2) requiring that all regulations be written
in clear language and contain clear legal standards.
H. Consultation With Indian Tribes (E.O. 13175)
The Department strives to strengthen its government-to-government
relationship with Indian Tribes through a commitment to consultation
with Indian Tribes and recognition of their right to self-governance
and Tribal sovereignty. We have evaluated this rule under the
Department's consultation policy and under the criteria in E.O. 13175
and have hosted consultation with federally recognized Indian Tribes
before publication of this final rule.
<bullet> Following the announcement of the Department's intent to
reconsider the ban on re-petitioning in 2020, the Department held a
Tribal consultation session with federally recognized Indian Tribes.
<bullet> Following the publication of the 2022 proposed rule, the
Department held two Tribal consultation sessions with federally
recognized Indian Tribes.
<bullet> Following the publication of the 2024 proposed rule, the
Department held two Tribal consultation sessions with federally
recognized Indian Tribes.
I. Paperwork Reduction Act
This final rule contains a revision to a collection of information
which is currently approved under the Office of Management and Budget
(OMB) Control Number 1076-0104 through February 28, 2026. The revisions
have been submitted to OMB for review and approval under the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and is available at
<a href="https://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=202310-1076-001">https://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=202310-1076-001</a>.
We may not conduct or sponsor and you are not required to respond to a
collection of information unless it displays a currently valid OMB
control number:
<bullet> Title of Collection: Federal Acknowledgment as an Indian
Tribe, 25 CFR part 83.
<bullet> OMB Control Number: 1076-0104.
<bullet> Form Number: BIA-8304, BIA-8305, and BIA-8306.
<bullet> Type of Review: Revision of a currently approved
collection.
<bullet> Summary of revision/supplement: Pursuant to this final
rule creating a conditional, time-limited opportunity for denied
petitioners to re-petition for Federal acknowledgment as an Indian
Tribe, the Department requires prospective re-petitioners to plausibly
allege that the outcome of the previous, negative final determination
would change to positive on reconsideration based on one or both of the
following: (1) a change in part 83 (from the 1978 or 1994 regulations
to the 2015 regulations); and/or (2) new evidence. The information will
be collected in the unsuccessful petitioners' respective requests to
re-petition for Federal acknowledgment. The collection of information
will be unique for each petitioner.
<bullet> Respondents/Affected Public: Groups petitioning for
Federal acknowledgment as Indian Tribes and groups seeking to re-
petition for Federal acknowledgment.
<bullet> Total Estimated Number of Annual Respondents: 2 per year,
on average.
[cir] 1 petitioning group.
[cir] 1 group seeking to re-petition.
<bullet> Total Estimated Number of Annual Responses: 2 per year, on
average.
[cir] 1,436 hours for 1 petitioning group.
[cir] 700 hours for 1 group seeking to re-petition.
<bullet> Estimated Completion: Time per Response: 2,136 hours.
[cir] 1,436 hours for 1 petitioning group.
[cir] 700 hours for 1 group seeking to re-petition.
<bullet> Total Estimated Number of Annual Burden Hours: 2,136
hours.
<bullet> Respondent's Obligation: Required to Obtain a Benefit.
<bullet> Frequency of Collection: Once.
<bullet> Total Estimated Annual Nonhour Burden Cost: $3,150,000.
[cir] $2,100,000 for contracted services obtained by 1 petitioning
group.
[cir] $1,050,000 for contracted services obtained by 1 group
seeking to re-petition.
<bullet> Annual Cost to Federal Government: $778,801.
[cir] $628,938 to review 1 petitioning group: (6,000 hours x $90.08
wage for GS-13) plus (666 hours x $132.82 for GS-15 wage).
[cir] $149,863 to review 1 group seeking to re-petition: (1,500
hours times $90.08 wage for GS-13) plus (111 hours x 132.82 wage for
GS-15).
J. National Environmental Policy Act (NEPA)
Under NEPA, categories of Federal actions that normally do not
significantly impact the human environment may be categorically
excluded from the requirement to prepare an environmental assessment or
impact statement. See 40 CFR 1501.4. Under the Department, regulations
that are administrative or procedural are categorially excluded from
NEPA analysis because they normally do not significantly impact the
human environment. See 43 CFR 46.210(i). This rule is administrative
and procedural in nature. Consequently, it is categorically excluded
from the NEPA requirement to prepare a detailed environmental analysis.
The Department also determined that the rule does not involve any of
the extraordinary circumstances under a categorical exclusion that
would necessitate environmental analysis. See 43 CFR 46.215.
[[Page 3643]]
K. Effects on the Energy Supply (E.O. 13211)
This final rule is not a significant energy action under the
definition in E.O. 13211. A Statement of Energy Effects is not
required.
L. Privacy Act of 1974, Existing System of Records
INTERIOR/BIA-7, Tribal Enrollment Reporting and Payment System,
published September 27, 2011 (76 FR 59733), contains documents
supporting individual Indian claims to interests in Indian Tribal
groups and includes name, maiden name, alias, address, date of birth,
social security number, blood degree, enrollment/BIA number, date of
enrollment, enrollment status, certification by the Tribal governing
body, telephone number, email address, account number, marriages, death
notices, records of actions taken (approvals, rejections, appeals),
rolls of approved individuals; records of actions taken (judgment
distributions, per capita payments, shares of stock); ownership and
census data taken using the rolls as a base, records concerning
individuals which have arisen as a result of that individual's receipt
of funds or income to which that individual was not entitled or the
entitlement was exceeded in the distribution of such funds.
M. Clarity of This Regulation
The Department is required by E.O. 12866 (section 1(b)(12)), 12988
(section 3(b)(l)(B)), and E.O. 13563 (section l(a)), and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This final rule meets the criteria of:
(a) Being logically organized;
(b) Using the active voice to address readers directly;
(c) Using common, everyday words and clear language rather than
jargon;
(d) Being divided into short sections and sentences; and
(e) Using lists and tables wherever possible.
List of Subjects in 25 CFR Part 83
Administrative practice and procedure, Indians--Tribal government.
For the reasons stated in the preamble, the Department of the
Interior amends 25 CFR part 83 as follows:
PART 83--PROCEDURES FOR FEDERAL ACKNOWLEDGMENT OF INDIAN TRIBES
0
1. The authority citation for part 83 is revised to read as follows:
Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 5131; 25 U.S.C. 5130
note (Congressional Findings); and 43 U.S.C. 1457.
0
2. In Sec. 83.1, add in alphabetical order definitions for ``Re-
petition authorization process'', ``Re-petitioning'', and
``Unsuccessful petitioner'' to read as follows:
Sec. 83.1 What terms are used in this part?
* * * * *
Re-petition authorization process means the process by which the
Department handles a request for re-petitioning filed with OFA by an
unsuccessful petitioner under Sec. Sec. 83.47 through 83.62, from
receipt to issuance of a decision as to whether the unsuccessful
petitioner is authorized to re-petition for acknowledgment as a
federally recognized Indian tribe. A grant of authorization to re-
petition allows a petitioner to proceed through the Federal
acknowledgment process by submitting a new documented petition for
consideration under subpart C of this part.
Re-petitioning means, after receiving a negative final
determination that is final and effective for the Department and
receiving subsequent authorization to re-petition, the submission of a
new documented petition for consideration under subpart C of this part.
* * * * *
Unsuccessful petitioner means an entity that was denied Federal
acknowledgment after petitioning under the acknowledgment regulations
at part 54 of this chapter (as they existed before March 30, 1982) or
part 83.
0
3. In Sec. 83.4, revise paragraph (d) to read as follows:
Sec. 83.4 Who cannot be acknowledged under this part?
* * * * *
(d) An entity that previously petitioned and was denied Federal
acknowledgment under part 54 of this chapter (as it existed before
March 30, 1982) or part 83 (including reconstituted, splinter, spin-
off, or component groups who were once part of previously denied
petitioners) unless the entity meets the conditions of Sec. Sec. 83.47
through 83.49.
0
4. Revise Sec. 83.9 to read as follows:
Sec. 83.9 How does the Paperwork Reduction Act affect the information
collections in this part?
The collections of information contained in this part have been
approved by the Office of Management and Budget under 44 U.S.C. 3501 et
seq. and assigned OMB Control Number 1076-0104. Response is required to
obtain a benefit. A Federal agency may not conduct or sponsor, and you
are not required to respond to, a collection of information unless the
form or regulation requesting the information displays a currently
valid OMB Control Number. Send comments regarding this collection of
information, including suggestions for reducing the burden, to the
Information Collection Clearance Officer--Indian Affairs, 1001 Indian
School Road NW, Suite 229, Albuquerque, NM 87104.
0
5. Add subpart D, consisting of Sec. Sec. 83.47 through 83.62 to read
as follows:
Subpart D--Re-Petition Authorization Process
Sec.
83.47 Who can seek authorization to re-petition under this subpart?
83.48 When will the Department allow a re-petition?
83.49 How long does an unsuccessful petitioner have to submit a
request for authorization to re-petition?
83.50 How does an unsuccessful petitioner request authorization to
re-petition?
83.51 What notice will OFA provide upon receipt of a request for
authorization to re-petition?
83.52 What opportunity to comment will there be before the Assistant
Secretary reviews the re-petition request?
83.53 How will the Assistant Secretary determine which re-petition
request to consider first?
83.54 Who will OFA notify when the Assistant Secretary begins review
of a re-petition request?
83.55 What will the Assistant Secretary consider in his/her review?
83.56 Can a petitioner withdraw its re-petition request?
83.57 When will the Assistant Secretary issue a decision on a re-
petition request?
83.58 Can AS-IA suspend review of a re-petition request?
83.59 How will the Assistant Secretary make the decision on a re-
petition request?
83.60 What notice of the Assistant Secretary's decision will OFA
provide?
83.61 When will the Assistant Secretary's decision become effective,
and can it be appealed?
83.62 What happens if some portion of this subpart is held to be
invalid by a court of competent jurisdiction?
Subpart D--Re-Petition Authorization Process
Sec. 83.47 Who can seek authorization to re-petition under this
subpart?
(a) The re-petition authorization process is available to
unsuccessful petitioners denied Federal acknowledgment, subject to the
exceptions in paragraph (c) of this section.
(b) Any petitioner that, as of February 14, 2025, has not yet
received a final
[[Page 3644]]
agency decision and is proceeding under the acknowledgment regulations
as published in this part, effective March 28, 1994, may remain under
those regulations and, if denied under those regulations, may seek
authorization to re-petition under this subpart. These petitioners may
also choose by April 15, 2025, to proceed instead under the
acknowledgment regulations, as published in this part 83, effective
July 31, 2015, and to supplement their petitions, and, if the petition
is denied, may seek authorization to re-petition under this subpart.
Petitioners choosing to proceed under the regulations as published in
this part 83, effective July 31, 2015 must notify OFA of their choice
in writing by April 15, 2025, in any legible electronic or hardcopy
form.
(c) The re-petition authorization process is not available to the
following:
(1) Unsuccessful petitioners that submit a re-petition request
pursuant to this process, are granted authorization to re-petition, and
are denied Federal acknowledgment a second time;
(2) Unsuccessful petitioners that submit a re-petition request
pursuant to this process and are denied authorization to re-petition.
Sec. 83.48 When will the Department allow a re-petition?
An unsuccessful petitioner may re-petition only if AS-IA determines
that the petitioner has plausibly alleged one or both of the following:
(a) A change from part 54 of this chapter (as it existed before
March 30, 1982) or part 83 (as it existed before July 31, 2015) to this
part 83 would, if applied on reconsideration, change the outcome of the
previous, negative final determination to positive; and/or
(b) New evidence (i.e., evidence not previously submitted by the
petitioner) would, if considered on reconsideration, change the outcome
of the previous, negative final determination to positive.
Sec. 83.49 How long does an unsuccessful petitioner have to submit a
request for authorization to re-petition?
(a) An unsuccessful petitioner denied Federal acknowledgment prior
to February 14, 2025, may request authorization to re-petition by
submitting a complete request under Sec. 83.50 no later than February
14, 2030.
(b) An unsuccessful petitioner denied Federal acknowledgment after
February 14, 2025, may request authorization to re-petition by
submitting a complete request under Sec. 83.50 no later than five
years after issuance of the negative final determination. However, if
the petitioner pursues judicial review of the negative final
determination:
(1) The five-year period will be tolled during any period of
judicial review, from the date of filed litigation to the date of entry
of judgment and expiration of appeal rights for said litigation; and
(2) Upon expiration of the appeal rights, OFA will notify the
petitioner and those listed in Sec. 83.51(b)(2) of the resumption of
the five-year time limit and the date by which the petitioner must
submit a request for re-petitioning.
Sec. 83.50 How does an unsuccessful petitioner request authorization
to re-petition?
(a) To initiate the re-petition authorization process, the
petitioner must submit to OFA, in any legible electronic or hardcopy
form, a re-petition request that includes the following:
(1) A certification, signed and dated by the petitioner's governing
body, stating that the submission is the petitioner's official request
for authorization to re-petition;
(2) A concise written narrative, with citations to supporting
documentation, thoroughly explaining how the petitioner meets the
conditions of Sec. Sec. 83.47 through 83.49; and
(3) Supporting documentation cited in the written narrative and
containing specific, detailed evidence that the petitioner meets the
conditions of Sec. Sec. 83.47 through 83.49.
(b) If the re-petition request contains any information that is
protectable under Federal law such as the Privacy Act and Freedom of
Information Act, the petitioner must provide a redacted version, an
unredacted version of the relevant pages, and an explanation of the
legal basis for withholding such information from public release. The
Department will not publicly release information that is protectable
under Federal law, but may release redacted information if not
protectable under Federal law.
Sec. 83.51 What notice will OFA provide upon receipt of a request for
authorization to re-petition?
When OFA receives a re-petition request that satisfies Sec. 83.50,
it will do all of the following:
(a) Within 30 days of receipt, acknowledge receipt in writing to
the petitioner.
(b) Within 60 days of receipt:
(1) Publish notice of receipt of the re-petition request in the
Federal Register and publish the following on the OFA website:
(i) The narrative portion of the re-petition request, as submitted
by the petitioner (with any redactions appropriate under Sec.
83.50(b));
(ii) Other portions of the re-petition request, to the extent
feasible and allowable under Federal law, except documentation and
information protectable from disclosure under Federal law, as
identified by the petitioner under Sec. 83.50(b) or by the Department;
(iii) The name, location, and mailing address of the petitioner and
other information to identify the entity;
(iv) The date of receipt;
(v) The opportunity for individuals and entities to submit comments
and evidence supporting or opposing the petitioner's request for re-
petitioning within 120 days of publication of notice of the request;
and
(vi) The opportunity for individuals and entities to request to be
kept informed of general actions regarding a specific petitioner.
(2) Notify, in writing, the parties entitled to notification of a
documented petition under Sec. 83.22(d) and any third parties that
participated in an administrative reconsideration or Federal Court
appeal concerning the petitioner.
Sec. 83.52 What opportunity to comment will there be before the
Assistant Secretary reviews the re-petition request?
(a) Publication of notice of the request will be followed by a 120-
day comment period. During this comment period, any individual or
entity may submit the following to OFA to rebut or support the request:
(1) Comments, with citations to and explanations of supporting
evidence; and
(2) Evidence cited and explained in the comments.
(b) Any individual or entity that submits comments and evidence to
OFA must provide the petitioner with a copy of their submission.
(c) If OFA has received a timely objection and evidence challenging
the request, then the petitioner will have 60 days to submit a written
response, with citations to and explanations of supporting evidence,
and the supporting evidence cited and explained in the response. The
Department will not consider additional comments or evidence on the
request submitted by individuals or entities during this response
period.
(d) After the close of the comment-and-response period, the
Department will consider the re-petition request ready for active
consideration, and within 30 days of the close of the comment-and-
response period, OFA will place the request on the register that OFA
maintains under Sec. 83.53(a).
[[Page 3645]]
Sec. 83.53 How will the Assistant Secretary determine which re-
petition request to consider first?
(a) OFA shall maintain and make available on its website a register
of re-petition requests that are ready for active consideration.
(b) The order of consideration of re-petition requests shall be
determined by the date on which OFA places each request on OFA's
register of requests ready for active consideration.
(c) The Department will prioritize review of documented petitions
over review of re-petition requests, except that re-petition requests
pending on OFA's register for more than two years shall have priority
over any subsequently filed documented petitions.
Sec. 83.54 Who will OFA notify when the Assistant Secretary begins
review of a re-petition request?
OFA will notify the petitioner and those listed in Sec.
83.51(b)(2) when AS-IA begins review of a re-petition request and will
provide the petitioner and those listed in Sec. 83.51(b)(2) with the
name, office address, and telephone number of the staff member with
primary administrative responsibility for the request.
Sec. 83.55 What will the Assistant Secretary consider in his/her
review?
(a) In any review, AS-IA will consider the re-petition request and
evidence submitted by the petitioner, any comments and evidence on the
request received during the comment period, and petitioners' responses
to comments and evidence received during the response period.
(b) AS-IA may also:
(1) Initiate and consider other research for any purpose relative
to analyzing the re-petition request; and
(2) Request and consider timely submitted additional explanations
and information from commenting parties to support or supplement their
comments on the re-petition request and from the petitioner to support
or supplement their responses to comments.
(c) OFA will provide the petitioner with the additional material
obtained in paragraph (b) of this section, and provide the petitioner
with a 60-day opportunity to respond to the additional material. The
additional material and any response by the petitioner will become part
of the record.
Sec. 83.56 Can a petitioner withdraw its re-petition request?
A petitioner can withdraw its re-petition request at any point in
the process and re-submit the request at a later date within the five-
year time limit applicable to the petitioner under Sec. 83.49. Upon
re-submission, the re-petition request will lose its original place in
line and be considered after other re-petition requests awaiting
review.
Sec. 83.57 When will the Assistant Secretary issue a decision on a
re-petition request?
(a) AS-IA will issue a decision within 180 days after OFA notifies
the petitioner under Sec. 83.54 that AS-IA has begun review of the
request.
(b) The time set out in paragraph (a) of this section will be
suspended any time the Department is waiting for a response or
additional information from the petitioner.
Sec. 83.58 Can AS-IA suspend review of a re-petition request?
(a) AS-IA can suspend review of a re-petition request, either
conditionally or for a stated period, if there are technical or
administrative problems that temporarily preclude continuing review.
(b) Upon resolution of the technical or administrative problems
that led to the suspension, the re-petition request will have the same
priority for review to the extent possible.
(1) OFA will notify the petitioner and those listed in Sec.
83.51(b)(2) when AS-IA suspends and when AS-IA resumes review of the
re-petition request.
(2) Upon the resumption of review, AS-IA will have the full 180
days to issue a decision on the request.
Sec. 83.59 How will the Assistant Secretary make the decision on a
re-petition request?
(a) AS-IA's decision will summarize the evidence, reasoning, and
analyses that are the basis for the decision regarding whether the
petitioner meets the conditions of Sec. Sec. 83.47 through 83.49.
(b) If AS-IA finds that the petitioner meets the conditions of
Sec. Sec. 83.47 through 83.49, AS-IA will issue a grant of
authorization to re-petition.
(c) If AS-IA finds that the petitioner has not met the conditions
of Sec. Sec. 83.47 through 83.49, AS-IA will issue a denial of
authorization to re-petition.
Sec. 83.60 What notice of the Assistant Secretary's decision will OFA
provide?
In addition to publishing notice of AS-IA's decision in the Federal
Register, OFA will:
(a) Provide copies of the decision to the petitioner and those
listed in Sec. 83.51(b)(2); and
(b) Publish the decision on the OFA website.
Sec. 83.61 When will the Assistant Secretary's decision become
effective, and can it be appealed?
AS-IA's decision under Sec. 83.59 will become effective
immediately and is not subject to administrative appeal.
(a) A grant of authorization to re-petition is not a final
determination granting or denying acknowledgment as a federally
recognized Indian tribe. Instead, it allows the petitioner to proceed
through the Federal acknowledgment process by submitting a new
documented petition for consideration under subpart C of this part,
notwithstanding the Department's previous, negative final
determination. A grant of authorization to re-petition is not subject
to appeal.
(b) A denial of authorization to re-petition is final for the
Department and is a final agency action under the Administrative
Procedure Act (5 U.S.C. 704).
Sec. 83.62 What happens if some portion of this subpart is held to be
invalid by a court of competent jurisdiction?
If any portion of this subpart is determined to be invalid by a
court of competent jurisdiction, the other portions of the subpart
remain in effect. For example, if one of the conditions on re-
petitioning set forth at Sec. Sec. 83.47 through 83.49 is held to be
invalid, it is the Department's intent that the other conditions remain
valid.
Bryan Newland,
Assistant Secretary--Indian Affairs.
[FR Doc. 2025-00709 Filed 1-14-25; 8:45 am]
BILLING CODE 4337-15-P
</pre></body>
</html>Indexed from Federal Register on January 15, 2025.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.