`[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 [www.gpo.gov]
[FR Doc No: 2025-00709]


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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.

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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\
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    \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).
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    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\
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    \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.
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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\
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    \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.
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    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\
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    \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.
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    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:
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    \17\ 80 FR 37863.
    \18\ Id.
    \19\ 80 FR 37866.
    \20\ 80 FR 37863.
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    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\
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    \21\ Id.
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    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\
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    \22\ 80 FR 37867.
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    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
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    \23\ 80 FR 37873.
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    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\
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    \24\ 80 FR 37865.
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    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.
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    \25\ 87 FR 24908, 24912-14 (Apr. 27, 2022).
    \26\ 89 FR 57097, 57102-03 (July 12, 2024) (citation omitted).
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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\
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    \27\ 25 CFR 83.3(f) (1994); 59 FR 9294.
    \28\ 59 FR 9291.
    \29\ Id.
    \30\ Id.
    \31\ Id.
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    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:
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    \32\ 79 FR 30766, 30767 (May 29, 2014).
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    (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\
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    \33\ 25 CFR 83.4(b)(1) (proposed 2014); see also 79 FR 30774 
(containing the proposed provision).
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    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\
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    \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.
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    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\
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    \36\ 79 FR 30767.
    \37\ Id.
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    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\
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    \38\ 25 CFR 83.4(d); see 80 FR 37888-89.
    \39\ 80 FR 37875.
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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\
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    \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)).
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    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\
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    \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.
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    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\
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    \50\ Chinook, 2020 WL 128563, at *10; Burt Lake, 613 F. Supp. 3d 
at 387.
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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:
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    \51\ 87 FR 24908.
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    (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\
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    \52\ 87 FR 24910-16.
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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\
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    \53\ 89 FR 57097.
    \54\ See 89 FR 57097, 57100-02 (summarizing the proposed re-
petition authorization process).
    \55\ 89 FR 57100.
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    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.
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    \56\ https://www.regulations.gov/document/BIA-2022-0001-0194/comment.
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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\
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    \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, https://www.bia.gov/as-ia/ofa/petitions-resolved/denied (last visited Jan. 
7, 2025) (listing thirty-four unsuccessful petitioners as of 
November 9, 2024).
    \58\ 25 CFR 83.48.
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    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.
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    \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.
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    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.
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    \61\ 25 CFR 83.61(a).
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    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\
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    \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.
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    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, 
https://www.bia.gov/as-ia/ofa/petitions-resolved (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 https://www.regulations.gov 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.
     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.
     Following the publication of the 2022 proposed rule, the 
Department held two Tribal consultation sessions with federally 
recognized Indian Tribes.
     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 
https://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=202310-1076-001. 
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:
     Title of Collection: Federal Acknowledgment as an Indian 
Tribe, 25 CFR part 83.
     OMB Control Number: 1076-0104.
     Form Number: BIA-8304, BIA-8305, and BIA-8306.
     Type of Review: Revision of a currently approved 
collection.
     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.
     Respondents/Affected Public: Groups petitioning for 
Federal acknowledgment as Indian Tribes and groups seeking to re-
petition for Federal acknowledgment.
     Total Estimated Number of Annual Respondents: 2 per year, 
on average.
    [cir] 1 petitioning group.
    [cir] 1 group seeking to re-petition.
     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.
     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.
     Total Estimated Number of Annual Burden Hours: 2,136 
hours.
     Respondent's Obligation: Required to Obtain a Benefit.
     Frequency of Collection: Once.
     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.
     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`