Federal Register / Vol. 90, No. 9 / Wednesday, January 15, 2025 / Rules and Regulations 3627 

Assistant Secretary for Employment and 

Training, 75 FR 66268, I am affirming 

and ratifying a prior action by Portia 

Wu, Assistant Secretary for Employment 

and Training. On October 16, 2015, the 

Employment and Training 

Administration published in the FR the 

Final Rule codifying amendments to the 

Department’s regulations regarding the 

certification of temporary employment 

of nonimmigrant workers employed in 

temporary or seasonal agricultural 

employment, establishing standards and 

procedures for employers seeking to 

hire foreign temporary agricultural 

workers for job opportunities in herding 

and production of livestock on the 

range. 80 FR 62958 (Oct. 16, 2015). 

The Final Rule was signed by 

Assistant Secretary Wu. I have full and 

complete knowledge of the Final Rule 

action taken by former Assistant 

Secretary Wu. Subsequent to the 

Secretary of Homeland Security’s 

documented approval of the Final Rule 

dated December 31, 2024, in 

consultation with the Secretary of Labor 

and Secretary of Agriculture, and out of 

an abundance of caution and to avoid 

any doubt as to its validity, I have 

independently evaluated the Final Rule 

and the basis for adopting it. I have 

determined that the amendments to the 

regulations in the Final Rule are 

consistent with the Secretary of Labor’s 

statutory responsibility to certify that 

there are insufficient able, willing, and 

qualified U.S. workers available to 

perform the needed work and that the 

employment of H–2A workers will not 

adversely affect the wages and working 

conditions of workers in the United 

States similarly employed. I have also 

determined that the changes adopted in 

the Final Rule strike an appropriate 

balance between the statute’s competing 

goals of providing employers with an 

adequate supply of legal agricultural 

labor and protecting the wages of 

workers in the United States similarly 

employed by establishing regulatory 

standards and procedures applicable to 

the employment of workers in these 

unique occupations, which occur in 

remote areas and require workers to be 

on call for long periods of time. I also 

agree with the Department’s 

certification that the Final Rule has a 

significant economic impact on a 

substantial number of small entities. See 

Final Rule, 80 FR 63039. 

Therefore, pursuant to my authority 

as the Assistant Secretary for 

Employment and Training, and based 

on my independent review of the action 

and the reasons for taking it, I hereby 

affirm and ratify the Final Rule, as of 

January 10, 2025, including all 

regulatory analysis certifications 

contained therein. This action is taken 

without prejudice to any right to litigate 

the validity of the Final Rule as 

approved and published on October 16, 

2015. Nothing in this action is intended 

to suggest any legal defect or infirmity 

in the approval or publication of the 

Final Rule. 

Jose ́ Javier Rodrı ́guez, 

Assistant Secretary, Employment and 

Training Administration, Labor. 

[FR Doc. 2025–00828 Filed 1–14–25; 8:45 am] 

BILLING CODE 4510–FP–P 

DEPARTMENT OF THE INTERIOR 

Bureau of Indian Affairs 

25 CFR Part 83 

[BIA–2022–0001; 256A2100DD/ 

AAKC001030/A0A501010.999900] 

RIN 1076–AF67 

Federal Acknowledgment of American 

Indian Tribes 

AGENCY: Bureau of Indian Affairs, 

Interior. 

ACTION: Final rule. 

SUMMARY: The United States Department 

of the Interior (Department) revises the 

regulations governing the process 

through which the Secretary 

acknowledges an Indian Tribe, creating 

a conditional, time-limited opportunity 

for denied petitioners to re-petition for 

Federal acknowledgment. 

DATES: This rule is effective on February 

14, 2025. 

ADDRESSES: On request to the program 

contact person listed under FOR FURTHER

INFORMATION CONTACT, individuals can 

obtain this document in an alternate 

format, usable by people with 

disabilities, at the Office of Federal 

Acknowledgment, Room 4071, 1849 C 

Street NW, Washington, DC 20240. 

FOR FURTHER INFORMATION CONTACT: 

Oliver Whaley, Director, Office of 

Regulatory Affairs and Collaborative 

Action, Office of the Assistant 

Secretary—Indian Affairs, (202) 738– 

6065. Individuals in the United States 

who are deaf, deafblind, hard of hearing, 

or have a speech disability may dial 711 

(TTY, TDD, or TeleBraille) to access 

telecommunications relay services. 

SUPPLEMENTARY INFORMATION: Since 

1994, the regulations governing the 

Federal acknowledgment process, 

located at 25 CFR part 83 (part 83), have 

included an express prohibition on repetitioning (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 RePetition 

G. Comments on the Processing of a RePetition Request 

1. Comments on the Time Limit for 

Submitting a Re-Petition Request 

2. Comments on Third-Party Notice-andComment 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 


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3628 Federal Register / Vol. 90, No. 9 / Wednesday, January 15, 2025 / Rules and Regulations 

1 25 U.S.C. 2; see also 25 U.S.C. 9; 43 U.S.C. 1457. 

2See, 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). 

3See Public Law 103–454, section 103(3) (1994). 

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. 

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. 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. 17 80 FR 37863. 

18 Id. 

19 80 FR 37866. 

20 80 FR 37863. 

21 Id. 

22 80 FR 37867. 

23 80 FR 37873. 

24 80 FR 37865. 

25 87 FR 24908, 24912–14 (Apr. 27, 2022). 

26 89 FR 57097, 57102–03 (July 12, 2024) (citation 

omitted). 

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

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

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

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

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: 

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

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

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 

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

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. 

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 


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27 25 CFR 83.3(f) (1994); 59 FR 9294. 

28 59 FR 9291. 

29 Id. 

30 Id. 

31 Id. 

32 79 FR 30766, 30767 (May 29, 2014). 

33 25 CFR 83.4(b)(1) (proposed 2014); see also 79 

FR 30774 (containing the proposed provision). 

34 79 FR 30767. 

35See 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. 

36 79 FR 30767. 

37 Id. 

38 25 CFR 83.4(d); see 80 FR 37888–89. 

39 80 FR 37875. 

40Chinook Indian Nation v. Bernhardt, No. 3:17– 

cv–05668–RBL, 2020 WL 128563 (W.D. Wash. Jan. 

10, 2020). 

41Burt Lake Band of Ottawa and Chippewa 

Indians v. Bernhardt, 613 F. Supp. 3d 371 (D.D.C. 

2020). 

42Chinook, 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 repetitioning] comports with the agency’s authority’’). 

43Chinook, 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)). 

45Chinook, 2020 WL 128563, at *8. 

46Burt Lake, 613 F. Supp. 3d at 386. 

acknowledgment regulations have 

expressly prohibited petitioners that 

receive a negative final determination 

from the Department from repetitioning.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

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 repetitioning only if: 

(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

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

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

Ultimately, in the 2015 final rule 

updating part 83, the Department 

expressly retained the ban on repetitioning.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 repetitioning 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 repetitioning.’’ 39

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

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 


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47See 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’’). 

48Chinook, 2020 WL 128563, at *8. 

49Burt Lake, 613 F. Supp. 3d at 384. 

50Chinook, 2020 WL 128563, at *10; Burt Lake, 

613 F. Supp. 3d at 387. 

51 87 FR 24908. 

52 87 FR 24910–16. 

53 89 FR 57097. 

54See 89 FR 57097, 57100–02 (summarizing the 

proposed re-petition authorization process). 

55 89 FR 57100. 

56https://www.regulations.gov/document/BIA2022-0001-0194/comment. 

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. 

59See 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. 

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

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

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: 

(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

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 repetitioning for Federal 

acknowledgment.’’ 55

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. 

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 § 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

This standard, requiring a petitioner 

to state a plausible claim for repetitioning 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 

§ 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 


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61 25 CFR 83.61(a). 

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. 

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). 

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). 

73 25 CFR 83.53(c) (stating, in part, that ‘‘the 

Department will prioritize review of documented 

petitions over review of re-petition requests’’). 

74See 25 CFR 83.53(c). 

75 25 CFR 83.53(c). 

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). 

81See 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. 

86 25 CFR 83.61. 

evidence, or both would address the 

deficiencies relating to all three criteria, 

not only one or two. 

A decision granting authorization to 

re-petition (grant of authorization to repetition) 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 repetition, the petitioner must submit a 

complete documented petition under 

§ 83.21 to request Federal 

acknowledgment and will then receive 

substantive review of the petitioner’s 

claims and evidence. 

In the interest of finality, any 

petitioner denied prior to the effective 

date of this final rule must request to repetition 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 repetition under the re-petition 

authorization process—or denied 

Federal acknowledgment upon repetitioning, after receiving authorization 

to do so—will be prohibited from 

submitting a new re-petition request 

based on new evidence.65

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 repetition request to OFA, explaining how 

the petitioner meets the conditions of 

§§ 83.47 through 83.49.66 Upon receipt 

of a request containing all of the 

documentation required under § 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

After the close of the comment-andresponse period, the Department will 

consider the re-petition request ready 

for active consideration, and within 30 

days of the close of the comment-andresponse 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. 

Pursuant to § 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

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

AS–IA will issue a decision on a repetition 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 §§ 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 §§ 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

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 


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87 25 CFR 83.61(a). 

88 25 CFR 83.61(b). 

89 25 CFR 83.47(b). 

90See 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’’). 

91 25 CFR 83.62. 

92Belmont Mun. Light Dep’t v. FERC, 38 F. 4th 

173, 188 (D.C. Cir. 2022) (citation omitted). 

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

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 § 83.1, as well as a 

new definition for ‘‘unsuccessful 

petitioner,’’ as noted above. This rule 

also makes a change to § 83.4(d), the 

provision that previously prohibited repetitioning. The change notes a limited 

exception to the re-petition ban for 

unsuccessful petitioners that meet the 

conditions of §§ 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. 

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 

§§ 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 

§ 83.48(a) even if a court held § 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 repetition request, set forth at §§ 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. 

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 

§ 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 TunicaBiloxi 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 Staterecognized 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 reVerDate Sep<11>2014 15:48 Jan 14, 2025 Jkt 265001 PO 00000 Frm 00032 Fmt 4700 Sfmt 4700 E:\FR\FM\15JAR1.SGM 15JAR1

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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 MaChis 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 repetitioning. 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 selfdetermination 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 HaliwaSaponi 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 repetition 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 repetitioning 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 repetition 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 


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93 80 FR 37862. 

94Burt 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). 

97 80 FR 37864. 

98Burt Lake, 613 F. Supp. 3d at 380; Chinook, 

2020 WL 128563, at *2. 

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

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 thirdparty interests in keeping the ban in 

place. Those interests are discussed 

further below. 

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 repetition 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 nonfederally 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 repetition 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 repetitioning 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 repetition request or on a subsequently 

filed re-petition. 

Response: The Department recognizes 

that third parties often expended 


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99Bowen v. Georgetown Univ. Hosp., 488 U.S. 

204, 220 (1988). 

100See 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))). 

101See 87 FR 24911–14. 

102 89 FR 57105. 

103See, 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’’). 

104See 25 CFR 83.2 (describing the purpose of 

part 83). 

105Barbara 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 

Continued 

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. 

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 repetitioning (discussed above). The repetition 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 repetition, the Department seeks to 

account for third-party interests in 

finality. 

By subjecting prospective repetitioners 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. 

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 repetition, 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-togovernment relationship with the 

United States.104

D. Comments Citing Departmental 

Workload as a Justification for Retaining 

the Ban on Re-Petitioning 

Several commenters expressed 

concern about the impact of repetitioning 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 repetitioning, the Swinomish Indian 

Tribal Community commented that repetitioning 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 [repetition] 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 openended 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


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of Michael R. Smith, Dir., Office of Tribal Servs., 

U.S. Dep’t of the Interior)). 

106 25 CFR 83.53(c). 

107 79 FR 30774. 

108 25 CFR 83.48. 

109 25 CFR 83.43(a); 25 CFR 83.5. 

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 repetition 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. 

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 repetition 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 repetition 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.’’ 

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. 

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 


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110Standard Havens Prods., Inc. v. Gencor Indus., 

Inc., 953 F.2d 1360, 1367 (Fed. Cir. 1991) 

(explaining the standard for a new trial). 

111Am. 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)). 

112See 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). 

113See, 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’’). 

114 80 FR 37863. 

115 89 FR 57102–03. 

116See 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). 

117See 25 CFR 83.48(a). 

118Chinook, 2020 WL 128563, at *8. 

119Burt Lake, 613 F. Supp. 3d at 384. 

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 § 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. 

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

F. Comments on the Conditions for 

Obtaining Authorization To Re-Petition 

Numerous commenters submitted 

comments on the conditions for repetitioning, located at § 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 repetitioning 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 repetitioning 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. 

Others commented on the provision 

located at § 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 § 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. 

In response to the comments that are 

expressly or impliedly critical of the 

provision in the 2024 proposed rule at 

§ 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. 


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120 25 CFR 83.48(a)(2) (proposed 2024). 

121 89 FR 57103. 

122 25 CFR 83.48(a)(2) (proposed 2024). 

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

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 § 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 repetition 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 userfriendly, 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 costprohibitive 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 fiveyear time limit appropriate, 

notwithstanding the likelihood of 

further technological advancements 

after expiration of the five-year time 

limit. 

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 § 83.48(a)(2), as it appeared in the 


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123See 25 CFR 83.48(b) (containing the relevant 

provision, as revised by this final rule). 

124 89 FR 57104. 

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). 

126See 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 newlydiscovered 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))). 

127See 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. 

129 89 FR 57103 (quoting 87 FR 24916). 

130Schweihs v. Burdick, 96 F.3d 917, 920 (7th 

Cir. 1996) (citation omitted). 

131 59 FR 9291. 

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

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 thirdparty 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

In response to the suggestion that the 

Department subject prospective repetitioners 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-togovernment 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 thirdparty support or opposition.128

G. Comments on the Processing of a RePetition 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 fiveyear 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 repetition 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 fiveyear 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


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132See, e.g., 25 CFR 83.50(b) (stating that ‘‘[t]he 

Department will not publicly release information 

that is protectable under Federal law’’). 

133 25 CFR 83.1 (1994) (defining ‘‘[i]nterested 

party’’ and ‘‘[i]nformed party’’); 59 FR 9293. 

134 25 CFR 83.22(d)(5). 

135See 25 CFR 83.22(b)(1)(iv). 

136 25 CFR 83.8(a). 

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). 

138 80 FR 37862. 

139See, 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). 

In response to the recommendation 

that the Department not toll the fiveyear 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 

§ 83.30, as some commenters noted. 

2. Comments on Third-Party Noticeand-Comment Provisions 

Several commenters stated that the 

Department should provide notice of repetition 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 

§ 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 repetition 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 repetition 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.’’ 

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 

§ 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

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 repetition 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

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 § 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

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


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140See Petitions Resolved, Office of Fed. 

Acknowledgment, https://www.bia.gov/as-ia/ofa/ 

petitions-resolved (last visited Jan. 7, 2025). 

141See 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 repetitioning process). 

142 80 FR 37880–81. 

143See, 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’’). 144 80 FR 37881. 

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 thirtyfour 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 repetition for Federal acknowledgment. 

However, it is unclear how many of the 

petitioners will submit a request to repetition or how many can meet the 

conditions set forth at proposed §§ 83.47 

through 83.49. 

The costs of the Department’s repetition 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

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-forprofit 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 nonhour 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. 

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 

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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. 

Æ 1 petitioning group. 

Æ 1 group seeking to re-petition. 

• Total Estimated Number of Annual 

Responses: 2 per year, on average. 

Æ 1,436 hours for 1 petitioning group. 

Æ 700 hours for 1 group seeking to repetition. 

• Estimated Completion: Time per 

Response: 2,136 hours. 

Æ 1,436 hours for 1 petitioning group. 

Æ 700 hours for 1 group seeking to repetition. 

• 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. 

Æ $2,100,000 for contracted services 

obtained by 1 petitioning group. 

Æ $1,050,000 for contracted services 

obtained by 1 group seeking to repetition. 

• Annual Cost to Federal 

Government: $778,801. 

Æ $628,938 to review 1 petitioning 

group: (6,000 hours × $90.08 wage for 

GS–13) plus (666 hours × $132.82 for 

GS–15 wage). 

Æ $149,863 to review 1 group seeking 

to re-petition: (1,500 hours times $90.08 

wage for GS–13) plus (111 hours × 

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. 


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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 

■ 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. 

■ 2. In § 83.1, add in alphabetical order 

definitions for ‘‘Re-petition 

authorization process’’, ‘‘Repetitioning’’, and ‘‘Unsuccessful 

petitioner’’ to read as follows: 

§ 83.1 What terms are used in this part? 

* * * * * 

Re-petition authorization process 

means the process by which the 

Department handles a request for repetitioning filed with OFA by an 

unsuccessful petitioner under §§ 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. 

■ 3. In § 83.4, revise paragraph (d) to 

read as follows: 

§ 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 

§§ 83.47 through 83.49. 

■ 4. Revise § 83.9 to read as follows: 

§ 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. 

■ 5. Add subpart D, consisting of 

§§ 83.47 through 83.62 to read as 

follows: 

Subpart D—Re-Petition Authorization 

Process 

Sec. 

83.47 Who can seek authorization to repetition under this subpart? 

83.48 When will the Department allow a repetition? 

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 repetition request? 

83.55 What will the Assistant Secretary 

consider in his/her review? 

83.56 Can a petitioner withdraw its repetition 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 repetition 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 

§ 83.47 Who can seek authorization to repetition 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 


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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. 

§ 83.48 When will the Department allow a 

re-petition? 

An unsuccessful petitioner may repetition 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. 

§ 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 

§ 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 § 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 § 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. 

§ 83.50 How does an unsuccessful 

petitioner request authorization to repetition? 

(a) To initiate the re-petition 

authorization process, the petitioner 

must submit to OFA, in any legible 

electronic or hardcopy form, a repetition 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 

§§ 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 

§§ 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. 

§ 83.51 What notice will OFA provide upon 

receipt of a request for authorization to repetition? 

When OFA receives a re-petition 

request that satisfies § 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 repetition request in the Federal Register 

and publish the following on the OFA 

website: 

(i) The narrative portion of the repetition request, as submitted by the 

petitioner (with any redactions 

appropriate under § 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 § 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 § 83.22(d) and any third 

parties that participated in an 

administrative reconsideration or 

Federal Court appeal concerning the 

petitioner. 

§ 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 commentand-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 § 83.53(a). 


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§ 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 repetition requests that are ready for 

active consideration. 

(b) The order of consideration of repetition 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. 

§ 83.54 Who will OFA notify when the 

Assistant Secretary begins review of a repetition request? 

OFA will notify the petitioner and 

those listed in § 83.51(b)(2) when AS–IA 

begins review of a re-petition request 

and will provide the petitioner and 

those listed in § 83.51(b)(2) with the 

name, office address, and telephone 

number of the staff member with 

primary administrative responsibility 

for the request. 

§ 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. 

§ 83.56 Can a petitioner withdraw its repetition request? 

A petitioner can withdraw its repetition 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 

§ 83.49. Upon re-submission, the repetition request will lose its original 

place in line and be considered after 

other re-petition requests awaiting 

review. 

§ 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 § 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. 

§ 83.58 Can AS–IA suspend review of a repetition request? 

(a) AS–IA can suspend review of a repetition 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 § 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. 

§ 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 §§ 83.47 through 

83.49. 

(b) If AS–IA finds that the petitioner 

meets the conditions of §§ 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 §§ 83.47 

through 83.49, AS–IA will issue a denial 

of authorization to re-petition. 

§ 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 

§ 83.51(b)(2); and 

(b) Publish the decision on the OFA 

website. 

§ 83.61 When will the Assistant 

Secretary’s decision become effective, and 

can it be appealed? 

AS–IA’s decision under § 83.59 will 

become effective immediately and is not 

subject to administrative appeal. 

(a) A grant of authorization to repetition 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 repetition is final for the Department and 

is a final agency action under the 

Administrative Procedure Act (5 U.S.C. 

704). 

§ 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 §§ 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 

DEPARTMENT OF THE TREASURY 

Internal Revenue Service 

26 CFR Part 301 

[TD 10030] 

RIN 1545–BP72 

Resolution of Federal Tax 

Controversies by the Independent 

Office of Appeals 

AGENCY: Internal Revenue Service (IRS), 

Treasury. 

ACTION: Final regulation. 

SUMMARY: This document contains final 

regulations that provide guidance on the 

resolution of Federal tax controversies 

by the IRS Independent Office of 

Appeals (Appeals) under the Taxpayer 

First Act of 2019 (TFA). The final 

regulations provide that while the 

Appeals resolution process is generally 

available to all taxpayers to resolve 


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