[Federal Register Volume 87, Number 81 (Wednesday, April 27, 2022)]
[Proposed Rules]
[Pages 24908-24918]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-08488]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 83

[2231A2100DD/AAKC001030/A0A501010.999900]
RIN 1076-AF67


Federal Acknowledgment of American Indian Tribes

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Proposed rule.

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SUMMARY: This proposed rule seeks input on continuation of an express 
prohibition on re-petitioning under the U.S. Department of the 
Interior's (Department) regulations for Federal acknowledgment of 
Indian Tribes. When first promulgated in 1978, the acknowledgment 
regulations did not provide a regulatory path that allowed re-
petitioning, and since 1994, the regulations have expressly prohibited 
petitioners who have received a negative final determination from the 
Department from re-petitioning (ban). The most recent update to the 
regulations in 2015 continued this ban, but two Federal district courts 
held that the Department's stated reasons for implementing the ban, as 
articulated in the 2015 final rule updating the regulations (2015 final 
rule), were arbitrary and capricious, and remanded to the Department 
for further consideration. The Department has undertaken further 
consideration and is proposing to maintain the ban, albeit with revised 
justifications, in light of the Federal district courts' orders. The 
Department seeks input on this proposal and the basis for its proposal.

DATES: Please submit your comments by July 6, 2022. Consultation 
sessions with federally recognized Indian Tribes will be held on 
Thursday, June 2, 2022, 3 p.m. to 5 p.m. ET and Monday, June 6, 2022, 2 
p.m. to 4 p.m. ET. A listening session for present, former, and 
prospective petitioners will be held on Thursday, June 9, 2022, 3 p.m. 
to 5 p.m. ET.

ADDRESSES: We cannot ensure that comments received after the close of 
the comment period (see DATES) will be included in the docket for this 
rulemaking and considered. Comments sent to an address other than those 
listed below will not be included in the docket for this rulemaking. 
All comments received may be posted without change to https://www.regulations.gov, including any personal information provided. You 
may submit comments by any of the following methods:
    <bullet> Federal rulemaking portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
    <bullet> Email: <a href="/cdn-cgi/l/email-protection#81e2eeeff2f4edf5e0f5e8eeefc1e3e8e0afe6eef7"><span class="__cf_email__" data-cfemail="6704080914120b1306130e080927050e0649000811">[email protected]</span></a>. Include the number 1076-AF67 
in the subject line of the message.
    <bullet> Consultation with Indian Tribes. The Department will 
conduct two virtual consultation sessions and will accept oral and 
written comments. Federally recognized Indian Tribes may register for 
the Thursday, June 2, 2022, 3 p.m. to 5 p.m. ET consultation session 
at: https://www.zoomgov.com/meeting/register/vJIscu2prz4pHbtqqZn0-5f8oRU5jEYKGDg. Federally recognized Indian Tribes may register for the 
Monday, June 6, 2022, 2 p.m. to 4 p.m. ET consultation session at: 
https://www.zoomgov.com/meeting/register/vJIsdu-opjMtHR5nht0X2HKcjOh35Oz23SU.
    <bullet> Listening session for present, former, and prospective 
petitioners. The Department will host a listening session for present, 
former, and prospective petitioners and will accept oral and written 
comments. Present, former, and prospective petitioners may register for 
the Thursday, June 9, 2022, 3 p.m. to 5 p.m. ET listening session at: 
https://www.zoomgov.com/meeting/register/vJIscOGpqj8uG09-rMrR2FeecAzGmJmf78s.

FOR FURTHER INFORMATION CONTACT: Steven Mullen, Federal Register 
Liaison, Office of Regulatory Affairs & Collaborative Action--Indian 
Affairs, (202) 924-2650, <a href="/cdn-cgi/l/email-protection#3e6c7f7d7f7e5c575f10595148"><span class="__cf_email__" data-cfemail="e1b3a0a2a0a1838880cf868e97">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:
I. Statutory Authority
II. History of This Rulemaking
III. Basis for Proposed Rule
    A. The Department's Previous Negative Final Determinations Are 
Substantively Sound and the Department Is Allowed To Revise Its 
Regulations Without Reevaluating Past Final Agency Actions Issued 
Under the Previous Versions of Those Regulations
    B. Denied Petitioners Received Due Process
    C. The Changes Adopted in the Department's 2015 Final Rule Do 
Not Warrant Re-Petitioning at This Time
    D. Third Parties and the Department Have Legitimate Interests in 
the Finality of the Department's Final Determinations
    E. Claimed Availability of New Evidence Does Not Justify 
Allowing Re-Petitioning
IV. Summary of Proposed Rule
V. Procedural Requirements
    A. Regulatory Planning and Review (E.O. 12866)
    B. Regulatory Flexibility Act
    C. Small Business Regulatory Enforcement and Fairness Act
    D. Unfunded Mandates Reform Act of 1995
    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
    J. National Environmental Policy Act (NEPA)
    K. Energy Effects (E.O. 13211)
    L. Clarity of This Regulation
    M. Public Availability of Comments

I. Statutory Authority

    Congress granted the Assistant Secretary--Indian Affairs (then, the 
Commissioner of Indian Affairs) authority to ``have management of all

[[Page 24909]]

Indian affairs and of all matters arising out of Indian relations.'' 
\1\ This authority includes the authority to administratively 
acknowledge Indian Tribes.\2\ The Congressional findings that supported 
the Federally Recognized Indian Tribe List Act of 1994 expressly 
acknowledged that Indian Tribes could be recognized ``by the 
administrative procedures set forth in part 83 of the Code of Federal 
Regulations denominated `Procedures for Establishing that an American 
Indian Group Exists as an Indian Tribe,' '' and described the 
relationship that the United States has with federally recognized 
Indian Tribes.\3\
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    \1\ 25 U.S.C. 2 and 9, and 43 U.S.C. 1457.
    \2\ See, e.g., Muwekma Ohlone Tribe v. Salazar, 708 F.3d 209, 
211 (D.C. Cir. 2013); James v. United States Dep't of Health & Human 
Servs., 824 F.2d 1132, 1137 (D.C. Cir. 1987).
    \3\ See Public Law 103-454, Sec. 103(2), (3), (8) (Nov. 2, 
1994).
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II. History of This Rulemaking

    The regulations that codify the process through which a group may 
petition the Department for acknowledgment as a federally recognized 
Indian Tribe are at 25 CFR part 83 (part 83). The regulations require 
groups petitioning for Federal acknowledgment to meet seven mandatory 
criteria, the satisfaction of which has been central to the Federal 
acknowledgment process since its inception.\4\ The Department refers to 
the seven criteria as the (a) ``Indian Entity Identification'' 
criterion, (b) ``Community'' criterion, (c) ``Political Authority'' 
criterion, (d) ``Governing Document'' criterion, (e) ``Descent'' 
criterion, (f) ``Unique Membership'' criterion, and (g) ``Congressional 
Termination'' criterion.\5\
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    \4\ 25 CFR 83.11(a)-(g) (2015 version of the criteria); id. 
Sec.  83.7(a)-(g) (1994) (1994 version); id. Sec.  54.7(a)-(g) 
(1978) (1978 version).
    \5\ 25 CFR 83.5.
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    First promulgated in 1978 at 25 CFR part 54 (1978 regulations), the 
Federal acknowledgment regulations were subsequently revised in 1994 
and moved to part 83 (1994 regulations). The 1978 regulations did not 
provide a regulatory path that allowed re-petitioning, and since 1994, 
part 83 has expressly prohibited petitioners who have received a 
negative final determination from the Department from re-petitioning 
under part 83.\6\
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    \6\ 25 CFR 83.3(f) (1994); 59 FR 9280, 9294 (Feb. 25, 1994).
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    In a 2014 notice of proposed rulemaking (2014 proposed rule), the 
Department proposed giving previously denied petitioners a limited 
opportunity to re-petition.\7\ The 2014 proposed rule proposed to allow 
re-petitioning only if:
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    \7\ 79 FR 30766, 30767 (May 29, 2014).
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    <bullet> 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
    <bullet> The petitioner proves, by a preponderance of the evidence, 
that either:
    [cir] A change from the previous version of the regulations to the 
current version of the regulations warrants reconsideration of the 
final determination; or
    [cir] The ``reasonable likelihood'' standard was misapplied in the 
final determination.\8\
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    \8\ 25 CFR 83.4(b)(1) (proposed 2014); see also 79 FR 30774 
(containing the proposed provision).
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    In the preamble of the 2014 proposed rule, the Department explained 
that the requirement of third-party consent would ``recognize[ ] the 
equitable interests of third parties that expended sometimes 
significant resources to participate in the adjudication [of a final 
determination in a reconsideration or appeal] and have since developed 
reliance interests in the outcome of such adjudication.'' \9\ The 
Department did not discuss the extent to which the third-party consent 
condition might limit the number of re-petitioners.\10\
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    \9\ 79 FR 30767.
    \10\ See Burt Lake Band of Ottawa and Chippewa Indians v. 
Bernhardt, No. 17-0038 (ABJ), 2020 WL 1451566, at *11 (D.D.C. Mar. 
25, 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''). On reconsideration, the 
Department has identified eleven denied petitioners that would have 
been subject to the third-party consent condition under the 2014 
proposed rule: Duwamish Indian Tribe, Tolowa Nation, Nipmuc Nation 
(Hassanamisco Band), Webster/Dudley Band of Chaubunagungamaug 
Nipmuck Indians, Eastern Pequot Indians of Connecticut, Paucatuck 
Eastern Pequot Indians of Connecticut, Schaghticoke Tribal Nation, 
Golden Hill Paugussett Tribe, Snohomish Tribe of Indians, Chinook 
Indian Tribe/Chinook Nation, and Ramapough Mountain Indians, Inc.
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    Similarly, the Department did not specify the extent to which the 
other conditions listed above--requiring a denied 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,'' so the 
circumstances in which re-petitioning might be ``appropriate'' would be 
``limited.'' \11\ The proposed rule did not identify any change to the 
seven mandatory criteria that ``would likely change [any negative] 
previous final determination[s].'' \12\
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    \11\ 79 FR 30767.
    \12\ Id.
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    Ultimately, in the 2015 final rule updating part 83, the Department 
expressly continued the ban.\13\ In the preamble of the rule, the 
Department explained that ``[t]he 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.'' \14\ Additionally, the Department explained that 
``[t]he Department has petitions pending that have never been 
reviewed'' and that ``[a]llowing for re-petitioning by denied 
petitioners would be unfair to petitioners who have not yet had a 
review.'' \15\ Finally, the Department explained that re-petitioning 
``would hinder the goals of increasing efficiency and timeliness by 
imposing the additional workload associated with re-petitions on the 
Department, and [the Office of Federal Acknowledgment] in particular.'' 
\16\
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    \13\ 25 CFR 83.4(d); see 80 FR 37861, 37888-89 (July 1, 2015).
    \14\ 80 FR 37875.
    \15\ Id.
    \16\ Id.
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    In 2020, two Federal district courts--one in a case brought by a 
former petitioner seeking acknowledgement as the Chinook Indian Nation 
\17\ and one in a case brought by a former petitioner seeking 
acknowledgement as the Burt Lake Band of Ottawa and Chippewa Indians 
\18\--held that the Department's stated reasons for implementing the 
ban, as articulated in the preamble to the 2015 final rule revising 
part 83,\19\ 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.\20\ In addition, both courts 
noted that their review is highly deferential to the agency's decision 
under applicable

[[Page 24910]]

tenets of administrative law.\21\ As a result, the narrow question left 
for the courts to decide was whether the Department, in retaining the 
ban in the 2015 final rule, ``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.' '' 
\22\
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    \17\ Chinook Indian Nation v. Bernhardt, No. 3:17-cv-05668-RBL, 
2020 WL 128563 (W.D. Wash. Jan. 10, 2020).
    \18\ Burt Lake Band of Ottawa and Chippewa Indians v. Bernhardt, 
No. 17-0038 (ABJ), 2020 WL 1451566 (D.D.C. Mar. 25, 2020).
    \19\ 80 FR 37861 (July 1, 2015).
    \20\ Chinook, 2020 WL 128563, at *6 (stating that ``the Court 
agrees with Department of the Interior (DOI) that its expansive 
power over Indian affairs encompasses the re-petition ban'' 
(citation omitted)); Burt Lake, 2020 WL 1451566, at *5 (stating that 
``the regulation [banning re-petitioning] comports with the agency's 
authority'').
    \21\ Chinook, 2020 WL 128563, at *7 (citation omitted); Burt 
Lake, 2020 WL 1451566, at *6 (citation omitted).
    \22\ Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. 
Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck 
Lines v. United States, 371 U.S. 156, 168 (1962)).
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    Both courts concluded that the Department had not done so. 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.'' 
\23\ Similarly, the Burt Lake court concluded that the Department's 
reasons were ``neither well-reasoned nor rationally connected to the 
facts in the record.'' \24\ Both courts found that despite the 
Department's argument that the 2015 revisions to part 83 did not change 
any substantive criteria other than those specifically identified, the 
Department had nevertheless failed to explain why, in light of those 
and other revisions and after having proposed a limited re-petition 
process in the 2014 proposed rule, the Department could permissibly 
maintain the ban.\25\ 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.'' \26\ More generally, the Burt Lake 
court linked reform of the [F]ederal acknowledgment process with an 
``opportunity to re-petition and to seek to satisfy the new 
criterion.'' \27\ 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.
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    \23\ Chinook, 2020 WL 128563, at *8.
    \24\ Burt Lake, 2020 WL 1451566, at *12.
    \25\ See Chinook, 2020 WL 128563, at *4-5 (identifying five 
``notable'' changes in the 2015 regulations); Burt Lake, 2020 WL 
1451566, at *9 (highlighting two changes that the court deemed ``not 
minor'').
    \26\ Chinook, 2020 WL 128563, at *8.
    \27\ Burt Lake, 2020 WL 1451566, at *10.
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    On December 18, 2020, the Department announced its intent to 
reconsider the ban and invited federally recognized Indian Tribes to 
consult on whether to retain the ban or allow for re-petitioning. On 
February 25, 2021, the Department held a Tribal consultation session 
and solicited written comments on the ban through March 31, 2021. In 
response, the Department received 19 comments from federally recognized 
Indian Tribes, non-federally recognized groups, an inter-Tribal 
organization representing both federally recognized and State 
recognized Indian Tribes, various State and town representatives in 
Connecticut, and individuals. A majority of the commenters opposed the 
ban.
    Following the comment period, the Department reviewed all comments 
and identified three options: (1) Keeping the ban in place; (2) 
creating a fact-based or time-limited avenue for re-petitioning; and 
(3) giving denied petitioners an opportunity to re-petition with few or 
no limitations. After considering each of these options, the history of 
the ban, the Federal district court opinions noted above, the comments 
received (which, as noted above, were predominantly opposed to the 
ban), and the legal foundation for the ban, the Department is proposing 
a continuation of the ban, for the reasons described here. The 
Department invites comments, particularly from denied petitioners, on 
its proposed approach as well as its reasoning.

III. Basis for Proposed Rule

    The Department is proposing to continue the ban on re-petitioning, 
albeit with a revised justifications given the Chinook and Burt Lake 
courts' conclusion that the explanation for implementing the ban in the 
2015 final rule was arbitrary and capricious. The Department is 
proposing to continue the ban for five main reasons: (1) The 
Department's previous negative final determinations are substantively 
sound and the Department is allowed to revise its regulations without 
reevaluating past final agency actions issued under the previous 
versions of those regulations; (2) denied petitioners received due 
process by virtue of the multiple administrative and Federal court 
avenues through which to challenge both the process and substance of a 
negative part 83 final determination; (3) the changes adopted in the 
Department's 2015 final rule do not warrant re-petitioning; (4) third 
parties and the Department have legitimate interests in the finality of 
the Department's final determinations; and (5) a denied petitioner's 
claimed availability of new evidence is not a compelling basis to allow 
re-petitioning. Each of these reasons is explained in more detail here.

A. The Department's Previous Negative Final Determinations Are 
Substantively Sound and the Department Is Allowed To Revise Its 
Regulations Without Reevaluating Past Final Agency Actions Issued Under 
the Previous Versions of Those Regulations

    The Department proposes to retain the ban on re-petitioning on the 
grounds that its previous negative final determinations are 
substantively sound, and the Department should be able to maintain the 
ability to improve its regulations without being required to reexamine 
previous decisions. In the 2015 final rule, the Department noted that 
the Federal acknowledgment process ``has been criticized as `broken' 
and in need of reform'' for being ``too slow (a petition can take 
decades to be decided), expensive, burdensome, inefficient, intrusive, 
less than transparent and unpredictable.'' \28\ While the Department 
has reformed various aspects of part 83, the Department has maintained 
the validity of the seven mandatory criteria. Indeed, throughout the 
preamble of the 2015 final rule, the Department emphasized the part 83 
process's integrity and substantive rigor.\29\
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    \28\ See id. at 37862.
    \29\ See, e.g., id. at 37863 (explaining why the 2015 final 
rule's reduced documentary burden for satisfying criteria (b) and 
(c) will not compromise the existing ``integrity and rigor of the 
process'').
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    In support of the Department's proposed approach, we note that each 
of the Department's 34 negative determinations was based on an 
exhaustive review of the facts and claims specific to each petitioner 
and a deliberate application of the criteria, resulting in a well-
reasoned, legally defensible outcome. The Department's efforts in the 
2015 final rule ``to address assertions of arbitrariness,'' \30\ among 
other criticism, do not amount to an admission that its previous final 
determinations were somehow defective and, therefore, now deserving of 
reconsideration. Indeed, if an agency's revision of regulations 
amounted to an admission that previous determinations were defective, 
an agency would never revise its regulations.
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    \30\ Id.
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    Complaints that the Federal acknowledgment process under the 
previous versions of the regulations was ``too slow . . . , expensive, 
burdensome, inefficient, intrusive, less than transparent and 
unpredictable,'' \31\ primarily concern procedural aspects of the 
process. The Department has

[[Page 24911]]

consistently defended, and courts have consistently upheld, the 
Department's final determinations on the merits.\32\ By contrast, the 
cases in which courts have sided with denied petitioners have primarily 
concerned not the merits of the Department's evaluations but issues 
relating to process,\33\ which the Department has continued to address 
through its reforms, as discussed elsewhere.
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    \31\ Id. at 37862.
    \32\ See Muwekma Ohlone Tribe v. Salazar, 708 F.3d 209, 220-23 
(D.C. Cir. 2013) (holding that the Department's final determination 
finding insufficient evidence for criteria (a) and (b) was not 
arbitrary and capricious); Miami Nation of Indians of Ind., Inc. v. 
U.S. Dep't of the Interior, 255 F.3d 342, 349 (7th Cir. 2001) 
(holding that the Department did not arbitrarily disregard evidence 
alleged to support a positive finding); Ramapough Mountain Indians, 
Inc. v. Norton, 25 Fed. App'x 2, 3 (D.C. Cir. 2001) (holding that 
the Department permissibly concluded that the petitioner failed to 
meet criterion (e) because of a lack of documentation); Tolowa 
Nation v. United States, 380 F. Supp. 3d 959, 961 (N.D. Cal. 2019) 
(holding that the Department's determination that the petitioner 
failed to satisfy criterion (b) did not violate the APA); Nipmuc 
Nation v. Zinke, 305 F. Supp. 3d 257, 271-77 (D. Mass. 2018) 
(holding that the Department's determination finding that the 
petitioner failed to meet criteria (a)-(c) and (e) was not arbitrary 
or capricious); Schaghticoke Tribal Nation v. Kempthorne, 587 F. 
Supp. 2d 389, 412-18 (D. Conn. 2008); Miami Nation of Indians of 
Ind., Inc. v. Babbitt, 112 F. Supp. 2d 742, 758 (N.D. Ind. 2000) 
(upholding the underlying validity of part 83 writ large), aff'd sub 
nom. Miami Nation of Indians of Ind., Inc. v. U.S. Dep't of the 
Interior, 255 F.3d 342 (7th Cir. 2001).
    \33\ See Greene v. Babbitt, 64 F.3d 1266, 1275 (9th Cir. 2005) 
(affirming a ruling in favor of the Samish Indian Nation, which had 
challenged the adequacy of due process under the 1978 regulations); 
Hansen v. Salazar, No. C08-0717-JCC, 2013 WL 1192607, at *11 (W.D. 
Wash. Mar. 22, 2013) (holding that the AS-IA's final determination 
denying the Duwamish Indian Tribe's petition for Federal 
acknowledgment was arbitrary and capricious because the Department 
had evaluated the petition under only the 1978 regulations, even 
though it had evaluated a contemporaneous petition under both the 
1978 and 1994 regulations).
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    Further, a rule requiring the Department to reevaluate its negative 
determinations after any amendment to part 83, no matter the strength 
of those determinations, the due process already afforded to the denied 
petitioners, the improbability of reversal, or legitimate interests in 
finality (discussed below), would hamper the Department's ability to 
improve the Federal acknowledgement process. The mere fact that the 
regulations changed does not inherently require Departmental 
reconsideration of previous decisions. Indeed, such an approach would 
effectively render an agency unable to modify regulations for concern 
that all decisions prior to amendment would need to be redecided.

B. Denied Petitioners Received Due Process

    The Department proposes a no re-petitioning approach because in the 
event that a denied petitioner claims that the Department 
inconsistently or otherwise unfairly applied the criteria to its 
petition, that petitioner already had the opportunity to raise such a 
claim in a timely manner during administrative reconsideration or 
judicial review of its negative determination. Having had such an 
opportunity, our approach is that previously denied petitioners should 
not be entitled to another evaluation under the 2015 regulations.
    Since the inception of the Federal acknowledgment process, the 
Department has ensured that petitioners have multiple opportunities to 
submit and revise their petitions, receive and respond to technical 
assistance from Office of Federal Acknowledgment (OFA), address 
deficiencies in their materials, and supplement their evidence, all 
before receiving a proposed finding and, ultimately, a final 
determination.\34\ Indeed, one of the reasons why the Federal 
acknowledgment process can be so lengthy is that petitioners often take 
many years to prepare their petitions, supplementing them with 
supporting documentation before deeming them complete and ready for 
Departmental review.
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    \34\ See 59 FR 9280, 9291 (Feb. 25, 1994) (explaining that 
``petitioners who were denied went through several stages of review 
with multiple opportunities to develop and submit evidence''); see 
also 25 CFR 83.10(c)(1) (1994) (giving a petitioner additional 
technical assistance upon request prior to active consideration of 
the petition).
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    Prior to issuance of a final determination, our regulations have 
always allowed petitioners to challenge a negative proposed finding by 
presenting factual or legal arguments and evidence relied upon in the 
proposed finding in various administrative processes.\35\ Following 
issuance of a final determination, petitioners denied under the 1994 
regulations had the option to seek reconsideration with the Interior 
Board of Indian Appeals (IBIA),\36\ while the 1978 regulations 
permitted the Secretary of the Interior to order administrative 
reconsideration.\37\ Both the 1978 and 1994 regulations permitted 
reconsideration in response to a concern that the Department 
erroneously evaluated evidence.\38\ The 1994 regulations further 
allowed denied petitioners to allege that ``there are reasonable 
alternative interpretations, not previously considered, of the evidence 
used for the final determination, that would substantially affect the 
determination that the petitioner meets or does not meet one or more of 
the criteria.'' \39\ We believe that such provisions, permitting either 
the Secretary or the IBIA to review the merits of a negative final 
determination, provided due process protections for aggrieved 
petitioners.
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    \35\ 25 CFR 83.10(i) (1994); id. Sec.  54.9(g) (1978). See also 
James, 824 F.2d at 1136 (describing a review under the 1978 
regulations in which the Department initially issued a negative 
proposed finding to the Wampanoag Tribe of Gay Head (Aquinnah), but 
after ``accept[ing] additional evidence challenging the proposed 
finding and after reconsidering the matter,'' issued a final 
determination acknowledging the petitioner).
    \36\ 25 CFR 83.11 (1994).
    \37\ Id. Sec.  54.10 (1978).
    \38\ Id. Sec.  83.11(d)(2) (1994); Id. Sec.  54.10(c)(2) (1978).
    \39\ Id. Sec.  83.11(d)(4) (1994).
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    Furthermore, a denied petitioner alleging an APA, constitutional, 
or other violation in its final determination had the opportunity to 
seek judicial review. To the extent that petitioners did not challenge 
a negative final determination in court, the Department proposes not to 
create a re-petition process as a substitute for a timely APA claim.

C. The Changes Adopted in the Department's 2015 Final Rule Do Not 
Warrant Re-Petitioning at This Time

    The Department proposes to not allow for re-petitioning under the 
2015 regulations because the Department believes the changes do not 
warrant re-petitioning. First, none of the 2015 final rule's changes to 
each of the seven mandatory criteria justify re-petitioning, and the 
2015 final rule did not change the reasonable likelihood standard that 
the Department applies in evaluating petitions for Federal 
acknowledgment. Further, even if the outcome of any of the Department's 
previous determinations would be different under the 2015 regulations, 
the Department believes it retains the authority to revise its 
regulations without reevaluating its previous determinations.
1. None of the 2015 Final Rule's Changes to the Seven Mandatory 
Criteria Justify Re-Petitioning
    According to the Federal district court that decided Chinook and 
remanded the ban to the Department for further consideration, some or 
all of the changes in the 2015 final rule constitute ``significant 
revisions that could prove dispositive for some re-petitioners.'' \40\ 
Although the Chinook court did not specify whether or how any such 
revision would affect any specific petitioner, the court identified 
changes in the 2015 final rule that it deemed

[[Page 24912]]

``notable'': (1) A new ``evaluation start date for criteria (b) 
[(Community)] and (c) [(Political Authority)]''; (2) a new ability ``to 
rely on self-identification as an Indian tribe'' for criterion (a) 
(Indian Entity Identification); (3) an ``automatic satisfaction of 
criterion (e) [(Descent)] . . . through evidence of `a tribal roll 
directed by Congress or prepared by the Secretary . . . unless 
significant countervailing evidence establishes that the tribal roll is 
substantively inaccurate' ''; and (4) a ``[l]oosening [of] the 
requirements for criterion (f) [(Unique Membership)].'' \41\ 
Additionally, the Burt Lake court likewise remanded the ban to the 
Department and identified another change in the 2015 final rule that it 
deemed ``not minor'': The change in how the Department counts the 
number of marriages within a petitioner for the purpose of evaluating 
criterion (b) (Community).\42\
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    \40\ Chinook, 2020 WL 128563, at *8.
    \41\ Id. at *4-5 (citations omitted).
    \42\ Burt Lake, 2020 WL 1451566, at *9.
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    This section of the proposed rule primarily seeks to explain that 
the changes that the Chinook and Burt Lake courts identified as 
potentially significant would not result in the reversal of the 
Department's previous negative final determinations.
i. The New Evaluation Start Date of 1900 for Criteria (b) (Community) 
and (c) (Political Authority)
    In the 2015 final rule, the Department provided a thorough, well-
reasoned explanation as to why the 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,'' \43\ and the 
Department adopts that explanation here. Aside from reducing the 
documentary burden on petitioners, the Department reasoned that a 1900 
start date for criteria (b) (Community) and (c) (Political Authority) 
is appropriate because ``the time since 1900 has been shown to be an 
effective and reliable demonstration for historical times for criterion 
(a)'' (Indian Entity Identification), and ``utilization of [a 1900 
start date for criterion (a)] for over 20 years has demonstrated that 
the date maintains the rigor of the criteria.'' \44\ In explaining why 
the 1900 start date will not compromise the rigor of the process, the 
Department stated that ``1900 [was] squarely during the allotment and 
assimilation period of Federal policy that was particularly difficult 
for tribal governments,'' when ``there was little benefit and some risk 
to openly functioning as a tribal community and government.'' \45\
---------------------------------------------------------------------------

    \43\ 80 FR 37863 (July 1, 2015); see also id. at 37868-69.
    \44\ Id. at 37863.
    \45\ Id. at 37869.
---------------------------------------------------------------------------

    The Department proposes to not allow re-petitioning because the 
change to the start date for criteria (b) (Community) and (c) 
(Political Authority) would not result in the reversal of any previous 
negative determination. None of the 34 denied petitioners received a 
negative determination based solely on a failure to satisfy criterion 
(b) or (c) for the historical period (pre-1900). That is, every 
petitioner that failed to satisfy criterion (b) or (c) for the 
historical period also failed to satisfy the criterion for the period 
from 1900 until the present.\46\ Therefore, the change in the start 
date for criteria (b) and (c) would not lead to a different outcome for 
any denied petitioner.
---------------------------------------------------------------------------

    \46\ Cf. id. at 37863 (explaining that the converse is also 
true: ``based on [the Department's] experience in nearly 40 years of 
implementing the regulations, every group that has proven its 
existence from 1900 forward has successfully proven its existence 
prior to that time as well'').
---------------------------------------------------------------------------

ii. The New Ability To Rely on Evidence of Self-Identification as an 
Indian Tribe for Criterion (a) (Indian Entity Identification)
    In the 2015 final rule, the Department characterized the change in 
criterion (a) as substantive.\47\ Nevertheless, the change does not 
compel the Department to allow re-petitioning because none of the 
Department's negative determination hinged on criterion (a) alone.\48\ 
Specifically, every denied petitioner that failed to satisfy criterion 
(a) failed to satisfy criteria (b) and (c) as well.\49\ A reversal of a 
negative conclusion on criterion (a) in a previous determination would 
not change the overall negative result, given that a petitioner must 
satisfy all seven mandatory criteria.\50\
---------------------------------------------------------------------------

    \47\ Id. at 37863.
    \48\ See id. at 37866 (noting the point raised by some 
commenters that ``because no petitioner has been denied solely on 
[criterion (a)], it is of limited value'').
    \49\ Based on the Department's review on reconsideration, there 
are 22 denied petitioners that did not meet criterion (a), all of 
which also did not meet at least one other criterion. They are the 
Duwamish Indian Tribe, Georgia Tribe of Eastern Cherokees, Inc., 
Juaneno Band of Mission Indians, Steilacoom Tribe, Nipmuc Nation 
(Hassanamisco Band), Webster/Dudley Band of Chaubunagungamaug 
Nipmuck Indians, St. Francis/Sokoki Band of Abenakis of Vermont, 
Golden Hill Paugussett Tribe, Snohomish Tribe of Indians, Muwekma 
Ohlone Tribe of San Francisco Bay, Chinook Indian Tribe/Chinook 
Nation, MaChis Lower AL Creek Indian Tribe, Tchinouk Indians, 
Southeastern Cherokee Confederacy, Northwest Cherokee Wolf Band, Red 
Clay Inter tribal Indian Band, United Lumbee Nation of NC and 
America, Principal Creek Indian Nation, Kaweah Indian Nation, Munsee 
Thames River Delaware, Lower Muskogee Creek Tribe-East of the 
Mississippi, and Creeks East of the Mississippi.
    \50\ See Ramapough Mountain Indians, 25 Fed. App'x at 3-4 
(declining to address the petitioner's arguments relating to 
criterion (b), after upholding the Department's conclusion that the 
petitioner failed to meet criterion (e), ``because to receive 
Federal recognition [the petitioner] had to demonstrate that it met 
all seven of the criteria in section 83.7'').
---------------------------------------------------------------------------

iii. The Satisfaction of Criterion (e) (Descent) Through Evidence of a 
Tribal Roll Directed by Congress or Prepared by the Secretary
    In the 2015 final rule, the Department explained that ``[t]he final 
criterion (e) remains substantively unchanged from the current 
criterion (e).'' \51\ Although the revised language of the criterion 
emphasizes the ``great weight'' that the Department places ``on 
applicable tribal Federal rolls prepared at the direction of Congress 
or by the Department,'' the rule explains that the revision ``codifies 
past practice.'' \52\ As the 2015 final rule points out, since the 
inception of the Federal acknowledgment regulations, the Department has 
consistently relied on evidence of such rolls in evaluating whether a 
petitioner satisfies criterion (e).\53\ The change in Sec.  83.11(e)(1) 
ensures that the Department will continue to do so.
---------------------------------------------------------------------------

    \51\ 80 FR 37866 (July 1, 2015).
    \52\ Id. at 37867.
    \53\ Id. (discussing the Department's reliance on rolls and 
censuses prepared by Federal agency officials in reaching a 
favorable conclusion on criterion (e) for the Timbisha Shoshone 
Tribe's positive final determination).
---------------------------------------------------------------------------

iv. The Deletion of the Requirement in Criterion (f) (Unique 
Membership) That the Petitioner's Members ``not maintain a bilateral 
political relationship with'' a Federally Recognized Indian Tribe
    Under the 1994 regulations, criterion (f) listed three conditions 
that, if all met, exempted a petitioner from the requirement that 
``[t]he membership of the petitioning group [be] composed principally 
of persons who are not members of any acknowledged North American 
Indian tribe.'' \54\ The conditions were as follows: (1) ``The 
[petitioner] . . . has functioned throughout history until the present 
as a separate and autonomous Indian tribal entity''; (2) ``its members 
do not maintain a bilateral political relationship with the 
acknowledged tribe;'' and (3) ``its members have provided written 
confirmation of their membership in the petitioning group.'' \55\ The 
2015 revision of part 83 deleted the second condition in this list but 
maintained the first and the third.\56\
---------------------------------------------------------------------------

    \54\ 25 CFR 83.7(f) (1994).
    \55\ Id.
    \56\ 80 FR 37891 (July 1, 2015).

---------------------------------------------------------------------------

[[Page 24913]]

    In the preamble of the 2015 final rule, the Department adequately 
explained the rationale behind deleting that condition.\57\ In short, 
the Department's evaluation of whether a group can establish a 
substantially continuous Tribal existence, demonstrate that it has 
functioned as an autonomous entity throughout history until the 
present, and thus qualify for Federal acknowledgment, does not hinge on 
a petitioner's demonstration that its members eschew bilateral 
relationships with an acknowledged Indian Tribe. No previous final 
determination (whether negative or positive) has hinged on that 
specific determination.\58\ Given that that condition was non-
essential, its deletion did not affect any previous petitioner's rights 
or determination and its deletion does not counsel in favor of allowing 
re-petitioning.
---------------------------------------------------------------------------

    \57\ See id. at 37873.
    \58\ See id. (explaining that the San Juan Southern Paiute Tribe 
of Arizona met the essential requirement for Federal 
acknowledgment--``operat[ing] as a separate politically autonomous 
community on a substantially continuous basis''--``even though its 
members had census numbers with a federally recognized tribe,'' the 
Navajo Nation (citing Notice of Final Determination That the San 
Juan Southern Paiute Tribe Exists as an Indian Tribe, 54 FR 51502, 
51504 (Dec. 15, 1989))).
---------------------------------------------------------------------------

v. The Change in How the Department Counts the Number of Marriages 
Within a Petitioner for Criterion (b) (Community)
    To satisfy criterion (b) under the 2015 regulations, a petitioner 
must ``comprise[ ] a distinct community and demonstrate[ ] that it 
existed as a community from 1900 until the present.'' \59\ Like the 
1994 regulations, the 2015 regulations list various kinds of evidence 
that a petitioner can rely on to demonstrate such community, including 
``[r]ates or patterns of known marriages within the entity'' \60\ and 
``[s]ocial relationships connecting individual members.'' \61\ Under 
both the 1994 and 2015 regulations, certain kinds of evidence, standing 
alone, are sufficient to satisfy criterion (b) at a given point in 
time.\62\ One such kind of evidence under the 2015 regulations is 
evidence demonstrating that ``[a]t least 50 percent of the members of 
the entity were married to other members of the entity.'' \63\ That 
provision is analogous to one in the 1994 regulations, which allowed 
petitioners to satisfy criterion (b) at a given point in time through 
evidence demonstrating that ``[a]t least 50 percent of the marriages in 
the group are between members of the group.'' \64\
---------------------------------------------------------------------------

    \59\ 25 CFR 83.11(b); 80 FR 37890 (July 1, 2015).
    \60\ 25 CFR 83.11(b)(1)(i).
    \61\ Id. Sec.  83.11(b)(1)(ii).
    \62\ Id. Sec.  83.11(b)(2); id. Sec.  83.7(b)(2) (1994).
    \63\ Id. Sec.  83.11(b)(2)(ii).
    \64\ Id. Sec.  83.7(b)(2)(ii) (1994).
---------------------------------------------------------------------------

    The different language in the provisions quoted above reflects a 
difference in methodology. Whereas Departmental practice under the 1994 
regulations required counting the overall number of marriages within a 
petitioner, the Department under the 2015 regulations counts instead 
``the number of petitioner members who are married to others in the 
petitioning group.'' Although the rule characterizes the change as 
substantive,\65\ given that it represents a change in OFA's actual 
evidentiary approach (as opposed to a procedural process or 
codification of unwritten but consistent past practice), the Department 
noted in the 2015 final rule that either approach of counting marriages 
is valid: The approach used in the 1994 regulations or the approach 
used in the 2015 regulations.\66\ Consequently, to the extent that any 
of the Department's conclusions on criterion (b) in previous 
determinations applied the 1994 regulations' method of counting 
marriages, the Department proposes that those conclusions were fair and 
remain valid, and the change in method should not serve as a basis for 
re-petitioning. Furthermore, the Department has not identified any 
negative determination in which the switch in method would reverse the 
Department's conclusion.
---------------------------------------------------------------------------

    \65\ 80 FR 37863 (July 1, 2015).
    \66\ Id. at 37870.
---------------------------------------------------------------------------

vi. The Inclusion of a New Provision Under Criteria (b) (Community) and 
(c) (Political Authority) Stating That Evidence of ``[l]and set aside 
by a State for petitioner, or collective ancestors of the petitioner,'' 
May Be Relied on to Satisfy Those Criteria \67\
    In the 2015 final rule, the Department stated that the addition of 
the provision quoted above does not reflect a substantive change in the 
criteria.\68\ Rather, ``this change is simply meant to be explicit 
about the value and relevance of certain evidence.'' \69\ The list of 
evidence under criterion (c)(1), where the new provision is located, is 
not exhaustive; rather, the items listed are only examples of what the 
Department will accept, and has accepted in the past. The Department 
also emphasized that even if the existence of such lands ``may generate 
evidence of community and political influence/authority,'' such lands 
``are not determinative for these two criteria.'' \70\ That is, such 
evidence acts as one of many factors relevant to a positive 
determination.
2. The 2015 Final Rule Did Not Change the Reasonable Likelihood 
Standard That the Department Applies in Evaluating Petitions for 
Federal Acknowledgment
    When the Department revised the Federal acknowledgment regulations 
in 1994, it introduced language clarifying the burden of proof that the 
Department applies in determining whether evidence satisfies the seven 
mandatory criteria. In Sec.  83.6(d) (1994), the Department explained 
that ``[a] criterion shall be considered met if the available evidence 
establishes a reasonable likelihood of the validity of the facts 
relating to that criterion.'' \71\ The so-called ``reasonable 
likelihood'' standard did not create a new evidentiary standard; 
rather, it ``codif[ied] current practices'' applied under the 1978 
regulations as well.\72\
---------------------------------------------------------------------------

    \71\ 59 FR 9295 (February 25, 1994).
    \72\ Id. at 9280.
---------------------------------------------------------------------------

    The 2015 regulations retained the reasonable likelihood standard, 
in language virtually identical to that in the 1994 regulations, 
stating that ``[t]he Department will consider a criterion . . . to be 
met if the available evidence establishes a reasonable likelihood of 
the validity of the facts relating to that criterion.'' \73\ 
Notwithstanding that express continuity from 1978 to 1994 to 2015, the 
plaintiffs in the Chinook and Burt Lake litigation argued that a 
separate provision introduced in the 2015 regulations, located at Sec.  
83.10(a)(4), changed the reasonable likelihood standard by reducing the 
burden of proof for petitioners proceeding under the 2015 regulations. 
Section 83.10(a)(4) states that ``[e]vidence or methodology that the 
Department found sufficient to satisfy any particular criterion in a 
previous decision will be sufficient to satisfy the criterion for a 
present petitioner.''
---------------------------------------------------------------------------

    \73\ 25 CFR 83.10(a).
---------------------------------------------------------------------------

    By its plain terms, Sec.  83.10(a)(4) expressly ``provides that if 
there is a prior decision finding that evidence or methodology was 
sufficient to satisfy any particular criterion in a previous petition, 
the Department will find that evidence or methodology sufficient to 
satisfy the criterion for a present petitioner. In other words, a 
petitioner today satisfies the standards of evidence or baseline 
requirements of a criterion if that type or amount of evidence was 
sufficient in a previous decision.'' \74\ The Department's inclusion of 
Sec.  83.10(a)(4) in the 2015 regulations should not be interpreted as 
an admission that the Department weighed evidence or applied 
methodology in an

[[Page 24914]]

inconsistent manner in its past determinations. Rather, it is simply an 
assurance of consistency going forward.
---------------------------------------------------------------------------

    \74\ 80 FR 37865 (July 1, 2015).
---------------------------------------------------------------------------

    The Department decided to provide such assurance in the 2015 final 
rule because it aligned with the Department's stated goal in the 2015 
final rule to promote consistency.
    The 2015 final rule's inclusion of Sec.  83.10(a)(4)--and the 
decision not to define the term ``reasonable likelihood'' in a novel 
way in the 2015 final rule--promotes consistency with the Department's 
past applications of the reasonable likelihood standard, in furtherance 
of the Department's stated goals, and, more broadly, promotes 
consistency with the Department's previous determinations.\75\ In 
clarifying the Department's understanding and application of this 
standard, Sec.  83.10(a)(4) addresses a concern raised by some 
commenters that the Department was allegedly applying an ``increasingly 
burdensome application of the criteria'' over time.\76\
---------------------------------------------------------------------------

    \75\ Id. at 37875.
    \76\ Id. at 37865; see also id. at 37862 (``This clarification 
ensures that a criterion is not applied in a manner that raises the 
bar for each subsequent petitioner.'').
---------------------------------------------------------------------------

D. Third Parties and the Department Have Legitimate Interests in the 
Finality of the Department's Final Determinations

1. Third Parties Have Legitimate Interests in Finality
    In the preamble of the 2015 final rule, the Department explained 
that numerous commenters argued that re-petitioning would ``undermine[ 
] finality and certainty'' and ``[be] unfair to stakeholders.'' \77\ 
Although the Department referred to those comments in the final rule, 
in rejecting the Department's stated reasons for retaining the ban 
under the APA, the Chinook court stated that the Department failed to 
incorporate those potentially appropriate concerns into its 
justifications for the ban.\78\
---------------------------------------------------------------------------

    \77\ Id. at 37874.
    \78\ Chinook, 2020 WL 128563, at *9 (``The Court does not judge 
the appropriateness of these goals, but if they actually motivated 
DOI's decision the[ ] agency should have said so directly.'').
---------------------------------------------------------------------------

    Upon reconsideration, the Department proposes to consider those 
third-party interests as compelling in favor of retaining the ban.
    For decades, third parties with interests in the Department's 
Federal acknowledgment process have relied on the finality of the 
Department's final determinations. These third parties include 
federally recognized Indian Tribes, States, local governments, other 
actual or potential part 83 petitioners, and the public at large. Since 
the initial promulgation of the Federal acknowledgment regulations, the 
Department's final determinations have constituted final agency action, 
subject to administrative reconsideration or judicial review under 
generally understood principles of administrative law.\79\ Third 
parties have an understanding of how the process works based on the 
step-by-step description in part 83 culminating in the issuance of a 
final determination.
---------------------------------------------------------------------------

    \79\ See 25 CFR 54.10(a) (1978) (``The Assistant Secretary's 
decision shall be final for the Department . . . .''); 25 CFR 
83.10(o) (1994) (``The determination to decline to acknowledge that 
the petitioner is an Indian tribe shall be final for the 
Department.''); id. Sec.  83.44 (``The AS-IA's final determination 
is final for the Department and is a final agency action under the 
[APA].'').
---------------------------------------------------------------------------

    The ban has been a longstanding feature of the process, 
underscoring the seriousness of the Department's evaluation, 
legitimizing the substantive rigor of the process, and ensuring, as a 
matter of law, the finality of the Department's final determinations. 
While denied petitioners may argue the changes in the 2015 final rule 
might change the result of a negative final determination, such 
arguments do not warrant undermining the finality of the Department's 
final determinations and disregarding the interests of third parties in 
finality.
    And the Department proposes that those interests are significant. 
Federal acknowledgment is one of the most significantly consequential 
actions the Department takes in any context. Placement on the list of 
federally recognized Indian Tribes establishes a government-to-
government relationship between the petitioner and the United States 
that has innumerable consequences for the newly acknowledged Indian 
Tribe and for third parties. For the Department and other Federal 
agencies, it requires that the newly acknowledged Indian Tribe be made 
eligible for all Federal benefits and programs benefitting Indians, 
that the agencies include those entities in any relevant Tribal 
consultation, and that the agencies consider the sovereign rights of 
those entities when making taking agency actions.\80\ For other 
recognized Indian Tribes, it makes the newly acknowledged Indian Tribe 
eligible for Tribal-specific Federal resources. For States and 
localities, acknowledgment changes legal considerations including 
Tribal sovereign immunity and environmental regulation. Similar 
concerns affect individuals who choose to live or seek employment 
within the newly acknowledged Indian Tribe's jurisdiction or choose to 
become members of the newly acknowledged Indian Tribe. The depth of 
these consequences underscores the reason that the Department has 
historically allowed limited third-party participation in the part 83 
process, and emphasizes the interests that third parties have in 
administrative finality so that relevant government agencies (Federal, 
State, and Tribal) and individuals may reasonably settle expectations 
as to whether a given petitioner may or may not still participate in 
the part 83 process.
---------------------------------------------------------------------------

    \80\ E.O. 13175, Consultation and Coordination with Indian 
Tribal Governments, 65 FR 67249, 67249-50 (Nov. 6, 2000) (ordering 
Federal agencies to develop procedures for ``regular and meaningful 
consultation and collaboration with tribal officials in the 
development of Federal policies that have tribal implications'').
---------------------------------------------------------------------------

    The compelling third-party interests in precluding re-petitioning 
and any ensuing litigation of issues already decided should give the 
Department's final determinations preclusive effect. The Supreme Court 
has ``long favored application of the common-law doctrines of 
collateral estoppel (as to issues) and res judicata (as to claims) to 
those determinations of administrative bodies that have attained 
finality.'' \81\ Although the 2014 proposed rule would have conditioned 
re-petitioning on the consent of ``[a]ny third parties that 
participated as a party in an administrative reconsideration or Federal 
Court appeal concerning the petitioner,'' \82\ the 2015 final rule's 
blanket ban aligns more closely with the well-established, common-law 
principle of administrative final action preclusion and the repose that 
it provides. Additionally, such protection extends to a greater number 
of third parties with significant interests in the outcomes of requests 
to re-petition.
---------------------------------------------------------------------------

    \81\ Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104, 
107 (1991); see also Golden Hill Paugussett Tribe of Indians v. 
Rell, 463 F. Supp. 2d 192, 200 (D. Conn. 2006) (concluding that a 
final determination on Federal acknowledgment is an `` 
`adjudicative' one, sufficient for application of the collateral 
estoppel doctrine'').
    \82\ 79 FR 30774 (May 29, 2014) (proposed Sec.  83.4(b)(1)).
---------------------------------------------------------------------------

2. The Department Has Legitimate Interests in Finality
i. The Burden on the Department
    The Department proposes this approach on the belief that it has a 
legitimate interest in the finality of its final determinations. Rules 
of preclusion serve not only to prevent an unjust imposition ``upon 
those who have already shouldered their burdens'' but also to prevent 
the drain on ``resources of an adjudicatory system

[[Page 24915]]

with disputes resisting resolution.'' \83\ ``The principle holds true 
when a court has resolved an issue, and should do so equally when the 
issue has been decided by an administrative agency . . . which acts in 
a judicial capacity.'' \84\
---------------------------------------------------------------------------

    \83\ Solimino, 501 U.S. at 107-08 (1991) (citing Parklane 
Hosiery Co. v. Shore, 439 U.S. 322, 326 (1979)).
    \84\ Id. at 108 (citation omitted).
---------------------------------------------------------------------------

    The Burt Lake court observed that re-petitioning would not pose a 
burden on OFA given that, under the 2014 proposed rule, the Office of 
Hearings and Appeals (OHA) (and not OFA) would have been the office 
deciding whether to allow re-petitioning.\85\ However, the proposed 
rule would have permitted OHA to ``receive pleadings, hold hearings, 
and request evidence from OFA'' prior to issuing a decision on re-
petitioning.\86\ Despite the court's holding, then, the 2014 proposed 
rule (even if implemented) could still have involved significant OFA 
involvement in OHA's review of a request to re-petition.
---------------------------------------------------------------------------

    \85\ Burt Lake, 2020 WL 1451566, at *12 (citations omitted).
    \86\ 79 FR 30767 (May 29, 2014) (proposed Sec.  83.4(b)(2)(ii)).
---------------------------------------------------------------------------

    Furthermore, any re-petition request approved by OHA would have 
required OFA's reevaluation of the petitioner's claims. To the extent 
that the Burt Lake court presumed that OFA's reevaluation would be 
somehow limited in scope--the court notes that ``re-petitioners would 
only be able to submit new materials to the agency''--nothing in the 
2014 proposed rule indicates that re-petitioners would have been 
treated any differently from first-time petitioners under part 83.\87\ 
Rather, upon successful completion of OHA's threshold review, re-
petitioners would have had to submit a documented petition pursuant to 
Sec.  83.21, just like first-time petitioners, and proceed through the 
Federal acknowledgment process accordingly. In short, the burden on the 
Department would be significant.\88\
---------------------------------------------------------------------------

    \87\ Burt Lake, 2020 WL 1451566, at 11 (citing 79 FR 30774 (May 
29, 2014)).
    \88\ See Barbara N. Coen, Tribal Status Decision Making: A 
Federal Perspective on Acknowledgment, 37 New Eng. L. Rev. 491, 495 
(2003) (``The result of the process is a decision based on an 
extensive factual analysis, with administrative records currently 
ranging in excess of 30,000 pages to over 100,000 pages.'' (citing 
Work of the Department of the Interior's Branch of Acknowledgment 
and Research within the Bureau of Indian Affairs: Hearing Before the 
S. Comm. on Indian Affs., 107th Cong. 2, 19-20 (2002) (statement of 
Michael R. Smith, Dir., Office of Tribal Servs., U.S. Dep't of the 
Interior))).
---------------------------------------------------------------------------

    The Department, in reconsidering the ban after the Burt Lake and 
Chinook decisions, considered alternatives to the ban. One such 
alternative was a limited evaluation of re-petitions akin to OHA's 
threshold review under the 2014 proposed rule, focusing on new claims 
and any supplemental submission of materials relevant to a previously 
failed criterion. However, on reconsideration, the Department proposes 
that even a limited reevaluation would undermine the integrity of the 
Federal acknowledgment process. Contrary to the Chinook court's 
observation that ``OFA would only have to re-consider the aspects of 
the original decision that were identified as erroneous,'' \89\ such an 
evaluation would fall short of the Department's standard requiring 
``thorough and deliberate evaluations,'' given the serious nature of 
granting or denying a petition for Federal acknowledgment.\90\ Many 
prospective re-petitioners received determinations that are decades 
old, and in the intervening time, a denied petitioner's materials, 
including materials relating to criteria that the petitioner had 
previously satisfied, could have changed significantly, affecting the 
petitioner's ability to satisfy those criteria at present. For example, 
under the 2015 regulations at Sec.  83.11(b) and (c), a petitioner must 
satisfy criterion (b) (Community) and criterion (c) (Political 
Influence or Authority) ``from 1900 until the present.'' \91\ Even if a 
petitioner had satisfied those criteria decades ago, and OFA's prior 
conclusions regarding those criteria were not identified by the 
petitioner as erroneous in its request to re-petition, the necessity of 
a thorough and deliberate evaluation would compel OFA to reevaluate 
those criteria for the present period, accounting for the most recent 
decades for which OFA has incomplete information. That is, allowing 
limited re-petitioning would not be as simple as grafting OFA's 
reconsideration of denied criteria onto a previously positive 
determination--rather, OFA would presumably need to reevaluate the 
entirety of the petitioner's evidence to avoid acknowledging groups 
who, over time, lost compliance with previously-satisfied regulatory 
criteria.
---------------------------------------------------------------------------

    \89\ Chinook, 2020 WL 128563, at *9.
    \90\ 70 FR 16513, 16514 (March 31, 2005) (explaining that the 
Secretary placed importance on `` `thorough and deliberate 
evaluations' because acknowledgment decisions `must be equitable and 
defensible' '' (quoting Memorandum from Gale Norton, Sec'y of the 
Interior, U.S. Dep't of the Interior, to David Anderson, Assistant 
Sec'y--Indian Affs., U.S. Dep't of the Interior (Apr. 1, 2004))).
    \91\ 25 CFR 83.11(a), (b).
---------------------------------------------------------------------------

    In another example, a petitioner's membership may change even 
within a relatively short time span, therefore affecting compliance 
with criterion (f) (Unique Membership) at Sec.  83.11(f). A change in 
membership, in turn, could affect the Department's prior conclusion on 
criterion (e) (Descent) at Sec.  83.11(e), which requires a petitioner 
to demonstrate that its membership ``consists of individuals who 
descend from a historical Indian tribe (or from historical Indian 
tribes that combined and functioned as a single autonomous political 
entity).'' \92\
---------------------------------------------------------------------------

    \92\ Id. Sec.  83.11(e).
---------------------------------------------------------------------------

    Further, OFA would need to evaluate a re-petitioner's underlying 
claim to be the previous petitioner in the first instance. The 
Department has dealt with several cases involving dueling or otherwise 
overlapping petitioner claims to the same membership or historical 
predecessor. If the Department allowed re-petitioning, prior to getting 
to the merits of a re-petition request under any model, OFA would have 
to ensure that the re-petitioner was, in fact, the original petitioner.
    In sum, an abbreviated evaluation for re-petitioners would 
compromise the substantive rigor of the Federal acknowledgment process.
ii. Timeliness and Efficiency
    Furthermore, the Department proposes that even a limited avenue for 
re-petitioning would threaten the Department's ability to process 
existing and future petitions in a timely manner, undermining a key 
goal of the 2015 revision to ``increase timeliness and efficiency.'' 
\93\ The Chinook court stated that if the Department was ``concerned 
about pending petitions, it would have been simple to give them 
priority,'' sending re-petitions to the back of the line.\94\ However, 
that statement does not account for the likely significant, time-
sensitive administrative burden that the Department--and OFA 
especially--would incur as a result of allowing re-petitioning.
---------------------------------------------------------------------------

    \93\ 80 FR 37862 (July 1, 2015).
    \94\ Chinook, 2020 WL 128563, at *9.
---------------------------------------------------------------------------

    For example, and putting aside the burdens associated with 
processing re-petitions in the first instance, the creation of a re-
petitioning process could potentially lead to a marked increase in the 
number of requests that the Department receives pursuant to the Freedom 
of Information Act (FOIA). When interacting with both petitioners and 
interested third parties, OFA has taken the position that part 83 
materials submitted to the Department become Federal records for FOIA 
purposes and cannot simply be turned over to non-Federal parties (even 
petitioners) upon request. As a result, prospective re-petitioners or 
interested third parties likely would need to submit FOIA

[[Page 24916]]

requests for copies of records relating to the Department's previous 
final determinations in order to analyze evidence or methodology that 
the Department deemed sufficient or insufficient to satisfy criteria in 
previous determinations. While OFA maintains a list of the limited 
public documents associated with part 83 petitions, see generally 
https://www.bia.gov/as-ia/ofa/decided-cases, this does not include the 
voluminous amount of evidentiary materials part 83 petitioners submit 
throughout the process. Because FOIA contains statutory time 
limits,\95\ the Department would have to prioritize responding to such 
requests, a potentially significant undertaking involving the review of 
thousands of records, many decades old.
---------------------------------------------------------------------------

    \95\ See generally U.S. Dep't of Just., Guide to the Freedom of 
Information Act, Procedural Requirements 32-36 (2019), https://www.justice.gov/oip/page/file/1199421/download.
---------------------------------------------------------------------------

    The Department's concern about the effect of such an administrative 
burden is not speculative. A 2001 report of the United States General 
Accounting Office noted that technical staff within the Bureau of 
Indian Affairs (now housed within OFA) had estimated that they spent up 
to 40 percent of their time on administrative responsibilities, and on 
responding to FOIA requests in particular, limiting their time spent 
evaluating part 83 petitions.\96\ While the Department has taken steps 
to alleviate that burden (for example, by hiring and training FOIA 
contractors), the Department has a legitimate interest in allocating 
resources efficiently.
---------------------------------------------------------------------------

    \96\ U.S. Gov't Accountability Off., GAO-02-49, Indian Issues: 
Improvements Needed in Tribal Recognition Process 16 (2001).
---------------------------------------------------------------------------

    Besides an increase in FOIA requests, another likely burden on OFA 
stemming from re-petitioning would be increased litigation. Assuming 
that any re-petition process would include threshold eligibility 
requirements, the denial of a request to re-petition would constitute a 
final agency action subject to APA review.\97\ Similarly, an approved 
re-petition would presumably be subject to all applicable 
administrative appellate options and, if denied, APA review by the 
courts. The Department's interests in administrative finality extend to 
interests in avoiding the perpetual threat of litigation, particularly 
in a process that has already guaranteed petitioners significant 
administrative or judicial appeal opportunities and, as discussed 
below, legislative remedies as well.
---------------------------------------------------------------------------

    \97\ See Palacios v. Spencer, 267 F. Supp. 3d 1, 7 (D.D.C. 2017) 
(explaining that if a party seeking review ``alleged new evidence or 
changed circumstances that were not previously before the agency, 
then the agency's denial [of reconsideration] is reviewable as a 
final agency action'') (citation and internal quotation marks 
omitted)), aff'd in part, appeal dismissed in part, 906 F.3d 124 
(D.C. Cir. 2018); see also 79 FR 30774 (proposed 25 CFR 83.4(b)(3)) 
(``The OHA judge's decision whether to allow re-petitioning is final 
for the Department and is a final agency action under the [APA]'').
---------------------------------------------------------------------------

E. Claimed Availability of New Evidence Does Not Justify Allowing Re-
Petitioning

    In the preamble of the 2015 final rule, the Department noted that 
certain commenters supported an opportunity to re-petition if ``there 
is significant new evidence.'' \98\ By choosing to retain the ban, the 
Department necessarily rejected that basis for re-petitioning and 
proposes to do so again now.
---------------------------------------------------------------------------

    \98\ 80 FR 37875 (July 1, 2015).
---------------------------------------------------------------------------

    We propose that the potential availability of new evidence does not 
justify re-petitioning. First, echoing the discussion above regarding 
the due process already afforded to denied petitioners, under every 
version of the regulations, denied petitioners had ample opportunities 
to supplement their petitions with new evidence throughout the Federal 
acknowledgment process,\99\ including after the Department's issuance 
of a proposed finding \100\ and on reconsideration.\101\ Additionally, 
during the Department's evaluation, OFA staff often conducted their own 
research to supplement that of the petitioners,\102\ especially for the 
purpose of addressing deficiencies or gaps in the petitioners' 
submitted materials.\103\
---------------------------------------------------------------------------

    \99\ See 59 FR 9291 (justifying the introduction of the ban by 
explaining, in part, that ``[t]hose petitioners who were denied went 
through several stages of review with multiple opportunities to 
develop and submit evidence.'').
    \100\ 25 CFR 83.10(i) (1994) (allowing the petitioner or any 
individual or organization challenging or supporting a proposed 
finding to submit arguments and evidence to the AS-IA rebutting or 
supporting the finding); id.Sec.  54.9(g) (1978) (allowing any 
individual or organization challenging a proposed finding ``to 
present factual or legal arguments and evidence to rebut the 
evidence relied on'').
    \101\ Id. Sec.  83.11(d)(1) (1994) (allowing petitioners to 
request reconsideration of a final determination with the IBIA by 
alleging that ``there is new evidence that could affect the 
determination''); id. Sec.  54.10(c)(1) (1978) (allowing the 
Secretary of the Interior to request reconsideration of a final 
determination if the opinion ``[w]ould be changed by significant new 
evidence which he has received subsequent to the publication of the 
decision'').
    \102\ See id. Sec.  83.10(a) (1994) (permitting the AS-IA to 
initiate research for any purpose relative to analyzing a documented 
petition); id. Sec.  54.9(a) (1978) (same).
    \103\ See 65 FR 7052 (February 11, 2000); see also 70 FR 16513, 
16515 (March 31, 2005) (encouraging petitioners to consult with OFA 
staff, in part, to reduce the number of deficiencies noted in a 
technical assistance letter).
---------------------------------------------------------------------------

    Second, if the Department were to allow re-petitioning based on new 
evidence, we propose that it would be difficult to establish defensible 
limiting principles for how such re-petitioning would look in practice. 
Re-petitioners could claim that any time limit on the ability to submit 
a petition based on new evidence would be inherently arbitrary given 
that the availability of such evidence is not static but could be 
discovered at any point and from any source depending on the expertise 
of the individual charged with collecting it.
    Finally, in recent years, Congress has confirmed its willingness to 
recognize Indian Tribes outside of part 83.\104\ As the Department 
noted in the preamble of the 1994 final rule introducing the ban, 
``[d]enied petitioners still have the opportunity to seek legislative 
recognition if substantial new evidence develops.'' \105\ The 
Department invites comments on its reasoning and on alternative 
perspectives.
---------------------------------------------------------------------------

    \104\ See, e.g., National Defense Authorization Act for Fiscal 
Year 2020, Public Law 116-92, sec. 2870, 133 Stat. 1198, 1907-09 
(2019) (extending Federal recognition to the Little Shell Tribe of 
Chippewa Indians of Montana); Thomasina E. Jordan Indian Tribes of 
Virginia Federal Recognition Act of 2017, Public Law 115-121, 132 
Stat. 40 (2018) (extending Federal recognition to six Indian Tribes 
located in Virginia).
    \105\ 59 FR 9291 (February 25, 1994).
---------------------------------------------------------------------------

IV. Summary of the Proposed Rule

    This proposed rule makes no changes to the regulatory text at 25 
CFR part 83, and proposes to make no change specifically to Sec.  
83.4(d), which sets out the ban. Changes are made to the legal 
authority citation because 25 U.S.C. 479a-1 has been renumbered 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).

V. Procedural Requirements

A. Regulatory Planning and Review (E.O. 12866)

    Executive Order (E.O.) 12866 provides that the Office of 
Information and Regulatory Affairs (OIRA) at the Office of Management 
and Budget (OMB) will review all significant rules. OIRA has determined 
that this rule is significant.
    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

[[Page 24917]]

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.

B. Regulatory Flexibility Act

    The Department of the Interior certifies that this document will 
not have a significant economic effect on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
It does not change current funding requirements and would not impose 
any economic effects on small governmental entities because it makes no 
change to the status quo.

C. Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act because this rule affects 
only entities that have previously petitioned, and been denied, Federal 
acknowledgment as an Indian Tribe and that may again seek to become 
acknowledged as an Indian Tribe. This rule:
    (a) Will not have an annual effect on the economy of $100 million 
or more.
    (b) Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions.
    (c) Will not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of the 
U.S.-based enterprises to compete with foreign-based enterprises.

D. Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or 
Tribal governments or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local, or Tribal governments or the private sector because this rule 
affects entities that have previously petitioned, and been denied, 
Federal acknowledgment as an Indian Tribe and that may again seek to 
become acknowledged as an Indian Tribe. 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 of the Interior 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 in preparation of this proposed rule. The Department is 
hosting additional consultation sessions with Tribes as described in 
the DATES and ADDRESSES sections of this document.

I. Paperwork Reduction Act

    OMB Control No. 1076-0104 currently authorizes the collection of 
information related to petitions for Federal acknowledgment contained 
in 25 CFR part 83, with an expiration of October 31, 2021. This rule 
requires no change to that approved information collection under the 
Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq.

J. National Environmental Policy Act

    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment. A detailed statement 
under the National Environmental Policy Act of 1969 (NEPA) is not 
required because this is an administrative and procedural regulation. 
(For further information see 43 CFR 46.210(i).) We have also determined 
that the rule does not involve any of the extraordinary circumstances 
listed in 43 CFR 46.215 that would require further analysis under NEPA.

K. Effects on the Energy Supply (E.O. 13211)

    This rule is not a significant energy action under the definition 
in E.O. 13211. A Statement of Energy Effects is not required.

L. Clarity of This Regulation

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    a. Be logically organized;
    b. Use the active voice to address readers directly;
    c. Use clear language rather than jargon;
    d. Be divided into short sections and sentences; and
    e. Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that you find unclear, which sections or sentences are 
too long, the sections where you believe lists or tables would be 
useful, etc.

M. Public Availability of Comments

    Before including your address, phone number, email address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

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, Bureau of Indian Affairs, proposes to amend 25 CFR part 83 as 
follows:

PART 83--PROCEDURES FOR FEDERAL ACKNOWLEDGMENT OF INDIAN TRIBES

0
1. Revise the authority citation for part 83 to read:

    Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 5131; 25 U.S.C. 5130 
note (Congressional Findings); and 43 U.S.C. 1457.

0
2. In Sec.  83.4, republish paragraph (d) to read as follows:

[[Page 24918]]

Sec.  83.4   Who cannot be acknowledged under this part?

* * * * *
    (d) An entity that previously petitioned and was denied Federal 
acknowledgment under these regulations or under previous regulations in 
part 83 of this title (including reconstituted, splinter, spin-off, or 
component groups who were once part of previously denied petitioners).

Bryan Newland,
Assistant Secretary--Indian Affairs.
[FR Doc. 2022-08488 Filed 4-26-22; 8:45 am]
BILLING CODE 4337-15-P


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