24908 Federal Register / Vol. 87, No. 81 / Wednesday, April 27, 2022 / Proposed Rules 

DAFLY, LA WP (Lat. 30°11′37.70′′ N, long. 091°59′33.94′′ W) 

* * * * * 

T–466 San Angelo, TX (SJT) to Sabine Pass, TX (SBI) [New] 

San Angelo, TX (SJT) VORTAC (Lat. 31°22′29.84′′ N, long. 100°27′17.53′′ W) 

CHILD, TX WP (Lat. 31°03′41.17′′ N, long. 100°27′40.62′′ W) 

Junction, TX (JCT) VORTAC (Lat. 30°35′52.88′′ N, long. 099°49′02.93′′ W) 

BETTI, TX FIX (Lat. 29°57′54.97′′ N, long. 098°03′23.98′′ W) 

MARCS, TX FIX (Lat. 29°53′52.04′′ N, long. 097°51′40.70′′ W) 

SEEDS, TX FIX (Lat. 29°39′31.94′′ N, long. 097°14′58.66′′ W) 

LDRET, TX WP (Lat. 29°39′44.93′′ N, long. 096°19′00.96′′ W) 

KEEDS, TX WP (Lat. 29°21′59.49′′ N, long. 095°36′48.98′′ W) 

Scholes, TX (VUH) VOR/DME (Lat. 29°16′09.60′′ N, long. 094°52′03.81′′ W) 

Sabine Pass, TX (SBI) VOR/DME (Lat. 29°41′12.19′′ N, long. 094°02′16.72′′ W) 

Issued in Washington, DC, on April 21, 

2022. 

Scott M. Rosenbloom, 

Manager, Airspace Rules and Regulations. 

[FR Doc. 2022–08890 Filed 4–26–22; 8:45 am] 

BILLING CODE 4910–13–P 

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. 

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: 

• Federal rulemaking portal: https://

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Email: consultation@bia.gov. 

Include the number 1076–AF67 in the 

subject line of the message. 

• 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-opjMtHR5nht0X2HK

cjOh35Oz23SU. 

• 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, RACA@bia.gov. 

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 


lotter on DSK11XQN23PROD with PROPOSALS1
Federal Register / Vol. 87, No. 81 / Wednesday, April 27, 2022 / Proposed Rules 24909 

1 25 U.S.C. 2 and 9, and 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, Sec. 103(2), (3), (8) 

(Nov. 2, 1994). 

4 25 CFR 83.11(a)–(g) (2015 version of the 

criteria); id. § 83.7(a)–(g) (1994) (1994 version); id. 

§ 54.7(a)–(g) (1978) (1978 version). 

5 25 CFR 83.5. 

6 25 CFR 83.3(f) (1994); 59 FR 9280, 9294 (Feb. 

25, 1994). 

7 79 FR 30766, 30767 (May 29, 2014). 

8 25 CFR 83.4(b)(1) (proposed 2014); see also 79 

FR 30774 (containing the proposed provision). 

9 79 FR 30767. 

10See 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. 

11 79 FR 30767. 

12 Id. 

13 25 CFR 83.4(d); see 80 FR 37861, 37888–89 

(July 1, 2015). 

14 80 FR 37875. 

15 Id. 

16 Id. 

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

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

10, 2020). 

18Burt 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). 

20Chinook, 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’’). 

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

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

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 repetitioning, 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

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: 

• 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 

• The petitioner proves, by a 

preponderance of the evidence, that 

either: 

Æ A change from the previous version 

of the regulations to the current version 

of the regulations warrants 

reconsideration of the final 

determination; or 

Æ The ‘‘reasonable likelihood’’ 

standard was misapplied in the final 

determination.8

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 thirdparty consent condition might limit the 

number of re-petitioners.10

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

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 repetitions on the Department, and [the 

Office of Federal Acknowledgment] in 

particular.’’ 16

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 


lotter on DSK11XQN23PROD with PROPOSALS1
24910 Federal Register / Vol. 87, No. 81 / Wednesday, April 27, 2022 / Proposed Rules 

21Chinook, 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)). 

23Chinook, 2020 WL 128563, at *8. 

24Burt Lake, 2020 WL 1451566, at *12. 

25See 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’’). 

26Chinook, 2020 WL 128563, at *8. 

27Burt Lake, 2020 WL 1451566, at *10. 

28See id. at 37862. 

29See, 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’’). 

30 Id. 

31 Id. at 37862. 

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

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 repetition 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. 

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, nonfederally recognized groups, an interTribal 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

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. 

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 


lotter on DSK11XQN23PROD with PROPOSALS1
Federal Register / Vol. 87, No. 81 / Wednesday, April 27, 2022 / Proposed Rules 24911 

32See 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). 

33See 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). 

34See 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). 35 25 CFR 83.10(i) (1994); id. § 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. § 54.10 (1978). 

38 Id. § 83.11(d)(2) (1994); Id. § 54.10(c)(2) (1978). 

39 Id. § 83.11(d)(4) (1994). 

40Chinook, 2020 WL 128563, at *8. 

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. 

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 repetitioning 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. 

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. 

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 repetitioning. 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 


lotter on DSK11XQN23PROD with PROPOSALS1
24912 Federal Register / Vol. 87, No. 81 / Wednesday, April 27, 2022 / Proposed Rules 

41 Id. at *4–5 (citations omitted). 

42Burt Lake, 2020 WL 1451566, at *9. 

43 80 FR 37863 (July 1, 2015); see also id. at 

37868–69. 

44 Id. at 37863. 

45 Id. at 37869. 

46Cf. 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’’). 

47 Id. at 37863. 

48See 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’’). 

49Based 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. 

50See 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’’). 

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). 

54 25 CFR 83.7(f) (1994). 

55 Id. 

56 80 FR 37891 (July 1, 2015). 

‘‘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

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

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. 

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

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 § 83.11(e)(1) 

ensures that the Department will 

continue to do so. 

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


lotter on DSK11XQN23PROD with PROPOSALS1
Federal Register / Vol. 87, No. 81 / Wednesday, April 27, 2022 / Proposed Rules 24913 

57See id. at 37873. 

58See 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))). 

59 25 CFR 83.11(b); 80 FR 37890 (July 1, 2015). 

60 25 CFR 83.11(b)(1)(i). 

61 Id. § 83.11(b)(1)(ii). 

62 Id. § 83.11(b)(2); id. § 83.7(b)(2) (1994). 

63 Id. § 83.11(b)(2)(ii). 

64 Id. § 83.7(b)(2)(ii) (1994). 

65 80 FR 37863 (July 1, 2015). 

66 Id. at 37870. 

71 59 FR 9295 (February 25, 1994). 

72 Id. at 9280. 

73 25 CFR 83.10(a). 

74 80 FR 37865 (July 1, 2015). 

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 repetitioning. 

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

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. 

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 § 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 socalled ‘‘reasonable likelihood’’ standard 

did not create a new evidentiary 

standard; rather, it ‘‘codif[ied] current 

practices’’ applied under the 1978 

regulations as well.72

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 

§ 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.’’ 

By its plain terms, § 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 

§ 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 


lotter on DSK11XQN23PROD with PROPOSALS1
24914 Federal Register / Vol. 87, No. 81 / Wednesday, April 27, 2022 / Proposed Rules 

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.’’). 

77 Id. at 37874. 

78Chinook, 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.’’). 

79See 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. § 83.44 (‘‘The AS–IA’s final 

determination is final for the Department and is a 

final agency action under the [APA].’’). 

80E.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’’). 

81Astoria 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 

§ 83.4(b)(1)). 

inconsistent manner in its past 

determinations. Rather, it is simply an 

assurance of consistency going forward. 

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 

§ 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, 

§ 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

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 repetitioning 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

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. 

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. 

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. 

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 


lotter on DSK11XQN23PROD with PROPOSALS1
Federal Register / Vol. 87, No. 81 / Wednesday, April 27, 2022 / Proposed Rules 24915 

83Solimino, 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). 

85Burt Lake, 2020 WL 1451566, at *12 (citations 

omitted). 

86 79 FR 30767 (May 29, 2014) (proposed 

§ 83.4(b)(2)(ii)). 

87Burt Lake, 2020 WL 1451566, at 11 (citing 79 

FR 30774 (May 29, 2014)). 

88See 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))). 

89Chinook, 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). 

92 Id. § 83.11(e). 

93 80 FR 37862 (July 1, 2015). 

94Chinook, 2020 WL 128563, at *9. 

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

The Burt Lake court observed that repetitioning 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 repetition. 

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 repetitioners 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 

§ 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

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 § 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. 

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 § 83.11(f). A 

change in membership, in turn, could 

affect the Department’s prior conclusion 

on criterion (e) (Descent) at § 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

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, timesensitive administrative burden that the 

Department—and OFA especially— 

would incur as a result of allowing repetitioning. 

For example, and putting aside the 

burdens associated with processing repetitions 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 nonFederal parties (even petitioners) upon 

request. As a result, prospective repetitioners or interested third parties 

likely would need to submit FOIA 


lotter on DSK11XQN23PROD with PROPOSALS1
24916 Federal Register / Vol. 87, No. 81 / Wednesday, April 27, 2022 / Proposed Rules 

95See 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. 

96U.S. Gov’t Accountability Off., GAO–02–49, 

Indian Issues: Improvements Needed in Tribal 

Recognition Process 16 (2001). 

97See 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]’’). 

98 80 FR 37875 (July 1, 2015). 99See 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.§ 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. § 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. 

§ 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’’). 

102See id. § 83.10(a) (1994) (permitting the AS– 

IA to initiate research for any purpose relative to 

analyzing a documented petition); id. § 54.9(a) 

(1978) (same). 

103See 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). 

104See, 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). 

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. 

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. 

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 repetition 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. 

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. 

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

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. 

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 § 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 


lotter on DSK11XQN23PROD with PROPOSALS1
Federal Register / Vol. 87, No. 81 / Wednesday, April 27, 2022 / Proposed Rules 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-togovernment relationship with Indian 

Tribes through a commitment to 

consultation with Indian Tribes and 

recognition of their right to selfgovernance 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 

■ 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. 

■ 2. In § 83.4, republish paragraph (d) to 

read as follows: 


lotter on DSK11XQN23PROD with PROPOSALS1
24918 Federal Register / Vol. 87, No. 81 / Wednesday, April 27, 2022 / Proposed Rules 

§ 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, spinoff, 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 

DEPARTMENT OF THE TREASURY 

Internal Revenue Service 

26 CFR Part 20 

[REG–118913–21] 

RIN 1545–BQ22 

Estate and Gift Taxes; Limitation on 

the Special Rule Regarding a 

Difference in the Basic Exclusion 

Amount 

AGENCY: Internal Revenue Service (IRS), 

Treasury. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: This document contains 

proposed amendments to the Estate Tax 

Regulations relating to the basic 

exclusion amount (BEA) applicable to 

the computation of Federal estate and 

gift taxes. The proposed regulations 

affect the estates of decedents dying 

after a reduction in the BEA who made 

certain types of gifts after 2017 and 

before a reduction in the BEA. 

DATES: Written or electronic comments 

and requests for a public hearing must 

be received by July 26, 2022. Requests 

for a public hearing must be submitted 

as prescribed in the ‘‘Comments and 

Requests for a Public Hearing’’ section. 

ADDRESSES: Commenters are strongly 

encouraged to submit public comments 

electronically. Submit electronic 

submissions via the Federal 

eRulemaking Portal at https://

www.regulations.gov (indicate IRS and 

REG–118913–21) by following the 

online instructions for submitting 

comments. Once submitted to the 

Federal eRulemaking Portal, comments 

cannot be edited or withdrawn. The IRS 

expects to have limited personnel 

available to process public comments 

that are submitted on paper through the 

mail. Until further notice, any 

comments submitted on paper will be 

considered to the extent practicable. 

The Department of the Treasury 

(Treasury Department) and the IRS will 

publish for public availability any 

comment submitted electronically, and 

to the extent practicable on paper, to its 

public docket. Send paper submissions 

to: CC:PA:LPD:PR (REG–118913–21), 

Room 5203, Internal Revenue Service, 

P.O. Box 7604, Ben Franklin Station, 

Washington, DC 20044. 

FOR FURTHER INFORMATION CONTACT: 

Concerning the proposed regulations, 

John D. MacEachen at (202) 317–6859; 

concerning submissions of comments, 

the public hearing, and the access code 

to attend the hearing by telephone, 

Regina Johnson at (202) 317–5177 (not 

toll-free numbers) or by sending an 

email to Publichearings@irs.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

Section 11061 of the Tax Cuts and 

Jobs Act, Public Law 115–97, 131 Stat. 

2054, 2091 (2017) (TCJA), amended 

section 2010(c)(3) of the Internal 

Revenue Code (Code) to provide that, 

for decedents dying and gifts made after 

December 31, 2017, and before January 

1, 2026, the BEA is increased by $5 

million to $10 million as adjusted for 

inflation (increased BEA). Under the 

TCJA, on January 1, 2026, the BEA will 

revert to $5 million as adjusted for 

inflation. 

Section 11061 of the TCJA also added 

new section 2001(g)(2) to the general 

statute of the Code that imposes the 

Federal estate tax. Section 2001(g)(2) 

grants the Secretary of the Treasury or 

her delegate (Secretary) authority to 

prescribe such regulations as may be 

necessary or appropriate to carry out 

section 2001 with respect to any 

difference between the BEA applicable 

at the time of a decedent’s death and the 

BEA applicable with respect to any gifts 

made by the decedent. This specific 

authority is in addition to the 

Secretary’s preexisting authority under 

section 2010(c)(6) to prescribe such 

regulations as may be necessary or 

appropriate to carry out section 2010(c). 

On November 26, 2019, the Treasury 

Department and the IRS published final 

regulations under section 2010 (TD 

9884) in the Federal Register (84 FR 

64995) to address situations described 

in section 2001(g)(2) (final regulations). 

The final regulations adopted 

§ 20.2010–1(c), a special rule (special 

rule) applicable in cases where the 

credit against the estate tax that is 

attributable to the BEA is less at the date 

of death than the sum of the credits 

attributable to the BEA allowable in 

computing gift tax payable within the 

meaning of section 2001(b)(2) with 

regard to the decedent’s lifetime gifts. In 

such cases, the portion of the credit 

against the net tentative estate tax that 

is attributable to the BEA is based on the 

sum of the credits attributable to the 

BEA allowable in computing gift tax 

payable regarding the decedent’s 

lifetime gifts. The rule ensures that the 

estate of a donor is not taxed on 

completed gifts that, as a result of the 

increased BEA, were free of gift tax 

when made. The preamble to the final 

regulations stated that further 

consideration would be given to the 

issue of whether gifts that are not true 

inter vivos transfers, but rather are 

includible in the gross estate, should be 

excepted from the special rule, and that 

any proposal addressing this issue 

would benefit from notice and 

comment. 

This document contains proposed 

amendments to the Estate Tax 

Regulations (26 CFR part 20) relating to 

the BEA described in section 2010(c)(3) 

of the Code (proposed regulations), for 

which purpose the final regulations 

reserved § 20.2010–1(c)(3). The special 

rule currently does not distinguish 

between: (i) Completed gifts that are 

treated as adjusted taxable gifts for 

estate tax purposes and that, by 

definition, are not included in the 

donor’s gross estate; and (ii) completed 

gifts that are treated as testamentary 

transfers for estate tax purposes and are 

included in the donor’s gross estate 

(includible gift). The Code and the 

regulations, however, do distinguish 

between these two types of transfers. 

Section 2001(b) (flush language) 

excludes from the term ‘‘adjusted 

taxable gifts’’ gifts that are includible in 

the gross estate. Section 2701(e)(6) and 

§ 25.2701–5 similarly remove from 

adjusted taxable gifts transfers 

includible in the gross estate that 

previously were subject to the special 

valuation rules of section 2701. See also 

§ 25.2702–6 (excluding from adjusted 

taxable gifts certain transfers includible 

in the gross estate that previously were 

subject to the special valuation rules of 

section 2702) and Rev. Rul. 84–25, 

1984–1 C.B. 191 (excluding from 

adjusted taxable gifts completed 

transfers that will be satisfied with 

assets includible in the gross estate). In 

keeping with the statutory distinction 

between completed gifts that are treated 

as adjusted taxable gifts and completed 

gifts that are treated as testamentary 

transfers, these proposed regulations 

generally would deny the benefit of the 

special rule to includible gifts. 

Regardless of whether a gift is treated 

as an adjusted taxable gift or as an 

includible gift for estate tax purposes, 


lotter on DSK11XQN23PROD with PROPOSALS1