Federal Acknowledgment of American Indian Tribes, 57097-57111 [2024-15070]

Agencies

• DEPARTMENT OF THE INTERIOR
• Bureau of Indian Affairs

[Federal Register Volume 89, Number 134 (Friday, July 12, 2024)]
[Proposed Rules]
[Pages 57097-57111]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-15070]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 83

[BIA-2022-0001; 245A2100DD/AAKC001030/A0A501010.999900]
RIN 1076-AF67


Federal Acknowledgment of American Indian Tribes

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Second notice of proposed rulemaking.

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SUMMARY: The United States Department of the Interior (Department) 
seeks input on a proposal to create a conditional, time-limited 
opportunity for denied petitioners to re-petition for Federal 
acknowledgment as an Indian Tribe.

DATES: 
     Proposed Regulations: Please submit your comments by 11:59 
p.m. ET on Friday, September 13, 2024.
     Virtual Meetings: Consultation sessions with federally 
recognized Indian Tribes will be held on August 19, 2024 and September 
3, 2024. A listening session for present, former, and prospective 
petitioners will be held on September 5, 2024.
     Information Collection Requirements: If you wish to 
comment on the information collection requirements in this proposed 
rule, please note that the Office of Management and Budget (OMB) is 
required to make a decision concerning the collection of information 
contained in this proposed rule between 30 and 60 days after 
publication of this proposed rule in the Federal Register. Therefore, 
comments should be submitted to OMB (see ``Information Collection 
Requirements'' section below under ADDRESSES) by August 12, 2024.

ADDRESSES: 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: Please visit https://www.regulations.gov. Enter ``RIN 1076-AF67'' or ``BIA-2022-0001'' in 
the web page's search box and follow the instructions for sending 
comments.
     Email: [email protected]. Include ``RIN 1076-AF67'' or 
``25 CFR part 83'' in the subject line of the message.
     Hand Delivery/Courier: Department of the Interior, Office 
of the Assistant Secretary--Indian Affairs, Attention: Office of 
Federal Acknowledgment, Mail Stop 4071 MIB, 1849 C Street NW, 
Washington, DC 20240.
     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 August 19, 2024 consultation session at https://www.zoomgov.com/meeting/register/vJItc-qqqTsiH8cfOkrLr2UUOwkOq199siI. Federally 
recognized Indian Tribes may register for the September 3, 2024 
consultation session at https://www.zoomgov.com/meeting/register/vJItduGorjsoHgUodFTHwBMMQNlw9RwluIA.

[[Page 57098]]

     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 September 5, 2024 listening session at https://www.zoomgov.com/meeting/register/vJIscuysqz8tGcSUvtGt7ETrNdXAQJScrXg.
     Accessible Format: On request to the program contact 
person listed under FOR FURTHER INFORMATION CONTACT, individuals can 
obtain this document in an alternate format, usable by people with 
disabilities, at the Office of Federal Acknowledgment, Room 4071, 1849 
C Street NW, Washington, DC 20240.
     Information Collection Requirements: Written comments and 
recommendations for the proposed information collection request (ICR) 
should be sent within 30 days of publication of this document to the 
Office of Information and Regulatory Affairs (OIRA) through https://www.reginfo.gov/public/do/PRA/icrPublicCommentRequest?ref_nbr=202310-1076-001 or by visiting https://www.reginfo.gov/public/do/PRAMain and 
selecting ``Currently under Review--Open for Public Comments'' and then 
scrolling down to the ``Department of the Interior'' and selecting OMB 
control number ``1076-0104.''

FOR FURTHER INFORMATION CONTACT: Oliver Whaley, Director, Office of 
Regulatory Affairs and Collaborative Action, Office of the Assistant 
Secretary--Indian Affairs, (202) 738-6065, [email protected]. 
Individuals in the United States who are deaf, deafblind, hard of 
hearing, or have a speech disability may dial 711 (TTY, TDD, or 
TeleBraille) to access telecommunications relay services.

SUPPLEMENTARY INFORMATION: Since 1994, the regulations governing the 
Federal acknowledgment process, located at 25 CFR part 83 (part 83), 
have included an express prohibition on re-petitioning (ban). When the 
Department revised the part 83 regulations in 2015 (2015 regulations), 
the Department decided to retain the ban; however, two Federal district 
courts held that the Department's stated reasons for doing so, as 
articulated in the final rule updating the regulations (2015 final 
rule), were arbitrary and capricious under the Administrative Procedure 
Act (APA). The courts remanded the ban to the Department for further 
consideration. After initially proposing to maintain the ban in 2022, 
the Department is now proposing to create a limited exception to the 
ban, through implementation of a re-petition authorization process. The 
Department invites comments on its proposal, as well as the reasoning 
in support of the proposed re-petition authorization process.

I. Background
    A. Federal Acknowledgment Process
    B. Ban on Re-Petitioning
    C. Remand of the Ban
    D. 2022 Proposed Rule
II. Summary of This Proposed Rule
    A. Re-Petition Authorization Process
    B. Additional, Related Revisions
    C. Technical Revisions
III. Discussion of the Comments on the 2022 Proposed Rule
    A. Comments on the 2015 Final Rule's Changes to Part 83
    B. Comments on the Availability of New Evidence
    C. Comments on Alleged Inconsistencies in the Department's 
Previous, Negative Final Determinations
    D. Comments on Interests in the Finality of the Department's 
Final Determinations
    1. Third-Party Interests in Finality
    2. Departmental Interests in Finality
IV. Procedural Requirements
    A. Regulatory Planning and Review (E.O. 12866 and 13563)
    B. Regulatory Flexibility Act
    C. Small Business Regulatory Enforcement Fairness Act
    D. Unfunded Mandates Reform Act
    E. Takings (E.O. 12630)
    F. Federalism (E.O. 13132)
    G. Civil Justice Reform (E.O. 12988)
    H. Consultation With Indian Tribes (E.O. 13175)
    I. Paperwork Reduction Act
    J. National Environmental Policy Act
    K. Effects on the Energy Supply (E.O. 13211)
    L. Clarity of This Regulation
    M. Public Availability of Comments
    N. Privacy Act of 1974, Existing System of Records

I. Background

A. Federal Acknowledgment Process

    Congress granted the Secretary of the Interior, and as delegated to 
the Assistant Secretary--Indian Affairs (AS-IA), authority to ``have 
management of all Indian affairs and of all matters arising out of 
Indian relations.'' \1\ This authority includes the authority to 
implement an administrative process to acknowledge Indian Tribes.\2\ As 
the congressional findings that support the Federally Recognized Indian 
Tribe List Act of 1994 indicate, Indian Tribes may be recognized ``by 
the administrative procedures set forth in part 83 of the Code of 
Federal Regulations.'' \3\
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    \1\ 25 U.S.C. 2 and 9; 43 U.S.C. 1457.
    \2\ See, e.g., Muwekma Ohlone Tribe v. Salazar, 708 F.3d 209, 
211 (D.C. Cir. 2013); James v. United States Dep't of Health & Human 
Servs., 824 F.2d 1132, 1137 (D.C. Cir. 1987).
    \3\ See Public Law 103-454, section 103(3) (1994).
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    Part 83 codifies the process through which a group may petition the 
Department for acknowledgment as a federally recognized Indian Tribe. 
Part 83 requires groups petitioning for Federal acknowledgment to meet 
seven mandatory criteria, the satisfaction of which has been central to 
the Federal acknowledgment process since its inception.\4\ The 
Department refers to the seven criteria as the (a) ``Indian Entity 
Identification'' criterion, (b) ``Community'' criterion, (c) 
``Political Authority'' criterion, (d) ``Governing Document'' 
criterion, (e) ``Descent'' criterion, (f) ``Unique Membership'' 
criterion, and (g) ``Congressional Termination'' criterion.\5\
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    \4\ 25 CFR 83.11(a) through (g) (2015 version of the criteria); 
id. Sec.  83.7(a) through (g) (1994) (1994 version); id. Sec.  
54.7(a) through (g) (1978) (1978 version).
    \5\ 25 CFR 83.5.
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B. Ban on Re-Petitioning

    First promulgated in 1978 at 25 CFR part 54 (1978 regulations), the 
Federal acknowledgment regulations were subsequently moved to part 83 
\6\ and revised in 1994 (1994 regulations).\7\ The 1978 regulations 
were silent on the question of re-petitioning, and since 1994, part 83 
has expressly prohibited petitioners that have received a negative 
final determination from the Department from re-petitioning under part 
83.\8\ The final rule updating the regulations in 1994 notes that 
although some commenters had expressed concern that ``undiscovered 
evidence which might change the outcome of decisions could come to 
light in the future,'' the Department reasoned that ``there should be 
an eventual end to the present administrative process.'' \9\ 
Additionally, the Department pointed out that ``petitioners who were 
denied went through several stages of review with multiple 
opportunities to develop and submit evidence.'' \10\ The Department 
also explained that ``[t]he changes in the regulations are not so 
fundamental that they can be expected to result in different outcomes 
for cases previously decided.'' \11\ Finally, the Department observed 
that ``[d]enied petitioners still have the opportunity to seek 
legislative recognition if substantial new evidence develops.'' \12\
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    \6\ 47 FR 13326 (Mar. 30, 1982).
    \7\ 59 FR 9280 (Feb. 25, 1994).
    \8\ 25 CFR 83.3(f) (1994); 59 FR 9294.
    \9\ 59 FR 9291.
    \10\ 59 FR 9291.
    \11\ 59 FR 9291.
    \12\ 59 FR 9291.

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[[Page 57099]]

    In a 2014 notice of proposed rulemaking (2014 proposed rule), the 
Department proposed giving previously denied petitioners a conditional 
opportunity to re-petition.\13\ The 2014 proposed rule proposed to 
allow re-petitioning only if:
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    \13\ 79 FR 30766, 30767 (May 29, 2014).
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    (i) Any third parties that participated as a party in an 
administrative reconsideration or Federal Court appeal concerning the 
petitioner has consented in writing to the re-petitioning; and
    (ii) The petitioner proves, by a preponderance of the evidence, 
that either:
    (a) A change from the previous version of the regulations to the 
current version of the regulations warrants reconsideration of the 
final determination; or
    (b) The ``reasonable likelihood'' standard was misapplied in the 
final determination.\14\
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    \14\ 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.'' \15\ The 
Department did not discuss the extent to which the third-party consent 
condition might limit the number of re-petitioners.\16\
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    \15\ 79 FR 30767.
    \16\ See Burt Lake Band of Ottawa and Chippewa Indians v. 
Bernhardt, 613 F. Supp. 3d 371, 385 (D.D.C. 2020) (noting that the 
record ``does not provide statistics to show . . . how many 
[petitioners] would be able to re-apply under the limited proposed 
exception''). The Department has since identified eleven denied 
petitioners that would have been subject to the third-party consent 
condition under the 2014 proposed rule: Duwamish Indian Tribe, 
Tolowa Nation, Nipmuc Nation (Hassanamisco Band), Webster/Dudley 
Band of Chaubunagungamaug Nipmuck Indians, Eastern Pequot Indians of 
Connecticut and 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 an unsuccessful petitioner to 
prove that either a change in the regulations or a misapplication of 
the reasonable likelihood standard warrants reconsideration--might 
limit the number of re-petitioners. However, as a general matter, the 
Department noted that ``the changes to the regulations are generally 
intended to provide uniformity based on previous decisions,'' so the 
circumstances in which re-petitioning might be ``appropriate'' would be 
``limited.'' \17\ The proposed rule did not identify any change to the 
seven mandatory criteria that ``would likely change [any negative] 
previous final determination[s].'' \18\
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    \17\ 79 FR 30767.
    \18\ 79 FR 30767.
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    Ultimately, in the 2015 final rule updating part 83, the Department 
expressly retained the ban.\19\ In the preamble of the rule, the 
Department summarized its reasoning as follows and without any 
additional discussion, the final rule promotes consistency, expressly 
providing that evidence or methodology that was sufficient to satisfy 
any particular criterion in a previous positive decision on that 
criterion will be sufficient to satisfy the criterion for a present 
petitioner. The Department has petitions pending that have never been 
reviewed. Allowing for re-petitioning by denied petitioners would be 
unfair to petitioners who have not yet had a review, and would hinder 
the goals of increasing efficiency and timeliness by imposing the 
additional workload associated with re-petitions on the Department, and 
the Office of Federal Acknowledgment (OFA) in particular. The part 83 
process is not currently an avenue for re-petitioning.\20\
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    \19\ 25 CFR 83.4(d); see 80 FR 37861, 37888-89 (July 1, 2015).
    \20\ 80 FR 37875.
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C. Remand of the Ban

    In 2020, two Federal district courts--one in a case brought by a 
former petitioner seeking acknowledgement as the Chinook Indian Nation 
\21\ and one in a case brought by a former petitioner seeking 
acknowledgement as the Burt Lake Band of Ottawa and Chippewa Indians 
\22\--held that the Department's reasons for implementing the ban, as 
articulated in the preamble to the 2015 final rule revising part 83, 
were arbitrary and capricious under the 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.\23\ 
Additionally, both courts noted that their review was highly 
deferential to the agency's decision under applicable tenets of 
administrative law.\24\ As a result, the narrow question left for the 
courts to decide was whether the Department, in retaining the ban, 
``examine[d] the relevant data and articulate[d] a satisfactory 
explanation for its action including a `rational connection between the 
facts found and the choice made.' ''
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    \21\ Chinook Indian Nation v. Bernhardt, No. 3:17-cv-05668-RBL, 
2020 WL 128563 (W.D. Wash. Jan. 10, 2020).
    \22\ Burt Lake Band of Ottawa and Chippewa Indians v. Bernhardt, 
613 F. Supp. 3d 371 (D.D.C. 2020).
    \23\ Chinook, 2020 WL 128563, at * 6 (stating that ``the Court 
agrees with DOI that its expansive power over Indian affairs 
encompasses the re-petition ban'' (citation omitted)); Burt Lake, 
613 F. Supp. 3d at 378 (stating that ``the regulation [banning re-
petitioning] comports with the agency's authority'').
    \24\ Chinook, 2020 WL 128563, at * 7 (citation omitted); Burt 
Lake, 613 F. Supp. 3d at 379 (citation omitted).
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    Both courts concluded that the Department had not satisfied this 
standard. The Chinook court held that the Department's reasons were 
``illogical, conclusory, and unsupported by the administrative 
record,'' as well as not ``rationally connect[ed] . . . to the evidence 
in the record.'' \25\ Similarly, the Burt Lake court concluded that the 
Department's reasons were ``neither well-reasoned nor rationally 
connected to the facts in the record.'' \26\ Both courts concluded 
that, despite the Department's argument that the 2015 revisions to part 
83 did not make any substantive changes to the criteria other than 
those specifically identified, the Department had failed to explain why 
the Department could permissibly maintain the ban given those changes 
and others, after having proposed a limited re-petition process in the 
2014 proposed rule.\27\ 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.'' \28\ The Burt Lake court linked 
reform of the Federal acknowledgment process generally with an 
``opportunity to re-petition and to seek to satisfy the new 
criterion.'' \29\
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    \25\ Chinook, 2020 WL 128563, at * 8.
    \26\ Burt Lake, 613 F. Supp. 3d at 386.
    \27\ See Chinook, 2020 WL 128563, at * 4-5 (identifying five 
``notable'' changes in the 2015 version of part 83); Burt Lake, 613 
F. Supp. 3d at 383-84 (highlighting two changes that the court 
deemed ``not minor'').
    \28\ Chinook, 2020 WL 128563, at * 8.
    \29\ Burt Lake, 613 F. Supp. 3d at 384.
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    Neither the Chinook nor Burt Lake courts struck down the 2015 final 
rule in whole or in part. Rather, both courts remanded the ban to the 
Department for further consideration.\30\
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    \30\ Chinook, 2020 WL 128563, at * 10; Burt Lake, 613 F. Supp. 
3d at 387.
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D. 2022 Proposed Rule

    Pursuant to the courts' orders, on December 18, 2020, the 
Department announced an intent to reconsider the ban and invited 
federally recognized Indian Tribes to consult on whether to

[[Page 57100]]

allow or deny re-petitioning. On February 25, 2021, the Department held 
a Tribal consultation session. The Department also solicited written 
comments on the ban through March 31, 2021. On April 27, 2022, the 
Department published a proposed rule (2022 proposed rule) to retain the 
ban, albeit based on revised justifications in light of the courts' 
rejection of the reasoning set forth in the 2015 final rule.\31\ The 
2022 proposed rule highlighted the following in proposing to retain the 
ban:
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    \31\ 87 FR 24908 (Apr. 27, 2022).
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    (1) the substantive integrity of the Department's previous, 
negative determinations;
    (2) the due process that has already been afforded to unsuccessful 
petitioners;
    (3) the non-substantive nature of the revisions to part 83 in the 
2015 final rule;
    (4) the interests of the Department and third parties in finality; 
and
    (5) the inappropriateness of allowing re-petitioning based on new 
evidence.\32\
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    \32\ 87 FR 24910-16.
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    Following publication of the 2022 proposed rule, the Department 
held two Tribal consultation sessions with federally recognized Indian 
Tribes and a listening session with present, former, and prospective 
petitioners for Federal acknowledgment. The Department also solicited 
written comments through July 6, 2022, and received approximately 270 
comments from federally recognized Indian Tribes and a wide range of 
stakeholders, including former and prospective part 83 petitioners, 
various State and local government representatives, individuals, and 
others.
    After reviewing the written comments, as well as the transcripts of 
the consultation and listening sessions, the Department engaged in 
further deliberation of three options: (1) keeping the ban in place; 
(2) creating a limited avenue for re-petitioning; and (3) creating an 
open-ended avenue for re-petitioning, with few or no limitations. The 
Department is now proposing to create a limited exception to the ban, 
in line with the second option, through implementation of a re-petition 
authorization process. The Department's proposal reflects a 
reconsidered policy on re-petitioning for Federal acknowledgment, and 
the reasoning underlying the proposal differs in some respects from 
that underlying the 2022 proposed rule, which would have retained the 
re-petition ban. Even if the reasons for upholding the ban in the 2022 
proposed rule were valid, the Department is proposing a revised 
approach here based on the reconsidered policy. What follows is a 
summary of the Department's proposal and a discussion of the comments 
that informed it. The Department invites comments on the proposal, as 
well as the reasoning in support of it.

II. Summary of This Proposed Rule

A. Re-Petition Authorization Process

    This proposed rule would append a new subpart titled ``Subpart D--
Re-Petition Authorization Process'' to the end of the current part 83 
regulations. The new subpart would apply to ``unsuccessful 
petitioner[s],'' which would be a new term defined in Sec.  83.1.\33\ 
Pursuant to the new subpart, an unsuccessful petitioner that seeks to 
re-petition would first have to plausibly allege that the outcome of 
the previous, negative final determination would change to positive on 
reconsideration based on one or both of the following: (1) a change in 
part 83 (from the 1978 or 1994 regulations to the 2015 regulations); 
and/or (2) new evidence.\34\
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    \33\ 25 CFR 83.1 (proposed 2023) (defining an ``unsuccessful 
petitioner'' as ``an entity that was denied Federal acknowledgment 
after petitioning under any version of the acknowledgment 
regulations at part 54 or part 83 of title 25''). The term 
``unsuccessful petitioner'' applies only to those that have received 
a final agency decision, not to those that have received only a 
proposed finding or that have withdrawn from the process prior to 
receiving a final agency decision. For a complete list of 
unsuccessful petitioners, see Petitions Denied Through 25 CFR part 
83 (34 Petitions), Office of Fed. Acknowledgment, https://www.bia.gov/as-ia/ofa/petitions-resolved/denied (last visited Sept. 
18, 2023) (listing thirty-four unsuccessful petitioners as of 
September 18, 2023).
    \34\ 25 CFR 83.48(a) (proposed 2023).
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    This standard, requiring a petitioner to state a plausible claim 
for re-petitioning based on one of the conditions above, is akin to the 
standard for surviving a motion to dismiss.\35\ Under the standard, a 
petitioner's allegations regarding changes in part 83 and/or new 
evidence would have to address the deficiencies that, according to the 
Department, prevented the petitioner from satisfying all seven 
mandatory criteria (located at Sec.  83.11(a) through (g) in the 2015 
regulations). Otherwise, even if the allegations were taken as true, 
they would not change the previous, negative outcome and, therefore, 
would not justify reconsideration. That is, because Federal 
acknowledgment requires satisfaction of all seven criteria,\36\ the 
petitioner's re-petition request would have to address all of the 
criteria that the petitioner did not satisfy. For example, if the 
Department determined in the previous, negative final determination 
that the petitioner did not satisfy criteria (a) (Indian Entity 
Identification), (b) (Community), and (c) (Political Authority), then 
the petitioner would have to plausibly allege that application of the 
2015 regulations, consideration of new evidence, or both would address 
the deficiencies relating to all three criteria, not only one or two.
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    \35\ See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining 
that, ``[t]o survive a motion to dismiss, a complaint must contain 
sufficient factual matter, accepted as true, to `state a claim to 
relief that is plausible on its face' '' (quoting Bell Atlantic 
Corp. v. Twombly, 550 U.S. 544, 570 (2007))).
    \36\ 25 CFR 83.43(a); id. Sec.  83.5.
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    A decision granting authorization to re-petition (grant of 
authorization to re-petition) would not be the same as a final agency 
decision granting Federal acknowledgment. Rather, a decision granting 
authorization to re-petition would simply permit the petitioner to 
proceed with a new documented petition through the Federal 
acknowledgment process.\37\ Upon authorization to re-petition, the 
petitioner would then have to submit a complete documented petition 
under Sec.  83.21 to request Federal acknowledgment and receive 
substantive review of the petitioner's claims and evidence.
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    \37\ 25 CFR 83.61(a) (proposed 2023).
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    In the interest of finality (an interest discussed in depth below), 
any petitioner denied prior to the effective date of the final rule 
implementing the re-petition authorization process would have to 
request to re-petition within five years of the effective date of the 
rule.\38\ Any petitioner denied after the effective date of the final 
rule would have to request to re-petition within five years of the date 
of issuance of the petitioner's negative final determination.\39\ 
However, the five-year time limit applicable to a petitioner denied 
after the effective date of the final rule would be tolled during any 
period of judicial review of the negative final determination.\40\ 
Additionally, any petitioner denied authorization to re-petition under 
the proposed re-petition authorization process--or denied Federal 
acknowledgment upon re-petitioning, after receiving authorization to do 
so--would be prohibited from submitting a new re-petition request based 
on new evidence,\41\ although they could still request to re-petition 
based on changes to the part 83 regulations in the future.\42\
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    \38\ 25 CFR 83.49(a) (proposed 2023).
    \39\ 25 CFR 83.49(b) (proposed 2023).
    \40\ 25 CFR 83.49(b)(1) (proposed 2023).
    \41\ 25 CFR 83.47(c) (proposed 2023).
    \42\ 25 CFR 83.48(b) (proposed 2023). This provision would not 
prevent a petitioner from resubmitting a re-petition request 
withdrawn prior to receipt of a decision on the request. 25 CFR 
83.56 (proposed 2023).

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[[Page 57101]]

    In many respects, the Department's processing of a re-petition 
request would mirror the processing of a group's documented petition, 
particularly the procedures relating to notice and comment. To initiate 
the re-petition authorization process, a previously unsuccessful 
petitioner would have to submit a complete re-petition request to OFA, 
explaining how the petitioner meets the conditions of Sec. Sec.  83.47 
through 83.49 (summarized in part above).\43\ Upon receipt of a request 
containing all of the documentation required under Sec.  83.50, OFA 
would publish notice of the request in the Federal Register and on the 
OFA website.\44\ Additionally, OFA would provide notice to certain 
third parties, including specific government officials of the State in 
which the petitioner is located, federally recognized Indian Tribes 
that may have an interest in the petitioner's acknowledgment 
determination, and any third parties that participated as a party in an 
administrative reconsideration or Federal Court appeal concerning the 
petitioner's original documented petition.\45\ The Department would 
then allow for comment on the re-petition request and give the 
petitioner an opportunity to respond to comments received.\46\
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    \43\ 25 CFR 83.50(a)(2) (proposed 2023).
    \44\ 25 CFR 83.51(b)(1) (proposed 2023).
    \45\ 25 CFR 83.51(b)(2) (proposed 2023).
    \46\ 25 CFR 83.52 (proposed 2023) (stating that publication of 
notice of the re-petition request will be followed by a 90-day 
comment period and that, if OFA receives a timely objection and 
evidence challenging the request, then the petitioner will have 60 
days to submit a written response).
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    After the close of the comment-and-response period, the Department 
would consider the re-petition request ready for active consideration, 
and within thirty days of the close of the comment-and-response period, 
OFA would place the request on a register listing all requests that are 
ready for active consideration.\47\ The order of consideration of re-
petition requests would be determined by the date on which OFA places 
each request on OFA's register.
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    \47\ 25 CFR 83.52(d) (proposed 2023); see also 25 CFR 83.53(a) 
(proposed 2023) (describing the register of re-petition requests 
that OFA would maintain and make available on its website).
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    Pursuant to Sec.  83.23(a)(2), the Department's highest priority 
would continue to be completing reviews of documented petitions already 
under review, and those reviews would take precedence over reviews of 
re-petition requests.\48\ Pursuant to this proposed rule, the 
Department would also prioritize review of documented petitions 
awaiting review and new documented petitions over review of re-petition 
requests, at least initially; \49\ re-petition requests pending on 
OFA's register for more than two years would have priority over any 
subsequently filed documented petitions.\50\
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    \48\ 25 CFR 83.53(c) (proposed 2023) (stating that ``the 
Department will prioritize review of documented petitions over 
review of re-petition requests'').
    \49\ See 25 CFR 83.53(c) (proposed 2023).
    \50\ See 25 CFR 83.53(c) (proposed 2023).
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    Once AS-IA is ready to begin review of a specific request, OFA 
would notify the petitioner and third parties accordingly.\51\ In 
making a decision, AS-IA would consider the claims and evidence in the 
re-petition request and in any comments and responses received.\52\ AS-
IA may also consider other information,\53\ such as documentation 
contained in the record associated with the petitioner's denied 
petition and additional explanations and information requested by AS-IA 
from commenting parties or the petitioner. Any such additional material 
considered by AS-IA would be added to the record and shared with the 
petitioner.\54\ The petitioner then would have an opportunity to 
respond to any additional material considered.\55\
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    \51\ 25 CFR 83.54 (proposed 2023).
    \52\ 25 CFR 83.55(a) (proposed 2023).
    \53\ 25 CFR 83.55(b) (proposed 2023).
    \54\ 25 CFR 83.55(c) (proposed 2023).
    \55\ 25 CFR 83.55(c) (proposed 2023) (providing the petitioner 
with a sixty-day opportunity to respond to the additional material).
---------------------------------------------------------------------------

    AS-IA would issue a decision on a re-petition request within 180 
days of the date on which OFA notifies the petitioner that AS-IA has 
begun review, subject to any suspension period.\56\ AS-IA would grant 
the petitioner authorization to re-petition if AS-IA finds that the 
petitioner meets the conditions of Sec. Sec.  83.47 through 83.49.\57\ 
Conversely, AS-IA would deny authorization to re-petition if AS-IA 
finds that the petitioner has not met the conditions of Sec. Sec.  
83.47 through 83.49.\58\ OFA would then provide notice of AS-IA's 
decision to the petitioner and certain third parties.\59\ Additionally, 
OFA would publish notice of the decision in the Federal Register and on 
the OFA website.\60\
---------------------------------------------------------------------------

    \56\ See 25 CFR 83.57 and 83.58 (proposed 2023) (discussing 
suspension of review). The way that the clock would run during the 
review of a re-petition request would be similar to the way that it 
runs during the review of a documented petition. See, e.g., 25 CFR 
83.32 (requiring OFA to complete its review under Phase I ``within 
six months after notifying the petitioner . . . that OFA has begun 
review of the petition,'' subject to suspension ``any time the 
Department is waiting for a response or additional information from 
the petitioner'').
    \57\ 25 CFR 83.59(b) (proposed 2023).
    \58\ 25 CFR 83.59(c) (proposed 2023).
    \59\ 25 CFR 83.60 (proposed 2023).
    \60\ 25 CFR 83.60 (proposed 2023).
---------------------------------------------------------------------------

    AS-IA's decision would become effective immediately and would not 
be subject to administrative appeal.\61\ A grant of authorization to 
re-petition would not be final for the Department. Rather, as noted 
above, it would simply permit the petitioner to proceed through the 
Federal acknowledgment process with a new documented petition.\62\ By 
contrast, a decision denying a re-petition request (denial of 
authorization to re-petition) would represent the consummation of the 
Department's decision-making about the petitioner's recognition status 
and would be final for the Department and a final agency decision under 
the APA.\63\
---------------------------------------------------------------------------

    \61\ 25 CFR 83.61 (proposed 2023).
    \62\ 25 CFR 83.61(a) (proposed 2023).
    \63\ 25 CFR 83.61(b) (proposed 2023).
---------------------------------------------------------------------------

B. Additional, Related Revisions

    Consistent with the introduction of a new re-petition authorization 
process, this proposed rule would insert new definitions for ``re-
petition authorization process'' and ``re-petitioning'' in Sec.  83.1, 
as well as a new definition for ``unsuccessful petitioner.'' This rule 
also proposes a change to Sec.  83.4(d), the provision that currently 
prohibits re-petitioning. The change would note a limited exception to 
the re-petition ban for previously unsuccessful petitioners that meet 
the conditions of Sec. Sec.  83.47 through 83.49, as determined by AS-
IA in the re-petition authorization process.
    This proposed rule would also give any petitioner currently 
proceeding under the 1994 regulations the choice to proceed instead 
under the 2015 regulations.\64\ In doing so, the rule presents a choice 
similar to the one given to pending petitioners in the 2015 
regulations.\65\ Absent the choice, a petitioner subject to the 1994 
regulations that wants to proceed under the 2015 regulations would have 
to await a final determination and then receive authorization to re-
petition if the determination is negative. By allowing a petitioner to 
switch directly to the current regulations, the relevant provision 
promotes efficiency.
---------------------------------------------------------------------------

    \64\ 25 CFR 83.47(b) (proposed 2023).
    \65\ See 25 CFR 83.7(b) (giving ``each petitioner that . . . has 
not yet received a final agency decision'' the choice ``to proceed 
under these revised regulations'' or ``to complete the petitioning 
process under the previous version of the acknowledgment regulations 
as published in 25 CFR part 83, revised as of April 1, 1994'').
---------------------------------------------------------------------------

    Finally, this proposed rule would clarify the Department's position 
on the severability of the provisions in the

[[Page 57102]]

proposed regulations.\66\ Notwithstanding the Department's position 
that the provisions, taken together, properly balance competing 
interests (as discussed further below), the Department has considered 
whether the provisions could stand alone and proposes that they could. 
Specifically, the Department has considered whether, if one of the 
conditions on re-petitioning set forth at Sec. Sec.  83.47 through 
83.49 is held to be invalid, the other conditions should remain valid. 
The Department proposes that they should because each provision could 
``function sensibly'' without the others.\67\ For example, a change in 
part 83 could remain a valid basis for a re-petition request under 
Sec.  83.48(a)(1) even if a court held Sec.  83.48(a)(2), allowing new 
evidence to be basis for a re-petition request, to be invalid, and vice 
versa. The Department has also considered whether the provisions 
describing the processing of a re-petition request, set forth at 
Sec. Sec.  83.50 through 83.61, could stand alone and proposes that 
they could. For example, provisions relating to notice and comment and 
the order of priority for review could each function independently if 
other requirements were determined to be invalid.
---------------------------------------------------------------------------

    \66\ 25 CFR 83.62 (proposed 2023).
    \67\ Belmont Mun. Light Dep't v. FERC, 38 F. 4th 173, 188 (D.C. 
Cir. 2022) (citation omitted).
---------------------------------------------------------------------------

C. Technical Revisions

    Finally, this proposed rule would make technical revisions to the 
legal authority citation for part 83 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). This proposed rule would also make a 
technical revision to the mailing address listed in Sec.  83.9.

III. Discussion of the Comments on the 2022 Proposed Rule

    As noted above, the Department's proposal to implement a re-
petition authorization process is based in part on a review of the 
comments received on the 2022 proposed rule. The Department received 
approximately 270 comments, with approximately 235 of those being 
identical form letters against the ban, submitted on behalf of unique 
individuals.
    Commenters opposing the ban and those supporting it both provided 
several reasons for their respective positions. Generally, commenters 
opposing the ban cited fairness to unsuccessful petitioners as a basis 
for allowing re-petitioning for Federal acknowledgment. Those 
commentors argued that allowing unsuccessful petitioners to re-petition 
is warranted given: (1) the 2015 final rule's changes to certain 
substantive provisions of part 83; (2) any claimed availability of new 
evidence that is helpful to petitioners; and (3) alleged 
inconsistencies in the Department's application of the substantive 
criteria or evidentiary standards in part 83. By contrast, commenters 
supporting the ban argued that interests in the finality of the 
Department's previous, negative final determinations supersede any 
interests in re-petitioning. The Department discusses each of these 
points, as well as the Department's interest in finality, in turn 
below.

A. Comments on the 2015 Final Rule's Changes to Part 83

    Commenters that opposed the ban and those that supported it largely 
disagreed about the significance of the 2015 final rule's changes to 
part 83. Commenters opposing the ban listed several changes that they 
think could affect the outcomes of the Department's previous, negative 
final determinations. Two unsuccessful petitioners, for example, 
highlighted the provision at Sec.  83.10(a)(4), which 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.'' 
According to those commenters, by expressly requiring consistency with 
Departmental precedent, that provision could inform the evaluation of a 
petition on reconsideration.
    Commenters opposing the ban also highlighted two other changes: (1) 
the new evaluation start date of 1900 for criteria (b) (Community) and 
(c) (Political Authority); \68\ and (2) the change in how the 
Department counts the number of marriages within a petitioner for the 
purpose of evaluating criterion (b) (Community).\69\ One of the 
commenters stated that although the change in how the Department counts 
marriages for criterion (b) (Community) ``might well be immaterial,'' 
unsuccessful petitioners nevertheless should have ``the opportunity to 
evaluate how a new framework would affect their application.'' Another 
commenter similarly asserted that the Department's arguments regarding 
the substantive insignificance of the 2015 revisions as applied to any 
previously denied petition were ``untestable.''
---------------------------------------------------------------------------

    \68\ 25 CFR 83.11(b) and (c).
    \69\ 25 CFR 83.11(b)(2)(ii).
---------------------------------------------------------------------------

    In contrast with commenters opposing the ban, commenters supporting 
the ban generally agreed with the Department's position in the 2022 
proposed rule that none of the changes in the 2015 regulations would 
affect the outcome of the Department's previous, negative final 
determinations. For example, one commenter explained that the 
fundamental requirement underlying the seven mandatory criteria--
demonstration of continuous Tribal existence--remains the same in the 
2015 regulations. Another commenter likewise stated that the changes in 
the 2015 regulations concern process more than substance.
    However, some of the commenters that supported the ban nevertheless 
identified specific changes that, in their view, might affect the 
outcome of the Department's previous determinations. Those commenters 
focused in particular on 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 [a] petitioner, or 
collective ancestors of the petitioner,'' may be relied on to satisfy 
those criteria.\70\ According to the commenters, the Department would 
not have adopted that provision and other potentially outcome-
determinative provisions unless the Department also kept in place the 
re-petition ban, to prevent previously unsuccessful petitioners from 
taking advantage of the changes. The commenters, representing State and 
local governments in Connecticut and other Connecticut-based 
communities, argued that the provision banning re-petitioning is not 
severable from the remainder of the 2015 regulations and that removal 
of the ban requires annulment, or ``vacatur,'' of the 2015 final rule's 
changes to part 83.
---------------------------------------------------------------------------

    \70\ 25 CFR 83.11(b)(1)(ix); 25 CFR 83.11(c)(1)(vii).
---------------------------------------------------------------------------

    Response: The 2015 final rule does not indicate that the Department 
retained the ban because of potentially outcome-determinative changes 
in the 2015 regulations, and the Department does not agree that a 
limited exception to the re-petition ban requires vacatur of the 2015 
final rule. Instead, in the 2015 final rule, the Department retained 
the ban based on other considerations. Moreover, in the 2014 proposed 
rule, as here, the Department had proposed allowing re-petitioning 
precisely because of the changes in the rule, not despite them.\71\
---------------------------------------------------------------------------

    \71\ 79 FR 30767 (stating that ``re-petitioning would be 
appropriate only in those limited circumstances where changes to the 
regulations would likely change the previous final determination'').
---------------------------------------------------------------------------

    As explained in the 2022 proposed rule,\72\ the Department does not

[[Page 57103]]

anticipate that any of the 2015 final rule's changes to part 83 would 
affect the outcome of the Department's previous, negative final 
determinations. However, in the interest of fairness to unsuccessful 
petitioners, the Department is proposing to give those petitioners a 
narrow path for arguing, on a case-by-case basis, why specific changes 
warrant reconsideration of their specific final determinations.\73\ The 
Department has not yet determined that any denied petitioner meets that 
condition and, therefore, would be permitted to re-petition. 
Nevertheless, this proposed rule is responsive to the Chinook court's 
observation that some of the changes in the 2015 final rule constitute 
``significant revisions that could prove dispositive for some re-
petitioners.'' \74\ Additionally, it is responsive to the Burt Lake 
court's opinion that ``the agency's breezy assurance . . . that nothing 
has changed'' in the 2015 regulations is an insufficient basis to keep 
the ban in place.\75\ Pursuant to this proposed rule, if an 
unsuccessful petitioner can plausibly allege that a change in part 83 
would, if applied on reconsideration, change the outcome of the 
previous, negative determination to positive, then it would be proper 
to permit the petitioner to re-petition.
---------------------------------------------------------------------------

    \72\ See 87 FR 24911-14.
    \73\ See 25 CFR 83.48(a)(1) (proposed 2023).
    \74\ Chinook, 2020 WL 128563, at *8.
    \75\ Burt Lake, 613 F. Supp. 3d at 384.
---------------------------------------------------------------------------

B. Comments on the Availability of New Evidence

    Commenters opposing the ban and those supporting it disagreed about 
whether new evidence should serve as a basis for allowing re-
petitioning. Several commenters opposing the ban argued that 
unsuccessful petitioners should have the opportunity to re-petition 
based on new evidence. In furtherance of that argument, some asserted 
that the new evaluation start date of 1900 in the 2015 regulations 
might lead indirectly to the discovery of evidence helpful to 
previously denied petitioners. Under the previous versions of part 83, 
petitioners had to demonstrate community and political authority ``from 
historical times until the present,'' with evidence covering a 
relatively broad range of time.\76\ According to the commenters, the 
shorter evaluation period under the 2015 regulations (beginning in 
1900) would allow the petitioners to narrow the scope of their research 
accordingly, and the allocation of limited resources to a shorter 
evaluation period might lead to the discovery of new, helpful evidence.
---------------------------------------------------------------------------

    \76\ 25 CFR 83.7(b) and (c) (1994); see also 25 CFR 54.7(b) and 
(c) (1978).
---------------------------------------------------------------------------

    Commenters supporting the ban did not agree that the availability 
of new evidence should serve as a basis for allowing re-petitioning. 
The commenters emphasized the extensive due process that previously 
unsuccessful petitioners already received under the previous versions 
of part 83, including multiple opportunities to submit new evidence as 
part of the petitioning process and to challenge the Department's 
characterization of that evidence both administratively and in Federal 
court. The commenters also emphasized the ample amount of time that the 
petitioners had to develop the evidentiary record.
    Response: The Department agrees with the commenters supporting the 
ban that previously unsuccessful petitioners received ample due 
process, as discussed in the 2022 proposed rule.\77\ Furthermore, the 
Department acknowledges that, in the 2022 proposed rule, the Department 
posited that the ``claimed availability of new evidence is not a 
compelling basis to allow re-petitioning.'' \78\ Nevertheless, upon 
further deliberation, the Department proposes that there are good 
reasons to permit unsuccessful petitioners to request to re-petition 
based on new evidence.
---------------------------------------------------------------------------

    \77\ 87 FR 24911.
    \78\ 87 FR 24910; see also 87 FR 24916.
---------------------------------------------------------------------------

    Many of the denied petitions are decades old, and since the time of 
their submission and evaluation there have been numerous advancements 
in technology that might aid petitioners in their research, including 
user-friendly, electronic databases containing genealogical 
information. The application of improved technology, particularly in 
the context of a shorter evaluation period, might lead to the discovery 
of new evidence, and there is at least some possibility that the new 
evidence could affect the outcome of a previous, negative final 
determination.
    The Department's proposal would give unsuccessful petitioners a 
narrow path for arguing, on a case-by-case basis, why specific new 
evidence warrants reconsideration of their specific final 
determinations.\79\ The Department's proposal, made pursuant to the 
Department's broad discretion in administering the Federal 
acknowledgment process, is responsive to commenters' concerns regarding 
the high-stakes nature of the Federal acknowledgment process, which one 
commenter described as ``a life-or-death process.'' Given the 
significant consequences of being granted or denied Federal 
acknowledgment, the Department proposes that a limited exception to the 
re-petition ban for unsuccessful petitioners that have new, potentially 
dispositive evidence is appropriate.
---------------------------------------------------------------------------

    \79\ See 25 CFR 83.48(a)(2) (proposed 2023).
---------------------------------------------------------------------------

    Although it is true that, in the absence of a re-petition 
authorization process, unsuccessful petitioners could still ``seek 
legislative recognition if substantial new evidence develops'' (as the 
Department explained in the 2022 proposed rule),\80\ upon further 
deliberation, the Department proposes that the part 83 process, as 
conditioned by this rule, should continue to be an option given the 
Department's familiarity with the petitioner, expertise in evaluating 
evidence, and management of all Indian affairs, including decisions 
regarding Federal acknowledgment.\81\ Finally, while it is true that 
``it [is] difficult to establish defensible limiting principles'' 
applicable to claims of new evidence given that ``such evidence is not 
static but could be discovered at any point,'' \82\ the Department 
proposes that the five-year time limit to submit a request for 
authorization to re-petition under Sec.  83.49 properly balances the 
petitioners' interest in using improved technology to conduct 
additional research with legitimate interests in finality, discussed 
further below.
---------------------------------------------------------------------------

    \80\ 87 FR 24916 (citing 59 FR 9291).
    \81\ See 25 U.S.C. 2.
    \82\ 87 FR 24916.
---------------------------------------------------------------------------

C. Comments on Alleged Inconsistencies in the Department's Previous, 
Negative Final Determinations

    Numerous commenters that opposed the ban called into question the 
integrity of the Federal acknowledgment process and the Department's 
past determinations. Echoing comments that had been submitted in the 
prior rulemaking, which culminated in the publication of the 2015 final 
rule, several commenters asserted that the Department had applied the 
part 83 substantive criteria or evidentiary standards in an 
inconsistent manner on a petition-by-petition basis. Others stated that 
the instances in which the Department initially issued a positive 
determination, only to reverse it and finalize a negative determination 
at a later stage in the process (such as after an administrative 
appeal), were indicative of structural flaws or as-applied impropriety 
in the part 83 process generally.
    Commenters supporting the ban generally defended the integrity of 
the

[[Page 57104]]

Department's previous determinations, with some expressly supporting 
the Department's position in the 2022 proposed rule that those 
determinations are ``substantively sound.'' \83\ Commenters supporting 
the ban also focused on the ample due process that previously denied 
petitioners received, including opportunities to ``make their case'' 
and challenge their negative final determinations through an 
administrative or judicial appeal.
---------------------------------------------------------------------------

    \83\ 87 FR 24910-11.
---------------------------------------------------------------------------

    Response: The Department maintains the view that its previous 
determinations are substantively sound. As the Department explained in 
the 2022 proposed rule, ``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.'' 
\84\ Furthermore, notwithstanding various reforms to the Federal 
acknowledgment process, ``the Department has consistently defended, and 
courts have consistently upheld, the Department's final determinations 
on the merits.'' \85\
---------------------------------------------------------------------------

    \84\ 87 FR 24910.
    \85\ 87 FR 24910-11 (citations omitted).
---------------------------------------------------------------------------

    In light of those considerations, and the due process already 
provided to unsuccessful petitioners (including the opportunity to seek 
judicial review and remand of a negative final determination), the 
Department has determined that mere criticism of a past final 
determination is not a sufficient or appropriate basis, standing alone, 
to justify re-petitioning. Instead, as discussed above, an unsuccessful 
petitioner would have to argue that reconsideration is warranted based 
on a change in part 83 and/or new evidence,\86\ plausibly alleging that 
application of the change(s) and/or consideration of new evidence on 
reconsideration would result in the reversal of the previous, negative 
outcome.
---------------------------------------------------------------------------

    \86\ 25 CFR 83.48(a) (proposed 2023).
---------------------------------------------------------------------------

    Under this standard, the proposed re-petition authorization process 
generally would not be an avenue for relitigating the reasoning and 
analyses underlying the Department's previous, negative final 
determinations. For example, an unsuccessful petitioner would not be 
permitted to argue that the Department, in its previous, negative final 
determination, had misapplied the reasonable likelihood standard in 
concluding that the evidence before the Department at the time was 
insufficient to satisfy a given criterion. The petitioner already had 
the opportunity to raise such a claim in a timely manner during 
administrative reconsideration or judicial review of its negative 
determination. However, the petitioner would be permitted to invoke the 
provision in the 2015 regulations located at Sec.  83.10(a)(4)--
requiring consistency with Departmental precedent in the application of 
the seven mandatory criteria--as a basis for its re-petition request. 
In doing so, the petitioner could argue that evidence previously deemed 
insufficient in the negative final determination should now be deemed 
sufficient in light of more recent precedent finding allegedly 
analogous evidence to be sufficient.

D. Comments on Interests in the Finality of the Department's Final 
Determinations

    Commenters that opposed the ban and those that supported it both 
addressed whether third-party and Departmental interests in finality 
justify the ban on re-petitioning for Federal acknowledgment. The 
Department discusses each set of interests in turn below.
1. Third-Party Interests in Finality
    Commenters opposing the ban did not think that third-party reliance 
interests were compelling, particularly when balanced against the 
interests of unsuccessful petitioners in re-petitioning. For example, 
one commenter, an inter-Tribal organization representing both federally 
recognized and State recognized Tribes, asserted that the denied 
petitioners' interests in safeguarding ``[t]he durable identity of 
generations of a Tribal Petitioner must outweigh any third party 
interests in triumphing over a tribe's future.'' Other commenters 
questioned the influence that third parties exert on the Federal 
acknowledgment process, with one commenter likening their role to that 
of a ``second regulatory agency.'' Another commenter questioned how 
third-party interests could serve as a basis for applying the ban to 
petitioners unopposed by any third party.
    In contrast with commenters opposing the ban, commenters supporting 
the ban argued that their interests in the finality of the Department's 
previous, negative final determinations supersede any interests in re-
petitioning. Several Connecticut-based commenters stated that re-
petitioning would disrupt ``settled expectations,'' for example, by 
reviving uncertainty about previously denied petitioners' land claims 
in the State. The commenters also expressed concern about actions that 
might stem from Federal acknowledgment, particularly gaming 
development, and potentially detrimental impacts on local communities.
    One commenter supporting the ban, the Connecticut Office of the 
Attorney General, emphasized the ``millions of dollars and thousands of 
hours of staff resources'' that third parties in Connecticut 
collectively invested in the Federal acknowledgment process, based on 
the expectation that the Department's final determinations would remain 
final and that denied petitioners would not have a ``second bite at the 
apple.'' Other Connecticut-based commenters submitted similar comments, 
emphasizing the millions of dollars and many years that they spent 
participating in the Federal acknowledgment process, specifically as 
interested parties opposing certain part 83 petitioners located in 
Connecticut.\87\ Federally recognized Indian Tribes that supported the 
ban also highlighted their interests in finality. Like some of the 
Connecticut-based commenters mentioned above, these Tribal commenters 
objected to re-petitioning in part because they fear that renewing 
their opposition to previously unsuccessful petitioners would 
overburden their resources.
---------------------------------------------------------------------------

    \87\ See, e.g., In re Fed. Acknowledgment of the Hist. E. Pequot 
Tribe, 41 IBIA 1 (May 12, 2005); In re Fed. Acknowledgment of the 
Schaghticoke Tribal Nation, 41 IBIA 30 (May 12, 2005).
---------------------------------------------------------------------------

    Response: The Department recognizes that third parties often 
expended considerable time and resources participating in the Federal 
acknowledgment process and concurs that third parties have significant, 
legitimate interests in the finality of the Department's final 
determinations, as discussed in the 2022 proposed rule.\88\ That is why 
the Department is not proposing to give unsuccessful petitioners an 
open-ended opportunity to re-petition, for whatever reason and in 
perpetuity, that might ``make[ ] worthless'' third parties' substantial 
past investment in the Federal acknowledgment process.\89\ Indeed, as 
stated above, a petitioner's disagreement with the Department's 
evaluation of the petitioner's claims and evidence in a previous, 
negative final determination would not be a basis for requesting to re-
petition. By maintaining the integrity of the Department's past 
determinations, the Department by extension recognizes the value of 
third-party investment in the Federal acknowledgment process, 
specifically the value of third-party

[[Page 57105]]

comments and evidence that informed the Department's past 
determinations.\90\
---------------------------------------------------------------------------

    \88\ See 87 FR 24914.
    \89\ Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 220 (1988).
    \90\ See 59 FR 9283 (stating that ``participation of . . . 
interested parties is both appropriate and useful'').
---------------------------------------------------------------------------

    Although the Department's proposal in 2022 to retain the 
longstanding, blanket ban on re-petitioning aligns more closely with 
third-party interests in finality, the approach proposed here seeks to 
balance those interests with competing, compelling interests in re-
petitioning. For example, the re-petition authorization process that 
the Department proposes to implement would subject prospective re-
petitioners to a threshold review. By proposing to limit the types of 
arguments that unsuccessful petitioners could raise in the threshold 
review (regulatory changes and new evidence), the Department seeks to 
minimize the burden on third parties participating in the process and 
responding to those arguments. Additionally, by proposing to impose a 
limit on the amount of time that unsuccessful petitioners would have to 
request to re-petition, the Department seeks to account for third-party 
interests in finality.
    The proposed rule therefore would balance third-party reliance 
interests with denied petitioners' interests in Federal acknowledgment. 
The proposed rule also seeks to be more responsive to the Chinook 
court's ``skeptic[ism] that res judicata is applicable in a situation 
such as this where legal standards changed between the 1994 and 2015 
regulations.'' \91\ While the Department maintains that the legal 
standards in the 2015 regulations are not significantly different from 
those in the previous regulations and do not compel the Department to 
allow re-petitioning,\92\ in the interest of fairness to unsuccessful 
petitioners, the Department proposes to give those petitioners a narrow 
path for arguing that specific changes warrant reconsideration of their 
specific final determinations.
---------------------------------------------------------------------------

    \91\ Chinook, 2020 WL 128563, at *9 (citing Golden Hill 
Paugussett Tribe of Indians v. Rell, 463 F. Supp. 2d 192, 199 (D. 
Conn. 2006)).
    \92\ See Chinook, 2020 WL 128563, at *9 (explaining that ``res 
judicata does not apply when legal standards governing the issues 
are `significantly different' '' (citing Golden Hill, 463 F. Supp. 
2d at 199)).
---------------------------------------------------------------------------

    Similarly, while the availability of new evidence does not compel 
the Department to allow re-petitioning,\93\ the Department has the 
authority to reconsider a prior position if there are good reasons for 
doing so.\94\ Given the possibility that a petitioner can demonstrate 
through new evidence that it is a continuously existing Indian tribe 
entitled to a government-to-government relationship with the United 
States, as well as the significant consequences of being granted or 
denied Federal acknowledgment (discussed above and in the 2022 proposed 
rule \95\), the Department proposes that there are good reasons to 
create a limited exception to the re-petition ban for unsuccessful 
petitioners that have new, potentially dispositive evidence, 
notwithstanding valid third-party interests to the contrary. Finally, 
in response to third-party concerns about actions that might stem from 
eventual Federal acknowledgment (for example, concerns about 
environmental and land use impacts on local communities), third parties 
could avail themselves of any additional due process specific to those 
actions.\96\
---------------------------------------------------------------------------

    \93\ See Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. 
Council, Inc., 435 U.S. 519, 554-55 (1978) (``If . . . litigants 
might demand rehearings as a matter of law because [of] . . . some 
new fact discovered, there would be little hope that the 
administrative process could ever be consummated in an order that 
would not be subject to reopening.'').
    \94\ Env't Def. Fund, Inc. v. Costle, 657 F.2d 275, 289 (D.C. 
Cir. 1981) (``It is well settled that an agency may alter or reverse 
its position if the change is supported by a reasoned 
explanation.'').
    \95\ 87 FR 24914.
    \96\ See, e.g., City of Sherrill v. Oneida Indian Nation, 544 
U.S. 197, 220 (2005) (explaining that ``Congress has provided a 
mechanism for the acquisition of lands for Tribal communities that 
takes account of the interests of others with stakes in the area's 
governance and well-being''); 80 FR 37881 (explaining that ``if the 
newly acknowledged tribe seeks to have land taken into trust and 
that application is approved, state or local governments may 
challenge that action under the land-into-trust process (25 CFR part 
151), an entirely separate and distinct decision from the Part 83 
process'').
---------------------------------------------------------------------------

2. Departmental Interests in Finality
    Commenters opposing the ban did not think that the Department's 
interest in finality is a compelling justification for the re-petition 
ban, especially when weighed against the competing interests of 
unsuccessful petitioners. For example, in response to the Department's 
concerns about the significant burdens associated with re-petitioning 
(as articulated in the 2022 proposed rule \97\), one commenter stated 
that although ``an agency's workload can, in an ordinary case, help to 
justify a decision about process[,] . . . this is not an ordinary 
case.'' Another commenter suggested that the Department could address 
the increase in workload that would result from permitting re-
petitioning by requesting additional resources. Finally, several 
commenters opposing the ban suggested that re-petitioners could be 
``sent to the back of the line,'' behind first-time petitioners in the 
order of review. That suggestion echoes the Chinook and Burt Lake 
courts' observation that if the Department ``was concerned about 
pending petitions, it would have been simple to give them priority'' 
over any re-petitions.\98\
---------------------------------------------------------------------------

    \97\ 87 FR 24914-16.
    \98\ Chinook, 2020 WL 128563, at *9; Burt Lake, 613 F. Supp. 3d 
at 385 (quoting Chinook, 2020 WL 128563, at *9).
---------------------------------------------------------------------------

    Commenters supporting the ban generally agreed with the 
Department's position in the 2022 proposed rule that the Department has 
a legitimate interest in finality.\99\ The commenters focused in 
particular on the Department's interest in allocating resources 
efficiently, arguing that the Department should devote its limited 
resources to evaluating new and pending petitioners.
---------------------------------------------------------------------------

    \99\ See 87 FR 24914-16.
---------------------------------------------------------------------------

    Response: The Department maintains its legitimate interests in the 
finality of final agency determinations, as discussed in the 2022 
proposed rule. However, upon further deliberation, the Department 
proposes an approach that gives greater weight to the compelling 
interests of unsuccessful petitioners in re-petitioning while still 
taking steps to conserve and allocate limited agency resources.
    Like the 2014 proposed rule, this proposed rule would subject a 
previously unsuccessful petitioner to a threshold review limiting the 
types of arguments that the petitioner could raise in its re-petition 
request. By keeping the focus on (1) the changes in the 2015 
regulations and (2) the availability of new evidence--both developments 
likely to postdate the date of the petitioner's previous, negative 
final determination--the Department seeks to avoid the overwhelming 
administrative burdens that would be associated with an open-ended re-
petitioning process, including the potential reopening of decades-old 
administrative records that ``rang[e] in excess of 30,000 pages to over 
100,000 pages.'' \100\
---------------------------------------------------------------------------

    \100\ Barbara N. Coen, Tribal Status Decision Making: A Federal 
Perspective on Acknowledgment, 37 New Eng. L. Rev. 491, 495 (2003) 
(citing Work of the Department of the Interior's Branch of 
Acknowledgment and Research within the Bureau of Indian Affairs: 
Hearing Before the S. Comm. on Indian Affs., 107th Cong. 2, 19-20 
(2002) (statement of Michael R. Smith, Dir., Office of Tribal 
Servs., U.S. Dep't of the Interior)).
---------------------------------------------------------------------------

    Unlike the 2014 proposed rule, this proposed rule would give AS-IA, 
not the Office of Hearings and Appeals, responsibility over the re-
petition authorization process.\101\ Although AS-IA's oversight over 
the process might increase the workload within the Office of the AS-IA, 
the Department proposes that AS-IA is in the best position to

[[Page 57106]]

review re-petition requests efficiently, given AS-IA's expertise and 
experience in evaluating part 83 petitioners' claims and evidence. AS-
IA's authority over the process would also ensure that the Department 
``prioritize[s] review of documented petitions over review of re-
petition requests,'' \102\ in line with multiple commenters' 
recommendation to prioritize review of new and pending petitions.
---------------------------------------------------------------------------

    \101\ Compare 25 CFR 83.50 through 83.62 (proposed 2023), with 
25 CFR 83.4(b)(2) and (3) (proposed 2014).
    \102\ 25 CFR 83.53(c) (proposed 2023).
---------------------------------------------------------------------------

    The Department proposes that the re-petition authorization process, 
limited in scope and implemented in an efficient and fair manner, would 
be responsive to the concerns underlying the Department's interest in 
finality (as articulated in the 2022 proposed rule \103\) while still 
recognizing the compelling interest in re-petitioning, as articulated 
both in comments and by the Chinook and Burt Lake courts. The 
Department invites comments on additional steps that it could take to 
mitigate the workload associated with the proposed process.
---------------------------------------------------------------------------

    \103\ 87 FR 24914-16.
---------------------------------------------------------------------------

IV. Procedural Requirements

A. Regulatory Planning and Review (E.O. 12866 and 13563)

    Executive Order (E.O.) 12866, as amended by E.O. 14094, provides 
that the Office of Information and Regulatory Affairs (OIRA) at the 
Office of Management and Budget (OMB) will review all significant 
rules. On October 20, 2023, OIRA determined this proposed rule is 
significant. This rule would not have an annual effect on the economy 
of $200 million.
    E.O. 13563 reaffirms the principles of E.O. 12866 while calling for 
improvements in the Nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The E.O. directs agencies to consider regulatory approaches that reduce 
burdens and maintain flexibility and freedom of choice for the public 
where these approaches are relevant, feasible, and consistent with 
regulatory objectives. E.O. 13563 emphasizes further that regulations 
must be based on the best available science and that the rulemaking 
process must allow for public participation and an open exchange of 
ideas. We have developed this rule in a manner consistent with these 
requirements.
    This rulemaking is necessary to comply with the orders of the 
Chinook and Burt Lake courts, both of which remanded the re-petition 
ban in part 83 to the Department for further consideration. It would 
affect federally recognized Indian Tribes and a variety of stakeholders 
in the Federal acknowledgment process, including previously denied part 
83 petitioners, State and local governments, current and prospective 
petitioners, and others. By implementing a limited exception to the re-
petition ban, the proposed regulations would benefit unsuccessful 
petitioners that previously had no avenue to re-petition for Federal 
acknowledgment. However, it is unclear how many of the petitioners 
might submit a request to re-petition or how many could meet the 
conditions set forth at proposed Sec. Sec.  83.47 through 83.49.
    The costs of the proposed re-petition authorization process include 
the additional workload on the Department that would stem from 
reviewing requests to re-petition for Federal acknowledgment and 
preparing decisions granting or denying authorization to re-petition. 
Implementation of the proposed process also could result in an increase 
in the number of requests that the Department receives pursuant to the 
Freedom of Information Act, from federally recognized Indian Tribes and 
various stakeholders seeking copies of documents associated with part 
83 petitions.\104\ Furthermore, the process could result in an increase 
in litigation, particularly given that a denial of authorization to re-
petition would be a final agency action under the APA. Additional costs 
include the time and resources that unsuccessful petitioners would have 
to spend reviewing this rule and preparing re-petition requests, as 
well as the time and resources that others invested in the Federal 
acknowledgment process (including federally recognized Indian Tribes 
and State and local governments that oppose certain petitions) would 
have to spend reviewing this rule and commenting on re-petition 
requests.
---------------------------------------------------------------------------

    \104\ See 87 FR 24915-16 (discussing the potential for a 
``marked increase'' in the number of FOIA requests received as a 
result of the creation of a re-petitioning process).
---------------------------------------------------------------------------

    In accordance with 5 U.S.C. 553(b)(4), a summary of this rule may 
be found at https://www.regulations.gov at Docket ID BIA-2022-0001 or 
by searching for ``RIN 1076-AF67.''

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601, et seq.) (RFA) 
requires Federal agencies to prepare a regulatory flexibility analysis 
for rules subject to notice-and-comment rulemaking requirements under 
the Administrative Procedure Act (5 U.S.C. 500, et seq.) to determine 
whether a regulation would have a significant economic impact on a 
substantial number of small entities.
    The Department does not believe the proposed rule would have a 
significant economic impact on a substantial number of small entities 
(including small businesses, not-for-profit organizations, and ``small 
governmental jurisdictions,'' defined in 5 U.S.C. 601 to include 
``governments of cities, counties, towns, townships, villages, school 
districts, or special districts, with a population of less than fifty 
thousand''). The proposed rule would minimize the burden on 
unsuccessful petitioners (one type of small entity) by narrowing the 
scope of arguments at issue in the re-petition authorization process. 
Although petitioners preparing re-petition requests might incur non-
hour cost burdens for contracted services, such as anthropologists, 
attorneys, genealogists, historians, and law clerks, the narrow scope 
of arguments at issue--focused on changes in part 83 and/or new 
evidence--would reduce the risk of petitioners incurring excessive 
costs for contracted services.
    Additionally, by limiting the types of arguments that unsuccessful 
petitioners could raise in the re-petition authorization process, the 
proposed rule would minimize the economic impacts on small entities 
that oppose Federal acknowledgment of the petitioners and that would be 
preparing arguments in rebuttal. Finally, the limit on the amount of 
time that unsuccessful petitioners would have to request to re-petition 
would help small entities participating in the Federal acknowledgment 
process (including small government jurisdictions) plan for the 
allocation and expenditure of limited resources accordingly. By 
contrast, an open-ended avenue for re-petitioning, with few or no 
limitations, would increase uncertainty about those burdens. Additional 
discussion of the conditional, time-limited opportunity to re-petition 
proposed here, and the alternatives that the Department considered, is 
contained in sections I through III of the preamble, above.
    The Department certifies that the proposed regulations, if 
promulgated, will not have a significant economic impact on a 
substantial number of small entities. Accordingly, a regulatory 
flexibility analysis is not required by the RFA.

C. Congressional Review Act

    This proposed rule is not a major rule under 5 U.S.C. 804(2), the 
Congressional Review Act. This proposed rule does

[[Page 57107]]

not affect commercial or business activities of any kind. This rule:
    (a) Would not have an annual effect on the economy of $100 million 
or more;
    (b) Would not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions; and
    (c) Would not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises.

D. Unfunded Mandates Reform Act

    This rule would not impose an unfunded mandate on State, local, or 
Tribal governments or the private sector of more than $100 million per 
year. The rule would not have a monetarily significant or unique effect 
on State, local, or Tribal governments or the private sector. A 
statement containing the information required by the Unfunded Mandates 
Reform Act (2 U.S.C. 1531 et seq.) is not required.

E. Takings (E.O. 12630)

    This rule does not effect a taking of private property or otherwise 
have taking implications under E.O. 12630. A takings implication 
assessment is not required.

F. Federalism (E.O. 13132)

    Under the criteria in section 1 of E.O. 13132, this rule does not 
have sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement. A federalism summary impact 
statement is not required.

G. Civil Justice Reform (E.O. 12988)

    This rule complies with the requirements of E.O. 12988. 
Specifically, this rule: (a) meets the criteria of section 3(a) 
requiring that all regulations be reviewed to eliminate errors and 
ambiguity and be written to minimize litigation; and (b) meets the 
criteria of section 3(b)(2) requiring that all regulations be written 
in clear language and contain clear legal standards.

H. Consultation With Indian Tribes (E.O. 13175)

    The Department strives to strengthen its government-to-government 
relationship with Indian Tribes through a commitment to consultation 
with Indian Tribes and recognition of their right to self-governance 
and Tribal sovereignty. We have evaluated this rule under the 
Department's consultation policy and under the criteria in E.O. 13175 
and have hosted consultation with federally recognized Indian Tribes 
before publication of this proposed rule.
     Following publication of the 2022 proposed rule, the 
Department held two Tribal consultation sessions with federally 
recognized Indian tribes.
     The Department is hosting an additional consultation 
session with Tribes as described in the DATES and ADDRESSES sections of 
this document.

I. Paperwork Reduction Act

    All information collections require approval under the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.). The OMB has reviewed 
and approved the information collection requirements associated with 
petitions for Federal acknowledgment under 25 CFR part 83 and assigned 
the OMB control number 1076-0104 to the collection. This proposed rule 
would revise and supplement 1076-0104 with a new collection associated 
with changes proposed in this rulemaking. The new reporting and/or 
recordkeeping requirements identified below require approval by OMB:
     Title of Collection: Federal Acknowledgment as an Indian 
Tribe, 25 CFR part 83.
     OMB Control Number: 1076-0104.
     Form Number: BIA-8304, BIA-8305, and BIA-8306.
     Type of Review: Revision of a currently approved 
collection.
     Summary of Revision/Supplement: Under the Department's 
proposal to create a conditional, time-limited opportunity for denied 
petitioners to re-petition for Federal acknowledgment as an Indian 
Tribe, the Department would require prospective re-petitioners to 
plausibly allege that the outcome of the previous, negative final 
determination would change to positive on reconsideration based on one 
or both of the following: (1) a change in part 83 (from the 1978 or 
1994 regulations to the 2015 regulations); and/or (2) new evidence. The 
information would be collected in the previously unsuccessful 
petitioners' respective requests to re-petition for Federal 
acknowledgment. The collection of information would be unique for each 
petitioner.
     Respondents/Affected Public: Groups petitioning for 
Federal acknowledgment as Indian Tribes and groups seeking to re-
petition for Federal acknowledgment.
     Total Estimated Number of Annual Respondents: 2 per year, 
on average.
    [cir] 1 petitioning group.
    [cir] 1 group seeking to re-petition.
     Total Estimated Number of Annual Responses: 2 per year, on 
average.
    [cir] 1,436 hours for 1 petitioning group.
    [cir] 700 hours for 1 group seeking to re-petition.
     Estimated Completion: Time per Response: 2,136 hours.
    [cir] 1,436 hours for 1 petitioning group.
    [cir] 700 hours for 1 group seeking to re-petition.
     Total Estimated Number of Annual Burden Hours: 2,136 
hours.
     Respondent's Obligation: Required to Obtain a Benefit.
     Frequency of Collection: Once.
     Total Estimated Annual Nonhour Burden Cost: $3,150,000.
    [cir] $2,100,000 for contracted services obtained by 1 petitioning 
group.
    [cir] $1,050,000 for contracted services obtained by 1 group 
seeking to re-petition.
     Annual Cost to Federal Government: $778,801.
    [cir] $628,938 to review 1 petitioning group: (6,000 hours x $90.08 
wage for GS-13) plus (666 hours x $132.82 for GS-15 wage).
    [cir] $149,863 to review 1 group seeking to re-petition: (1,500 
hours times $90.08 wage for GS-13) plus (111 hours x 132.82 wage for 
GS-15).
    As part of our continuing effort to reduce paperwork and respondent 
burdens, we invite the public and other Federal agencies to comment on 
any aspect of this information collection, including:
    1. Whether or not the collection of information is necessary for 
the proper performance of the functions of the Department, including 
whether or not the information will have practical utility.
    2. The accuracy of our estimate of the burden for this collection 
of information, including the validity of the methodology and 
assumptions used.
    3. Ways to enhance the quality, utility, and clarity of the 
information to be collected.
    4. Ways to minimize the burden of the collection of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology, e.g., permitting 
electronic submission of response.
    5. Estimated hour burden (excluding all hours for contracted 
services and hours for customary and usual business practices).
    [cir] Estimated burden hours for petitioning group.
    [cir] Estimated burden hours for group seeking to re-petition.
    6. Estimated non-hour cost burden, for any contracted services, 
including anthropologists, attorneys, genealogists, historians, law 
clerks.

[[Page 57108]]

    [cir] Estimated cost of contracted services for petitioning group.
    [cir] Estimated cost of contracted services for group seeking to 
re-petition.
    7. Annualized cost to the Federal Government.
    8. Percentage of information relating to a petition or re-petition 
request that would be reported electronically.
    9. System of Records Notice (SORN) INTERIOR/BIA-7, Tribal 
Enrollment Reporting and Payment System.
    Send your written comments and suggestions on this information 
collection to OIRA listed in ADDRESSES by the date indicated in DATES. 
Please also send a copy to [email protected] and reference ``OMB 
Control Number 1076-0104'' in the subject line of your comments. You 
may also view the ICR at https://www.reginfo.gov/public/Forward?SearchTarget=PRA&textfield=1076-0104.

J. National Environmental Policy Act

    Under NEPA, categories of Federal actions that normally do not 
significantly impact the human environment may be categorically 
excluded from the requirement to prepare an environmental assessment or 
impact statement. See, 40 CFR 1501.4. Under the Department, regulations 
that are administrative or procedural are categorially excluded from 
NEPA analysis because they normally do not significantly impact the 
human environment. See, 43 CFR 46.210(i). This rule is administrative 
and procedural in nature. Consequently, it is categorically excluded 
from the NEPA requirement to prepare a detailed environmental analysis. 
Further, the Department also determined that the rule would not involve 
any of the extraordinary circumstances under a categorical exclusion 
that would necessitate environmental analysis. See, 43 CFR 46.215.

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 E.O. 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.

N. Privacy Act of 1974, Existing System of Records

    INTERIOR/BIA-7, Tribal Enrollment Reporting and Payment System, 
published September 27, 2011 (76 FR 59733), contains documents 
supporting individual Indian claims to interests in Indian Tribal 
groups and includes name, maiden name, alias, address, date of birth, 
social security number, blood degree, enrollment/BIA number, date of 
enrollment, enrollment status, certification by the Tribal governing 
body, telephone number, email address, account number, marriages, death 
notices, records of actions taken (approvals, rejections, appeals), 
rolls of approved individuals; records of actions taken (judgment 
distributions, per capita payments, shares of stock); ownership and 
census data taken using the rolls as a base, records concerning 
individuals which have arisen as a result of that individual's receipt 
of funds or income to which that individual was not entitled or the 
entitlement was exceeded in the distribution of such funds.

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 proposes to amend 25 CFR part 83 as follows:

PART 83--PROCEDURES FOR FEDERAL ACKNOWLEDGMENT OF INDIAN TRIBES

0
1. The authority citation for part 83 is revised to read as follows:

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

0
2. In Sec.  83.1, add in alphabetical order definitions for ``Re-
petition authorization process'', ``Re-petitioning'', and 
``Unsuccessful petitioner'' to read as follows:


Sec.  83.1  What terms are used in this part?

* * * * *
    Re-petition authorization process means the process by which the 
Department handles a request for re-petitioning filed with OFA by an 
unsuccessful petitioner under Sec. Sec.  83.47 through 83.62, from 
receipt to issuance of a decision as to whether the unsuccessful 
petitioner is authorized to re-petition for acknowledgment as a 
federally recognized Indian tribe. A grant of authorization to re-
petition allows a petitioner to proceed through the Federal 
acknowledgment process by submitting a new documented petition for 
consideration under subpart C of this part.
    Re-petitioning means, after receiving a negative final 
determination that is final and effective for the Department and 
receiving subsequent authorization to re-petition, the submission of a 
new documented petition for consideration under subpart C of this part.
* * * * *
    Unsuccessful petitioner means an entity that was denied Federal 
acknowledgment after petitioning under the acknowledgment regulations 
at part 54 of this chapter (as they existed before March 30, 1982) or 
part 83.
0
3. In Sec.  83.4, revise paragraph (d) to read as follows:


Sec.  83.4  Who cannot be acknowledged under this part?

* * * * *
    (d) An entity that previously petitioned and was denied Federal 
acknowledgment under part 54 of this chapter (as it existed before 
March 30, 1982) or part 83 (including reconstituted, splinter, spin-
off, or component groups who were once part of previously denied 
petitioners) unless the entity meets the conditions of Sec. Sec.  83.47 
through 83.49.
0
4. Revise Sec.  83.9 to read as follows:

[[Page 57109]]

Sec.  83.9  How does the Paperwork Reduction Act affect the information 
collections in this part?

    The collections of information contained in this part have been 
approved by the Office of Management and Budget under 44 U.S.C. 3501 et 
seq. and assigned OMB Control Number 1076-0104. Response is required to 
obtain a benefit. A Federal agency may not conduct or sponsor, and you 
are not required to respond to, a collection of information unless the 
form or regulation requesting the information displays a currently 
valid OMB Control Number. Send comments regarding this collection of 
information, including suggestions for reducing the burden, to the 
Information Collection Clearance Officer--Indian Affairs, 1001 Indian 
School Road NW, Suite 229, Albuquerque, NM 87104.
0
5. Add subpart D, consisting of Sec. Sec.  83.47 through 83.62 to read 
as follows:

Subpart D--Re-Petition Authorization Process

Sec.
83.47 Who can seek authorization to re-petition under this subpart?
83.48 When will the Department allow a re-petition?
83.49 How long does an unsuccessful petitioner have to submit a 
request for authorization to re-petition?
83.50 How does an unsuccessful petitioner request authorization to 
re-petition?
83.51 What notice will OFA provide upon receipt of a request for 
authorization to re-petition?
83.52 What opportunity to comment will there be before the Assistant 
Secretary reviews the re-petition request?
83.53 How will the Assistant Secretary determine which re-petition 
request to consider first?
83.54 Who will OFA notify when the Assistant Secretary begins review 
of a re-petition request?
83.55 What will the Assistant Secretary consider in his/her review?
83.56 Can a petitioner withdraw its re-petition request?
83.57 When will the Assistant Secretary issue a decision on a re-
petition request?
83.58 Can AS-IA suspend review of a re-petition request?
83.60 What notice of the Assistant Secretary's decision will OFA 
provide?
83.61 When will the Assistant Secretary's decision become effective, 
and can it be appealed?
83.62 What happens if some portion of this subpart is held to be 
invalid by a court of competent jurisdiction?


Sec.  83.47  Who can seek authorization to re-petition under this 
subpart?

    (a) The re-petition authorization process is available to 
unsuccessful petitioners denied Federal acknowledgment, subject to the 
exceptions in paragraph (c) of this section.
    (b) Any petitioner that, as of [EFFECTIVE DATE OF FINAL RULE], has 
not yet received a final agency decision and is proceeding under the 
acknowledgment regulations as published in this part, effective March 
28, 1994, may remain under those regulations and, if denied under those 
regulations, may seek authorization to re-petition under this subpart. 
These petitioners may also choose by [60 DAYS AFTER EFFECTIVE DATE OF 
FINAL RULE], to proceed instead under the acknowledgment regulations, 
as published in this part 83, effective July 31, 2015, and to 
supplement their petitions, and, if the petition is denied, may seek 
authorization to re-petition under this subpart. Petitioners choosing 
to proceed under the regulations as published in this part 83, 
effective July 31, 2015 must notify OFA of their choice in writing by 
[60 DAYS AFTER EFFECTIVE DATE OF FINAL RULE], in any legible electronic 
or hardcopy form.
    (c) The re-petition authorization process is not available to the 
following:
    (1) Unsuccessful petitioners that submit a re-petition request 
pursuant to this process, are granted authorization to re-petition, and 
are denied Federal acknowledgment a second time;
    (2) Unsuccessful petitioners that submit a re-petition request 
pursuant to this process and are denied authorization to re-petition.


Sec.  83.48  When will the Department allow a re-petition?

    (a) An unsuccessful petitioner may re-petition only if AS-IA 
determines that the petitioner has plausibly alleged one or both of the 
following:
    (1) A change from part 54 of this chapter (as it existed before 
March 30, 1982) or part 83 (as it existed before July 31, 2015) to this 
part 83 would, if applied on reconsideration, change the outcome of the 
previous, negative final determination to positive; and/or
    (2) New evidence (i.e., evidence not previously submitted by the 
petitioner or otherwise considered by the Department) would, if 
considered on reconsideration, change the outcome of the previous, 
negative final determination to positive.
    (b) If the Department revises the regulations in this part after 
[EFFECTIVE DATE OF FINAL RULE], petitioners prohibited from submitting 
a new re-petition request under Sec.  83.47(c) will be allowed to 
submit a new re-petition request, but only based on the condition in 
paragraph (a)(1) of this section.


Sec.  83.49   How long does an unsuccessful petitioner have to submit a 
request for authorization to re-petition?

    (a) An unsuccessful petitioner denied Federal acknowledgment prior 
to [EFFECTIVE DATE OF FINAL RULE], may request authorization to re-
petition by submitting a complete request under Sec.  83.50 no later 
than [5 YEARS AFTER EFFECTIVE DATE OF FINAL RULE].
    (b) An unsuccessful petitioner denied Federal acknowledgment after 
[EFFECTIVE DATE OF FINAL RULE], may request authorization to re-
petition by submitting a complete request under Sec.  83.50 no later 
than five years after issuance of the negative final determination. 
However, if the petitioner pursues judicial review of the negative 
final determination:
    (1) The five-year period will be tolled during any period of 
judicial review, from the date of filed litigation to the date of entry 
of judgment and expiration of appeal rights for said litigation; and
    (2) Upon expiration of the appeal rights, OFA will notify the 
petitioner and those listed in Sec.  83.51(b)(2) of the resumption of 
the five-year time limit and the date by which the petitioner must 
submit a request for re-petitioning.


Sec.  83.50  How does an unsuccessful petitioner request authorization 
to re-petition?

    (a) To initiate the re-petition authorization process, the 
petitioner must submit to OFA, in any legible electronic or hardcopy 
form, a re-petition request that includes the following:
    (1) A certification, signed and dated by the petitioner's governing 
body, stating that the submission is the petitioner's official request 
for authorization to re-petition;
    (2) A concise written narrative, with citations to supporting 
documentation, thoroughly explaining how the petitioner meets the 
conditions of Sec. Sec.  83.47 through 83.49; and
    (3) Supporting documentation cited in the written narrative and 
containing specific, detailed evidence that the petitioner meets the 
conditions of Sec. Sec.  83.47 through 83.49.
    (b) If the re-petition request contains any information that is 
protectable under Federal law such as the Privacy Act and Freedom of 
Information Act, the petitioner must provide a redacted version, an 
unredacted version of the relevant pages, and an explanation of the 
legal basis for withholding such information from public release. The 
Department will not publicly release information that is protectable 
under Federal law, but may release redacted information if not 
protectable under Federal law.

[[Page 57110]]

Sec.  83.51  What notice will OFA provide upon receipt of a request for 
authorization to re-petition?

    When OFA receives a re-petition request that satisfies Sec.  83.50, 
it will do all of the following:
    (a) Within 30 days of receipt, acknowledge receipt in writing to 
the petitioner.
    (b) Within 60 days of receipt:
    (1) Publish notice of receipt of the re-petition request in the 
Federal Register and publish the following on the OFA website:
    (i) The narrative portion of the re-petition request, as submitted 
by the petitioner (with any redactions appropriate under Sec.  
83.50(b));
    (ii) Other portions of the re-petition request, to the extent 
feasible and allowable under Federal law, except documentation and 
information protectable from disclosure under Federal law, as 
identified by the petitioner under Sec.  83.50(b) or by the Department;
    (iii) The name, location, and mailing address of the petitioner and 
other information to identify the entity;
    (iv) The date of receipt;
    (v) The opportunity for individuals and entities to submit comments 
and evidence supporting or opposing the petitioner's request for re-
petitioning within 90 days of publication of notice of the request; and
    (vi) The opportunity for individuals and entities to request to be 
kept informed of general actions regarding a specific petitioner.
    (2) Notify, in writing, the parties entitled to notification of a 
documented petition under Sec.  83.22(d) and any third parties that 
participated as a party in an administrative reconsideration or Federal 
Court appeal concerning the petitioner.


Sec.  83.52  What opportunity to comment will there be before the 
Assistant Secretary reviews the re-petition request?

    (a) Publication of notice of the request will be followed by a 90-
day comment period. During this comment period, any individual or 
entity may submit the following to OFA to rebut or support the request:
    (1) Comments, with citations to and explanations of supporting 
evidence; and
    (2) Evidence cited and explained in the comments.
    (b) Any individual or entity that submits comments and evidence to 
OFA must provide the petitioner with a copy of their submission.
    (c) If OFA has received a timely objection and evidence challenging 
the request, then the petitioner will have 60 days to submit a written 
response, with citations to and explanations of supporting evidence, 
and the supporting evidence cited and explained in the response. The 
Department will not consider additional comments or evidence on the 
request submitted by individuals or entities during this response 
period.
    (d) After the close of the comment-and-response period, the 
Department will consider the re-petition request ready for active 
consideration, and within thirty days of the close of the comment-and-
response period, OFA will place the request on the register that OFA 
maintains under Sec.  83.53(a).


Sec.  83.53  How will the Assistant Secretary determine which re-
petition request to consider first?

    (a) OFA shall maintain and make available on its website a register 
of re-petition requests that are ready for active consideration.
    (b) The order of consideration of re-petition requests shall be 
determined by the date on which OFA places each request on OFA's 
register of requests ready for active consideration.
    (c) The Department will prioritize review of documented petitions 
over review of re-petition requests, except that re-petition requests 
pending on OFA's register for more than two years shall have priority 
over any subsequently filed documented petitions.


Sec.  83.54  Who will OFA notify when the Assistant Secretary begins 
review of a re-petition request?

    OFA will notify the petitioner and those listed in Sec.  
83.51(b)(2) when AS-IA begins review of a re-petition request and will 
provide the petitioner and those listed in Sec.  83.51(b)(2) with the 
name, office address, and telephone number of the staff member with 
primary administrative responsibility for the request.


Sec.  83.55  What will the Assistant Secretary consider in his/her 
review?

    (a) In any review, AS-IA will consider the re-petition request and 
evidence submitted by the petitioner, any comments and evidence on the 
request received during the comment period, and petitioners' responses 
to comments and evidence received during the response period.
    (b) AS-IA may also:
    (1) Initiate and consider other research for any purpose relative 
to analyzing the re-petition request; and
    (2) Request and consider timely submitted additional explanations 
and information from commenting parties to support or supplement their 
comments on the re-petition request and from the petitioner to support 
or supplement their responses to comments.
    (c) OFA will provide the petitioner with the additional material 
obtained in paragraph (b) of this section, and provide the petitioner 
with a 60-day opportunity to respond to the additional material. The 
additional material and any response by the petitioner will become part 
of the record.


Sec.  83.56   Can a petitioner withdraw its re-petition request?

    A petitioner can withdraw its re-petition request at any point in 
the process and re-submit the request at a later date within the five-
year time limit applicable to the petitioner under Sec.  83.49. Upon 
re-submission, the re-petition request will lose its original place in 
line and be considered after other re-petition requests awaiting 
review.


Sec.  83.57  When will the Assistant Secretary issue a decision on a 
re-petition request?

    (a) AS-IA will issue a decision within 180 days after OFA notifies 
the petitioner under Sec.  83.54 that AS-IA has begun review of the 
request.
    (b) The time set out in paragraph (a) of this section will be 
suspended any time the Department is waiting for a response or 
additional information from the petitioner.


Sec.  83.58  Can AS-IA suspend review of a re-petition request?

    (a) AS-IA can suspend review of a re-petition request, either 
conditionally or for a stated period, if there are technical or 
administrative problems that temporarily preclude continuing review.
    (b) Upon resolution of the technical or administrative problems 
that led to the suspension, the re-petition request will have the same 
priority for review to the extent possible.
    (1) OFA will notify the petitioner and those listed in Sec.  
83.51(b)(2) when AS-IA suspends and when AS-IA resumes review of the 
re-petition request.
    (2) Upon the resumption of review, AS-IA will have the full 180 
days to issue a decision on the request.


Sec.  83.59  How will the Assistant Secretary make the decision on a 
re-petition request?

    (a) AS-IA's decision will summarize the evidence, reasoning, and 
analyses that are the basis for the decision regarding whether the 
petitioner meets the conditions of Sec. Sec.  83.47 through 83.49.
    (b) If AS-IA finds that the petitioner meets the conditions of 
Sec. Sec.  83.47 through 83.49, AS-IA will issue a grant of 
authorization to re-petition.

[[Page 57111]]

    (c) If AS-IA finds that the petitioner has not met the conditions 
of Sec. Sec.  83.47 through 83.49, AS-IA will issue a denial of 
authorization to re-petition.


Sec.  83.60  What notice of the Assistant Secretary's decision will OFA 
provide?

    In addition to publishing notice of AS-IA's decision in the Federal 
Register, OFA will:
    (a) Provide copies of the decision to the petitioner and those 
listed in Sec.  83.51(b)(2); and
    (b) Publish the decision on the OFA website.


Sec.  83.61  When will the Assistant Secretary's decision become 
effective, and can it be appealed?

    AS-IA's decision under Sec.  83.59 will become effective 
immediately and is not subject to administrative appeal.
    (a) A grant of authorization to re-petition is not a final 
determination granting or denying acknowledgment as a federally 
recognized Indian tribe. Instead, it allows the petitioner to proceed 
through the Federal acknowledgment process by submitting a new 
documented petition for consideration under subpart C of this part, 
notwithstanding the Department's previous, negative final 
determination. A grant of authorization to re-petition is not subject 
to appeal.
    (b) A denial of authorization to re-petition is final for the 
Department and is a final agency action under the Administrative 
Procedure Act (5 U.S.C. 704).


Sec.  83.62  What happens if some portion of this subpart is held to be 
invalid by a court of competent jurisdiction?

    If any portion of this subpart is determined to be invalid by a 
court of competent jurisdiction, the other portions of the subpart 
remain in effect. For example, if one of the conditions on re-
petitioning set forth at Sec. Sec.  83.47 through 83.49 is held to be 
invalid, it is the Department's intent that the other conditions remain 
valid.

Bryan Newland,
Assistant Secretary--Indian Affairs.
[FR Doc. 2024-15070 Filed 7-11-24; 8:45 am]
BILLING CODE 4337-15-P