[Federal Register Volume 87, Number 81 (Wednesday, April 27, 2022)]
[Proposed Rules]
[Pages 24908-24918]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-08488]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 83
[2231A2100DD/AAKC001030/A0A501010.999900]
RIN 1076-AF67
Federal Acknowledgment of American Indian Tribes
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Proposed rule.
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SUMMARY: This proposed rule seeks input on continuation of an express
prohibition on re-petitioning under the U.S. Department of the
Interior's (Department) regulations for Federal acknowledgment of
Indian Tribes. When first promulgated in 1978, the acknowledgment
regulations did not provide a regulatory path that allowed re-
petitioning, and since 1994, the regulations have expressly prohibited
petitioners who have received a negative final determination from the
Department from re-petitioning (ban). The most recent update to the
regulations in 2015 continued this ban, but two Federal district courts
held that the Department's stated reasons for implementing the ban, as
articulated in the 2015 final rule updating the regulations (2015 final
rule), were arbitrary and capricious, and remanded to the Department
for further consideration. The Department has undertaken further
consideration and is proposing to maintain the ban, albeit with revised
justifications, in light of the Federal district courts' orders. The
Department seeks input on this proposal and the basis for its proposal.
DATES: Please submit your comments by July 6, 2022. Consultation
sessions with federally recognized Indian Tribes will be held on
Thursday, June 2, 2022, 3 p.m. to 5 p.m. ET and Monday, June 6, 2022, 2
p.m. to 4 p.m. ET. A listening session for present, former, and
prospective petitioners will be held on Thursday, June 9, 2022, 3 p.m.
to 5 p.m. ET.
ADDRESSES: We cannot ensure that comments received after the close of
the comment period (see DATES) will be included in the docket for this
rulemaking and considered. Comments sent to an address other than those
listed below will not be included in the docket for this rulemaking.
All comments received may be posted without change to https://www.regulations.gov, including any personal information provided. You
may submit comments by any of the following methods:
Federal rulemaking portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Email: [email protected]. Include the number 1076-AF67
in the subject line of the message.
Consultation with Indian Tribes. The Department will
conduct two virtual consultation sessions and will accept oral and
written comments. Federally recognized Indian Tribes may register for
the Thursday, June 2, 2022, 3 p.m. to 5 p.m. ET consultation session
at: https://www.zoomgov.com/meeting/register/vJIscu2prz4pHbtqqZn0-5f8oRU5jEYKGDg. Federally recognized Indian Tribes may register for the
Monday, June 6, 2022, 2 p.m. to 4 p.m. ET consultation session at:
https://www.zoomgov.com/meeting/register/vJIsdu-opjMtHR5nht0X2HKcjOh35Oz23SU.
Listening session for present, former, and prospective
petitioners. The Department will host a listening session for present,
former, and prospective petitioners and will accept oral and written
comments. Present, former, and prospective petitioners may register for
the Thursday, June 9, 2022, 3 p.m. to 5 p.m. ET listening session at:
https://www.zoomgov.com/meeting/register/vJIscOGpqj8uG09-rMrR2FeecAzGmJmf78s.
FOR FURTHER INFORMATION CONTACT: Steven Mullen, Federal Register
Liaison, Office of Regulatory Affairs & Collaborative Action--Indian
Affairs, (202) 924-2650, [email protected].
SUPPLEMENTARY INFORMATION:
I. Statutory Authority
II. History of This Rulemaking
III. Basis for Proposed Rule
A. The Department's Previous Negative Final Determinations Are
Substantively Sound and the Department Is Allowed To Revise Its
Regulations Without Reevaluating Past Final Agency Actions Issued
Under the Previous Versions of Those Regulations
B. Denied Petitioners Received Due Process
C. The Changes Adopted in the Department's 2015 Final Rule Do
Not Warrant Re-Petitioning at This Time
D. Third Parties and the Department Have Legitimate Interests in
the Finality of the Department's Final Determinations
E. Claimed Availability of New Evidence Does Not Justify
Allowing Re-Petitioning
IV. Summary of Proposed Rule
V. Procedural Requirements
A. Regulatory Planning and Review (E.O. 12866)
B. Regulatory Flexibility Act
C. Small Business Regulatory Enforcement and Fairness Act
D. Unfunded Mandates Reform Act of 1995
E. Takings (E.O. 12630)
F. Federalism (E.O. 13132)
G. Civil Justice Reform (E.O. 12988)
H. Consultation With Indian Tribes (E.O. 13175)
I. Paperwork Reduction Act
J. National Environmental Policy Act (NEPA)
K. Energy Effects (E.O. 13211)
L. Clarity of This Regulation
M. Public Availability of Comments
I. Statutory Authority
Congress granted the Assistant Secretary--Indian Affairs (then, the
Commissioner of Indian Affairs) authority to ``have management of all
[[Page 24909]]
Indian affairs and of all matters arising out of Indian relations.''
\1\ This authority includes the authority to administratively
acknowledge Indian Tribes.\2\ The Congressional findings that supported
the Federally Recognized Indian Tribe List Act of 1994 expressly
acknowledged that Indian Tribes could be recognized ``by the
administrative procedures set forth in part 83 of the Code of Federal
Regulations denominated `Procedures for Establishing that an American
Indian Group Exists as an Indian Tribe,' '' and described the
relationship that the United States has with federally recognized
Indian Tribes.\3\
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\1\ 25 U.S.C. 2 and 9, and 43 U.S.C. 1457.
\2\ See, e.g., Muwekma Ohlone Tribe v. Salazar, 708 F.3d 209,
211 (D.C. Cir. 2013); James v. United States Dep't of Health & Human
Servs., 824 F.2d 1132, 1137 (D.C. Cir. 1987).
\3\ See Public Law 103-454, Sec. 103(2), (3), (8) (Nov. 2,
1994).
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II. History of This Rulemaking
The regulations that codify the process through which a group may
petition the Department for acknowledgment as a federally recognized
Indian Tribe are at 25 CFR part 83 (part 83). The regulations require
groups petitioning for Federal acknowledgment to meet seven mandatory
criteria, the satisfaction of which has been central to the Federal
acknowledgment process since its inception.\4\ The Department refers to
the seven criteria as the (a) ``Indian Entity Identification''
criterion, (b) ``Community'' criterion, (c) ``Political Authority''
criterion, (d) ``Governing Document'' criterion, (e) ``Descent''
criterion, (f) ``Unique Membership'' criterion, and (g) ``Congressional
Termination'' criterion.\5\
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\4\ 25 CFR 83.11(a)-(g) (2015 version of the criteria); id.
Sec. 83.7(a)-(g) (1994) (1994 version); id. Sec. 54.7(a)-(g)
(1978) (1978 version).
\5\ 25 CFR 83.5.
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First promulgated in 1978 at 25 CFR part 54 (1978 regulations), the
Federal acknowledgment regulations were subsequently revised in 1994
and moved to part 83 (1994 regulations). The 1978 regulations did not
provide a regulatory path that allowed re-petitioning, and since 1994,
part 83 has expressly prohibited petitioners who have received a
negative final determination from the Department from re-petitioning
under part 83.\6\
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\6\ 25 CFR 83.3(f) (1994); 59 FR 9280, 9294 (Feb. 25, 1994).
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In a 2014 notice of proposed rulemaking (2014 proposed rule), the
Department proposed giving previously denied petitioners a limited
opportunity to re-petition.\7\ The 2014 proposed rule proposed to allow
re-petitioning only if:
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\7\ 79 FR 30766, 30767 (May 29, 2014).
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Any third parties that participated as a party in an
administrative reconsideration or Federal Court appeal concerning the
petitioner has consented in writing to the re-petitioning; and
The petitioner proves, by a preponderance of the evidence,
that either:
[cir] A change from the previous version of the regulations to the
current version of the regulations warrants reconsideration of the
final determination; or
[cir] The ``reasonable likelihood'' standard was misapplied in the
final determination.\8\
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\8\ 25 CFR 83.4(b)(1) (proposed 2014); see also 79 FR 30774
(containing the proposed provision).
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In the preamble of the 2014 proposed rule, the Department explained
that the requirement of third-party consent would ``recognize[ ] the
equitable interests of third parties that expended sometimes
significant resources to participate in the adjudication [of a final
determination in a reconsideration or appeal] and have since developed
reliance interests in the outcome of such adjudication.'' \9\ The
Department did not discuss the extent to which the third-party consent
condition might limit the number of re-petitioners.\10\
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\9\ 79 FR 30767.
\10\ See Burt Lake Band of Ottawa and Chippewa Indians v.
Bernhardt, No. 17-0038 (ABJ), 2020 WL 1451566, at *11 (D.D.C. Mar.
25, 2020) (noting that the record ``does not provide statistics to
show . . . how many [petitioners] would be able to re-apply under
the limited proposed exception''). On reconsideration, the
Department has identified eleven denied petitioners that would have
been subject to the third-party consent condition under the 2014
proposed rule: Duwamish Indian Tribe, Tolowa Nation, Nipmuc Nation
(Hassanamisco Band), Webster/Dudley Band of Chaubunagungamaug
Nipmuck Indians, Eastern Pequot Indians of Connecticut, Paucatuck
Eastern Pequot Indians of Connecticut, Schaghticoke Tribal Nation,
Golden Hill Paugussett Tribe, Snohomish Tribe of Indians, Chinook
Indian Tribe/Chinook Nation, and Ramapough Mountain Indians, Inc.
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Similarly, the Department did not specify the extent to which the
other conditions listed above--requiring a denied petitioner to prove
that either a change in the regulations or a misapplication of the
reasonable likelihood standard warrants reconsideration--might limit
the number of re-petitioners. However, as a general matter, the
Department noted that ``the changes to the regulations are generally
intended to provide uniformity based on previous decisions,'' so the
circumstances in which re-petitioning might be ``appropriate'' would be
``limited.'' \11\ The proposed rule did not identify any change to the
seven mandatory criteria that ``would likely change [any negative]
previous final determination[s].'' \12\
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\11\ 79 FR 30767.
\12\ Id.
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Ultimately, in the 2015 final rule updating part 83, the Department
expressly continued the ban.\13\ In the preamble of the rule, the
Department explained that ``[t]he final rule promotes consistency,
expressly providing that evidence or methodology that was sufficient to
satisfy any particular criterion in a previous positive decision on
that criterion will be sufficient to satisfy the criterion for a
present petitioner.'' \14\ Additionally, the Department explained that
``[t]he Department has petitions pending that have never been
reviewed'' and that ``[a]llowing for re-petitioning by denied
petitioners would be unfair to petitioners who have not yet had a
review.'' \15\ Finally, the Department explained that re-petitioning
``would hinder the goals of increasing efficiency and timeliness by
imposing the additional workload associated with re-petitions on the
Department, and [the Office of Federal Acknowledgment] in particular.''
\16\
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\13\ 25 CFR 83.4(d); see 80 FR 37861, 37888-89 (July 1, 2015).
\14\ 80 FR 37875.
\15\ Id.
\16\ Id.
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In 2020, two Federal district courts--one in a case brought by a
former petitioner seeking acknowledgement as the Chinook Indian Nation
\17\ and one in a case brought by a former petitioner seeking
acknowledgement as the Burt Lake Band of Ottawa and Chippewa Indians
\18\--held that the Department's stated reasons for implementing the
ban, as articulated in the preamble to the 2015 final rule revising
part 83,\19\ were arbitrary and capricious under the Administrative
Procedure Act (APA). As an initial matter, both courts agreed with the
Department that the Department's authority over Indian affairs
generally authorized a re-petition ban.\20\ In addition, both courts
noted that their review is highly deferential to the agency's decision
under applicable
[[Page 24910]]
tenets of administrative law.\21\ As a result, the narrow question left
for the courts to decide was whether the Department, in retaining the
ban in the 2015 final rule, ``examine[d] the relevant data and
articulate[d] a satisfactory explanation for its action including a
`rational connection between the facts found and the choice made.' ''
\22\
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\17\ Chinook Indian Nation v. Bernhardt, No. 3:17-cv-05668-RBL,
2020 WL 128563 (W.D. Wash. Jan. 10, 2020).
\18\ Burt Lake Band of Ottawa and Chippewa Indians v. Bernhardt,
No. 17-0038 (ABJ), 2020 WL 1451566 (D.D.C. Mar. 25, 2020).
\19\ 80 FR 37861 (July 1, 2015).
\20\ Chinook, 2020 WL 128563, at *6 (stating that ``the Court
agrees with Department of the Interior (DOI) that its expansive
power over Indian affairs encompasses the re-petition ban''
(citation omitted)); Burt Lake, 2020 WL 1451566, at *5 (stating that
``the regulation [banning re-petitioning] comports with the agency's
authority'').
\21\ Chinook, 2020 WL 128563, at *7 (citation omitted); Burt
Lake, 2020 WL 1451566, at *6 (citation omitted).
\22\ Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck
Lines v. United States, 371 U.S. 156, 168 (1962)).
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Both courts concluded that the Department had not done so. The
Chinook court held that the Department's reasons were ``illogical,
conclusory, and unsupported by the administrative record,'' as well as
not ``rationally connect[ed] . . . to the evidence in the record.''
\23\ Similarly, the Burt Lake court concluded that the Department's
reasons were ``neither well-reasoned nor rationally connected to the
facts in the record.'' \24\ Both courts found that despite the
Department's argument that the 2015 revisions to part 83 did not change
any substantive criteria other than those specifically identified, the
Department had nevertheless failed to explain why, in light of those
and other revisions and after having proposed a limited re-petition
process in the 2014 proposed rule, the Department could permissibly
maintain the ban.\25\ The Chinook court focused in particular on a
provision introduced in the 2015 final rule that sought to promote
consistent implementation of the criteria and stated that ``[t]here is
no reason why new petitioners should be entitled to this `consistency'
while past petitioners are not.'' \26\ More generally, the Burt Lake
court linked reform of the [F]ederal acknowledgment process with an
``opportunity to re-petition and to seek to satisfy the new
criterion.'' \27\ Neither the Chinook nor Burt Lake courts struck down
the 2015 final rule in whole or in part. Rather, both courts remanded
the ban to the Department for further consideration.
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\23\ Chinook, 2020 WL 128563, at *8.
\24\ Burt Lake, 2020 WL 1451566, at *12.
\25\ See Chinook, 2020 WL 128563, at *4-5 (identifying five
``notable'' changes in the 2015 regulations); Burt Lake, 2020 WL
1451566, at *9 (highlighting two changes that the court deemed ``not
minor'').
\26\ Chinook, 2020 WL 128563, at *8.
\27\ Burt Lake, 2020 WL 1451566, at *10.
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On December 18, 2020, the Department announced its intent to
reconsider the ban and invited federally recognized Indian Tribes to
consult on whether to retain the ban or allow for re-petitioning. On
February 25, 2021, the Department held a Tribal consultation session
and solicited written comments on the ban through March 31, 2021. In
response, the Department received 19 comments from federally recognized
Indian Tribes, non-federally recognized groups, an inter-Tribal
organization representing both federally recognized and State
recognized Indian Tribes, various State and town representatives in
Connecticut, and individuals. A majority of the commenters opposed the
ban.
Following the comment period, the Department reviewed all comments
and identified three options: (1) Keeping the ban in place; (2)
creating a fact-based or time-limited avenue for re-petitioning; and
(3) giving denied petitioners an opportunity to re-petition with few or
no limitations. After considering each of these options, the history of
the ban, the Federal district court opinions noted above, the comments
received (which, as noted above, were predominantly opposed to the
ban), and the legal foundation for the ban, the Department is proposing
a continuation of the ban, for the reasons described here. The
Department invites comments, particularly from denied petitioners, on
its proposed approach as well as its reasoning.
III. Basis for Proposed Rule
The Department is proposing to continue the ban on re-petitioning,
albeit with a revised justifications given the Chinook and Burt Lake
courts' conclusion that the explanation for implementing the ban in the
2015 final rule was arbitrary and capricious. The Department is
proposing to continue the ban for five main reasons: (1) The
Department's previous negative final determinations are substantively
sound and the Department is allowed to revise its regulations without
reevaluating past final agency actions issued under the previous
versions of those regulations; (2) denied petitioners received due
process by virtue of the multiple administrative and Federal court
avenues through which to challenge both the process and substance of a
negative part 83 final determination; (3) the changes adopted in the
Department's 2015 final rule do not warrant re-petitioning; (4) third
parties and the Department have legitimate interests in the finality of
the Department's final determinations; and (5) a denied petitioner's
claimed availability of new evidence is not a compelling basis to allow
re-petitioning. Each of these reasons is explained in more detail here.
A. The Department's Previous Negative Final Determinations Are
Substantively Sound and the Department Is Allowed To Revise Its
Regulations Without Reevaluating Past Final Agency Actions Issued Under
the Previous Versions of Those Regulations
The Department proposes to retain the ban on re-petitioning on the
grounds that its previous negative final determinations are
substantively sound, and the Department should be able to maintain the
ability to improve its regulations without being required to reexamine
previous decisions. In the 2015 final rule, the Department noted that
the Federal acknowledgment process ``has been criticized as `broken'
and in need of reform'' for being ``too slow (a petition can take
decades to be decided), expensive, burdensome, inefficient, intrusive,
less than transparent and unpredictable.'' \28\ While the Department
has reformed various aspects of part 83, the Department has maintained
the validity of the seven mandatory criteria. Indeed, throughout the
preamble of the 2015 final rule, the Department emphasized the part 83
process's integrity and substantive rigor.\29\
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\28\ See id. at 37862.
\29\ See, e.g., id. at 37863 (explaining why the 2015 final
rule's reduced documentary burden for satisfying criteria (b) and
(c) will not compromise the existing ``integrity and rigor of the
process'').
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In support of the Department's proposed approach, we note that each
of the Department's 34 negative determinations was based on an
exhaustive review of the facts and claims specific to each petitioner
and a deliberate application of the criteria, resulting in a well-
reasoned, legally defensible outcome. The Department's efforts in the
2015 final rule ``to address assertions of arbitrariness,'' \30\ among
other criticism, do not amount to an admission that its previous final
determinations were somehow defective and, therefore, now deserving of
reconsideration. Indeed, if an agency's revision of regulations
amounted to an admission that previous determinations were defective,
an agency would never revise its regulations.
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\30\ Id.
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Complaints that the Federal acknowledgment process under the
previous versions of the regulations was ``too slow . . . , expensive,
burdensome, inefficient, intrusive, less than transparent and
unpredictable,'' \31\ primarily concern procedural aspects of the
process. The Department has
[[Page 24911]]
consistently defended, and courts have consistently upheld, the
Department's final determinations on the merits.\32\ By contrast, the
cases in which courts have sided with denied petitioners have primarily
concerned not the merits of the Department's evaluations but issues
relating to process,\33\ which the Department has continued to address
through its reforms, as discussed elsewhere.
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\31\ Id. at 37862.
\32\ See Muwekma Ohlone Tribe v. Salazar, 708 F.3d 209, 220-23
(D.C. Cir. 2013) (holding that the Department's final determination
finding insufficient evidence for criteria (a) and (b) was not
arbitrary and capricious); Miami Nation of Indians of Ind., Inc. v.
U.S. Dep't of the Interior, 255 F.3d 342, 349 (7th Cir. 2001)
(holding that the Department did not arbitrarily disregard evidence
alleged to support a positive finding); Ramapough Mountain Indians,
Inc. v. Norton, 25 Fed. App'x 2, 3 (D.C. Cir. 2001) (holding that
the Department permissibly concluded that the petitioner failed to
meet criterion (e) because of a lack of documentation); Tolowa
Nation v. United States, 380 F. Supp. 3d 959, 961 (N.D. Cal. 2019)
(holding that the Department's determination that the petitioner
failed to satisfy criterion (b) did not violate the APA); Nipmuc
Nation v. Zinke, 305 F. Supp. 3d 257, 271-77 (D. Mass. 2018)
(holding that the Department's determination finding that the
petitioner failed to meet criteria (a)-(c) and (e) was not arbitrary
or capricious); Schaghticoke Tribal Nation v. Kempthorne, 587 F.
Supp. 2d 389, 412-18 (D. Conn. 2008); Miami Nation of Indians of
Ind., Inc. v. Babbitt, 112 F. Supp. 2d 742, 758 (N.D. Ind. 2000)
(upholding the underlying validity of part 83 writ large), aff'd sub
nom. Miami Nation of Indians of Ind., Inc. v. U.S. Dep't of the
Interior, 255 F.3d 342 (7th Cir. 2001).
\33\ See Greene v. Babbitt, 64 F.3d 1266, 1275 (9th Cir. 2005)
(affirming a ruling in favor of the Samish Indian Nation, which had
challenged the adequacy of due process under the 1978 regulations);
Hansen v. Salazar, No. C08-0717-JCC, 2013 WL 1192607, at *11 (W.D.
Wash. Mar. 22, 2013) (holding that the AS-IA's final determination
denying the Duwamish Indian Tribe's petition for Federal
acknowledgment was arbitrary and capricious because the Department
had evaluated the petition under only the 1978 regulations, even
though it had evaluated a contemporaneous petition under both the
1978 and 1994 regulations).
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Further, a rule requiring the Department to reevaluate its negative
determinations after any amendment to part 83, no matter the strength
of those determinations, the due process already afforded to the denied
petitioners, the improbability of reversal, or legitimate interests in
finality (discussed below), would hamper the Department's ability to
improve the Federal acknowledgement process. The mere fact that the
regulations changed does not inherently require Departmental
reconsideration of previous decisions. Indeed, such an approach would
effectively render an agency unable to modify regulations for concern
that all decisions prior to amendment would need to be redecided.
B. Denied Petitioners Received Due Process
The Department proposes a no re-petitioning approach because in the
event that a denied petitioner claims that the Department
inconsistently or otherwise unfairly applied the criteria to its
petition, that petitioner already had the opportunity to raise such a
claim in a timely manner during administrative reconsideration or
judicial review of its negative determination. Having had such an
opportunity, our approach is that previously denied petitioners should
not be entitled to another evaluation under the 2015 regulations.
Since the inception of the Federal acknowledgment process, the
Department has ensured that petitioners have multiple opportunities to
submit and revise their petitions, receive and respond to technical
assistance from Office of Federal Acknowledgment (OFA), address
deficiencies in their materials, and supplement their evidence, all
before receiving a proposed finding and, ultimately, a final
determination.\34\ Indeed, one of the reasons why the Federal
acknowledgment process can be so lengthy is that petitioners often take
many years to prepare their petitions, supplementing them with
supporting documentation before deeming them complete and ready for
Departmental review.
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\34\ See 59 FR 9280, 9291 (Feb. 25, 1994) (explaining that
``petitioners who were denied went through several stages of review
with multiple opportunities to develop and submit evidence''); see
also 25 CFR 83.10(c)(1) (1994) (giving a petitioner additional
technical assistance upon request prior to active consideration of
the petition).
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Prior to issuance of a final determination, our regulations have
always allowed petitioners to challenge a negative proposed finding by
presenting factual or legal arguments and evidence relied upon in the
proposed finding in various administrative processes.\35\ Following
issuance of a final determination, petitioners denied under the 1994
regulations had the option to seek reconsideration with the Interior
Board of Indian Appeals (IBIA),\36\ while the 1978 regulations
permitted the Secretary of the Interior to order administrative
reconsideration.\37\ Both the 1978 and 1994 regulations permitted
reconsideration in response to a concern that the Department
erroneously evaluated evidence.\38\ The 1994 regulations further
allowed denied petitioners to allege that ``there are reasonable
alternative interpretations, not previously considered, of the evidence
used for the final determination, that would substantially affect the
determination that the petitioner meets or does not meet one or more of
the criteria.'' \39\ We believe that such provisions, permitting either
the Secretary or the IBIA to review the merits of a negative final
determination, provided due process protections for aggrieved
petitioners.
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\35\ 25 CFR 83.10(i) (1994); id. Sec. 54.9(g) (1978). See also
James, 824 F.2d at 1136 (describing a review under the 1978
regulations in which the Department initially issued a negative
proposed finding to the Wampanoag Tribe of Gay Head (Aquinnah), but
after ``accept[ing] additional evidence challenging the proposed
finding and after reconsidering the matter,'' issued a final
determination acknowledging the petitioner).
\36\ 25 CFR 83.11 (1994).
\37\ Id. Sec. 54.10 (1978).
\38\ Id. Sec. 83.11(d)(2) (1994); Id. Sec. 54.10(c)(2) (1978).
\39\ Id. Sec. 83.11(d)(4) (1994).
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Furthermore, a denied petitioner alleging an APA, constitutional,
or other violation in its final determination had the opportunity to
seek judicial review. To the extent that petitioners did not challenge
a negative final determination in court, the Department proposes not to
create a re-petition process as a substitute for a timely APA claim.
C. The Changes Adopted in the Department's 2015 Final Rule Do Not
Warrant Re-Petitioning at This Time
The Department proposes to not allow for re-petitioning under the
2015 regulations because the Department believes the changes do not
warrant re-petitioning. First, none of the 2015 final rule's changes to
each of the seven mandatory criteria justify re-petitioning, and the
2015 final rule did not change the reasonable likelihood standard that
the Department applies in evaluating petitions for Federal
acknowledgment. Further, even if the outcome of any of the Department's
previous determinations would be different under the 2015 regulations,
the Department believes it retains the authority to revise its
regulations without reevaluating its previous determinations.
1. None of the 2015 Final Rule's Changes to the Seven Mandatory
Criteria Justify Re-Petitioning
According to the Federal district court that decided Chinook and
remanded the ban to the Department for further consideration, some or
all of the changes in the 2015 final rule constitute ``significant
revisions that could prove dispositive for some re-petitioners.'' \40\
Although the Chinook court did not specify whether or how any such
revision would affect any specific petitioner, the court identified
changes in the 2015 final rule that it deemed
[[Page 24912]]
``notable'': (1) A new ``evaluation start date for criteria (b)
[(Community)] and (c) [(Political Authority)]''; (2) a new ability ``to
rely on self-identification as an Indian tribe'' for criterion (a)
(Indian Entity Identification); (3) an ``automatic satisfaction of
criterion (e) [(Descent)] . . . through evidence of `a tribal roll
directed by Congress or prepared by the Secretary . . . unless
significant countervailing evidence establishes that the tribal roll is
substantively inaccurate' ''; and (4) a ``[l]oosening [of] the
requirements for criterion (f) [(Unique Membership)].'' \41\
Additionally, the Burt Lake court likewise remanded the ban to the
Department and identified another change in the 2015 final rule that it
deemed ``not minor'': The change in how the Department counts the
number of marriages within a petitioner for the purpose of evaluating
criterion (b) (Community).\42\
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\40\ Chinook, 2020 WL 128563, at *8.
\41\ Id. at *4-5 (citations omitted).
\42\ Burt Lake, 2020 WL 1451566, at *9.
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This section of the proposed rule primarily seeks to explain that
the changes that the Chinook and Burt Lake courts identified as
potentially significant would not result in the reversal of the
Department's previous negative final determinations.
i. The New Evaluation Start Date of 1900 for Criteria (b) (Community)
and (c) (Political Authority)
In the 2015 final rule, the Department provided a thorough, well-
reasoned explanation as to why the Department ``does not classify the
start date change, from 1789 or the time of first sustained contact to
1900, as a substantive change to the existing criteria,'' \43\ and the
Department adopts that explanation here. Aside from reducing the
documentary burden on petitioners, the Department reasoned that a 1900
start date for criteria (b) (Community) and (c) (Political Authority)
is appropriate because ``the time since 1900 has been shown to be an
effective and reliable demonstration for historical times for criterion
(a)'' (Indian Entity Identification), and ``utilization of [a 1900
start date for criterion (a)] for over 20 years has demonstrated that
the date maintains the rigor of the criteria.'' \44\ In explaining why
the 1900 start date will not compromise the rigor of the process, the
Department stated that ``1900 [was] squarely during the allotment and
assimilation period of Federal policy that was particularly difficult
for tribal governments,'' when ``there was little benefit and some risk
to openly functioning as a tribal community and government.'' \45\
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\43\ 80 FR 37863 (July 1, 2015); see also id. at 37868-69.
\44\ Id. at 37863.
\45\ Id. at 37869.
---------------------------------------------------------------------------
The Department proposes to not allow re-petitioning because the
change to the start date for criteria (b) (Community) and (c)
(Political Authority) would not result in the reversal of any previous
negative determination. None of the 34 denied petitioners received a
negative determination based solely on a failure to satisfy criterion
(b) or (c) for the historical period (pre-1900). That is, every
petitioner that failed to satisfy criterion (b) or (c) for the
historical period also failed to satisfy the criterion for the period
from 1900 until the present.\46\ Therefore, the change in the start
date for criteria (b) and (c) would not lead to a different outcome for
any denied petitioner.
---------------------------------------------------------------------------
\46\ Cf. id. at 37863 (explaining that the converse is also
true: ``based on [the Department's] experience in nearly 40 years of
implementing the regulations, every group that has proven its
existence from 1900 forward has successfully proven its existence
prior to that time as well'').
---------------------------------------------------------------------------
ii. The New Ability To Rely on Evidence of Self-Identification as an
Indian Tribe for Criterion (a) (Indian Entity Identification)
In the 2015 final rule, the Department characterized the change in
criterion (a) as substantive.\47\ Nevertheless, the change does not
compel the Department to allow re-petitioning because none of the
Department's negative determination hinged on criterion (a) alone.\48\
Specifically, every denied petitioner that failed to satisfy criterion
(a) failed to satisfy criteria (b) and (c) as well.\49\ A reversal of a
negative conclusion on criterion (a) in a previous determination would
not change the overall negative result, given that a petitioner must
satisfy all seven mandatory criteria.\50\
---------------------------------------------------------------------------
\47\ Id. at 37863.
\48\ See id. at 37866 (noting the point raised by some
commenters that ``because no petitioner has been denied solely on
[criterion (a)], it is of limited value'').
\49\ Based on the Department's review on reconsideration, there
are 22 denied petitioners that did not meet criterion (a), all of
which also did not meet at least one other criterion. They are the
Duwamish Indian Tribe, Georgia Tribe of Eastern Cherokees, Inc.,
Juaneno Band of Mission Indians, Steilacoom Tribe, Nipmuc Nation
(Hassanamisco Band), Webster/Dudley Band of Chaubunagungamaug
Nipmuck Indians, St. Francis/Sokoki Band of Abenakis of Vermont,
Golden Hill Paugussett Tribe, Snohomish Tribe of Indians, Muwekma
Ohlone Tribe of San Francisco Bay, Chinook Indian Tribe/Chinook
Nation, MaChis Lower AL Creek Indian Tribe, Tchinouk Indians,
Southeastern Cherokee Confederacy, Northwest Cherokee Wolf Band, Red
Clay Inter tribal Indian Band, United Lumbee Nation of NC and
America, Principal Creek Indian Nation, Kaweah Indian Nation, Munsee
Thames River Delaware, Lower Muskogee Creek Tribe-East of the
Mississippi, and Creeks East of the Mississippi.
\50\ See Ramapough Mountain Indians, 25 Fed. App'x at 3-4
(declining to address the petitioner's arguments relating to
criterion (b), after upholding the Department's conclusion that the
petitioner failed to meet criterion (e), ``because to receive
Federal recognition [the petitioner] had to demonstrate that it met
all seven of the criteria in section 83.7'').
---------------------------------------------------------------------------
iii. The Satisfaction of Criterion (e) (Descent) Through Evidence of a
Tribal Roll Directed by Congress or Prepared by the Secretary
In the 2015 final rule, the Department explained that ``[t]he final
criterion (e) remains substantively unchanged from the current
criterion (e).'' \51\ Although the revised language of the criterion
emphasizes the ``great weight'' that the Department places ``on
applicable tribal Federal rolls prepared at the direction of Congress
or by the Department,'' the rule explains that the revision ``codifies
past practice.'' \52\ As the 2015 final rule points out, since the
inception of the Federal acknowledgment regulations, the Department has
consistently relied on evidence of such rolls in evaluating whether a
petitioner satisfies criterion (e).\53\ The change in Sec. 83.11(e)(1)
ensures that the Department will continue to do so.
---------------------------------------------------------------------------
\51\ 80 FR 37866 (July 1, 2015).
\52\ Id. at 37867.
\53\ Id. (discussing the Department's reliance on rolls and
censuses prepared by Federal agency officials in reaching a
favorable conclusion on criterion (e) for the Timbisha Shoshone
Tribe's positive final determination).
---------------------------------------------------------------------------
iv. The Deletion of the Requirement in Criterion (f) (Unique
Membership) That the Petitioner's Members ``not maintain a bilateral
political relationship with'' a Federally Recognized Indian Tribe
Under the 1994 regulations, criterion (f) listed three conditions
that, if all met, exempted a petitioner from the requirement that
``[t]he membership of the petitioning group [be] composed principally
of persons who are not members of any acknowledged North American
Indian tribe.'' \54\ The conditions were as follows: (1) ``The
[petitioner] . . . has functioned throughout history until the present
as a separate and autonomous Indian tribal entity''; (2) ``its members
do not maintain a bilateral political relationship with the
acknowledged tribe;'' and (3) ``its members have provided written
confirmation of their membership in the petitioning group.'' \55\ The
2015 revision of part 83 deleted the second condition in this list but
maintained the first and the third.\56\
---------------------------------------------------------------------------
\54\ 25 CFR 83.7(f) (1994).
\55\ Id.
\56\ 80 FR 37891 (July 1, 2015).
---------------------------------------------------------------------------
[[Page 24913]]
In the preamble of the 2015 final rule, the Department adequately
explained the rationale behind deleting that condition.\57\ In short,
the Department's evaluation of whether a group can establish a
substantially continuous Tribal existence, demonstrate that it has
functioned as an autonomous entity throughout history until the
present, and thus qualify for Federal acknowledgment, does not hinge on
a petitioner's demonstration that its members eschew bilateral
relationships with an acknowledged Indian Tribe. No previous final
determination (whether negative or positive) has hinged on that
specific determination.\58\ Given that that condition was non-
essential, its deletion did not affect any previous petitioner's rights
or determination and its deletion does not counsel in favor of allowing
re-petitioning.
---------------------------------------------------------------------------
\57\ See id. at 37873.
\58\ See id. (explaining that the San Juan Southern Paiute Tribe
of Arizona met the essential requirement for Federal
acknowledgment--``operat[ing] as a separate politically autonomous
community on a substantially continuous basis''--``even though its
members had census numbers with a federally recognized tribe,'' the
Navajo Nation (citing Notice of Final Determination That the San
Juan Southern Paiute Tribe Exists as an Indian Tribe, 54 FR 51502,
51504 (Dec. 15, 1989))).
---------------------------------------------------------------------------
v. The Change in How the Department Counts the Number of Marriages
Within a Petitioner for Criterion (b) (Community)
To satisfy criterion (b) under the 2015 regulations, a petitioner
must ``comprise[ ] a distinct community and demonstrate[ ] that it
existed as a community from 1900 until the present.'' \59\ Like the
1994 regulations, the 2015 regulations list various kinds of evidence
that a petitioner can rely on to demonstrate such community, including
``[r]ates or patterns of known marriages within the entity'' \60\ and
``[s]ocial relationships connecting individual members.'' \61\ Under
both the 1994 and 2015 regulations, certain kinds of evidence, standing
alone, are sufficient to satisfy criterion (b) at a given point in
time.\62\ One such kind of evidence under the 2015 regulations is
evidence demonstrating that ``[a]t least 50 percent of the members of
the entity were married to other members of the entity.'' \63\ That
provision is analogous to one in the 1994 regulations, which allowed
petitioners to satisfy criterion (b) at a given point in time through
evidence demonstrating that ``[a]t least 50 percent of the marriages in
the group are between members of the group.'' \64\
---------------------------------------------------------------------------
\59\ 25 CFR 83.11(b); 80 FR 37890 (July 1, 2015).
\60\ 25 CFR 83.11(b)(1)(i).
\61\ Id. Sec. 83.11(b)(1)(ii).
\62\ Id. Sec. 83.11(b)(2); id. Sec. 83.7(b)(2) (1994).
\63\ Id. Sec. 83.11(b)(2)(ii).
\64\ Id. Sec. 83.7(b)(2)(ii) (1994).
---------------------------------------------------------------------------
The different language in the provisions quoted above reflects a
difference in methodology. Whereas Departmental practice under the 1994
regulations required counting the overall number of marriages within a
petitioner, the Department under the 2015 regulations counts instead
``the number of petitioner members who are married to others in the
petitioning group.'' Although the rule characterizes the change as
substantive,\65\ given that it represents a change in OFA's actual
evidentiary approach (as opposed to a procedural process or
codification of unwritten but consistent past practice), the Department
noted in the 2015 final rule that either approach of counting marriages
is valid: The approach used in the 1994 regulations or the approach
used in the 2015 regulations.\66\ Consequently, to the extent that any
of the Department's conclusions on criterion (b) in previous
determinations applied the 1994 regulations' method of counting
marriages, the Department proposes that those conclusions were fair and
remain valid, and the change in method should not serve as a basis for
re-petitioning. Furthermore, the Department has not identified any
negative determination in which the switch in method would reverse the
Department's conclusion.
---------------------------------------------------------------------------
\65\ 80 FR 37863 (July 1, 2015).
\66\ Id. at 37870.
---------------------------------------------------------------------------
vi. The Inclusion of a New Provision Under Criteria (b) (Community) and
(c) (Political Authority) Stating That Evidence of ``[l]and set aside
by a State for petitioner, or collective ancestors of the petitioner,''
May Be Relied on to Satisfy Those Criteria \67\
In the 2015 final rule, the Department stated that the addition of
the provision quoted above does not reflect a substantive change in the
criteria.\68\ Rather, ``this change is simply meant to be explicit
about the value and relevance of certain evidence.'' \69\ The list of
evidence under criterion (c)(1), where the new provision is located, is
not exhaustive; rather, the items listed are only examples of what the
Department will accept, and has accepted in the past. The Department
also emphasized that even if the existence of such lands ``may generate
evidence of community and political influence/authority,'' such lands
``are not determinative for these two criteria.'' \70\ That is, such
evidence acts as one of many factors relevant to a positive
determination.
2. The 2015 Final Rule Did Not Change the Reasonable Likelihood
Standard That the Department Applies in Evaluating Petitions for
Federal Acknowledgment
When the Department revised the Federal acknowledgment regulations
in 1994, it introduced language clarifying the burden of proof that the
Department applies in determining whether evidence satisfies the seven
mandatory criteria. In Sec. 83.6(d) (1994), the Department explained
that ``[a] criterion shall be considered met if the available evidence
establishes a reasonable likelihood of the validity of the facts
relating to that criterion.'' \71\ The so-called ``reasonable
likelihood'' standard did not create a new evidentiary standard;
rather, it ``codif[ied] current practices'' applied under the 1978
regulations as well.\72\
---------------------------------------------------------------------------
\71\ 59 FR 9295 (February 25, 1994).
\72\ Id. at 9280.
---------------------------------------------------------------------------
The 2015 regulations retained the reasonable likelihood standard,
in language virtually identical to that in the 1994 regulations,
stating that ``[t]he Department will consider a criterion . . . to be
met if the available evidence establishes a reasonable likelihood of
the validity of the facts relating to that criterion.'' \73\
Notwithstanding that express continuity from 1978 to 1994 to 2015, the
plaintiffs in the Chinook and Burt Lake litigation argued that a
separate provision introduced in the 2015 regulations, located at Sec.
83.10(a)(4), changed the reasonable likelihood standard by reducing the
burden of proof for petitioners proceeding under the 2015 regulations.
Section 83.10(a)(4) states that ``[e]vidence or methodology that the
Department found sufficient to satisfy any particular criterion in a
previous decision will be sufficient to satisfy the criterion for a
present petitioner.''
---------------------------------------------------------------------------
\73\ 25 CFR 83.10(a).
---------------------------------------------------------------------------
By its plain terms, Sec. 83.10(a)(4) expressly ``provides that if
there is a prior decision finding that evidence or methodology was
sufficient to satisfy any particular criterion in a previous petition,
the Department will find that evidence or methodology sufficient to
satisfy the criterion for a present petitioner. In other words, a
petitioner today satisfies the standards of evidence or baseline
requirements of a criterion if that type or amount of evidence was
sufficient in a previous decision.'' \74\ The Department's inclusion of
Sec. 83.10(a)(4) in the 2015 regulations should not be interpreted as
an admission that the Department weighed evidence or applied
methodology in an
[[Page 24914]]
inconsistent manner in its past determinations. Rather, it is simply an
assurance of consistency going forward.
---------------------------------------------------------------------------
\74\ 80 FR 37865 (July 1, 2015).
---------------------------------------------------------------------------
The Department decided to provide such assurance in the 2015 final
rule because it aligned with the Department's stated goal in the 2015
final rule to promote consistency.
The 2015 final rule's inclusion of Sec. 83.10(a)(4)--and the
decision not to define the term ``reasonable likelihood'' in a novel
way in the 2015 final rule--promotes consistency with the Department's
past applications of the reasonable likelihood standard, in furtherance
of the Department's stated goals, and, more broadly, promotes
consistency with the Department's previous determinations.\75\ In
clarifying the Department's understanding and application of this
standard, Sec. 83.10(a)(4) addresses a concern raised by some
commenters that the Department was allegedly applying an ``increasingly
burdensome application of the criteria'' over time.\76\
---------------------------------------------------------------------------
\75\ Id. at 37875.
\76\ Id. at 37865; see also id. at 37862 (``This clarification
ensures that a criterion is not applied in a manner that raises the
bar for each subsequent petitioner.'').
---------------------------------------------------------------------------
D. Third Parties and the Department Have Legitimate Interests in the
Finality of the Department's Final Determinations
1. Third Parties Have Legitimate Interests in Finality
In the preamble of the 2015 final rule, the Department explained
that numerous commenters argued that re-petitioning would ``undermine[
] finality and certainty'' and ``[be] unfair to stakeholders.'' \77\
Although the Department referred to those comments in the final rule,
in rejecting the Department's stated reasons for retaining the ban
under the APA, the Chinook court stated that the Department failed to
incorporate those potentially appropriate concerns into its
justifications for the ban.\78\
---------------------------------------------------------------------------
\77\ Id. at 37874.
\78\ Chinook, 2020 WL 128563, at *9 (``The Court does not judge
the appropriateness of these goals, but if they actually motivated
DOI's decision the[ ] agency should have said so directly.'').
---------------------------------------------------------------------------
Upon reconsideration, the Department proposes to consider those
third-party interests as compelling in favor of retaining the ban.
For decades, third parties with interests in the Department's
Federal acknowledgment process have relied on the finality of the
Department's final determinations. These third parties include
federally recognized Indian Tribes, States, local governments, other
actual or potential part 83 petitioners, and the public at large. Since
the initial promulgation of the Federal acknowledgment regulations, the
Department's final determinations have constituted final agency action,
subject to administrative reconsideration or judicial review under
generally understood principles of administrative law.\79\ Third
parties have an understanding of how the process works based on the
step-by-step description in part 83 culminating in the issuance of a
final determination.
---------------------------------------------------------------------------
\79\ See 25 CFR 54.10(a) (1978) (``The Assistant Secretary's
decision shall be final for the Department . . . .''); 25 CFR
83.10(o) (1994) (``The determination to decline to acknowledge that
the petitioner is an Indian tribe shall be final for the
Department.''); id. Sec. 83.44 (``The AS-IA's final determination
is final for the Department and is a final agency action under the
[APA].'').
---------------------------------------------------------------------------
The ban has been a longstanding feature of the process,
underscoring the seriousness of the Department's evaluation,
legitimizing the substantive rigor of the process, and ensuring, as a
matter of law, the finality of the Department's final determinations.
While denied petitioners may argue the changes in the 2015 final rule
might change the result of a negative final determination, such
arguments do not warrant undermining the finality of the Department's
final determinations and disregarding the interests of third parties in
finality.
And the Department proposes that those interests are significant.
Federal acknowledgment is one of the most significantly consequential
actions the Department takes in any context. Placement on the list of
federally recognized Indian Tribes establishes a government-to-
government relationship between the petitioner and the United States
that has innumerable consequences for the newly acknowledged Indian
Tribe and for third parties. For the Department and other Federal
agencies, it requires that the newly acknowledged Indian Tribe be made
eligible for all Federal benefits and programs benefitting Indians,
that the agencies include those entities in any relevant Tribal
consultation, and that the agencies consider the sovereign rights of
those entities when making taking agency actions.\80\ For other
recognized Indian Tribes, it makes the newly acknowledged Indian Tribe
eligible for Tribal-specific Federal resources. For States and
localities, acknowledgment changes legal considerations including
Tribal sovereign immunity and environmental regulation. Similar
concerns affect individuals who choose to live or seek employment
within the newly acknowledged Indian Tribe's jurisdiction or choose to
become members of the newly acknowledged Indian Tribe. The depth of
these consequences underscores the reason that the Department has
historically allowed limited third-party participation in the part 83
process, and emphasizes the interests that third parties have in
administrative finality so that relevant government agencies (Federal,
State, and Tribal) and individuals may reasonably settle expectations
as to whether a given petitioner may or may not still participate in
the part 83 process.
---------------------------------------------------------------------------
\80\ E.O. 13175, Consultation and Coordination with Indian
Tribal Governments, 65 FR 67249, 67249-50 (Nov. 6, 2000) (ordering
Federal agencies to develop procedures for ``regular and meaningful
consultation and collaboration with tribal officials in the
development of Federal policies that have tribal implications'').
---------------------------------------------------------------------------
The compelling third-party interests in precluding re-petitioning
and any ensuing litigation of issues already decided should give the
Department's final determinations preclusive effect. The Supreme Court
has ``long favored application of the common-law doctrines of
collateral estoppel (as to issues) and res judicata (as to claims) to
those determinations of administrative bodies that have attained
finality.'' \81\ Although the 2014 proposed rule would have conditioned
re-petitioning on the consent of ``[a]ny third parties that
participated as a party in an administrative reconsideration or Federal
Court appeal concerning the petitioner,'' \82\ the 2015 final rule's
blanket ban aligns more closely with the well-established, common-law
principle of administrative final action preclusion and the repose that
it provides. Additionally, such protection extends to a greater number
of third parties with significant interests in the outcomes of requests
to re-petition.
---------------------------------------------------------------------------
\81\ Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104,
107 (1991); see also Golden Hill Paugussett Tribe of Indians v.
Rell, 463 F. Supp. 2d 192, 200 (D. Conn. 2006) (concluding that a
final determination on Federal acknowledgment is an ``
`adjudicative' one, sufficient for application of the collateral
estoppel doctrine'').
\82\ 79 FR 30774 (May 29, 2014) (proposed Sec. 83.4(b)(1)).
---------------------------------------------------------------------------
2. The Department Has Legitimate Interests in Finality
i. The Burden on the Department
The Department proposes this approach on the belief that it has a
legitimate interest in the finality of its final determinations. Rules
of preclusion serve not only to prevent an unjust imposition ``upon
those who have already shouldered their burdens'' but also to prevent
the drain on ``resources of an adjudicatory system
[[Page 24915]]
with disputes resisting resolution.'' \83\ ``The principle holds true
when a court has resolved an issue, and should do so equally when the
issue has been decided by an administrative agency . . . which acts in
a judicial capacity.'' \84\
---------------------------------------------------------------------------
\83\ Solimino, 501 U.S. at 107-08 (1991) (citing Parklane
Hosiery Co. v. Shore, 439 U.S. 322, 326 (1979)).
\84\ Id. at 108 (citation omitted).
---------------------------------------------------------------------------
The Burt Lake court observed that re-petitioning would not pose a
burden on OFA given that, under the 2014 proposed rule, the Office of
Hearings and Appeals (OHA) (and not OFA) would have been the office
deciding whether to allow re-petitioning.\85\ However, the proposed
rule would have permitted OHA to ``receive pleadings, hold hearings,
and request evidence from OFA'' prior to issuing a decision on re-
petitioning.\86\ Despite the court's holding, then, the 2014 proposed
rule (even if implemented) could still have involved significant OFA
involvement in OHA's review of a request to re-petition.
---------------------------------------------------------------------------
\85\ Burt Lake, 2020 WL 1451566, at *12 (citations omitted).
\86\ 79 FR 30767 (May 29, 2014) (proposed Sec. 83.4(b)(2)(ii)).
---------------------------------------------------------------------------
Furthermore, any re-petition request approved by OHA would have
required OFA's reevaluation of the petitioner's claims. To the extent
that the Burt Lake court presumed that OFA's reevaluation would be
somehow limited in scope--the court notes that ``re-petitioners would
only be able to submit new materials to the agency''--nothing in the
2014 proposed rule indicates that re-petitioners would have been
treated any differently from first-time petitioners under part 83.\87\
Rather, upon successful completion of OHA's threshold review, re-
petitioners would have had to submit a documented petition pursuant to
Sec. 83.21, just like first-time petitioners, and proceed through the
Federal acknowledgment process accordingly. In short, the burden on the
Department would be significant.\88\
---------------------------------------------------------------------------
\87\ Burt Lake, 2020 WL 1451566, at 11 (citing 79 FR 30774 (May
29, 2014)).
\88\ See Barbara N. Coen, Tribal Status Decision Making: A
Federal Perspective on Acknowledgment, 37 New Eng. L. Rev. 491, 495
(2003) (``The result of the process is a decision based on an
extensive factual analysis, with administrative records currently
ranging in excess of 30,000 pages to over 100,000 pages.'' (citing
Work of the Department of the Interior's Branch of Acknowledgment
and Research within the Bureau of Indian Affairs: Hearing Before the
S. Comm. on Indian Affs., 107th Cong. 2, 19-20 (2002) (statement of
Michael R. Smith, Dir., Office of Tribal Servs., U.S. Dep't of the
Interior))).
---------------------------------------------------------------------------
The Department, in reconsidering the ban after the Burt Lake and
Chinook decisions, considered alternatives to the ban. One such
alternative was a limited evaluation of re-petitions akin to OHA's
threshold review under the 2014 proposed rule, focusing on new claims
and any supplemental submission of materials relevant to a previously
failed criterion. However, on reconsideration, the Department proposes
that even a limited reevaluation would undermine the integrity of the
Federal acknowledgment process. Contrary to the Chinook court's
observation that ``OFA would only have to re-consider the aspects of
the original decision that were identified as erroneous,'' \89\ such an
evaluation would fall short of the Department's standard requiring
``thorough and deliberate evaluations,'' given the serious nature of
granting or denying a petition for Federal acknowledgment.\90\ Many
prospective re-petitioners received determinations that are decades
old, and in the intervening time, a denied petitioner's materials,
including materials relating to criteria that the petitioner had
previously satisfied, could have changed significantly, affecting the
petitioner's ability to satisfy those criteria at present. For example,
under the 2015 regulations at Sec. 83.11(b) and (c), a petitioner must
satisfy criterion (b) (Community) and criterion (c) (Political
Influence or Authority) ``from 1900 until the present.'' \91\ Even if a
petitioner had satisfied those criteria decades ago, and OFA's prior
conclusions regarding those criteria were not identified by the
petitioner as erroneous in its request to re-petition, the necessity of
a thorough and deliberate evaluation would compel OFA to reevaluate
those criteria for the present period, accounting for the most recent
decades for which OFA has incomplete information. That is, allowing
limited re-petitioning would not be as simple as grafting OFA's
reconsideration of denied criteria onto a previously positive
determination--rather, OFA would presumably need to reevaluate the
entirety of the petitioner's evidence to avoid acknowledging groups
who, over time, lost compliance with previously-satisfied regulatory
criteria.
---------------------------------------------------------------------------
\89\ Chinook, 2020 WL 128563, at *9.
\90\ 70 FR 16513, 16514 (March 31, 2005) (explaining that the
Secretary placed importance on `` `thorough and deliberate
evaluations' because acknowledgment decisions `must be equitable and
defensible' '' (quoting Memorandum from Gale Norton, Sec'y of the
Interior, U.S. Dep't of the Interior, to David Anderson, Assistant
Sec'y--Indian Affs., U.S. Dep't of the Interior (Apr. 1, 2004))).
\91\ 25 CFR 83.11(a), (b).
---------------------------------------------------------------------------
In another example, a petitioner's membership may change even
within a relatively short time span, therefore affecting compliance
with criterion (f) (Unique Membership) at Sec. 83.11(f). A change in
membership, in turn, could affect the Department's prior conclusion on
criterion (e) (Descent) at Sec. 83.11(e), which requires a petitioner
to demonstrate that its membership ``consists of individuals who
descend from a historical Indian tribe (or from historical Indian
tribes that combined and functioned as a single autonomous political
entity).'' \92\
---------------------------------------------------------------------------
\92\ Id. Sec. 83.11(e).
---------------------------------------------------------------------------
Further, OFA would need to evaluate a re-petitioner's underlying
claim to be the previous petitioner in the first instance. The
Department has dealt with several cases involving dueling or otherwise
overlapping petitioner claims to the same membership or historical
predecessor. If the Department allowed re-petitioning, prior to getting
to the merits of a re-petition request under any model, OFA would have
to ensure that the re-petitioner was, in fact, the original petitioner.
In sum, an abbreviated evaluation for re-petitioners would
compromise the substantive rigor of the Federal acknowledgment process.
ii. Timeliness and Efficiency
Furthermore, the Department proposes that even a limited avenue for
re-petitioning would threaten the Department's ability to process
existing and future petitions in a timely manner, undermining a key
goal of the 2015 revision to ``increase timeliness and efficiency.''
\93\ The Chinook court stated that if the Department was ``concerned
about pending petitions, it would have been simple to give them
priority,'' sending re-petitions to the back of the line.\94\ However,
that statement does not account for the likely significant, time-
sensitive administrative burden that the Department--and OFA
especially--would incur as a result of allowing re-petitioning.
---------------------------------------------------------------------------
\93\ 80 FR 37862 (July 1, 2015).
\94\ Chinook, 2020 WL 128563, at *9.
---------------------------------------------------------------------------
For example, and putting aside the burdens associated with
processing re-petitions in the first instance, the creation of a re-
petitioning process could potentially lead to a marked increase in the
number of requests that the Department receives pursuant to the Freedom
of Information Act (FOIA). When interacting with both petitioners and
interested third parties, OFA has taken the position that part 83
materials submitted to the Department become Federal records for FOIA
purposes and cannot simply be turned over to non-Federal parties (even
petitioners) upon request. As a result, prospective re-petitioners or
interested third parties likely would need to submit FOIA
[[Page 24916]]
requests for copies of records relating to the Department's previous
final determinations in order to analyze evidence or methodology that
the Department deemed sufficient or insufficient to satisfy criteria in
previous determinations. While OFA maintains a list of the limited
public documents associated with part 83 petitions, see generally
https://www.bia.gov/as-ia/ofa/decided-cases, this does not include the
voluminous amount of evidentiary materials part 83 petitioners submit
throughout the process. Because FOIA contains statutory time
limits,\95\ the Department would have to prioritize responding to such
requests, a potentially significant undertaking involving the review of
thousands of records, many decades old.
---------------------------------------------------------------------------
\95\ See generally U.S. Dep't of Just., Guide to the Freedom of
Information Act, Procedural Requirements 32-36 (2019), https://www.justice.gov/oip/page/file/1199421/download.
---------------------------------------------------------------------------
The Department's concern about the effect of such an administrative
burden is not speculative. A 2001 report of the United States General
Accounting Office noted that technical staff within the Bureau of
Indian Affairs (now housed within OFA) had estimated that they spent up
to 40 percent of their time on administrative responsibilities, and on
responding to FOIA requests in particular, limiting their time spent
evaluating part 83 petitions.\96\ While the Department has taken steps
to alleviate that burden (for example, by hiring and training FOIA
contractors), the Department has a legitimate interest in allocating
resources efficiently.
---------------------------------------------------------------------------
\96\ U.S. Gov't Accountability Off., GAO-02-49, Indian Issues:
Improvements Needed in Tribal Recognition Process 16 (2001).
---------------------------------------------------------------------------
Besides an increase in FOIA requests, another likely burden on OFA
stemming from re-petitioning would be increased litigation. Assuming
that any re-petition process would include threshold eligibility
requirements, the denial of a request to re-petition would constitute a
final agency action subject to APA review.\97\ Similarly, an approved
re-petition would presumably be subject to all applicable
administrative appellate options and, if denied, APA review by the
courts. The Department's interests in administrative finality extend to
interests in avoiding the perpetual threat of litigation, particularly
in a process that has already guaranteed petitioners significant
administrative or judicial appeal opportunities and, as discussed
below, legislative remedies as well.
---------------------------------------------------------------------------
\97\ See Palacios v. Spencer, 267 F. Supp. 3d 1, 7 (D.D.C. 2017)
(explaining that if a party seeking review ``alleged new evidence or
changed circumstances that were not previously before the agency,
then the agency's denial [of reconsideration] is reviewable as a
final agency action'') (citation and internal quotation marks
omitted)), aff'd in part, appeal dismissed in part, 906 F.3d 124
(D.C. Cir. 2018); see also 79 FR 30774 (proposed 25 CFR 83.4(b)(3))
(``The OHA judge's decision whether to allow re-petitioning is final
for the Department and is a final agency action under the [APA]'').
---------------------------------------------------------------------------
E. Claimed Availability of New Evidence Does Not Justify Allowing Re-
Petitioning
In the preamble of the 2015 final rule, the Department noted that
certain commenters supported an opportunity to re-petition if ``there
is significant new evidence.'' \98\ By choosing to retain the ban, the
Department necessarily rejected that basis for re-petitioning and
proposes to do so again now.
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\98\ 80 FR 37875 (July 1, 2015).
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We propose that the potential availability of new evidence does not
justify re-petitioning. First, echoing the discussion above regarding
the due process already afforded to denied petitioners, under every
version of the regulations, denied petitioners had ample opportunities
to supplement their petitions with new evidence throughout the Federal
acknowledgment process,\99\ including after the Department's issuance
of a proposed finding \100\ and on reconsideration.\101\ Additionally,
during the Department's evaluation, OFA staff often conducted their own
research to supplement that of the petitioners,\102\ especially for the
purpose of addressing deficiencies or gaps in the petitioners'
submitted materials.\103\
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\99\ See 59 FR 9291 (justifying the introduction of the ban by
explaining, in part, that ``[t]hose petitioners who were denied went
through several stages of review with multiple opportunities to
develop and submit evidence.'').
\100\ 25 CFR 83.10(i) (1994) (allowing the petitioner or any
individual or organization challenging or supporting a proposed
finding to submit arguments and evidence to the AS-IA rebutting or
supporting the finding); id.Sec. 54.9(g) (1978) (allowing any
individual or organization challenging a proposed finding ``to
present factual or legal arguments and evidence to rebut the
evidence relied on'').
\101\ Id. Sec. 83.11(d)(1) (1994) (allowing petitioners to
request reconsideration of a final determination with the IBIA by
alleging that ``there is new evidence that could affect the
determination''); id. Sec. 54.10(c)(1) (1978) (allowing the
Secretary of the Interior to request reconsideration of a final
determination if the opinion ``[w]ould be changed by significant new
evidence which he has received subsequent to the publication of the
decision'').
\102\ See id. Sec. 83.10(a) (1994) (permitting the AS-IA to
initiate research for any purpose relative to analyzing a documented
petition); id. Sec. 54.9(a) (1978) (same).
\103\ See 65 FR 7052 (February 11, 2000); see also 70 FR 16513,
16515 (March 31, 2005) (encouraging petitioners to consult with OFA
staff, in part, to reduce the number of deficiencies noted in a
technical assistance letter).
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Second, if the Department were to allow re-petitioning based on new
evidence, we propose that it would be difficult to establish defensible
limiting principles for how such re-petitioning would look in practice.
Re-petitioners could claim that any time limit on the ability to submit
a petition based on new evidence would be inherently arbitrary given
that the availability of such evidence is not static but could be
discovered at any point and from any source depending on the expertise
of the individual charged with collecting it.
Finally, in recent years, Congress has confirmed its willingness to
recognize Indian Tribes outside of part 83.\104\ As the Department
noted in the preamble of the 1994 final rule introducing the ban,
``[d]enied petitioners still have the opportunity to seek legislative
recognition if substantial new evidence develops.'' \105\ The
Department invites comments on its reasoning and on alternative
perspectives.
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\104\ See, e.g., National Defense Authorization Act for Fiscal
Year 2020, Public Law 116-92, sec. 2870, 133 Stat. 1198, 1907-09
(2019) (extending Federal recognition to the Little Shell Tribe of
Chippewa Indians of Montana); Thomasina E. Jordan Indian Tribes of
Virginia Federal Recognition Act of 2017, Public Law 115-121, 132
Stat. 40 (2018) (extending Federal recognition to six Indian Tribes
located in Virginia).
\105\ 59 FR 9291 (February 25, 1994).
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IV. Summary of the Proposed Rule
This proposed rule makes no changes to the regulatory text at 25
CFR part 83, and proposes to make no change specifically to Sec.
83.4(d), which sets out the ban. Changes are made to the legal
authority citation because 25 U.S.C. 479a-1 has been renumbered to 25
U.S.C. 5131 and Public Law 103-454 Sec. 103 (Nov. 2, 1994) has been
reprinted in the United States Code at 25 U.S.C. 5130 note
(Congressional Findings).
V. Procedural Requirements
A. Regulatory Planning and Review (E.O. 12866)
Executive Order (E.O.) 12866 provides that the Office of
Information and Regulatory Affairs (OIRA) at the Office of Management
and Budget (OMB) will review all significant rules. OIRA has determined
that this rule is significant.
E.O. 13563 reaffirms the principles of E.O. 12866 while calling for
improvements in the Nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The E.O. directs agencies to consider regulatory approaches that reduce
burdens and maintain flexibility and freedom of choice for the public
where these approaches are relevant, feasible, and consistent with
regulatory objectives. E.O. 13563 emphasizes further that regulations
must be based
[[Page 24917]]
on the best available science and that the rulemaking process must
allow for public participation and an open exchange of ideas. We have
developed this rule in a manner consistent with these requirements.
B. Regulatory Flexibility Act
The Department of the Interior certifies that this document will
not have a significant economic effect on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
It does not change current funding requirements and would not impose
any economic effects on small governmental entities because it makes no
change to the status quo.
C. Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act because this rule affects
only entities that have previously petitioned, and been denied, Federal
acknowledgment as an Indian Tribe and that may again seek to become
acknowledged as an Indian Tribe. This rule:
(a) Will not have an annual effect on the economy of $100 million
or more.
(b) Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions.
(c) Will not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of the
U.S.-based enterprises to compete with foreign-based enterprises.
D. Unfunded Mandates Reform Act
This rule does not impose an unfunded mandate on State, local, or
Tribal governments or the private sector of more than $100 million per
year. The rule does not have a significant or unique effect on State,
local, or Tribal governments or the private sector because this rule
affects entities that have previously petitioned, and been denied,
Federal acknowledgment as an Indian Tribe and that may again seek to
become acknowledged as an Indian Tribe. A statement containing the
information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531
et seq.) is not required.
E. Takings (E.O. 12630)
This rule does not effect a taking of private property or otherwise
have taking implications under E.O. 12630. A takings implication
assessment is not required.
F. Federalism (E.O. 13132)
Under the criteria in section 1 of E.O. 13132, this rule does not
have sufficient federalism implications to warrant the preparation of a
federalism summary impact statement. A federalism summary impact
statement is not required.
G. Civil Justice Reform (E.O. 12988)
This rule complies with the requirements of E.O. 12988.
Specifically, this rule: (a) Meets the criteria of section 3(a)
requiring that all regulations be reviewed to eliminate errors and
ambiguity and be written to minimize litigation; and (b) meets the
criteria of section 3(b)(2) requiring that all regulations be written
in clear language and contain clear legal standards.
H. Consultation With Indian Tribes (E.O. 13175)
The Department of the Interior strives to strengthen its
government-to-government relationship with Indian Tribes through a
commitment to consultation with Indian Tribes and recognition of their
right to self-governance and Tribal sovereignty. We have evaluated this
rule under the Department's consultation policy and under the criteria
in E.O. 13175 and have hosted consultation with federally recognized
Indian Tribes in preparation of this proposed rule. The Department is
hosting additional consultation sessions with Tribes as described in
the DATES and ADDRESSES sections of this document.
I. Paperwork Reduction Act
OMB Control No. 1076-0104 currently authorizes the collection of
information related to petitions for Federal acknowledgment contained
in 25 CFR part 83, with an expiration of October 31, 2021. This rule
requires no change to that approved information collection under the
Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq.
J. National Environmental Policy Act
This rule does not constitute a major Federal action significantly
affecting the quality of the human environment. A detailed statement
under the National Environmental Policy Act of 1969 (NEPA) is not
required because this is an administrative and procedural regulation.
(For further information see 43 CFR 46.210(i).) We have also determined
that the rule does not involve any of the extraordinary circumstances
listed in 43 CFR 46.215 that would require further analysis under NEPA.
K. Effects on the Energy Supply (E.O. 13211)
This rule is not a significant energy action under the definition
in E.O. 13211. A Statement of Energy Effects is not required.
L. Clarity of This Regulation
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
a. Be logically organized;
b. Use the active voice to address readers directly;
c. Use clear language rather than jargon;
d. Be divided into short sections and sentences; and
e. Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in the ADDRESSES section. To
better help us revise the rule, your comments should be as specific as
possible. For example, you should tell us the numbers of the sections
or paragraphs that you find unclear, which sections or sentences are
too long, the sections where you believe lists or tables would be
useful, etc.
M. Public Availability of Comments
Before including your address, phone number, email address, or
other personal identifying information in your comment, you should be
aware that your entire comment--including your personal identifying
information--may be made publicly available at any time. While you can
ask us in your comment to withhold your personal identifying
information from public review, we cannot guarantee that we will be
able to do so.
List of Subjects in 25 CFR Part 83
Administrative practice and procedure, Indians--tribal government.
For the reasons stated in the preamble, the Department of the
Interior, Bureau of Indian Affairs, proposes to amend 25 CFR part 83 as
follows:
PART 83--PROCEDURES FOR FEDERAL ACKNOWLEDGMENT OF INDIAN TRIBES
0
1. Revise the authority citation for part 83 to read:
Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 5131; 25 U.S.C. 5130
note (Congressional Findings); and 43 U.S.C. 1457.
0
2. In Sec. 83.4, republish paragraph (d) to read as follows:
[[Page 24918]]
Sec. 83.4 Who cannot be acknowledged under this part?
* * * * *
(d) An entity that previously petitioned and was denied Federal
acknowledgment under these regulations or under previous regulations in
part 83 of this title (including reconstituted, splinter, spin-off, or
component groups who were once part of previously denied petitioners).
Bryan Newland,
Assistant Secretary--Indian Affairs.
[FR Doc. 2022-08488 Filed 4-26-22; 8:45 am]
BILLING CODE 4337-15-P