[Federal Register: October 1, 2001 (Volume 66, Number 190)]
[Notices]
[Page 49966-49967]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01oc01-68]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR
 
Bureau of Indian Affairs
 

Final Determination Against Federal Acknowledgment of the
Duwamish Tribal Organization
 
AGENCY: Bureau of Indian Affairs, Interior.
 
ACTION: Notice of Final Determination.
 
-----------------------------------------------------------------------

SUMMARY: This notice is published in the exercise of authority
delegated by the Secretary of the Interior to the Assistant Secretary--
Indian Affairs (Assistant Secretary) by 209 DM 8. Pursuant to 25 CFR
83.9(h)(1978), notice is hereby given that the Assistant Secretary
declines to acknowledge that the Duwamish Tribal Organization (DTO), c/
o Cecile Maxwell-Hansen, 14235 Ambaum Blvd., S.W., Burien, Washington
98166, exists as an Indian tribe within the meaning of Federal law.
This notice is based on a determination that the group does not satisfy
the criteria set forth in 25 CFR 83.7.

DATES: In order to reconcile the conflict between the 1978 and 1994
regulations concerning the deadlines for requesting reconsideration and
the effective date of this decision, this determination is final and
will become effective 90 days from publication of this notice, unless
reconsideration is requested. A petitioner or interested party may
request reconsideration under the 1978 regulations 25 CFR 83.10 (a)-
(d). Such a request must be filed with the Secretary of the Interior
within 30 days to allow her to request, within 60 days of the
publication of this notice, that the Assistant Secretary reconsider the
decision. Alternatively, the petitioner and interested parties have the
option under 25 CFR 83.11 (a)(1994) of requesting reconsideration
before the Interior Board of Indian Appeals (IBIA). If a petitioner or
interested party requests reconsideration under the 1978 regulations in
time for the Secretary to act within 60 days of the date of publication
of the decision, the Secretary may decide to refer the matter to the
IBIA under 25 CFR 83.10(1994).
    A notice of the Proposed Finding not to acknowledge the Duwamish
Tribal Organization (DTO) was published in the Federal Register on June
28, 1996. The original 120-day comment period provided under the
regulations was extended on November 4, 1996, for 120 days; on January
16, 1997, for 150 days; on July 23, 1997, for another 150 days; and on
December 16, 1997, for 30 days. The petitioner requested all of these
extensions. A 60-day response period commenced after the last extension
as provided in the regulations and closed March 23, 1998.
    On January 19, 2001, the Acting Assistant Secretary made a
preliminary finding that the DTO met the seven mandatory criteria and
therefore was entitled to be acknowledged as an Indian tribe within the
meaning of Federal law. However, the Acting Assistant Secretary neither
signed his recommended final determination nor the required three
copies of the Federal Register notice before the change in the
Administration. Notice of the final determination was not sent to the
Federal Register before the change in the Administration because of the
late time in the day when the decision was made and because there was
insufficient time to prepare and finally review for legal sufficiency
all the documents necessary to make effective the Acting Assistant
Secretary's proposed final determination prior to his leaving office.
Until the required notice of the final determination is published in
the Federal Register, there is no completed agency action.
    Because the agency action was still pending within the Department
when the new Administration was sworn in and took office, this
Administration became responsible for issuing a final determination
which is legally sufficient. As part of that responsibility, it was
incumbent upon the new Administration to review the decision making
documents. This review was also in accordance with the White House
memorandum of January 20, 2001, relating to pending matters.
    The Bureau of Indian Affairs' (BIA) recommended final determination
was that the DTO did not meet all of the mandatory criteria under 25
CFR part 83. Although it is the policy and practice of the Department
to require decisions of the Assistant Secretary--Indian Affairs to be
reviewed by the Office of the Solicitor for their legal sufficiency,
the Acting Assistant Secretary's proposed decision had not been
reviewed by that office because of its lateness. Moreover, the Acting
Assistant Secretary's proposed decision did not provide an explanation
for his proposed modifications to the recommended decision. Therefore,
having completed a review of the decision making documents which did
have Solicitor's Office review as to their legal sufficiency, the
Assistant Secretary concurs with the recommendation of the BIA and
publishes this notice of the final determination that the DTO has not
submitted sufficient evidence to meet criteria 83.7 (a), (b), and (c),
and

[[Page 49967]]

therefore does not meet all seven mandatory criteria under Part 83.
    This determination is made following a review of the DTO's response
to the Proposed Finding (PF), the public comments on the Proposed
Finding, and the DTO response to the public comments. This final
determination incorporates the evidence considered for the PF, and new
documentation and argument received from third parties and the
petitioner. The final determination reaches factual conclusions based
on a review and reanalysis of the existing record in light of this new
evidence. This notice is based on a determination that the group does
not satisfy the seven criteria for acknowledgment in 25 CFR 83.7 (a)-
(g).
    The PF found that the DTO did not meet criterion 83.7(a) because
identifications of the treaty ``Duwamish and allied tribes'' for 100
years following the treaty applied to federally recognized tribes of
treaty reservations, not to the DTO. Identifications of DTO since 1939
did not portray it as continuously existing from the 1855 treaty tribe
or from Duwamish villages which existed as late as 1900. Other evidence
established that DTO was founded in 1925. Federal Agent Roblin's
creation of a list of unenrolled Indians in 1919 identified individual
unenrolled descendants of historical Washington tribes. That list did
not recognize a Duwamish Tribe. The DTO claimed that the BIA had
ignored evidence in the PF. The BIA cited specific references in the PF
which discussed this evidence. The DTO's researcher's published
articles, some of which did not discuss DTO, did not change the PF's
conclusions. Comments on the PF provide no basis for changing the
conclusion that the evidence was not sufficient to show that the
petitioner meets criterion (a) at any time before 1939, and did not
change the PF for 83.7(a). Therefore, the petitioner does not meet
criterion (a).
    The PF found that the petitioner did not provide sufficient
evidence under criterion (b) to show that DTO represented a
continuously existing community from historical times to the present.
The DTO submitted new evidence under criterion (b); however, their
analysis of this evidence was neither accurate nor complete. They argue
that the petitioner's ancestors lived in family enclaves throughout
Puget Sound in the 19th century. This evidence does not show the
petitioner's ancestors broadly interacting with one another or with
other Indians, or maintaining social networks or geographical
communities. Other evidence indicates that they did not. Federal
censuses showed the petitioner's ancestors scattered throughout Western
Washington. A significant portion of DTO's evidence referred to
ancestors of people not associated with DTO. The DTO submitted results
of a membership survey designed to measure individuals' cultural
values, beliefs and activities. The results were general and provided
little if any evidence demonstrating DTO members interacting in
community activities or cultural events or sharing a belief system that
was distinct from surrounding populations. Therefore, the petitioner
does not meet (b).
    Based on evidence primarily from claims initiatives after 1935, the
PF concluded that the DTO evolved from an organization founded in 1925
and was not a continuously existing political organization which had
maintained influence over its members throughout history. This evidence
demonstrated that the activities of the DTO were not significant to
most members, and that participation was limited to a small set of
leaders, who were not influenced by the majority of DTO's membership.
Much of the evidence submitted in the comments had been addressed and
evaluated in the PF or was not relevant to DTO's history because it
concerned other groups or people. A report commissioned by the
petitioner did not provide new information about the petitioner's
specific activities. The petitioner presented claims activities
attempting to demonstrate political activities of a tribal
organization. This kind of evidence has not been accepted as sufficient
evidence under criterion (c) because it concerns individuals rather
than group actions. The DTO argued that their leaders displayed
traditional characteristics and represented specific regions. These
assertions were not supported by the evidence of actual group
organization and of the backgrounds and characteristics of DTO's named
leaders.
    The petitioner submitted considerable analysis of 1915 and 1926
lists of people with the purpose of showing that those listed were part
of a continuously existing Duwamish organization. This analysis raised
the percentage of individuals appearing on both lists given in the PF;
however, it did not alter the conclusion that only a minority of
members of the 1915 organization also were members of the 1926
organization. Further analysis by the petitioner of kinship ties of
people on these lists also raised the percentage of family lines
represented on both lists. This analysis depended in part on assuming
that individuals related more distantly than parent, child or sibling
interacted and communicated regularly. The Department, however, does
not assume that more distantly related kin are in contact and related
to each other politically. Thus some of this analysis is not accepted
as sufficient evidence under 83.7(c) without evidence of actual
political influence and resulting actions to support it.
    DTO's discussion of the IRA in 1934 was inaccurate as was its
discussion of a 1970's fishing case, which was undertaken by a single
person without input from other DTO members. The evidence did not
discuss or demonstrate decision-making, conflict resolution, how events
and programs are undertaken and run, or the functioning of any other
activities which would reveal political processes from 1925 to the
present. The evidence and analysis in the response materials were not
sufficient to meet 83.7(c).
    The DTO met criteria 83.7(d), (e), (f), and (g) for the PF. No
significant new evidence was submitted for criteria 83.7(d), (f) or
(g). The petitioner submitted as evidence three lists of members not
formerly submitted. They did not change the PF that the DTO met
criterion (e).
    Because all seven criteria are mandatory, a failure to submit
sufficient evidence to meet any one criterion requires the Assistant
Secretary to decline to acknowledge a petitioning group. The petitioner
failed to submit sufficient evidence to meet criteria 83.7 (a), (b) and
(c), and therefore does not satisfy the criteria for acknowledgment.

    Dated: September 25, 2001.
Neal A. McCaleb,
Assistant Secretary--Indian Affairs.
[FR Doc. 01-24511 Filed 9-26-01; 3:32 pm]
BILLING CODE 4310-02-P