[Federal Register Volume 74, Number 211 (Tuesday, November 3, 2009)]
[Notices]
[Pages 56861-56866]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-26373]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
Final Determination Against Federal Acknowledgment of the Little
Shell Tribe of Chippewa Indians of Montana
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Notice of Final Determination.
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SUMMARY: Pursuant to 25 CFR 83.10(l)(2), notice is hereby given that
the Department of the Interior (Department) has determined the Little
Shell Tribe of Chippewa Indians of Montana, P.O. Box 1384, Great Falls,
Montana 59403, is not entitled to be acknowledged as an Indian Tribe
within the meaning of Federal law. This notice is based on a
determination the petitioner does not satisfy all seven mandatory
criteria set forth in 25 CFR 83.7, and thus does not meet the
requirements for a government-to-government relationship with the
United States.
DATES: This determination is final and will become effective 90 days
from publication of this notice in the Federal Register on February 1,
2010, pursuant to 25 CFR 83.10(l)(4), unless a request for
reconsideration is filed pursuant to 25 CFR 83.11.
ADDRESSES: Requests for a copy of the summary evaluation under the
criteria should be addressed to the Office of the Assistant Secretary--
Indian Affairs, Attention: Office of Federal Acknowledgment, 1951
Constitution Avenue, NW., MS: 34B-SIB, Washington, DC 20240, and the
decision is available at http://www.bia.gov/ofa_recent_cases.html.
FOR FURTHER INFORMATION CONTACT: R. Lee Fleming, Director, Office of
Federal Acknowledgment, (202) 513-7650.
SUPPLEMENTARY INFORMATION: This notice is published in the exercise of
authority delegated by the Assistant Secretary--Indian Affairs (AS-IA)
to the Acting Principal Deputy Assistant Secretary--Indian Affairs.
This notice is based on a determination the Little Shell Tribe of
Chippewa Indians (LS), based on the complete record of available
evidence, does not meet all seven of the mandatory criteria for
acknowledgment in 25 CFR 83.7. Specifically, the LS petitioner does not
meet criteria 83.7(a), (b), and (c).
On July 21, 2000, the AS-IA published notice of a proposed finding
(PF) to acknowledge the Little Shell petitioner in the Federal
Register. 65 FR 45394 (July 21, 2000). The PF concluded that, in a
departure from certain practices and precedent related to how to weigh
the available evidence at the time, the petitioner met all seven
mandatory criteria under the acknowledgment regulations. The notice and
PF invited public comment on these proposed departures. The LS
petitioner was also strongly encouraged to provide additional evidence
during the comment period to demonstrate that it met all the mandatory
criteria. The notice and PF stated that additional evidence from the LS
could create a different record and a more complete factual basis for
the FD, thus eliminating
[[Page 56862]]
or reducing the scope of the proposed departures from precedent.
Publishing notice of the PF in the Federal Register initiated a
180-day comment period during which time the petitioner, interested and
informed parties, and the public could submit arguments and evidence to
support or rebut the PF. The petitioner requested, and the Department
provided, a series of extensions for good cause that eventually
extended the deadline for the comment period to February 5, 2005. The
time period for the petitioner to respond to the comments closed on
April 13, 2005.
The petitioner requested and received six informal technical
assistance (TA) meetings from the OFA during the comment period and
received a copy of OFA's 2000 recommendation. It also received comments
on the PF from two third parties, one known as the ``Lineal Mikisew-
Asiniwiin Ojibwa Clan Council,'' in May 2004, and one from Terry Long
Fox in September 2004. The OFA received the petitioner's response to
these third-party comments on April 13, 2005. This FD is made following
a review of the evidence in the record for the PF, comments on the PF,
petitioner's response to the comments, and on evidence the Department
researchers developed during their verification research.
The Department began consideration of the Little Shell petition for
the FD on August 1, 2007. The AS-IA established July 27, 2009, as the
due date for the issuance of the FD following two 180-day extensions
for good cause. Subsequently, the Solicitor was granted first a 60-day,
and then a 30-day extension, to complete her legal review.
The PF concluded that, in a departure from precedent and looking at
the evidence as a whole, external observers had identified the
petitioner as an American Indian entity on a substantially continuous
basis since 1900 despite there being no specific evidence that external
observers identified the petitioner's ancestors as an American Indian
entity from 1900 to 1935. The Department concludes that, based on the
current available evidence, a 35-year period of non-identification by
external observers is too long to meet the criterion under the
reasonable likelihood standard of proof and is inconsistent with the
language of the regulations which require substantially continuous
external identification since 1900. There was no evidence that the lack
of identification between 1900 and 1935 was a fluctuation in activity.
Applying the standards of the regulations, the evidence proved too
limited even when taking into account 83.6(e) concerning historical
circumstances and fluctuations in group activity.
The PF proposed to depart from precedent by allowing the petitioner
to meet criterion 83.7(b) without requiring ``specific evidence showing
the continuity of Tribal existence substantially without
interruption.'' LS was strongly encouraged to provide additional
evidence to meet this criterion in order to uphold the proposed
finding. The regulatory standards of proof provide that a criterion
``is not met if the available evidence is too limited to establish it,
even if there is no evidence contradicting facts asserted by the
petitioner.'' The regulations provide that either the lack of evidence
of social interaction or evidence of little or no contact would mean
the petitioner has not met criterion 83.7(b) (59 FR 9280). LS did not
provide sufficient evidence during the comment period to meet this
criterion.
A conclusion that the limited interaction in a minority portion of
the petitioner is sufficient for the petitioner as a whole would be
inconsistent with the plain meaning of a ``predominant portion'' of a
group having to be engaged in social interaction. Further, such an
assumption does not work for purposes of defining the boundary of the
petitioner's community, which is a significant part of the evaluation
done by the Department researchers.
Criterion 83.7(b) requires a demonstration of continuous existence
(meaning substantially without interruption) by a distinct community
since historical times by a predominant portion of the petitioning
group. When considered against the lack of additional evidence, the
plain language, the intent, regulatory standards of proof, and
precedent established in other findings both before and after the PF,
the PF's proposed departures from precedent cannot be supported.
The acknowledgment regulations require for purposes of criterion
83.7(c) that a petitioner maintain political authority or influence
over its members as an autonomous entity from historical times until
the present. Political influence or authority means some mechanism that
the group has used as a means of influencing or controlling the
behavior of its members in significant respects, or making decisions
for the group which substantially affect its members, or representing
the group in dealing with outsiders in matters of consequence (83.1). A
petitioner needs to demonstrate continuous existence of a political
entity substantially without interruption.
The PF proposed to depart from precedent by accepting ``as a
reasonable likelihood that patterns of social relationships and
political influence'' among the petitioner's ancestors in their
``settlements in North Dakota and Canada during the mid-19th century
persisted among their descendants who migrated to Montana and appeared
on the Federal census records of Montana for 1910 and 1920.''
Regulatory standards of proof and Department precedent have not
accepted ``patterns'' of political influence among a petitioner's
ancestors in the middle 19th century would persist among their
descendants 50 years later to meet this criterion without contemporary
evidence of actual, significant political leadership among the group.
To do so would be to base a conclusion of continuous political
influence on supposition rather than evidence, and would be contrary to
the standards of proof in the regulations. LS was again encouraged in
the PF to provide additional evidence during the comment period to
support meeting this criterion. The evidence provided by LS, however,
was insufficient to satisfy the regulatory standard of proof.
The standards of proof in the regulations provide that the
Department shall deny acknowledgment if there is insufficient evidence
the petitioner meets one or more of the seven mandatory criteria
83.10(m). Accepting as a reasonable likelihood that patterns of
political influence persisted among a group of descendants for over 50
years while simultaneously acknowledging the available evidence did not
show such persistence is inconsistent with the regulatory standards of
proof and cannot be justified.
The PF proposed to depart from acknowledgment precedent by
accepting ``descent from the historical Indian Tribe by 62 percent of
the petitioner's members as adequate'' for satisfying the criterion,
although every previous petitioner had met the criterion with ``at
least 80 percent'' of its members descended from a historical Indian
Tribe.
The review of the petition is to be conducted by a team of
professional researchers working in consultation with each other, using
its expertise and knowledge of sources to evaluate the accuracy and
reliability of the evidence submitted (70 FR 16515). The PF found a
``reasonable probability that a strong majority'' of a group's members
have descent from the historical Tribe based on assumptions not in
keeping with professional genealogical standards or the regulatory
standards of proof.
[[Page 56863]]
The available evidence does not demonstrate the petitioner meets
the requirements of previous unambiguous Federal acknowledgment in the
regulations. The evidence concerning an appropriations act, treaty
negotiations in 1851 and 1863, and actions in 1934 were not clearly
premised on petitioner's ancestors being a Tribal political entity with
a government-to-government relationship with the United States.
Therefore, the petitioner was not evaluated under the provisions of
section 83.8(d) that modify the mandatory criteria for Federal
acknowledgment.
Criterion 83.7(a) requires external observers have identified the
petitioner as an American Indian entity on a substantially continuous
basis since 1900. For the period from 1900 to 1935, the available
evidence did not show external observers identified the petitioner's
ancestors or an antecedent group as an Indian entity. Generally, the
evidence demonstrates external observers only described some of the
petitioner's ancestors as individuals of Indian or mixed Indian
ancestry, living mostly among the general population. For these
reasons, the petitioner does not meet criterion 83.7(a), which requires
substantially continuous identification since 1900.
Criterion 83.7(b) requires that a predominant portion of the
petitioning group comprises a distinct community and has existed as a
community from historical times until the present. The Department
finds, as detailed in the Summary under the Criteria for this FD, that
the evidence did not show the petitioner's ancestors evolved from a
distinct community in the 19th century or that they migrated to Montana
as a group by the early 20th century. For the period since the early
1900's, the evidence did not show the petitioner's ancestors
constituted a distinct community with significant social relationships
and social interactions.
The combined evidence does not demonstrate a predominant portion of
the petitioner had demonstrated community since historical times. The
evidence for this finding did not demonstrate the petitioner's
ancestors formed a community which had evolved from a historical Indian
Tribe or Tribes. The available evidence did show a large majority of
the petitioner's current members have ancestry from Pembina Band of
Chippewa Indians of North Dakota. Yet the available evidence showed
that although a small number of the petitioner's earliest ancestors
were part of the Band, a much larger percentage of the petitioner's
ancestors composed some of the population of multiple settlements along
the Red River in Canada which were not part of Indian Tribes, but
populations of individuals descended from a variety of Indian-European
marriages.
Before 1870, many of the petitioner's ancestors were part of the
M[eacute]tis populations along the Red River at the settlements of St.
Francis Xavier, St. Boniface, and St. Norbert Parishes in Canada and at
Pembina and St. Joseph in North Dakota. Many of the M[eacute]tis in
these settlements were not the petitioner's ancestors, or part of the
group's claimed historical community. The evidence does not demonstrate
the petitioner's ancestors were a distinct community or communities
within these M[eacute]tis populations.
About 89 percent of the petitioner's members descend either from
individuals who received land scrip in the 1870's as ``mixed-blood''
relatives of the Pembina Band of Chippewa Indians, were identified as
``mixed-blood'' relatives of the band on various land scrip treaty
schedules, or received treaty annuities as members of the band from
1865 to 1874. The scrip evidence does not demonstrate these ``mixed-
blood'' relatives were politically part of the Pembina Band at that
time. The available evidence does not show the ``mixed-blood'' Pembina
documented on scrip records formed a distinct community at the time of
the treaties, or at the time they received or applied for the scrip,
either as a part of a treaty Tribe or as a separate community.
Some of the petitioner's ancestors who received annuities, however,
were members of the Pembina Band of Chippewa at the time of their
receipt. Yet the available evidence also shows these ancestors and
their children dispersed widely soon after they received annuities.
After the 1870's, some became part of the Turtle Mountain Band of
Chippewa in North Dakota, where they maintained social and political
affiliation rather than with any claimed historical group of the
petitioner's ancestors that migrated to Montana. Others migrated
gradually to settlements in Saskatchewan, Alberta, Manitoba, and
northern Montana where they lost any possible social and political
cohesion. A similar dispersal process took place among the petitioner's
ancestors who received or were identified on treaty scrip, and there is
no available evidence that showed these two groups of ancestors ever
combined to form a distinct community during or after their migration.
In Montana, some of the petitioner's ancestors who came from the
various settlements of Canada and North Dakota originally settled in
two geographically separate areas, each of which covered a large
expanse of territory--the Highline and the Lewistown area, and the
other, the Front Range. The available evidence does not indicate the
petitioner's ancestors who migrated to Montana and elsewhere from
Dakota or Canada moved together as a group or in a pattern that
maintained ties to places of origin. The evidence does not show that
individuals from the petitioner's ancestral families at the Red River
settlements in North Dakota or Manitoba, those identified as having
Pembina Band ancestry through treaty scrip schedules or annuities, or
those who appeared on Turtle Mountain Band censuses, migrated to
Montana, or elsewhere, at the same time or to the same location. Rather
the evidence demonstrates the migration was individualistic, gradual,
and dispersed widely in a manner that did not maintain social cohesion.
The available information does not demonstrate the petitioner's
ancestors who settled in Montana had previous social ties with each
other and evolved, as communities, from predecessor communities. In
sum, the available evidence does not demonstrate that the petitioner's
ancestors comprised a distinct community from the middle of the 19th
century to the beginning of the 20th century.
The available evidence does not indicate that the petitioner's
ancestors formed a distinct community or communities in the areas of
Montana where they first settled. In reviewing the petitioner's
residential analyses based on homestead and Federal census data, the
Department found evidence of residential proximity of the petitioner's
ancestors only for those in Lewistown from 1900 through the 1920's. In
reviewing the petitioner's marriage data and analysis, the Department
found a number of errors, the most fundamental being the petitioner did
not establish a baseline community for the group. Neither has the
petitioner delineated a social group for subsequent periods.
For the period of 1900-1930, the petitioner also submitted limited
interview data on social relationships and social interactions. This
information was mostly limited to social interactions between family
members within specific geographic areas. There were no interviews in
which an individual mentioned a distinct community comprised of the
ancestors of Little Shell members. The Department did not find evidence
of community in witnessing at baptisms data since it only described
witnessing events between family members. The
[[Page 56864]]
petitioner's data and analyses do not provide sufficient evidence of
community for the period from 1900-1930.
From the 1930's through the 1950's, the evidence for the PF showed
some of the petitioner's ancestors and current members in Montana moved
from rural areas into segregated Indian-M[eacute]tis neighborhoods on
the edges of towns. There they intermarried with Indian and
M[eacute]tis residents, participated in a culture distinct from non-
Indians, and endured negative social distinctions and discrimination
from non-Indians in the area. However, this evidence did not
demonstrate the extent to which its population was distinct from other
Indians and M[eacute]tis residents in these neighborhoods. Nor did the
petitioner show how its members were socially tied to each other across
regions.
In response to the PF, the petitioner submitted new interview
information as well as Federal and school census data identifying a
greater number of its members residing in Montana during this time,
which it claimed showed its population clustered residentially in
``enclaves'' on the edges of towns. However, the Department did not
find evidence of residential clustering. Rather, the petitioner's
ancestors and current members lived interspersed with other individuals
who were neither Indian nor M[eacute]tis. In addition, the Department
found the petitioner's ancestors dispersed widely throughout other
locations outside of the segregated neighborhoods. None of the data
provided evidence of a distinct community comprised of the petitioner's
ancestors and or current members. For the period from 1930-1950 the
petitioner has not provided sufficient evidence demonstrating a
distinct community.
From 1950-1992, a large number of the petitioner's members began
moving to urban centers, such as Great Falls and Helena, as well to
cities outside of Montana. The PF noted the petitioner had not
demonstrated the extent to which its members in Great Falls comprised a
community or were socially connected to members living elsewhere in
Montana or out of State.
In comments on the PF, the petitioner did not submit new evidence
for this specific period indicating how group members were socially
connected within Great Falls, across regions, and with members residing
out of the State of Montana. Neither did the petitioner indicate the
extent to which members living outside of the State maintained
community interactions among themselves. In the PF, the Department
noted that strong patterns of discrimination declined in the 1950's
through the present. However, in comments on the PF, the petitioner
again claimed strong patterns of discrimination against group members
persisted into this period. In examining the petitioner's combined
interview material for the period from 1950-1992, the Department did
not find evidence of discrimination against Little Shell group members.
Rather, the evidence indicated negative social distinctions against
members from non-Indians for being Indian as well as from reservation
Indians for not being Indian enough, but not against them as Little
Shell. The petitioner has not provided sufficient evidence of community
for this period.
For the period from 1993 through 2007, the petitioner's ancestors
continued to live primarily in Great Falls as well as in locations
throughout Montana and out of State. The PF requested further
information demonstrating how the petitioner's members comprised a
community within and across Montana and with members out of State. In
response, the petitioner did not present any new information on social
interactions indicating it comprised a distinct community during this
period. The new data on Joe Dussome Day indicated that the numbers of
Little Shell attendees were low in comparison to the overall size of
the petitioner's group.
In an attempt to show social interactions for modern community, the
petitioner also submitted a number of analyses and models. These models
did not provide evidence for distinct community for the following
reasons. First, they were primarily based on statistical correlations
between individuals without demonstrating actual community events and
interactions. Second, they did not provide the social and economic
contexts for interactions and how they pertained to Little Shell
events, issues, or activities. Third, without a clear description of
the group's community over time it is not possible to calculate
percentages of various social activities such as in-group marriage.
Fourth, in each of its analyses the petitioner aggregated like units of
analyses without proving connections. The petitioner has not provided
sufficient evidence of community for this period.
Overall, the available evidence shows Little Shell is an
organization of individuals of shared ancestry from the Pembina Band of
Chippewa. They share some cultural traditions and historical
experiences as M[eacute]tis. While the membership includes large
extended families, the evidence does not show these are or were in the
past linked to each other by kinship or other social ties into one or
several communities. The evidence also does not indicate how the
current organization evolved from a historical community or
communities. The large extended families in the 20th century are not
and have not been connected by regular social interactions and
obligations, community events, internal disputes, or by common issues
that unite them as a group.
Many Little Shell ancestors, and some older current members, shared
the experience of homesteading in Montana, and, subsequently, living in
segregated neighborhoods on the edges of towns. In the past, many
experienced negative social distinctions from non-Indians, as well as
from reservation Indians as not being Indian enough. However, these
common experiences do not demonstrate there was social interaction and
social relationships that bound them together into a community.
Therefore, for the above reasons, the petitioner does not meet
criterion 83.7(b) for any period.
Criterion 83.7(c) requires the petitioner has maintained political
influence and authority over its members as an autonomous entity from
historical times until the present. The Department concludes the
available evidence is insufficient to support the conclusion that a
significant portion of the petitioner has demonstrated political
influence over its members since historical times under this criterion.
Specifically from 1850 to 1900 the evidence did not reveal political
continuity from a historical Indian Tribe. Most of the petitioner's
ancestors were some of the population of various M[eacute]tis
settlements along the Red River in Manitoba and North Dakota early in
this period. The available evidence showed these M[eacute]tis
settlements had political leaders and systems separate from the
historical Pembina Band of Chippewa Indians that inhabited the area.
While some of the petitioner's ancestors provided limited forms of
leadership within some of these settlements, these ancestors did not
amalgamate and evolve as a political group into the petitioner in
Montana or elsewhere.
Many of the petitioner's ancestors who resided in these
M[eacute]tis settlements before 1880 later dispersed in a gradual,
individualistic migration process that brought them to new settlements
throughout the Northern Plains by the early 20th century. The available
evidence did not demonstrate the petitioner's ancestors maintained any
significant form of group leadership, formal or informal, as part of
these new settlements. Thus, the available evidence does not
demonstrate the
[[Page 56865]]
petitioner met the requirements of criterion 83.7(c) before 1900.
From 1900 through 1930, the petitioner claimed group members were
under the authority of both Turtle Mountain leadership as well as local
leaders located in both the Front Range and Highline regions of
Montana. The petitioner's claimed political ties to Turtle Mountain
were based on the receipt of allotments by some of the group's
ancestors. Information on local leadership in Montana consisted of a
limited number of descriptions of a few local M[eacute]tis leaders
located in Highline and Front Range communities.
In comments on the PF, the petitioner submitted additional
information on allotments for 233 individuals it claimed were part of
its ancestral population during this period. However, the Department
did not consider this submission to supply adequate evidence of
political influence for the following reasons. First, only a small
number of the claimed allotment recipients have descendants in the
modern membership. Second, the number of allotment recipients was only
a very small percent of the population of the claimed size of the
Little Shell group at the time. Third, a large number of allotment
recipients were living outside of Montana at the time of receipt
indicating they were not part of a group of the petitioner's ancestors
in Montana.
In comments on the PF, the petitioner submitted additional
information on alleged local leaders it claimed served as ``labor
brokers'' from the 1900's through the 1950's. Based on its analysis,
the Department did not find evidence the petitioner's ancestors
functioned as ``labor brokers'' for its members. While a few local
people of M[eacute]tis ancestry living in the Front Range and Highline
did obtain work contracts, interviews indicated that these individuals
did not specifically hire other Little Shell group members.
While the petitioner claimed Joe Dussome was the leader of its
first formal political organization in 1927, the evidence did not show
that this organization encompassed the petitioner's ancestors across
regions. In its comments on the PF, the petitioner claimed that Dussome
had interregional support based on the fact that six of the 51
attendees at the organization's 1927 meeting were from the Front Range.
In analyzing the petitioner's data, the Department found that none of
the six individuals or their spouses was living in the Front Range at
the time of the meeting. Most were part of one large family, the Doney
family from the Highline, or intermarried with them.
During the middle 1930's, a second organization claiming to
represent the Landless Chippewa Cree Indians of Montana developed in
competition with the Dussome organization. This group was lead by
Raymond Gray whose supporters came mostly from the Front Range. Without
a clear description of the Little Shell community at this time as well
as in earlier periods, it was not clear the extent to which these
organizations represented two political factions within the same group
or were political organizations representing two different populations
and, or, communities.
From the period of the middle 1950's through the publication of the
PF in 2000, the petitioner provided evidence of a unified political
organization that extended to a substantial portion of its membership.
However, without a description of the group's community, it was not
possible to determine whether the group's political organization
represented the group as a whole. The petitioner did provide further
updates on conflicts surrounding the group's elections and political
leadership. While the evidence showed some conflict among opposing
political leaders, it did not show active participation or widespread
knowledge of political activities among a significant percentage of the
membership. Thus, the petitioner does not meet criterion 83.7(c) since
1950. Based on the foregoing reasons, the petitioner does not meet
criterion 83.7(c) for any period.
Criterion 83.7(d) requires a copy of the group's present governing
document including its membership criteria. The PF found that the
petitioner satisfied the requirements of criterion 83.7(d) by
submitting a copy of its 1977 constitution and a 1987 resolution that
clarified the membership criteria in Article V of the constitution. The
petitioner did not submit any new evidence for the FD concerning the
governing document or the group's membership requirements. This FD
confirms that the LS petitioner has satisfied the requirements of
criterion 83.7(d).
Criterion 83.7(e) requires that the petitioner's membership consist
of individuals who descend from a historical Indian Tribe or from
historical Indian Tribes which combined and functioned as a single
autonomous political entity. The PF proposed to depart from
acknowledgment precedent and find that descent by 62 percent of the
group was sufficient to meet this criterion. The Department did not
apply the PF's lower standard to any subsequent finding. Further, for
this criterion, additional evidence submitted during the comment period
has eliminated any need to rely upon the departure from precedent
stated in the Little Shell PF.
The Department's analyses for the FD are based on its determination
that there are 4,332 members in the group. The LS petitioner submitted
a certified membership list on July 18, 2006, with the names and
birthdates for 4,336 individuals. After eliminating some duplicate
entries, the Department determined that list represents 4,332 members.
With the exception of about 1,100 cases where the only address was a
post office box number rather than a residential address, the list
includes all of the elements required by the regulations.
The LS petitioner submitted its genealogical data in an electronic
format that linked the parent-child connections between the generations
from the present back to the group's claimed ancestors. This new
evidence included many new names and family connections that were not
in the record for the PF. The petitioner also submitted a genealogical
report and considerable new evidence that the group used to document
their claims, including Lake Superior Chippewa and Pembina and Red Lake
Bands treaty schedules and the Pembina annuity lists (1864-1865, 1868-
1874). The Department investigated each of these claims and verified
that 99 of the 123 claimed ancestors were descendants of the historical
Pembina Band. In some of the remaining cases, the evidence showed that
the petitioner's claimed ancestor, who was not a Pembina Band
descendant, had the same name as the individual identified in the
historical records as ``Pembina mixed-blood.'' Therefore, Pembina Band
descent was wrongly attributed to the petitioner's ancestor of the same
name. In some other cases, reliable evidence identified the claimed
ancestors as Cree, Sarsee, Saulteaux, or Assiniboine Indians, but the
Department did not find other contemporary evidence that also
identified the individuals as Pembina Band descendants. The
Department's analyses finds that about 89 percent of the LS
petitioner's members have at least one ancestor who was identified in
the historical records as a descendant of the Pembina Band of Chippewa
Indians.
Ten percent of the members have not demonstrated descent from a
Pembina Band descendant. About 6 percent descend from an Indian on one
of the censuses of the Chippewa-Cree of Rocky Boy's Reservation, about
3 percent descend from other Tribes in Canada, Montana, or elsewhere,
and less than 1 percent descends from a member of the
[[Page 56866]]
Turtle Mountain Band of Chippewa Indians. Less than 1 percent of the LS
members did not have ancestry charts or were not in the group's
genealogical database and the Department could not determine their
ancestry.
The more complete record of the petitioner's ancestors and the
additional evidence in the record for the FD demonstrates that about 89
percent of LS petitioner's members (3,865 of 4,332) descend from at
least one ancestor who was a descendant of the historical Pembina Band.
This FD finds that the petitioner has satisfied the requirements of
criterion 83.7(e).
Criterion 83.7(f) requires that the membership of the petitioning
group be composed principally of persons who are not members of any
acknowledged North American Indian Tribe. The Department's research for
the FD finds that less than 1 percent of the petitioner's members (19
of 4,332) are enrolled in Federally acknowledged Tribes. This FD
confirms the findings in the PF that the LS petitioner is principally
composed of persons who are not members of any acknowledged Indian
Tribe and therefore meets the requirements of criterion 83.7(f).
Criterion 83.7(g) requires that neither the petitioner nor its
members be the subject of congressional legislation that has expressly
terminated or forbidden the Federal relationship. A review of the
available documentation showed no evidence that the petitioning group
was the subject of congressional legislation to terminate or prohibit a
Federal relationship as an Indian Tribe. Therefore, the petitioner
meets the requirements of criterion 83.7(g).
A report summarizing the evidence, reasoning, and analyses that are
the bases for the FD will be provided to the petitioner and interested
parties, and is available to other parties upon written request and
will be posted on the Bureau of Indian Affairs Web site. After the
publication of notice of the FD, the petitioner or any interested party
may file a request for reconsideration with the Interior Board of
Indian Appeals (IBIA) under the procedures set forth in section 83.11
of the regulations. The IBIA must receive this request no later than 90
days after the publication of the FD in the Federal Register. The FD
will become effective as provided in the regulations 90 days from the
Federal Register publication unless a request for reconsideration is
received within that time.
The regulations state that when the Department declines to
acknowledge a petitioner it shall inform the petitioner of ``other
means through which the petitioning group may achieve the status of an
acknowledged Indian Tribe or through which many of its members may
become eligible for services and benefits'' as Indians (Sec.
83.10(n)). Congress has plenary power over Indian affairs and,
considering two historical factors, could recognize this petitioner as
an Indian Tribe. First, the Department initiated action under the
Indian Reorganization Act of 1934 that affected the ancestors of a
significant majority of the petitioner's members. And, second, Congress
passed the Act of December 31, 1982 (96 Stat. 2022) conditionally
allocating certain trust funds to ``the Little Shell Tribe of Chippewa
Indians of Montana'' petitioner.
In the 1930's, the Department considered using appropriations
available under the Indian Reorganization Act of 1934 to buy land for,
and then to reorganize as a Tribe, Indians in Montana of one-half
degree or more Indian blood. The Department prepared the Roe Cloud Roll
of these Indians, many of whom are among the Little Shell petitioner's
ancestors. Seventy-four percent of the Little Shell petitioner's
current members descend from an individual on the roll. Lands purchased
by the Department at that time, however, were added to the Rocky Boy's
Indian Reservation.
In the 1982 Act, which provided for the distribution of the funds
awarded by the Indian Claims Commission to the Pembina Chippewa Indians
in the Turtle Mountain decision of 1978, Congress allocated a portion
of those funds to the ``Little Shell Band.'' Eighty percent of the
allocated funds were distributed per capita to the Pembina Chippewa
descendants who were members of the Little Shell Tribe of Chippewa
Indians of Montana and otherwise met the general qualifications to
participate in the distribution as descendants. The other 20 percent of
the award allocated to the Little Shell Tribe was to be held in trust
and invested until the Secretary acted on its petition for recognition.
If the Secretary failed to recognize the Band, the 20 percent was to be
distributed per capita when the action on the petition was final. See
Sections 2 and 6.
Those funds remain in trust and now total more than $3 million.
Congress could direct that they be used to purchase land for the group,
as contemplated in the 1930's, should Congress choose to recognize the
Little Shell petitioner. The funds set aside in 1982 may be considered
for the use of the current petitioner because calculations at the time
of the proposed finding on the Little Shell petitioner indicated that
51 percent of the petitioner's 1987 membership was on the Department's
1994 judgment roll prepared under the 1982 statute, and because there
is continuity between the petitioner's 1987 membership and the current
membership.
Dated: October 27, 2009.
George T. Skibine,
Acting Principal Deputy, Assistant Secretary--Indian Affairs.
[FR Doc. E9-26373 Filed 11-2-09; 8:45 am]
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