[Federal Register: December 21, 2009 (Volume 74, Number 243)]
[Notices]
[Page 67895-67897]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21de09-62]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
Proposed Finding for Federal Acknowledgment of the Shinnecock
Indian Nation
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Notice of proposed finding.
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SUMMARY: The Department of the Interior (Department) gives notice that
the Acting Principal Deputy Assistant Secretary--Indian Affairs (PDAS-
IA) proposes to determine that the Shinnecock Indian Nation, P.O. Box
5006, Southampton, NY 11969-0751, c/o Messrs. Frederick C. Bess,
Randall King, and Gordell Wright, is an Indian Tribe within the meaning
of Federal law. This notice is based on a preliminary finding that the
petitioner satisfies the seven mandatory criteria for acknowledgment
set forth in the applicable regulations, and thus, meets the
requirements for a government-to-government relationship with the
United States.
DATES: Comments on this proposed finding (PF) are due on or before
March 22, 2010. The petitioner then has until April 20, 2010 to respond
to those comments. Requests for a formal, on-the-record technical
assistance meeting must be received by the Department by January 20,
2010. See the SUPPLEMENTARY INFORMATION section of this notice for more
information about these dates.
ADDRESSES: Comments on the PF and/or requests for a copy of the report
of the summary evaluation of the evidence 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. Interested and informed parties who make
submissions to the Assistant Secretary--Indian Affairs (AS-IA) must
also provide copies to the petitioner at Shinnecock Indian Nation, P.O.
Box 5006, Southampton, NY 11969-0751, c/o Messrs. Frederick C. Bess,
Randall King, and Gordell Wright.
FOR FURTHER INFORMATION CONTACT: R. Lee Fleming, Director, Office of
Federal Acknowledgment, (202) 513-7650.
SUPPLEMENTARY INFORMATION: Pursuant to 25 CFR 83.10(h), the Department
gives notice that the Acting PDAS-IA proposes to determine that the
Shinnecock Indian Nation, P.O. Box 5006, Southampton, NY 11969-0751, c/
o Messrs. Frederick C. Bess, Randall King, and Gordell Wright, is an
Indian Tribe within the meaning of Federal law. This notice is based on
a preliminary finding that the petitioner satisfies the seven mandatory
criteria for acknowledgment set forth in 25 CFR 83.7(a) through (g),
and thus, meets the requirements for a government-to-government
relationship with the United States.
The Department publishes this notice in the exercise of authority
delegated by the Secretary of the Interior to the Assistant Secretary--
Indian Affairs (AS-IA) by 209 DM 8. The AS-IA delegated authority to
sign some Federal acknowledgment findings, including this PF, to the
Acting PDAS-IA effective June 4, 2009.
The Shinnecock Indian Nation, Petitioner 4, submitted a
letter of intent to petition for Federal acknowledgment on February 8,
1978. It submitted partial documentation in 1998, and made multiple
submissions in 2003. The petition was ready for evaluation on September
15, 2003. Under the May 23, 2008, Federal Register notice of
[[Page 67896]]
guidance and direction regarding OFA's internal procedures (73 FR
30146), OFA recommended a waiver of the regulatory provisions regarding
the priority for consideration of the petitioner. The AS-IA placed the
Shinnecock petitioner on active consideration November 10, 2008, ahead
of six other petitioners.
The Shinnecock petitioner claims that the Federal Government
recognized it at various times from 1889 to the present, and,
therefore, it would be eligible to be evaluated under 25 CFR 83.8,
which reduces the burden of evidence required of previously
acknowledged petitioners. The evidence in the record shows that the
Federal Government was aware of the Shinnecock, but never established a
relationship with it. To qualify for evaluation under Sec. 83.8, there
must be substantial evidence that the Federal Government, by its
actions, unambiguously established a political relationship with the
petitioner as an Indian Tribe, not that the Federal Government was
merely aware of the petitioner's existence. There is not substantial
evidence of unambiguous Federal acknowledgment in the record.
Therefore, the petitioner is not eligible to be evaluated under 25 CFR
83.8. An evaluation under section Sec. 83.7 rather than section Sec.
83.8 does not result in a different finding. Whether the petitioner is
eligible to be evaluated under Sec. 83.8 of the regulations is subject
to reconsideration at the time of the final determination.
The May 23, 2008, Federal Register notice of guidance and direction
included a provision interpreting ``first sustained contact'' as on or
after March 4, 1789, thus ``reducing the time period for which
petitioners must submit evidence.'' Petitioners like the Shinnecock,
which experienced first sustained non-Indian contact prior to March 4,
1789, are required to demonstrate continuous existence from 1789 only.
The Shinnecock Indians lived on a historical land base on and near
Shinnecock Neck, near the eastern end of Long Island, New York, since
first contact in the early 1600s to the present. In 1703, the Town of
Southampton agreed to lease approximately 3,500 acres of the Shinnecock
Hills and Neck to the Shinnecock Indians for 1,000 years. In 1792, the
New York Assembly passed legislation that reorganized the Indians on
the Shinnecock leasehold under a three-man Indian Trusteeship in which
the Indians would elect trustees annually. In 1859, the State of New
York passed legislation regarding the 1,000-year lease to the
Shinnecock Indians and granted the Shinnecock Indians title in fee
simple to a much smaller parcel of land. This reduced land base,
consisting of approximately 650 acres, is the current New York State
``reservation'' inhabited by the Shinnecock petitioner today.
The Shinnecock petitioner meets criterion 83.7(a), because external
observers have identified it as an American Indian entity on a
substantially continuous basis since 1900. The record contains
acceptable identifications of the petitioner nearly every year since
1900; this is sufficient to satisfy the criterion. Evidence that
identifies the petitioner appears in the records of the Town of
Southampton, the State of New York, and the Federal Government.
Furthermore, scholarly writings identify the petitioner as an American
Indian entity, as do writings from newspapers and magazines. Although
some documents in the record express doubt that the petitioner is an
American Indian entity, the criterion allows for occasional questioning
of the petitioner's Indian character, holding that such evidence
``shall not be considered to be conclusive evidence that this criterion
has not been met.'' Therefore, the petitioner satisfies criterion
83.7(a).
The Shinnecock petitioner meets criterion 83.7(b) under a ``cross-
over'' provision in the regulations at Sec. 83.7(b)(2)(v). This cross-
over provision allows groups to meet criterion 83.7(b) for a particular
period in time provided that they meet criterion 83.7(c) during that
same period using a form of evidence which is sufficient in itself to
demonstrate political influence and authority. Such forms of evidence
are described at Sec. 83.7(c)(2). The Shinnecock petitioner meets
criterion 83.7(b) from 1789 to the present because it meets criterion
83.7(c) during that same period using the form of evidence described in
Sec. 83.7(c)(2)(i).
The Shinnecock petitioner meets criterion 83.7(c) from 1789 to the
present using the form of evidence described at Sec. 83.7(c)(2)(i),
that a petitioner allocates ``group resources such as land, residence
rights and the like on a consistent basis.'' This form of evidence is
sufficient in itself to demonstrate the presence of political influence
within a group as required by criterion 83.7(c). The evidence in the
record demonstrates that the Indian group located at Shinnecock Neck
and its leaders have maintained a Trusteeship system that has allocated
land, residence rights, and the like from 1789 to the present. The
Shinnecock petitioner also defended its common land base through
litigation, and the Shinnecock petitioner has managed the land base for
the benefit of the group's members. The evidence for political
influence and authority showing the petitioner meets criterion Sec.
83.7(c)(2) from 1789 to the present also provides sufficient cross-over
evidence to demonstrate the Shinnecock petitioner meets criterion Sec.
83.7(b) for community from 1789 to the present as provided at Sec.
83.7(b)(2)(v).
The Shinnecock petitioner meets the requirements of criterion Sec.
83.7(d), even though it does not have a formal, written governing
document. A combination of written statements, historical New York
State legislation, and group actions define the historical governance
of the group. Meeting minutes reflect the petitioner's efforts since
2003 to finalize a constitution. Historically, the petitioner required
that any individual awarded an allotment of land on the reservation be
a ``Blood Shinnecock,'' that is, a descendant of any of four historical
individuals born between 1757 and 1810: Paul Cuffee, James Bunn,
Charles Kellis, or David Waukus. Since 1978, the petitioner has
developed membership criteria that require a demonstration of descent
from a Shinnecock reservation resident as enumerated on the Indian
Population schedule of the 1900 or 1910 Federal census of Southampton,
Suffolk County, New York.
The Shinnecock petitioner meets the requirements of criterion
83.7(e). The petitioner's membership list of January 8, 2009, includes
1,066 adult and minor members. A total of 1,022 of these members, or 96
percent, demonstrate descent from Indian residents of the 1865
Shinnecock reservation, which the Department determined to be a
reliable list of members of the historical Shinnecock Tribe for the
purposes of this PF.
The petitioner submitted membership lists in 1998 (1,363 members),
2003 (1,330 members), 2008 (994 members and 275 members ``placed in
pending file''), and 2009 (1,066 members). No new members have been
added since 1998. In January 2009, the petitioner ``disenrolled'' 201
members when it determined there was insufficient evidence of descent
and furnished descent documentation for most of the 169 individuals
submitted as ``potential'' members. Evidence shows that some
disenrolled members reside on the reservation and were permitted to
vote in the 2009 trustee election, and that some potential members
reside on the reservation and were permitted to vote in 2009 and
previous trustee elections. The 2009 trustee voter list includes three
other individuals not on any type of membership list. For these
reasons, the Department's evaluation
[[Page 67897]]
was not limited to the 2009 membership list.
Evidence identifies 113 historical individuals associated with the
Shinnecock reservation 1792-1799, but the petitioner's members
demonstrate descent from individuals appearing on or near the
reservation after that time. A few pre-1800 reservation residents
continued to serve as Shinnecock trustees and petition signers through
the 1820s alongside individuals who most likely include those known to
have married Shinnecock women before 1800, but whose identities are not
in the record. Genealogical evidence demonstrates that descendants of
some of the 1800-1820s reservation residents resided on the reservation
in 1865. Additional evidence for the Shinnecock population 1800-1865
may be submitted during the comment period to provide further context.
The Department finds that the historical Tribe is the Shinnecock
Indian Tribe of the Shinnecock leasehold in 1789. This historical
Indian Tribe continued to evolve and exist up to 1865. The earliest
record to state plainly that it is an enumeration of all residents of
the Shinnecock reservation is in the 1865 New York State census of
Southampton. For purposes of criterion 83.7(e), current members who
demonstrate descent from an Indian on the 1865 State census of the
Shinnecock reservation are deemed to demonstrate descent from the
historical Shinnecock Tribe. The petitioner demonstrates such descent
at an acceptable level whether the analysis considers the current
members only (1,022 of 1,066, or 96 percent), the current and
disenrolled members (1,030 of 1,267, or 81 percent), or the current,
disenrolled, and potential members (1,178 of 1,436, or 82 percent). The
current, disenrolled, and potential members who lack evidence of
descent for the PF are closely related as kin to current members with
demonstrated descent from the 1865 reservation residents. The
Department anticipates that they should be able to locate the
documentation necessary to resolve the few missing generation-to-
generation connections.
The Shinnecock petitioner meets the requirements of criterion
83.7(f). Since the petition contained evidence of only four members
enrolled in Federally recognized Tribes, OFA researchers did not
examine any Tribal rolls for the presence of the petitioner's members.
Evidence in the record indicates that the petitioning group is composed
principally of persons who are not members of any acknowledged North
American Indian Tribes.
The Shinnecock petitioner meets criterion 83.7(g), because there is
no evidence that Congress has either terminated or forbidden a Federal
relationship with the petitioner or its members.
Based on this preliminary factual determination, the Department
proposes to extend Federal acknowledgment under 25 CFR Part 83 to the
petitioner known as the Shinnecock Indian Nation.
As provided by 25 CFR 83.10(h) of the regulations, a report
summarizing the evidence, reasoning, and analyses that are the basis
for the proposed decision will be provided to the petitioner and
interested parties, and is available to other parties upon written
request. Requests for a copy of the report of evidence should be
addressed to the Federal Government as instructed in the ADDRESSES
section of this notice. It will be posted on the Department's Indian
Affairs Web site at http://www.bia.gov.
Consistent with 25 CFR 83.10(l), the Department will consult with
the petitioner within two weeks of the close of the response period (or
the close of the comment period if neither the petitioner nor parties
submit comments or Shinnecock waives its response period to
submissions) to discuss any issues related to an equitable timeframe
for consideration of all written arguments and evidence received during
the comment and response periods. The Department will issue a final
determination (FD) regarding the petitioner's status within 60 days of
the date active consideration begins for the Shinnecock FD.
This PF meets the December 15, 2009, deadline the petitioner and
U.S. negotiated in a settlement agreement that the Court approved by
order on May 26, 2009, in Shinnecock v. Salazar, No. CV-06-5013, 1
(E.D.N.Y.). To the extent that the schedule for processing the
Shinnecock petition under the agreement differs from the regulatory
timelines provided by the regulations in 25 CFR Part 83, the settlement
agreement controls. Under the terms of the settlement agreement, any
individual or organization wishing to challenge or support the PF may
submit factual or legal arguments and evidence, to rebut or support the
evidence relied upon, by the date set out in the ADDRESSES section of
this notice. However, if the Shinnecock petitioner or an interested
party requests additional time in writing, the Department will extend
the comment period to the full 180 days that would otherwise be
available under the regulations at 83.10(i).
During the comment period, the Shinnecock petitioner and the
interested parties may request in writing that the AS-IA hold a formal,
on-the-record technical assistance meeting as provided by the
acknowledgment regulations at Sec. 83.10(j)(2). To accommodate the
shortened comment period, requests for such a meeting on the Shinnecock
PF must be received by the Department within 30 calendar days of the
publication of this Federal Register notice.
The settlement agreement provides the petitioner 30 days to respond
to comments on the PF submitted by interested or informed parties. This
reduced response period starts automatically at the close of the
comment period. The petitioner may request restoration of the full 60-
day response period, although it must notify the Department in writing
prior to the close of the response period. If parties do not submit
comments or if the petitioner submits a written waiver to the
interested and informed party submissions, the response period will not
apply.
Before including your address, phone number, e-mail 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.
Dated: December 14, 2009.
George T. Skibine,
Acting Principal Deputy, Assistant Secretary--Indian Affairs.
[FR Doc. E9-30209 Filed 12-18-09; 8:45 am]
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