[Federal Register Volume 75, Number 226 (Wednesday, November 24, 2010)]
[Notices]
[Pages 71732-71733]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-29585]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
Proposed Finding Against Federal Acknowledgment of the Tolowa
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 Assistant Secretary--Indian Affairs proposes to determine that the
Tolowa Nation, of Fort Dick, CA is not an Indian tribe within the
meaning of Federal law. This notice is based on a determination that
the group does not meet one of the seven mandatory criteria for a
government-to-government relationship with the United States. This
proposed finding is based on one criterion alone.
DATES: We must receive comments on this proposed finding by May 23,
2011. We must receive any request for a technical assistance meeting by
January 24, 2011. See the SUPPLEMENTARY INFORMATION section of this
notice for more information about these dates.
ADDRESSES: Address comments on the proposed finding or requests for a
copy of the report to the Office of Federal Acknowledgment, 1951
Constitution Avenue, NW., MS: 34B-SIB, Washington, DC 20240. Parties
who make comments on the proposed finding must also provide a copy of
their comments to the petitioner.
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 AS-IA proposes to determine that the Tolowa
Nation, P.O. Box 213, Fort Dick, CA 95538, c/o Ms. Sharon Sligh, is not
an Indian tribe within the meaning of Federal law. This notice is based
on a preliminary finding that the petitioner fails to satisfy one of
the seven mandatory criteria for acknowledgment set forth in 25 CFR
83.7(a) through (g), and thus, does not meet the requirements for a
government-to government relationship with the United States.
The Tolowa Nation, Petitioner 85, submitted a letter of
intent to petition for Federal acknowledgment on September 11, 1982. It
submitted partial documentation on March 22, 1983, and made subsequent
submissions in 1983, 1986, 1987, 1996, and 1999. The Department
provided technical assistance in 1988 and in 1995. The petition was
ready for evaluation on August 3, 2009.
To evaluate unambiguous previous Federal acknowledgment under 25
CFR 83.8, OFA's review of Petitioner 85's narrative and
documentation revealed three factors for consideration: the
establishment of the Klamath Reservation from 1855 to 1861 and the
Smith River Reservation from 1862 to 1869; the establishment of the
Smith River, Elk Valley, and Resighini Rancherias in 1906, 1908, and
1938 respectively; and Federal interaction with the Del Norte Indian
Welfare Association (DNIWA) from 1941 through 1968.
There is not substantial evidence in the record to show previous
unambiguous Federal acknowledgment of the Athabascan-speaking Indians,
residing in the villages in Del Norte County, California, known as
``Tolowa,'' either as separate entities or as one entity that included
the ancestors of Petitioner 85. Evidence is also insufficient
to show that the petitioner evolved from the Indian groups at the
Klamath Reservation established in 1855, or at the Smith River lease in
1862, or from the Resighini Rancheria.
Unambiguous Federal acknowledgment of the Elk Valley and Smith
River Rancherias, which include descendants of Athabascan-speaking
Tolowas from Del Norte County, California, continues to the present
day. Because a group of the petitioner's ancestors did not enroll at
these rancherias and did not evolve as a group from them, Petitioner
85 has not shown unambiguous previous Federal acknowledgment
based on the government's acknowledgment of the Smith River and Elk
Valley Rancherias.
The Federal Government never recognized DNIWA as a tribal political
entity. There is no substantial evidence of unambiguous previous
Federal acknowledgment in the record. Therefore, the petitioner is
evaluated under 25 CFR 83.7. Whether the petitioner is eligible to be
evaluated under 83.8 of the regulations is subject to reconsideration
based on new evidence at the time of an amended proposed finding, if
any, or the final determination.
Petitioner 85 maintains that its membership and its
ancestors existed continuously as a tribe of Indians descended from the
Tolowa, an Athabascan-speaking group of Indians residing in Del Norte
County, California. The petitioner maintains that its members
specifically are the descendants of those Tolowa who were not enrolled
at the Smith River and Elk Valley Rancherias.
In order to meet criterion 83.7(b) a petitioner must demonstrate
that a predominant portion of its group comprises a distinct community
and has existed as a community from historical times until the present.
Petitioner 85 did not provide sufficient evidence to
demonstrate the petitioner's ancestors existed as a distinct community
from first sustained contact in 1853 to 1903, before the rancherias
formed. The evidence shows that some of Petitioner 85's
ancestors were involved in interaction indicative of a social
community, but does not to show that they constituted an entity
distinct from the others, or were part of any entity evolving from the
people described in the record. For the period 1903 through 1949,
Department researchers examined recollections from this time gathered
from interviews conducted during their site visit in 2010, as well as
Federal census material, BIA enrollments, and BIA correspondence to
document further DNIWA's activities and informal social interaction.
Researchers also consulted BIA enrollments conducted by Henry Roe Cloud
in 1939. The evidence is insufficient to show that the petitioner's
ancestors evolved as a distinct community from 1903 through the 1930s,
after the Elk Valley and Smith River Rancherias formed, or later.
DNIWA, claimed by the petitioner as its precursor, did not function as
a distinct community from its alleged beginnings in the 1930s through
the 1980s. The evidence for this time does not support the assertion by
Petitioner 85 that DNIWA provided leadership over an evolving
entity that included both the ancestors of Petitioner 85 and
the Smith River or Elk Valley Rancherias, or that it evolved into the
petitioner in the
[[Page 71733]]
early 1980s. Evidence for this time is insufficient to show the
existence or evolution of a community distinct from these rancherias
and ancestral to the petitioner.
Finally, the evidence does not show the petitioner's membership
functioning as a community from 1980 to the present. Petitioner
85 thus did not provide sufficient evidence to demonstrate
that its members interact with each other, outside of the organization
itself, or that there are significant social relationships within its
membership and that its members are differentiated from, and identified
as distinct from, nonmembers. A comparison of Petitioner 85's
membership lists shows a high variability and turnover between 1986 and
1996, with the 2009 membership list reflecting a remnant of the 1996
membership. Such high variability or turnover is indicative of
individuals or families recruited by the leadership from a population
which has little other involvement in the petitioner's organization.
This indication is further supported by interviewee accounts, and the
fact that very few individuals who were not on successive membership
lists joined Smith River Rancheria between 1991 and 1995, as some of
the petitioner maintained. Petitioner 85 does not meet the
requirements of criterion 83.7(b), based upon the materials submitted
by the petitioner and developed by Department researchers during active
consideration of this petition.
The evidence in the record is insufficient to demonstrate that
Petitioner 85 meets the criterion 83.7(b), one of the seven
mandatory criteria of the regulations for a determination that the
petitioning group is an Indian tribe. In accordance with the
regulations, the failure to meet all seven criteria requires a
determination that the petitioning group is not an Indian tribe within
the meaning of Federal law (Sec. 83.6(d), Sec. 83.10(m)). Therefore,
the Department proposes to decline to acknowledge Petitioner
85 as an Indian tribe.
According to the Assistant Secretary--Indian Affairs Office of
Federal Acknowledgment; Guidance and Direction Regarding Internal
Procedures of May 23, 2008:
If during the evaluation of a petition on active consideration
it becomes apparent that the petitioner fails on one criterion, or
more, under the reasonable likelihood of the validity of the facts
standard, OFA may prepare a proposed finding or final determination
not to acknowledge the group on the failed criterion or criteria
alone, setting forth the evidence, reasoning, and analyses that form
the basis for the proposed decision. (73 FR 30147)
The burden of providing sufficient evidence under the criteria in
the regulations rests with the petitioner, 25 CFR 83.5(c). Because
Petitioner 85 has not met criterion Sec. 83.7(b) as a
distinct community, it is not necessary for the Department to make
conclusions regarding the other six mandatory criteria.
This proposed finding is based on the evidence currently in the
record. Additional evidence may be submitted during the comment period
that follows publication of this finding. If new evidence provided
during the comment period results in a reversal of this conclusion, the
Assistant Secretary--Indian Affairs will issue an amended proposed
finding evaluating all seven criteria. (73 FR 30147)
Publication of the Assistant Secretary's PF in the Federal Register
initiates a 180-day comment period during which the petitioner and
interested and informed parties may submit arguments and evidence to
support or rebut the conclusions in the PF (25 CFR 83.10(i)). Comments
should be submitted in writing to the address listed in the ADDRESSES
section of this notice. Interested or informed parties must provide
copies of their submissions to the petitioner. The regulations at 25
CFR 83.10(k) provide petitioner with a minimum of 60 days to respond to
any submissions on the PF received from interested and informed parties
during the comment period.
At the end of the periods for comment and response on a PF, the
Assistant Secretary will consult with the petitioner and interested
parties to determine an equitable timeframe for consideration of
written arguments and evidence. The Department will notify the
petitioner and interested parties of the date such consideration
begins. After consideration of the written arguments and evidence
rebutting or supporting the PF and the petitioner's response to the
comments of interested parties and informed parties, the Assistant
Secretary will either issue an amended proposed finding or make a final
determination regarding the petitioner's status. The Department will
publish a summary of this determination in the Federal Register.
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: November 18, 2010.
George T. Skibine,
Acting Principal Deputy Assistant Secretary--Indian Affairs.
[FR Doc. 2010-29585 Filed 11-23-10; 8:45 am]
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