02-299. Reconsidered Final Determination for Federal Acknowledgment of the Cowlitz Indian Tribe

AGENCY:

Bureau of Indian Affairs, Interior.

ACTION:

Notice.

SUMMARY:

Pursuant to 25 CFR 83.11(h)(3), notice is hereby given that on December 31, 2001, the Assistant Secretary—Indian Affairs (AS-IA) Neal A. McCaleb signed a reconsidered final determination which affirms the decision of February 18, 2000, to acknowledge that the Cowlitz Indian Tribe (CIT), c/o Mr. John Barnett, 1417 15th Avenue #5, P.O. Box 2547, Longview, Washington 98632-8594, exists as an Indian tribe within the meaning of Federal law. The reconsidered final determination was issued following full consideration of those issues which the Secretary of the Interior (Secretary) requested that the AS-IA address, which had been referred previously to the Secretary by the Interior Board of Indian Appeals (IBIA). The CIT satisfies the seven criteria set forth in 25 CFR part 83 for Federal acknowledgment of Indian tribes, and therefore meets the requirements for a government-to-government relationship with the United States.

DATES:

As provided by 25 CFR 83.11(h)(3), this reconsidered final determination is effective on January 4, 2002.

ADDRESSES:

Requests for a copy of the reconsidered final determination should be addressed to the Office of the Assistant Secretary, Bureau of Indian Affairs, 1849 C Street, NW, Washington, DC 20240, Attention: Branch of Acknowledgment and Research, MS 4660-MIB.

FOR FURTHER INFORMATION CONTACT:

R. Lee Fleming, Chief, Branch of Acknowledgment and Research, [phone].

SUPPLEMENTARY INFORMATION:

This notice is published in the exercise of authority delegated by the Secretary to the AS-IA by 209 DM 8. A notice proposing to acknowledge the CIT was published in the Federal Register on February 27, 1997. This Proposed Finding (PF) was issued under the 25 CFR part 83 regulations. The PF found that the CIT satisfied all of the mandatory criteria set forth in 25 CFR 83.7 as modified by 25 CFR 83.8. The PF found that substantial evidence demonstrated that the Federal Government recognized the Lower Cowlitz Tribe during 1855 treaty negotiations. The PF also found that a reasonable likelihood existed that the current petitioner evolved from an amalgamation of the Lower Cowlitz tribe and the Upper Cowlitz tribe. The Upper Cowlitz tribe had not participated in treaty negotiations. The PF made no finding as to whether the Lower Cowlitz tribe was recognized at any point after 1855 or whether the Upper Cowlitz tribe was ever recognized.

The Final Determination (FD) concluded that the CIT met the mandatory criteria in 83.7, as modified by 83.8, based on a finding that the Upper and Lower Cowlitz band(s), from which the petitioner evolved, were acknowledged in 1878 and 1880, and that these bands amalgamated during the second half of the 19th century. A notice of the decision to acknowledge the CIT was published in the Federal Register, on February 18, 2000, (Vol. 65 at 8436). The Quinault Indian Nation filed a request for reconsideration with the IBIA, and in an opinion issued May 29, 2001, the IBIA affirmed the Final Determination. Under provisions at 83.11(f)(2), the IBIA at the same time referred three issues to the Secretary as outside of its jurisdiction. After receiving comments from the Bureau of Indian Affairs's (BIA) Branch of Acknowledgment and Research (BAR), the Quinault Indian Nation, and the CIT, the Secretary on September 4, 2001, referred one issue and part of a second issue to the AS-IA as grounds for reconsideration of the FD. Under 83.11(g)(1), the AS-IA was to issue a reconsidered determination within 120 days of the Secretary's referral.

The AS-IA signed on December 31, 2001, a reconsidered final determination, which affirms and supplements the final determination and supersedes specific points in the final determination. A brief discussion of the issues addressed in the reconsidered final determination follows.

The first issue considered by the AS-IA concerned two misstatements in the FD Technical Report. The misstatements were that Cowlitz “metis,” or “mixed-bloods” with French Canadian heritage, appeared on the 1878 and 1880 Indian censuses, when in fact it was not possible to determine whether any metis were included. The question was whether these two misstatements had an effect on BIA's analysis and ultimately on the AS-IA's decision. Because the mistakes were not on the draft technical report reviewed by the decision-maker, but were introduced late in the surnaming process, the mistake did not affect the BIA analysis and probably did not influence decision-makers, who saw an earlier draft. Nevertheless, the signed FD did have the mistakes in it, and a reevaluation of the evidence with a correct understanding of the 1878 and 1880 censuses was made during this reconsideration.

The PF found that the Cowlitz metis were part of the Lower Cowlitz which was recognized in 1855 during treaty negotiations. The FD found also that in 1878 and 1880, the Office of Indian Affairs recognized both the Lower and Upper Cowlitz, originally separate bands which amalgamated during the second half of the 19th century. The Lower Cowlitz census of 1878 listed 66 individuals, but it only named heads of households, none of whom had “metis” names. This census did not name “wives,” “children,” and “relatives in families,” and thus, it is impossible to determine if metis “mixed-bloods” were among those listed as unnamed Lower Cowlitz. No names at all are available for the 1880 enumeration.

The PF, the transcripts of a technical assistance meeting held on-the-record as provided by the regulations at 83.10(j)(2), and the contextual discussion concerning the relationship between the metis mixed-bloods and the other Cowlitz in the FD, show that the Cowlitz metis were associated with the Cowlitz tribe through kinship, marriage, and association. Other evidence showed that the cultural distinctiveness of the metis was just beginning to emerge by the 1870's. Even if the OIA in the later 1800's did not specifically designate the metis as part of the tribe, the metis nonetheless interacted as part of the tribe at that time and in the following decades.

The evidence available does not define the full composition of the Lower and Upper Cowlitz bands as recognized by the Government in 1880. Further, how the Cowlitz defined their tribal members and how the government defined them may have differed. Under the regulations, the totality of the evidence is sufficient to establish by a reasonable likelihood that the Cowlitz metis were part of the Lower Cowlitz at its point of last unambiguous recognition. The misstatements concerning the 1878 and 1880 censuses do not impact the result of the FD.

The second issue considered by the AS-IA concerned whether the BIA misapplied the burden of proof under 25 CFR 83.6(d). The Secretary, however, limited her referral of this issue to “the portion that pertains to the application of the burden of proof in the context of unambiguous previous federal recognition.” The Quinault Indian Nation submitted comments positing that the Cowlitz metis “half-bloods” were not part of the 1855 Lower Cowlitz tribe nor the 1878 and 1880 Lower Cowlitz band, and therefore the CIT could not show by a reasonable likelihood that its members descended from the previously acknowledged tribe. The AS-IA determined that the CIT demonstrated by substantial evidence that the Lower Cowlitz tribe was recognized in 1855, 1878 and 1880, and that the Upper Cowlitz tribe was recognized in 1878 and 1880. The AS-IA determined also that there is a reasonable likelihood that the Cowlitz metis were part of the previously recognized tribe in 1855, as well as of the Lower Cowlitz previously recognized in 1878 and 1880. The Upper Cowlitz and Lower Cowlitz having amalgamated during the second half of the 19th century, the AS-IA determined that there is a reasonable likelihood that the current petitioner has evolved from the previously acknowledged tribes.

Even if the metis were not part of the Lower Cowlitz recognized in 1878 and 1880, the analysis under the criteria could fall back on the earlier 1855 date of previous acknowledgment for the Lower Cowlitz, while maintaining the later date for the Upper Cowlitz. The PF already demonstrated that the Lower Cowlitz tribe was federally recognized in 1855 when they participated in treaty negotiations and that the metis were members of that entity. The petitioner has established that it descends from the previously recognized tribe in 1855.

The FD demonstrated substantial evidence, including the “Milroy” censuses, that in 1878 and 1880, the Upper Cowlitz and Lower Cowlitz were federally acknowledged as an Indian tribe. The FD found by a reasonable likelihood that the petitioner descends from these entities recognized in 1855, 1878 and 1880 and amalgamated through actions of the OIA in the last decades of the 1800's. The reconsidered FD affirms that analysis with the knowledge that the metis were not specifically named on the 1878 censuses and presumably were not named in the 1880 OIA censuses.

The reconsidered final determination supplements the original final determination and supersedes it to the extent the original is inconsistent with the reconsidered final determination. In conjunction with the original final determination, the reconsidered final determination is an amended final determination for the CIT petitioner and effective upon publication of the notice of this reconsidered determination in the Federal Register.

Dated: December 31, 2001.

Neal A. McCaleb,

Assistant Secretary—Indian Affairs.