[Federal Register Volume 61, Number 69 (Tuesday, April 9, 1996)]
[Notices]
[Pages 15825-15826]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-8636]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
[K00360-95/35420]
Final Determination for Federal Acknowledgment of the Samish
Tribal Organization as an Indian Tribe
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Notice of final determination.
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SUMMARY: This determination is made pursuant to the acknowledgment
regulations, 25 CFR Part 83, that became effective October 2, 1978. All
citations are to those regulations unless otherwise stated.
Pursuant to 25 CFR Sec. 83.9(h), notice is hereby given that the
Assistant Secretary--Indian Affairs has determined that the Samish
Tribal Organization (STO) exists as an Indian tribe within the meaning
of Federal law.
This notice is based on a determination that the Samish Tribal
Organization meets all of the seven mandatory criteria for
acknowledgment set forth in 25 CFR Sec. 83.7 and, therefore, meets the
requirements necessary for a government-to-government relationship with
the United States.
DATES: This determination is final and will become effective 60 days
after the date on which this notice appears in the Federal Register
unless the Secretary of the Interior requests a reconsideration by the
Assistant Secretary--Indian Affairs pursuant to 25 CFR Sec. 83.10(a)-
(c).
FOR FURTHER INFORMATION CONTACT: Office of the Assistant Secretary--
Indian Affairs, (202) 208-7163.
SUPPLEMENTARY INFORMATION: This notice is published in the exercise of
authority delegated by the Secretary of the Interior to the Assistant
Secretary--Indian Affairs (ASIA) by 209 DM 8.
This determination is made under the acknowledgment regulations, 25
CFR Part 83, which became effective in 1978. All citations are to those
1978 regulations. Revised acknowledgment regulations became effective
March 28, 1994 (59 FR 9280). Petitioners under active consideration at
the time the revised regulations became effective on March 28, 1994,
were given the option to be considered under the revised regulations or
the previous regulations. The Samish Tribal Organization requested in
writing to be considered under the 1978 regulations.
A final determination to decline to acknowledge the Samish Tribal
Organization as a tribe was published in the Federal Register on
February 5, 1987 (52 FR 3709). The Secretary declined a request for
reconsideration and the determination became effective May 6, 1987. In
1992 in Greene versus United States, the court declined to consider
whether the STO had treaty fishing rights. However, the court vacated
the 1987 determination on the grounds that a formal hearing had not
been given to the petitioner on the question of its tribal status in
connection with the eligibility of its members for Federal programs.
The court ordered that a new hearing be held which conformed to the
requirements of the Administrative Procedures Act. The Assistant
Secretary's determination does not include a determination of the
nature or extent of the rights, if any, of the STO or its members to
fish pursuant to any treaty.
Under instructions from the court and agreements between the
parties, proceedings before an Administrative Law Judge (ALJ) of the
Department of Interior's Office of Hearings and Appeals began in 1992.
A formal hearing before the ALJ was held in Seattle, Washington, from
August 22 to August 30, 1994. The court's instructions required the ALJ
to make a recommended decision to the Assistant Secretary--Indian
Affairs on whether the STO should be acknowledged to exist as an Indian
tribe.
The ALJ signed a recommended decision to acknowledge the Samish
Tribal Organization on August 31, 1995. This recommended decision was
forwarded through the Director, Office of Hearings and Appeals, and
received by the Assistant Secretary on September 11, 1995. Under the
procedures established by the court, the parties and amici curiae had
30 days from the receipt of the decision by the ASIA, or until October
11, 1995, to submit comments to the ASIA on the ALJ's recommended
decision. The procedures also provided that the ASIA would issue a
final determination within 30 days of receipt of comments.
Comments opposing acknowledgment were received from the Swinomish
Tribal Community, the Tulalip Tribes Inc., and the Upper Skagit Tribe.
Comments were received from the STO urging the approval of the
recommended decision, commenting on the implementation process and
suggesting remedial actions to the STO deemed necessary. The
chairperson of STO by memorandum of September 15 requested a meeting
with the ASIA on September 27 to discuss formal recognition and to
begin the budget and natural resources process. The requested meeting
with the ASIA was not held, although the former tribal chairman did
speak with the ASIA briefly at a conference at the end of October.
Comments were also provided to the ASIA by the Bureau of Indian
Affairs, which did not participate in the deliberations on this
decision.
The Assistant Secretary has determined to acknowledge the existence
of the STO as an Indian tribe. The reasoning underlying her
determination incorporates some of the ALJ's findings and rejects other
findings. The determination incorporates additional findings based on
the administrative record, including materials presented in the
hearing, in order to document in the final determination that the STO
satisfied mandatory criteria that the ALJ's decision did not
specifically address.
In the 1987 determination, vacated by the court, the STO was found
to meet the criteria in Secs. 83.7 (d), (f) and (g). Both parties to
the 1992 proceedings accepted that those criteria were met by the
Samish Tribal Organization. No evidence or arguments were submitted
sufficient to refute the proposed finding that the Samish Tribal
Organization met criteria d, f, and g. Consequently, they were not at
issue in the proceedings before the ALJ. We find for purposes of this
decision that the Samish Tribal Organization meets the criteria in
[[Page 15826]]
Sec. Sec. 83.7 (d), (f) and (g) of the 1978 acknowledgment regulations.
We find that the Samish Tribal Organization has been continuously
identified throughout history as Indian or aboriginal, has existed as a
distinct community since first sustained European contact, has
maintained political influence within itself as an autonomous entity
and that 80 percent of its members are descendants of the historical
Samish tribe or families which became incorporated into that tribe. We
conclude, therefore, that the Samish Tribal Organization has met the
mandatory criteria for acknowledgment in 25 CFR 83.7, including
specifically, the requirements of the criteria in Secs. 83.7 (a)
through (c) and 83.7(e) of the 1978 acknowledgment regulations. This
determination is based on the membership list used for the 1987
administrative decision under 25 CFR Part 83. This list will become the
base membership roll of the STO, subject to verification that the
individuals on it consent to be listed as members.
The courts have made it clear that the issue of what treaty rights
the STO may have, if any, are not an issue on remand to the Department.
Therefore, we make no determination as to what rights, if any, the STO
or its members may have pursuant to any treaty.
The Joint Status Report filed in July 1992 by the parties to Greene
v. Lujan provided:
The decision of the Assistant Secretary shall be final agency
action for the Department of the Interior, unless the Secretary of the
Interior determines within 30 days that is [sic] should be reconsidered
in accordance with 25 CFR Part 83, in which case the Secretary shall
state the basis for this decision and establish the procedures and
timetable to be followed on reconsideration.
At the hearing on the Joint Status Report, the court found that:
The government and the Samish also agree that the Assistant
Secretary's decision should constitute final agency action unless the
Secretary of the Interior determines within 30 days that the decision
should be reconsidered.
Although the amicus argues otherwise, I will order that what the
Samish and the government have agreed to will be the order of this
Court and it is so ordered.
Two tribes have requested that the Secretary direct the Assistant
Secretary to reconsider her decision. The Upper Skagit Indian Tribe by
letter of January 3, 1996, requested that the ASIA's decision to
acknowledge the STO be reversed and the matter returned to the ALJ for
a full hearing on the question of the Upper Skagit Indian Tribe's
successorship to the Nuwha'ha. The Swinomish Tribal Community by letter
of January 5, 1996, requested that the Secretary direct reconsideration
of the ASIA's decision to recognize the Samish Tribe. The Swinomish
Tribal Community had been denied the right to participate before the
ALJ as a party but had been granted amicus curiae status. Under the
1978 regulations, the Secretary can for any reason request the ASIA to
reconsider and the Secretary shall make such a request in certain
circumstances. See 25 CFR 83.10.
The Secretary is considering whether he has authority to direct the
Assistant Secretary to reconsider and, if he has that authority,
whether he should direct her to reconsider. The question of the
Secretary's authority arises from an ambiguity in the Joint Status
Report which states that the decision of the Assistant Secretary shall
be final agency action but also indicated that reconsideration will be
done in accordance with 25 CFR Part 83. There is also an ambiguity with
regard to the time within which the Secretary must act since the time
for action under Part 83 is 30 days from the date of publication of the
notice in the Federal Register and the Joint Status Report simply
states the decision will be made within 30 days.
In accordance with Secs. 83.9 and 83.10 of the 1978 regulations,
this determination will in any event become effective in 60 days from
its publication in the Federal Register unless the Secretary of the
Interior requests that the Assistant Secretary-Indian Affairs
reconsider her decision.
The Samish Tribal Organization has not requested administrative
reconsideration of the Assistant Secretary's determination to
acknowledge its existence as an Indian tribe. However, STO has filed
suit seeking to require a reinstatement verbatim of the ALJ's
recommended decision and findings of fact.
The Director, Portland Area Office, Bureau of Indian Affairs, is
instructed to verify the membership list and to develop with the tribe
a plan and budget for the implementation of the ASIA's decision and the
provision of services to the members of the Samish Tribal Organization.
Dated: March 29, 1996.
Ada E. Deer,
Assistant Secretary--Indian Affairs.
[FR Doc. 96-8636 Filed 4-8-96; 8:45 am]
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