2010-20387. Proposed Finding Against Federal Acknowledgment of the Central Band of Cherokee

AGENCY:

Bureau of Indian Affairs, Interior.

ACTION:

Notice of proposed finding.

SUMMARY:

Notice is hereby given that the Assistant Secretary-Indian Affairs (AS-IA) proposes to decline to acknowledge that the group known as the “Central Band of Cherokee” (CBC), Petitioner #227, c/o Mr. Joe H. White, #1 Public Square, Lawrenceburg, Tennessee 38464, is an Indian tribe within the meaning of Federal law. This notice is based on an investigation pursuant to 25 CFR 83.10(e) that determined that the petitioner does not meet one of the seven mandatory criteria set forth in 25 CFR 83.7, specifically criterion 83.7(e), and therefore does not meet the requirements for a government-to-government relationship with the United States.

DATES:

Publication of the AS-IA's notice of the proposed finding in the Federal Register initiates a 180-day comment period during which the petitioner, interested parties, or informed parties may submit arguments and evidence to support or rebut the evidence relied upon in the proposed finding. The regulations at 25 CFR 83.10(k) provide the petitioner a minimum of 60 days to respond to any submissions on the proposed findings received during the comment period. Comments on this proposed finding (PF) are due on or before February 14, 2011. See the SUPPLEMENTARY INFORMATION section of this notice for more information about these dates.

ADDRESSES:

Comments on the proposed finding or requests for a copy of the report which summarizes the evidence, reasoning, and analyses that are the basis for this proposed finding, should be addressed to the Office of Federal Acknowledgment, 1951 Constitution Avenue, NW., MS-34B-SIB, Washington, DC 20240. Interested or informed parties must provide copies of their submissions to the petitioner.

FOR FURTHER INFORMATION CONTACT:

Alycon Pierce, Acting Director, Office of Federal Acknowledgment, [phone].

SUPPLEMENTARY INFORMATION:

This notice is published in accordance with authority delegated by the Secretary of the Interior (Secretary) to the AS-IA by 209 DM 8.

The petitioner claims its members are descendants of Cherokee Indians who had not given up their rights to lands in Tennessee that were identified in an 1806 treaty with the historical Cherokee tribe. The petitioner also claims that some of its ancestors living in Tennessee evaded removal or escaped when the Cherokee were removed from North Carolina in the late 1830s. None of the evidence submitted by the petitioner or found by OFA researchers demonstrates the validity of these claims.

In order to meet criterion 83.7(e), a petitioner must demonstrate that its current members descend from a historical Indian tribe, or tribes that combined and functioned as an autonomous political entity.

The petitioner submitted a November 20, 2007, membership list, separately certified by the group's governing body, of about 510 names. OFA discounted the duplicate entries, and names of deceased and resigned members, resulting in a total of 407 living members of the group. Although the petitioner submitted genealogical charts, reports, and individually produced or self-published genealogies that included family legends or traditions that some of those individuals were Cherokee or other Indians, the petitioner did not document those claimed connections. Further, the petitioner did not provide evidence acceptable to the Secretary that the ancestors identified in the genealogical descent reports or family histories were part of the historical Cherokee tribe, or any other historical Indian tribe.

The petitioner did not provide copies of each member's own birth, baptismal, or other reliable, contemporary record that names the individual and his or her parents. The petitioner did not provide evidence that documents each of the preceding generations that would connect the current member to the historical tribe. The petitioner submitted copies of censuses, voter lists, and other historical documents, that mentioned some of the petitioner's claimed ancestors. None of this evidence validated any of the claims or traditions that those individuals were Indian descendants. This complete lack of evidence that the petitioner could meet criterion 83.7(e) triggered an investigation under 83.10(e) before placing a petitioner on active consideration.

The Department's researchers investigated the petitioner's claims and looked in places where one would expect to find evidence of descent from the historical tribe. This investigation located evidence that clearly establishes that Petitioner #227's membership does not consist of individuals who descend from a historical Indian tribe or from historical Indian tribes that combined and functioned as a single autonomous political entity. The evidence clearly establishes that the petitioner does not meet mandatory criterion 83.7(e), as required by the regulations at section 83.7(e) as modified by 83.10(e).

The readily available evidence located by Department researchers clearly establishes that the petitioner's ancestors did not descend from an Indian tribe; rather they were descendants of non-Indians who migrated to Tennessee from disparate places and at different times, and began to settle after 1818 in what is now Lawrence County.

The bulk of the group's genealogical claims appear in about 20 undocumented descent reports and family histories prepared by members of the group that illustrate the ancestry of the various members, but they clearly do not demonstrate descent from the historical tribe. In fact, they do just the opposite: they show that the petitioner's claimed ancestors immigrated from the British Isles, France, and Germany over long periods to the American colonies, in particular to Virginia, the Carolinas, and Georgia, and that over time their descendants moved as individuals or small family groups to Tennessee. Neither these descent reports nor other evidence in the record show that the immigrants married into the Cherokee tribe or were otherwise associated with it, or any other tribe. After about 1818, descendants of the immigrants began to appear in what is now Lawrence County, TN, or in Lauderdale and Limestone Counties, AL, situated just south of Lawrence County, TN.

The petitioner did not submit, and OFA did not find, reliable original or derivative records to support the petitioner's claims of Indian descent. The evidence shows that both the male and female ancestors were, in fact, not Indians. For example, one ancestral line claimed by many of the groups' members originated with a family that included a man and his adult sons who migrated from South Carolina to Tennessee before 1818. The earliest records in Tennessee identified the men in this family as free White males over 21 who were paying taxes. They were listed along with their wives and young children as “free Whites” on the 1820 census of Giles County, TN. Likewise, these same men and their wives and children, or widows and orphans in some cases, were “free Whites” on the 1830 census of Lawrence County, TN. The wives or widows who survived past 1850 were all identified as “White,” and listed their birthplaces as North Carolina, Virginia, or Tennessee on the 1850 Federal census for Lawrence County. Thus, the evidence does not support the petitioner's claim that the wives (named or unnamed) were Indian descendants who had stayed in Tennessee after 1806 and later married the immigrant non-Indian settlers, or that they escaped the Cherokee removal in the late 1830s. Rather, the evidence shows them as part of the general population of non-Indian settlers coming to Tennessee or Alabama in the mid-19th century.

The petitioner's claims that Robert Messer (1734-1771 of Orange County, NC), was “a Cherokee Indian Chief, although this has not been proven” and that a woman who was born about 1895 in Lawrence County, TN, was “a small woman under 5 feet, said to be of Cherokee Indian blood line” are typical but not exhaustive of the petitioner's undocumented claims of descent from the historical Cherokee Indian tribe. The Department found no evidence to support such claims. The evidence contemporary to their lives identified them as non-Indians. Nor does the recent decision of the Tennessee Commission on Indian Affairs to grant state recognition to the CBC provide evidence of Indian descent acceptable to the Secretary.

At best, the group's descent reports include unsubstantiated claims that an individual in the family tree was supposed to be an Indian, but does not provide any more than vague family traditions and hearsay. OFA could locate no evidence to corroborate any of their claims. There is no evidence that these men and women from divergent origins were part of the historical Cherokee tribe in North Carolina, descended from it, or came together in a single location before migrating to Tennessee. There is no evidence that the wives, some of whose maiden names are not known, were Cherokee or other Indians; in their own life-times, they were identified as White. None of the petitioner's ancestral families were identified as Indians on any of the Federal censuses of Lawrence County or elsewhere. Not a single one of the known ancestors was on a historical list of Cherokee Indians, nor could they be connected to the historical Cherokee tribe in North Carolina or elsewhere.

The evidence submitted by the petitioner and the evidence located by the Department in the verification process identifies the petitioner's ancestors as non-Indian settlers living as part of the general population. The evidence clearly does not identify the petitioner's ancestors as members of the historical Cherokee Indian tribe or as descendants of the Cherokee Indian tribe or any other Indian tribe.

There is no evidence that the group known since 2007 as the “Central Band of Cherokee,” existed by any name prior to its emergence in 2000. The evidence in the record, which includes the petitioner's submissions and OFA's research, shows that Petitioner #227 is a recently formed group of individuals who claim to have Indian ancestry, but who have not documented those claims. The regulations provide that the Department may not acknowledge associations, organizations, corporations, or groups of any character formed in recent times. The petitioner did not submit evidence acceptable to the Secretary, and OFA was not able to find any documents, to validate any of the claims or traditions that the individuals were Indians or Indian descendants. Rather the evidence about the petitioner's ancestors consistently identified them as non-Indians living among the general population. Neither the petitioner nor OFA could document a genealogical link between the petitioner's ancestors and the historical tribe of Cherokee. The evidence in the record clearly establishes that the petitioner does not meet criterion 83.7(e), descent from a historical tribe, Cherokee or otherwise.

The Department proposes to decline to acknowledge Petitioner #227 as an Indian tribe because the evidence clearly establishes that the members of the group do not descend from a historical Indian tribe as required under mandatory criterion 83.7(e). The AS-IA concludes that the CBC clearly does not meet criterion 83.7(e), which satisfies the requirement for issuing a PF under 83.10(e). If, in the response to the PF, the petitioner provides sufficient evidence that it meets criterion 83.7(e) under the reasonable likelihood standard, the Department will undertake a review of the petition under all seven mandatory criteria. If, in the response to the PF, the petitioner does not provide sufficient evidence that it meets criterion 83.7(e) under the reasonable likelihood standard, the AS-IA will issue the final determination based upon criterion 83.7(e) only.

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 AS-IA 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 AS-IA will make a final determination regarding the petitioner's status. The Department will publish a summary of this determination in the Federal Register.

Dated: August 6, 2010.

Larry Echo Hawk,

Assistant Secretary-Indian Affairs.