[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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