[Federal Register Volume 61, Number 189 (Friday, September 27, 1996)]
[Notices]
[Pages 50862-50863]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24749]


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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs


Final Decision To Retract 1979 Decision of the Deputy 
Commissioner of Indian Affairs Regarding the Delaware Tribe of Indians

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice of final decision.

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SUMMARY: This notice is published in the exercise of authority 
delegated by the Secretary of the Interior to the Assistant Secretary--
Indian Affairs (Assistant Secretary) by 209 DM 8.
    Based on a comprehensive legal review conducted by the Division of 
Indian Affairs, Office of the Solicitor, dated June 19, 1996, and based 
on a review of the comments received from the public, the Assistant 
Secretary hereby retracts the letter of May 24, 1979, in which the 
Bureau of Indian Affairs through the Acting Deputy Commissioner 
determined that the Department of the Interior would engage in 
government-to-government relations with the Delaware Tribe of Indians 
only through the Cherokee Nation and that the Department would deal 
directly with the Delaware Tribe of Indians only for purposes of their 
claims against the United States. Notice is hereby given that the 
Delaware Tribe of Indians is a tribal entity recognized and eligible 
for funding and services from the Bureau of Indian Affairs by virtue of 
its status as an Indian tribe.
    A Notice of Intent to Retract the 1979 Decision was published in 
the Federal Register on June 27, 1996 (61 FR 33534, June 27, 1996). The 
public was given until July 29, 1996 to comment on the proposed 
decision. A copy of the June 19, 1996, legal review prepared by the 
Division of Indian Affairs was sent to the Cherokee Nation of Oklahoma 
and to the Delaware Tribe of Indians on June 21, 1996, inviting 
comments on the proposed decision to retract the May 24, 1979, letter. 
Copies of the legal review were sent also to the Chickasaw Nation of 
Oklahoma, Choctaw Nation of Oklahoma, Seminole Nation of Oklahoma, and 
Muscogee (Creek) Nation of Oklahoma.
    Four letters containing public comments were received. Two of these 
letters included comments concerning the name of the tribe. The Federal 
Register notice of June 27, 1996 referred both to the ``Delaware Tribe 
of Eastern Oklahoma'' and to the ``Delaware Tribe.'' By letter dated 
July 24, 1996, the Chief of the Delaware Tribe of Indians stated that 
although they had ``been

[[Page 50863]]

(unofficially) called `The Delaware Tribe of Eastern Oklahoma' * * * 
our legal name is the Delaware Tribe of Indians.'' By letter dated July 
28, 1996, the Delaware Tribe of Western Oklahoma expressed concern that 
the tribe might be called the ``Delaware Tribe of Oklahoma,'' thereby 
causing confusion with the Delaware Tribe of Western Oklahoma. The 
Department has dealt with other tribes which have name similarities, as 
a review of the Federal Register list of ``Indian Entities Recognized 
and Eligible to Receive Services'' demonstrates (60 FR 9250, Feb. 16, 
1995). The comment in the July 24, 1996, letter is accepted and the 
Department will use the ``Delaware Tribe of Indians'' as the tribe's 
name.
    The Delaware Tribe of Western Oklahoma expressed concern that this 
final status clarification action may prejudice its rights as a 
continuation of the Delaware Nation. In response, the Assistant 
Secretary directs attention to the June 16, 1996, legal review of the 
Division of Indian Affairs which states that the Delaware were the 
first Indians to enter into a formal treaty with the federal government 
and that over the years, the Delaware became divided into groups. The 
legal review notes specifically that one of these groups is the 
federally recognized tribe, the Delaware Tribe of Western Oklahoma. 
This final decision on the Delaware Tribe of Indians does not change 
the status, or history, of the Delaware Tribe of Western Oklahoma.
    The comment from the Delaware Tribe of Western Oklahoma states that 
the treaties and agreements between the Delaware Nation and the United 
States, and the Cherokee Nation and the United States must be examined 
with precision, and that the final determination must address the 
issues of Delaware sovereignty rather than being a political 
determination. The June 19, 1996, legal review was such a comprehensive 
and detailed analysis of the relevant legal record, including a 
detailed evaluation of pertinent treaties and agreements. This comment 
raises no new information meriting additional analysis.
    A comment was received from the Cherokee Nation dated July 26, 
1996. This comment concerns the Cherokee Nation's jurisdictional 
service area, its court system, law enforcement, Indian child welfare 
services and civil jurisdiction. Referencing 105 Stat. 990 (1991) and 
25 CFR 151.8, the tribe states that it cannot responsibly share its 
jurisdictional land base, and provides that if the Delawares ``concede 
that their actions will not result in any diminishment of the 
Cherokee's present funding, its service area or jurisdictional base, 
then separate recognition would be agreeable to the tribe.'' A comment, 
by letter dated July 23, 1996, from an individual whose certificate of 
Indian blood identifies her as ``Cherokee (adopted Delaware),'' 
expressed concerns that the proposed decision did not contain language 
addressing the issues of dual enrollment and jurisdiction. This comment 
notes that the Delaware intend to prohibit dual enrollment, and that a 
driving force ``is the acquisition and control of federal dollars.''
    The decision to retract the letter of May 24, 1979, is based on a 
comprehensive legal analysis of the pertinent treaties and agreements 
as well as a review of the Department of the Interior's administrative 
practice. Based on this review, the proposed decision published in the 
Federal Register concluded that the 1979 letter should be retracted 
because it was not consistent with federal law. Within the restraints 
imposed by federal law, the Delaware Tribe of Indians as a sovereign 
tribe will have the same rights to demand consultation and contracting 
as other tribes. As a separate sovereign, the Delaware Tribe of Indians 
will have the same legal rights and responsibilities as other tribes, 
consistent with federal law, both as to jurisdiction and as to its 
right to define its membership. This decision in effect clarifies the 
government-to-government relationship between the United States and the 
Delaware Tribe of Indians which was understood to exist before the May 
1979 letter. Although this decision may have legal consequences 
affecting the Cherokee Nation and the members of both tribes, there is 
nothing in these comments which indicates that the basis of the 
proposed decision is in error or that the legal analysis of June 19, 
1996, includes errors or is incomplete. These comments, therefore, do 
not merit a change in the proposed decision.
    Based on the legal analysis of the Division of Indian Affairs dated 
June 19, 1996, and based on the foregoing analysis of the comments 
received during the public comment period, the Assistant Secretary 
hereby retracts the letter of May 24, 1979. The notice of proposed 
decision, 61 FR 33534, is hereby made final. Notice is hereby given 
that the Delaware Tribe of Indians is a tribal entity recognized and 
eligible for funding and services from the Bureau of Indian Affairs by 
virtue of its status as an Indian tribe.
    By letter dated August 21, 1996, the attorney for the Delaware 
Tribe of Indians indicated that at a meeting of April 30, 1996, the 
Delaware Chief was informally advised that after the 30-day comment 
period following the Federal Register publication, the Delawares would 
have the opportunity to respond to any negative comments submitted. The 
letter of August 21, 1996, included the Delaware response to the 
comments of the Cherokee Nation and Delaware Tribe of Western Oklahoma. 
The notice in the Federal Register did not include a right by the 
Delaware Tribe of Indians to respond to the public comments. The letter 
of August 21, 1996, was reviewed and because it does not raise any new 
information or legal arguments pertinent to the basis of the proposed 
decision, the Assistant Secretary need not address whether the Delaware 
Tribe of Indians had a right to file this response even though none was 
provided for in the Federal Register notice.
    Nothing herein should be construed as altering the powers and 
duties of the Delaware Trust Board.
    Representatives from the Muscogee Area Office of the Bureau of 
Indian Affairs shall consult with the Delaware tribal officials and 
develop, in cooperation with the tribe, a determination of needs and 
recommended budget, including a determination of the tribal service 
population.

DATES: This decision is final for the Department and is effective 
September 23, 1996.

    Dated: September 23, 1996.
Ada E. Deer,
Assistant Secretary--Indian Affairs.
[FR Doc. 96-24749 Filed 9-26-96; 8:45 am]
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