[Federal Register Volume 66, Number 150 (Friday, August 3, 2001)]
[Notices]
[Pages 40712-40714]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-19529]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs


Proposed Finding Against Federal Acknowledgment of the Ohlone/
Costanoan Muwekma Tribe

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice of proposed finding.

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SUMMARY: Pursuant to 25 CFR 83.10(h), notice is hereby given that the 
Assistant Secretary--Indian Affairs proposes to decline to acknowledge 
that the Ohlone/Costanoan Muwekma Tribe, 1358 Ridder Park Dr., San 
Jose, CA 95131, exists as an Indian tribe within the meaning of Federal 
law. This notice is based on a determination that the petitioner does 
not satisfy all seven of the criteria set forth in 25 CFR 83.7, 
specifically criteria 83.7(a), (b), and (c), and therefore does not 
meet the requirements for a government-to-government relationship with 
the United States.

DATES: As provided by 25 CFR 83.10(i), any individual or organization 
wishing to comment on the proposed finding may submit arguments and 
evidence to support or rebut the proposed finding. Such material must 
be submitted no later than October 29, 2001, in accordance with an 
order of the United States District Court for the District of Columbia, 
dated January 16, 2001, which supersedes and shortens the time periods 
specified in the acknowledgment regulations. As stated in the 
regulations, 25 CFR 83.10(i), interested and informed parties who 
submit arguments and evidence to the Assistant Secretary must also 
provide copies of their submissions to the petitioner. The names and 
addresses of commenters on the proposed finding will be available for 
public review. Commenters wishing to have their name and/or address 
withheld must state this request prominently at the beginning of their 
comments. Such a request will be honored to the extent allowable by 
law.

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 
Bureau of Indian Affairs, Branch of Acknowledgment and Research, 1849 C 
Street NW, Mailstop 4660-MIB, Washington, D.C. 20240.

FOR FURTHER INFORMATION CONTACT: R. Lee Fleming, Chief, Branch of 
Acknowledgment and Research, (202) 208-3592.

SUPPLEMENTARY INFORMATION: This notice is published in accordance with 
authority delegated by the Secretary of the Interior to the Assistant 
Secretary--Indian Affairs by 209 DM 8.
    The Muwekma petitioner has its headquarters in San Jose, 
California. It has demonstrated a genealogical connection of many of 
its 400 members to the residents of two historical Indian settlements, 
or rancherias, in Alameda County east of San Francisco Bay. The most 
prominent Indian settlement, which existed until about 1915, was 
located near a railroad station named Verona in a canyon just southwest 
of the town of Pleasanton. Another Indian settlement in the vicinity 
was located near the town of Niles. The petitioner also claims to 
descend from Indians concentrated by the Spaniards at Mission San Jose, 
but it has not been necessary to evaluate that historical claim.
    The Bureau of Indian Affairs (BIA) received a letter of intent to 
petition for Federal acknowledgment from a group called the Ohlone/
Costanoan Muwekma Tribe on May 9, 1989. The BIA determined that the 
petitioner had submitted a completed documented petition on March 26, 
1998. After that time, the petitioner submitted additional exhibits and 
analysis. The petitioner obtained an order from the United States 
District Court for the District of Columbia which directed that its 
petition be placed on ``active consideration'' by February 12, 2001, 
and that the Department issue a proposed finding on its case by July 
30, 2001.
    The BIA made a preliminary determination in 1996 that the 
petitioning group had previous Federal acknowledgment from 1914 until 
1927 as the Verona band of Alameda County. Therefore, this proposed 
finding has evaluated the petitioner's continuous existence as a tribe 
since 1927 under section 83.8 of the regulations, which modifies three 
of the seven mandatory criteria for groups that have previous Federal 
acknowledgment.
    The petitioner does not meet criterion 83.7(a) as modified by 
section 83.8(d)(1) which requires that the petitioning group has been 
identified as an Indian entity on a substantially continuous basis, and 
that it has been identified as the same tribal entity that was 
previously acknowledged. Section 83.8(d)(5) provides that the 
petitioner may demonstrate alternatively that it meets the unmodified 
requirements of criterion 83.7(a) from the date of last Federal 
acknowledgment until the present. From 1927, when a ``Verona band'' of 
Alameda County was last identified by an official of the Indian Office, 
until 1985, when a ``Muwekma

[[Page 40713]]

Ohlone'' group in San Jose was first identified by local newspapers, a 
period of more than half a century, there is no sufficient evidence in 
the record for this case of the identification of the petitioning group 
as an Indian entity. The petitioner does not meet the unmodified 
requirements of criterion 83.7(a) because it was not identified by 
external observers as an Indian entity ``on a substantially continuous 
basis.''
    The petitioner does not meet criterion 83.7(b) as modified by 
Sec. 83.8(d)(2) which requires the petitioner to demonstrate that it 
comprises a distinct community at present, but not to demonstrate its 
existence as a community historically. The available evidence indicates 
that prior to the mid-1990's participation in the petitioner's 
activities was predominantly by members of two extended families with 
descent from one common ancestor. Significant portions of the evidence 
submitted for 1984-1992 by the petitioner show the activities of an 
archaeology monitoring firm, which may be a family-run firm. A 
relationship between this firm and the petitioning group was not 
demonstrated. The petitioner's activities do not involve many areas of 
members' lives and are often symbolic representations of heritage 
directed at the general public, rather than examples of significant 
social interaction between members. Members engage in activities with 
other members at a low level of participation, and the interaction 
which occurs repeatedly involves the same small group of close kin. The 
petitioner submitted a survey concerning godparenting, marriage, 
information sharing, and other social activities. Few families were 
represented by the survey, to which approximately 10 percent of members 
responded. The demonstrated activities and interactions of the 
respondents were limited to their own families. These activities do not 
incorporate the various extended families and the membership as a whole 
in a community. The petitioner does not meet the requirements of 
criterion 83.7(b), as modified, because the evidence in the record is 
not sufficient to demonstrate that the petitioner's members comprise 
``a distinct community at present.''
    The petitioner does not meet criterion 83.7(c) as modified by 
Sec. 83.8(d)(3) which provides that this criterion can be met, in part, 
for the period between 1927 and the present by the ``identification, by 
authoritative, knowledgeable'' sources, of named leaders or a governing 
body which exercised political influence or authority within the group. 
The evidence available does not include any such identifications 
between 1900 and 1989. Under the provisions of 83.8(d)(5), the 
petitioner therefore must demonstrate alternatively that it meets the 
unmodified requirements of criterion 83.7(c) since last Federal 
acknowledgment. The evidence available shows that the few sporadic 
actions that were documented between 1927 and the 1990's were taken by 
individuals on behalf of close family members, rather than on behalf of 
a larger entity. During the 1990's the petitioner's organization was 
run by a small group of individuals, with an absence of evidence of 
broad participation by members or any indication that members found the 
organization's activities significant to them. Therefore, the evidence 
in the record is not sufficient to demonstrate that the petitioner has 
maintained ``political influence or authority over its members'' at any 
time since 1927.
    The petitioner meets the requirements of criterion 83.7(e) based 
upon an assumption, the validity of which should be addressed during 
the comment period. In the absence of a membership roll of the Verona 
band between 1914 and 1927, a proxy or substitute for such a roll has 
been created from residential censuses of Alameda County which appear 
to have included the Indian rancheria near Pleasanton: The 1905-1906 
census of Special Indian Agent C.E. Kelsey and the 1910 Federal census 
of ``Indian town'' on the Indian population schedule. All of the 
petitioner's members descend either from an individual listed on the 
Kelsey census of Pleasanton and Niles in 1905-1906 or the Federal 
census of ``Indian town'' in 1910, or from an unlisted sibling of such 
an individual.
    Specifically, this proposed finding assumes that descent from 
children of Avelina (Cornates) Marine who were not listed on that 1910 
Indian schedule is descent from the historical Verona band because they 
are siblings of two of her other children who were listed on that 
Indian schedule. The majority of the petitioner's members claim descent 
from the Verona band through the unlisted siblings, and thus the 
petitioner meets this criterion because of this assumption. This 
Department previously has listed the Marine siblings as Indians on its 
1933 census of the Indians of California, so this proposed finding 
accepts their Indian descent, but assumes their descent from a specific 
band. It may be assumed that the siblings not listed on the 1910 Indian 
schedule were part of the historical Verona band on the basis of their 
close kinship to a listed resident of the Indian settlement. In 
addition, the recollections in the 1960's of a son of Avelina 
(Cornates) Marine say that she was raised in the household of the chief 
of an Indian rancheria in Alameda County. Her presence in that 
household or at the rancheria, however, is not confirmed by other 
evidence in the record. That son in 1910 resided in ``Indian town'' in 
the household of the woman he claimed had raised his mother, giving 
some credence to a continuing association of the Marine family with the 
rancheria. The recollections in the 1960's of a daughter of Marine 
suggested that some of the Marine children had visited the Indians at 
the rancheria during their youth. Another daughter was living within 
several miles of the rancheria in 1910. It is reasonable to assume that 
the Marine siblings not on the Indian census of 1910 had a social 
connection to residents of that Indian settlement. It would not be 
necessary to make this assumption if additional evidence were presented 
during the comment period to show the actual participation as members 
of the band by Avelina (Cornates) Marine and her children. With 
additional analysis or new evidence, however, the final determination 
may find that this assumption is not correct.
    The petitioner meets the requirements of criterion 83.7(d) because 
it has submitted a governing document, criterion 83.7(f) because its 
members are not enrolled with federally recognized tribes, and 
criterion 83.7(g) because the group or its members have not been 
terminated by congressional legislation.
    The evidence available for this proposed finding demonstrates that 
the Ohlone/Costanoan Muwekma Tribe petitioner does not meet all seven 
criteria required for Federal acknowledgment. In accordance with the 
regulations (83.6(c)), failure to meet any one of the seven criteria 
requires a determination that the group does not exist as an Indian 
tribe within the meaning of Federal law.
    A report summarizing the evidence, reasoning, and analyses that are 
the basis for the proposed decision will be provided to the petitioner 
and interested parties, and is available to other parties upon written 
request (83.10(h)).
    During the comment period, the Assistant Secretary shall provide 
technical advice concerning the proposed finding and shall make 
available to the petitioner in a timely fashion any records used for 
the proposed finding not already held by the petitioner, to the extent 
allowable by Federal law (83.10(j)(1)). In addition, the Assistant 
Secretary shall, if requested by

[[Page 40714]]

the petitioner or any interested party, hold a formal meeting during 
the comment period for the purpose of inquiring into the reasoning, 
analyses, and factual bases for the proposed finding. The proceedings 
of this meeting shall be on the record. The meeting record shall be 
available to any participating party and will become part of the record 
considered by the Assistant Secretary in reaching a final determination 
(83.10(j)(2)).
    According to the order of the United States District Court, the 
petitioner shall have until December 27, 2001, to respond to any 
comments received from a third party during the comment period.
    After consideration of the written arguments and evidence submitted 
during the comment period and the petitioner's response to the 
comments, the Assistant Secretary shall make a final determination 
regarding the petitioner's status. The United States District Court has 
ordered that this final determination be issued by March 11, 2002. A 
summary of the final determination will be published in the Federal 
Register (83.10(l)(2)).

    Dated: July 30, 2001.
Neal A. McCaleb,
Assistant Secretary--Indian Affairs.
[FR Doc. 01-19529 Filed 8-2-01; 8:45 am]
BILLING CODE 4310-02-P