[Federal Register Volume 67, Number 3 (Friday, January 4, 2002)]
[Notices]
[Pages 607-608]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-299]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs


Reconsidered Final Determination for Federal Acknowledgment of 
the Cowlitz Indian Tribe

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice.

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SUMMARY: Pursuant to 25 CFR 83.11(h)(3), notice is hereby given that on 
December 31, 2001, the Assistant Secretary--Indian Affairs (AS-IA) Neal 
A. McCaleb signed a reconsidered final determination which affirms the 
decision of February 18, 2000, to acknowledge that the Cowlitz Indian 
Tribe (CIT), c/o Mr. John Barnett, 1417 15th Avenue #5, P.O. Box 2547, 
Longview, Washington 98632-8594, exists as an Indian tribe within the 
meaning of Federal law. The reconsidered final determination was issued 
following full consideration of those issues which the Secretary of the 
Interior (Secretary) requested that the AS-IA address, which had been 
referred previously to the Secretary by the Interior Board of Indian 
Appeals (IBIA). The CIT satisfies the seven criteria set forth in 25 
CFR part 83 for Federal acknowledgment of Indian tribes, and therefore 
meets the requirements for a government-to-government relationship with 
the United States.

DATES: As provided by 25 CFR 83.11(h)(3), this reconsidered final 
determination is effective on January 4, 2002.

ADDRESSES: Requests for a copy of the reconsidered final determination 
should be addressed to the Office of the Assistant Secretary, Bureau of 
Indian Affairs, 1849 C Street, NW, Washington, DC 20240, Attention: 
Branch of Acknowledgment and Research, MS 4660-MIB.

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

SUPPLEMENTARY INFORMATION: This notice is published in the exercise of 
authority delegated by the Secretary to the AS-IA by 209 DM 8. A notice 
proposing to acknowledge the CIT was published in the Federal Register 
on February 27, 1997. This Proposed Finding (PF) was issued under the 
25 CFR part 83 regulations. The PF found that the CIT satisfied all of 
the mandatory criteria set forth in 25 CFR 83.7 as modified by 25 CFR 
83.8. The PF found that substantial evidence demonstrated that the 
Federal Government recognized the Lower Cowlitz Tribe during 1855 
treaty negotiations. The PF also found that a reasonable likelihood 
existed that the current petitioner evolved from an amalgamation of the 
Lower Cowlitz tribe and the Upper Cowlitz tribe. The Upper Cowlitz 
tribe had not participated in treaty negotiations. The PF made no 
finding as to whether the Lower Cowlitz tribe was recognized at any 
point after 1855 or whether the Upper Cowlitz tribe was ever 
recognized.
    The Final Determination (FD) concluded that the CIT met the 
mandatory criteria in 83.7, as modified by 83.8, based on a finding 
that the Upper and Lower Cowlitz band(s), from which the petitioner 
evolved, were acknowledged in 1878 and 1880, and that these bands 
amalgamated during the second half of the 19th century. A notice of the 
decision to acknowledge the CIT was published in the Federal Register, 
on February 18, 2000, (Vol. 65 at 8436). The Quinault Indian Nation 
filed a request for reconsideration with the IBIA, and in an opinion 
issued May 29, 2001, the IBIA affirmed the Final Determination. Under 
provisions at 83.11(f)(2), the IBIA at the same time referred three 
issues to the Secretary as outside of its jurisdiction. After receiving 
comments from the Bureau of Indian Affairs's (BIA) Branch of 
Acknowledgment and Research (BAR), the Quinault Indian Nation, and the 
CIT, the Secretary on September 4, 2001, referred one issue and part of 
a second issue to the AS-IA as grounds for reconsideration of the FD. 
Under 83.11(g)(1), the AS-IA was to issue a reconsidered determination 
within 120 days of the Secretary's referral.
    The AS-IA signed on December 31, 2001, a reconsidered final 
determination, which affirms and supplements the final determination 
and supersedes specific points in the final determination. A brief 
discussion of the issues addressed in the reconsidered final 
determination follows.
    The first issue considered by the AS-IA concerned two misstatements 
in the FD Technical Report. The misstatements were that Cowlitz 
``metis,'' or ``mixed-bloods'' with French Canadian heritage, appeared 
on the 1878 and 1880 Indian censuses, when in fact it was not possible 
to determine whether any metis were included. The question was whether 
these two misstatements had an effect on BIA's analysis and ultimately 
on the AS-IA's decision. Because the mistakes were not on the draft 
technical report reviewed by the decision-maker,

[[Page 608]]

but were introduced late in the surnaming process, the mistake did not 
affect the BIA analysis and probably did not influence decision-makers, 
who saw an earlier draft. Nevertheless, the signed FD did have the 
mistakes in it, and a reevaluation of the evidence with a correct 
understanding of the 1878 and 1880 censuses was made during this 
reconsideration.
    The PF found that the Cowlitz metis were part of the Lower Cowlitz 
which was recognized in 1855 during treaty negotiations. The FD found 
also that in 1878 and 1880, the Office of Indian Affairs recognized 
both the Lower and Upper Cowlitz, originally separate bands which 
amalgamated during the second half of the 19th century. The Lower 
Cowlitz census of 1878 listed 66 individuals, but it only named heads 
of households, none of whom had ``metis'' names. This census did not 
name ``wives,'' ``children,'' and ``relatives in families,'' and thus, 
it is impossible to determine if metis ``mixed-bloods'' were among 
those listed as unnamed Lower Cowlitz. No names at all are available 
for the 1880 enumeration.
    The PF, the transcripts of a technical assistance meeting held on-
the-record as provided by the regulations at 83.10(j)(2), and the 
contextual discussion concerning the relationship between the metis 
mixed-bloods and the other Cowlitz in the FD, show that the Cowlitz 
metis were associated with the Cowlitz tribe through kinship, marriage, 
and association. Other evidence showed that the cultural 
distinctiveness of the metis was just beginning to emerge by the 
1870's. Even if the OIA in the later 1800's did not specifically 
designate the metis as part of the tribe, the metis nonetheless 
interacted as part of the tribe at that time and in the following 
decades.
    The evidence available does not define the full composition of the 
Lower and Upper Cowlitz bands as recognized by the Government in 1880. 
Further, how the Cowlitz defined their tribal members and how the 
government defined them may have differed. Under the regulations, the 
totality of the evidence is sufficient to establish by a reasonable 
likelihood that the Cowlitz metis were part of the Lower Cowlitz at its 
point of last unambiguous recognition. The misstatements concerning the 
1878 and 1880 censuses do not impact the result of the FD.
    The second issue considered by the AS-IA concerned whether the BIA 
misapplied the burden of proof under 25 CFR 83.6(d). The Secretary, 
however, limited her referral of this issue to ``the portion that 
pertains to the application of the burden of proof in the context of 
unambiguous previous federal recognition.'' The Quinault Indian Nation 
submitted comments positing that the Cowlitz metis ``half-bloods'' were 
not part of the 1855 Lower Cowlitz tribe nor the 1878 and 1880 Lower 
Cowlitz band, and therefore the CIT could not show by a reasonable 
likelihood that its members descended from the previously acknowledged 
tribe. The AS-IA determined that the CIT demonstrated by substantial 
evidence that the Lower Cowlitz tribe was recognized in 1855, 1878 and 
1880, and that the Upper Cowlitz tribe was recognized in 1878 and 1880. 
The AS-IA determined also that there is a reasonable likelihood that 
the Cowlitz metis were part of the previously recognized tribe in 1855, 
as well as of the Lower Cowlitz previously recognized in 1878 and 1880. 
The Upper Cowlitz and Lower Cowlitz having amalgamated during the 
second half of the 19th century, the AS-IA determined that there is a 
reasonable likelihood that the current petitioner has evolved from the 
previously acknowledged tribes.
    Even if the metis were not part of the Lower Cowlitz recognized in 
1878 and 1880, the analysis under the criteria could fall back on the 
earlier 1855 date of previous acknowledgment for the Lower Cowlitz, 
while maintaining the later date for the Upper Cowlitz. The PF already 
demonstrated that the Lower Cowlitz tribe was federally recognized in 
1855 when they participated in treaty negotiations and that the metis 
were members of that entity. The petitioner has established that it 
descends from the previously recognized tribe in 1855.
    The FD demonstrated substantial evidence, including the ``Milroy'' 
censuses, that in 1878 and 1880, the Upper Cowlitz and Lower Cowlitz 
were federally acknowledged as an Indian tribe. The FD found by a 
reasonable likelihood that the petitioner descends from these entities 
recognized in 1855, 1878 and 1880 and amalgamated through actions of 
the OIA in the last decades of the 1800's. The reconsidered FD affirms 
that analysis with the knowledge that the metis were not specifically 
named on the 1878 censuses and presumably were not named in the 1880 
OIA censuses.
    The reconsidered final determination supplements the original final 
determination and supersedes it to the extent the original is 
inconsistent with the reconsidered final determination. In conjunction 
with the original final determination, the reconsidered final 
determination is an amended final determination for the CIT petitioner 
and effective upon publication of the notice of this reconsidered 
determination in the Federal Register.

    Dated: December 31, 2001.
Neal A. McCaleb,
Assistant Secretary--Indian Affairs.
[FR Doc. 02-299 Filed 1-2-02; 2:14 pm]
BILLING CODE 4310-02-P