[Federal Register Volume 67, Number 180 (Tuesday, September 17, 2002)]
[Notices]
[Pages 58631-58632]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-23672]


-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs


Final Determination To Decline To Acknowledge the Muwekma Ohlone 
Tribe

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice of final determination.

-----------------------------------------------------------------------

SUMMARY: Pursuant to 25 CFR 83.10(m), notice is hereby given that the 
Assistant Secretary--Indian Affairs declines to acknowledge the Muwekma 
Ohlone Tribe petitioner, 1358 Ridder Park Drive, San Jose, California 
95131, as an Indian tribe within the meaning of Federal law. This 
notice is based on a determination that the group does not meet all 
seven criteria set forth in 25 CFR 83.7, as modified by 25 CFR 83.8.

DATES: This final determination is effective December 16, 2002, 
pursuant to 25 CFR 83.10(l)(4), unless a request for reconsideration is 
filed pursuant to 25 CFR 83.11.

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 of the Interior to the Assistant 
Secretary--Indian Affairs (Assistant Secretary) 209 DM 8.
    A notice of the proposed finding to decline to acknowledge the 
Ohlone/Costanoan Muwekma Tribe (now renamed Muwekma Ohlone Tribe) was 
published in the Federal Register on August 3, 2001 (66 FR 40712). An 
order of the United States District Court for the District of Columbia, 
dated January 16, 2001, set the close of the period for comment on the 
proposed finding as October 29, 2001; however, following two extensions 
granted by the Court in response to the petitioner's motions, the end 
date for the comment period was set as January 27, 2002, and the end of 
the period for the petitioner to respond to third-party comments was 
set as March 28, 2002. The Muwekma Ohlone Tribe petitioner submitted 
comments on the proposed finding, but did not submit a response to the 
public comments. The Court granted the Department's request for a 30-
day extension to the August 8, 2002, due date for the issuance of a 
final determination to September 9, 2002. This final determination is 
made following a review of the petitioner's comments and the public 
comments on the proposed finding, and is based on all of the evidence 
in the record.
    The Muwekma petitioner has been evaluated under modified 
requirements provided in section 83.8 of the regulations on the basis 
of a determination that it had unambiguous Federal acknowledgment as 
the Verona Band between 1914 and 1927.
    Criterion 83.7(a): The petitioner has not demonstrated that it 
meets the requirements of criterion 83.7(a) as modified by section 
83.8(d)(1) with evidence since 1927 of substantially continuous 
external identifications of the petitioning group as a continuation of 
a historical ``Verona Band'' or Pleasanton rancheria. Therefore, as 
provided in section 83.8(d)(5), this final determination evaluated 
whether the petitioner has demonstrated that it meets the unmodified 
requirements of section 83.7(a) from 1927 to the present. The review of 
the available evidence concludes that the evidence demonstrates that 
the petitioning group was identified as an Indian entity in the years 
between 1965 and 1971, and again from 1982 to the present. Because the 
petitioning group was not identified as an Indian entity for a period 
of almost four decades after 1927, and for only a 6-year period during 
the 55 years between 1927 and 1982, it has not been identified as an 
Indian entity on a ``substantially continuous'' basis since 1927. 
Therefore, the petitioner does not meet the requirements of criterion 
83.7(a) as modified by sections 83.8(d)(1) or 83.8(d)(5).
    Criterion 83.7(b): The petitioner has not demonstrated that it 
meets the requirements of criterion 83.7(b) as modified by section 
83.8(d)(2) which requires the petitioner to demonstrate that it 
comprises a distinct community ``at present,'' but need not demonstrate 
its existence as a community historically. In response to the proposed 
finding, the petitioner submitted documents pertaining to godparenting, 
funerals, and the petitioner's activities from 1982 to 1991. It also 
submitted oral interviews taken by an academic researcher in 1984 and 
1986 and by the petitioner's researcher, chairman, and staff since the 
issuance of the proposed finding. The oral histories, combined with 
documentary evidence both in the record and newly submitted, 
demonstrated: some informal social relationships and interactions of 
the petitioner's ancestors from 1910-1950; actual practices of 
godparenting, fostering, and adoption before 1950; the informal group 
involved in preserving an historic Ohlone Cemetery from 1963-1971; an 
application process organized by individual extended families in 1967-
1971 to apply under the 1928 claims act; and previously unknown efforts 
in 1967-1984 to establish an Ohlone membership organization.
    While this new evidence helped demonstrate limited aspects of 
community which marginally existed as late as 1950 for the petitioner's 
members and even later for smaller segments, the petitioner did not 
submit documents or oral histories dealing with the present day, which 
is the only requirement under criterion (b) for previously acknowledged 
groups such as this one. The oral histories did not deal with events 
after 1971, and the newly submitted documents were generally very 
similar to the documents that had been submitted for the proposed 
finding and tended to support those previous findings under criterion 
83.7(b). Thus, the petitioner does not meet criterion 83.7(b) ``at 
present'' and therefore does not meet criterion 83.7(b) as modified by 
83.8(d)(2) or 83.8(d)(5).
    Criterion 83.7(c): The petitioner has not demonstrated that it 
meets requirements of criterion 83.7(c) as modified by section 
83.8(d)(3) because there is insufficient evidence of identifications of 
leaders or a governing body of the petitioning group by 
``authoritative, knowledgeable external sources'' on a ``substantially 
continuous'' basis since 1927. Thus, as provided in section 83.8(d)(5), 
this final determination has evaluated whether or not the petitioner 
has demonstrated that it meets the unmodified requirements of criterion 
83.7(c) from 1927 until the present. The petitioner does not meet 
criterion 83.7(c) at any time based on meeting criterion 83.7(b) with 
sufficient

[[Page 58632]]

levels of evidence described in section 83.7(b)(2). Also, because the 
available evidence is not sufficient to meet criterion 83.7(b)(1) ``at 
more than a minimal level,'' such evidence cannot be combined, under 
the provisions of section 83.7(c)(1)(iv), with other forms of evidence 
to meet the requirements of criterion 83.7(c).
    A review of the available evidence concludes that this evidence is 
not otherwise sufficient to meet the requirements of criterion 83.7(c) 
since 1927. The available documentary and oral history evidence does 
not demonstrate the existence of informal political processes within 
the petitioning group at any time since 1927, or a political process or 
a bilateral political relationship between leaders and followers within 
the petitioner's current organization. Since 1990, participation in the 
petitioner's activities has been mostly by a core group of 20 
individuals, especially by five individuals from one extended family. A 
predominant portion of the petitioner's membership has not participated 
in the group's activities. The available evidence, when considered in 
combination, does not demonstrate that the petitioning group has 
maintained political influence or authority over its members since 
1927. Therefore, the petitioner does not meet the requirements of 
criterion 83.7(c) as modified by sections 83.8(d)(3) or 83.8(d)(5).
    Criterion 83.7(d): This final determination affirms the proposed 
finding's conclusion that the petitioner submitted a governing document 
describing its membership criteria and its current governing 
procedures. Although the petitioner did not submit a comment on this 
criterion, its comments on other aspects of the proposed finding 
referenced a version of its constitution and enrollment ordinance 
amended and adopted later than those reviewed for the proposed finding. 
The Department obtained copies of the referenced governing documents 
amended and certified on October 21, 2000, which describe its 
membership criteria and its current governing procedures. The October 
21, 2002, amendments affecting membership requirements did not, 
however, identify the specific Verona Band individuals from whom 
descent must be documented. Because the petitioner has a constitution 
and an enrollment ordinance, certified by most members of its governing 
body, that describe its membership criteria and the procedures through 
which it governs its affairs and its members, the petitioner meets the 
requirements of criterion 83.7(d).
    Criterion 83.7(e): This final determination affirms the proposed 
finding's conclusion that the members of the petitioning group descend 
from the historical band. In the absence of a membership list of the 
Verona Band during the 1914-1927 period of last Federal acknowledgment, 
the proposed finding relied upon two residence lists of Indian 
settlements, the 1905-1906 Kelsey census of landless Indians living in 
Pleasanton and Niles and the Indian population schedule of ``Indian 
town'' on the 1910 Federal Census of Pleasanton Township, to 
approximate the composition of the Verona Band.
    The proposed finding assumed that, for purposes of descent, non-
resident siblings of individuals in the Pleasanton or Niles settlements 
could be considered members of the Verona Band by virtue of their close 
interaction with those resident siblings. Most of the petitioner's 
members at the time of the proposed finding (209 of 400) claimed 
descent from three non-resident Marine siblings who had two siblings on 
the 1910 Indian population schedule of ``Indian town.'' By the time of 
this final determination, most of the petitioner's members (264 of 419) 
claimed descent from four non-resident Marine siblings.
    The proposed finding solicited evidence to strengthen or rebut its 
assumption ``that Avelina (Cornates) Marine was a part of the Indian 
group at the Pleasanton rancheria prior to Kelsey's census of 1906, and 
that the siblings of her children on the 1910 Federal Census of `Indian 
town' were non-resident members of the Verona Band.'' Since the 
issuance of the proposed finding, the Department obtained the civil 
record of Avelina (Cornates) Marine's first marriage in 1877, to Jose 
Puente, that identified the bride as 15 years old, thereby providing a 
reasonable basis to conclude she was the same ``Avelina'' [no surname] 
identified in a Mission San Jose baptism record as a Mission San Jose 
Indian born in 1863. The petitioner supplied Avelina (Cornates) Puente 
Marine's 1904 burial record, which placed her in Pleasanton at the time 
of her death. These two records supported Avelina's genealogical link 
to the Mission San Jose Indians, a precursor of the Verona Band, and 
her geographical proximity to the Pleasanton rancheria enumerated by 
Kelsey shortly after her death, thus strengthening the assumption 
expressed in the proposed finding that Avelina and her children were 
part of the Verona Band.
    The petitioner submitted an updated membership list dated January 
19, 2002, identifying 419 members. This updated list showed the 
addition of 120 members, the ``disenrollment'' of 99 members, and the 
deaths of 2 members since the May 29, 1998, membership list reviewed 
for the proposed finding. The petitioner's governing body certified the 
updated membership list by resolution, and provided a description of 
the preparation of this and earlier membership lists, as required under 
criterion 83.7(e).
    A review of the petitioner's membership files concluded that 99 
percent of its current members have satisfactorily documented their 
descent from individuals on the Verona Band proxy list, or siblings 
thereof. The membership files for the remaining 1 percent lacked 
adequate evidence linking the member to his or her Indian parent or, in 
one case, grandparent.
    Criterion 83.7(f): This final determination affirms the proposed 
finding's conclusion that this group is not principally composed of 
members of another acknowledged North American Indian tribe. Since the 
proposed finding, the petitioner obtained dual enrollment statements 
from all of its members, which BIA researchers reviewed in their audit 
of the membership files. Only one member who indicated membership in a 
federally acknowledged tribe remained on the petitioner's most current 
membership list.
    Criterion 83.7(g): This final determination affirms the proposed 
finding's conclusion that neither the petitioner nor its members are 
the subject of congressional legislation that has expressly terminated 
or forbidden the Federal relationship.
    This determination is final and will become effective December 16, 
2002, unless a request for reconsideration is filed pursuant to Sec.  
83.11. The petitioner or any interested party may file a request for 
reconsideration of this determination with the Interior Board of Indian 
Appeals (Sec.  83.11(a)(1)). The petitioner's or interested party's 
request must be received no later than 90 days after publication of the 
Assistant Secretary's determination in the Federal Register (Sec.  
83.11(a)(2)).

    Dated: September 6, 2002.
Neal A. McCaleb,
Assistant Secretary--Indian Affairs.
[FR Doc. 02-23672 Filed 9-13-02; 12:04 pm]
BILLING CODE 4310-4J-M