[Federal Register Volume 69, Number 73 (Thursday, April 15, 2004)]
[Notices]
[Pages 20027-20029]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-8599]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs


Proposed Finding Against Federal Acknowledgment of the Burt Lake 
Band of Ottawa and Chippewa Indians, Inc.

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 determine that the Burt 
Lake Band of Ottawa and Chippewa Indians, Inc., 6461 East Brutus Road, 
P.O. Box 206, Brutus, Michigan, c/o Mr. Carl L. Frazier, is not an 
Indian tribe within the meaning of Federal law. This notice is based on 
a determination that the petitioner does not satisfy criteria 83.7(a), 
83.7(b), 83.7(c) and 83.7(e), and thus, 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 challenge or support the proposed finding may submit factual 
or legal arguments and evidence to rebut or support the evidence relied 
upon, within 180 calendar days from the date of publication of this 
notice. Interested and informed parties who make submissions to the 
Assistant Secretary must also provide copies to the petitioner.

ADDRESSES: Comments on the proposed finding and/or requests for a copy 
of the report of the summary evaluation of the evidence should be 
addressed to the Office of the Assistant Secretary--Indian Affairs, 
1951 Constitution Avenue, NW., Washington, DC 20240, Attention: Office 
of Federal Acknowledgment, Mail Stop 34B-SIB. The names and addresses 
of commenters generally are available to the public.

FOR FURTHER INFORMATION CONTACT: R. Lee Fleming, Director, Office of 
Federal Acknowledgment, (202) 513-7650.

SUPPLEMENTARY INFORMATION: This notice is published in the exercise of 
authority delegated by the Secretary of the Interior to the Assistant 
Secretary--Indian Affairs by 209 DM.
    The Burt Lake Band of Ottawa and Chippewa Indians, Inc. (BLB), 
petitioner 101, submitted a letter of intent to petition for 
Federal acknowledgment on September 6, 1985. The Assistant Secretary--
Indian Affairs (AS-IA) placed the BLB on active consideration on 
December 16, 2002.
    The BLB petitioner claims that it is a successor to a Cheboygan 
band of Ottawa and Chippewa Indians who signed treaties with the United 
States in Washington on March 28, 1836, and in Detroit on July 31, 
1855. The Cheboygan band had a historical village on Burt Lake near the 
northern tip of Michigan's Lower Peninsula on land acquired between 
1846 and 1849, from the United States land office, patented to the 
Governor of Michigan in trust for the Cheboygan band. The band lost 
title to this village through tax sales, and in 1900, the purchaser 
burned it. The village residents dispersed, but a portion of them 
settled in an exclusive Indian settlement on ``Indian Road,'' near the 
historical village. In 1977, Margaret Martell in Lansing, Michigan, 
began to organize the descendants of residents of Indian Road. In 1984, 
descendants of John B. Vincent (1816-1903) joined the petitioner. The 
available evidence does not demonstrate that these descendants 
interacted with Indians at Burt Lake or any other Indian group prior to 
1984. Just 46 percent of the petitioner's 490 members descend from the 
historical Cheboygan band, and 48 percent descend from John B. Vincent.
    The proposed finding concludes that the petitioner is not eligible 
to be evaluated under section 83.8 of the regulations as a previously 
acknowledged Indian entity. Although Indians at Burt Lake were 
acknowledged as a tribe as recently as 1917, most of the petitioner's 
members do not descend from the previously acknowledged entity. 
Therefore, the petitioner is not the same tribal entity, or a portion 
that has evolved from the entity, that was previously acknowledged. 
This finding may be the result of substantial changes in the 
petitioner's membership since the preliminary determination. An 
evaluation under section 83.7 rather than section 83.8 does not result 
in a different finding on any criterion. Whether the petitioner is 
eligible to be evaluated under section 83.8 of the regulations is 
subject to reconsideration at the time of the final determination.
    The BLB petitioner does not meet criterion 83.7(a), which requires 
that it has been identified as an American Indian entity on a 
substantially continuous basis since 1900. The BLB petitioner's 
membership has two main components, descendants of the historical 
Cheboygan band, all of whom also descend from a resident of the Indian 
settlement at Burt Lake about 1900, and a larger number of descendants 
of John B. Vincent, who was not a member of the historical band or a 
resident of the historical settlement. The case record contains some 
identifications prior to 1956, of an Indian settlement at Burt Lake or 
an Indian entity consisting of descendants of the historical band. The 
record, however, does not contain identifications of any Indian entity 
consisting of Vincent's descendants prior to 1979. A Burt Lake band 
organization that has become the current petitioner has been identified 
since 1978, and since 1984, identifications of that Indian entity have 
identified a group that consists of both Vincent descendants and Burt 
Lake band descendants.
    This proposed finding does not answer the interpretive question of 
whether a historical identification of a Burt Lake group or Indian 
settlement that contained no Vincent descendants constitutes an 
identification of a petitioning group in which Burt Lake descendants 
are outnumbered by Vincent descendants, because whichever way this 
question is resolved the result is that the petitioner fails to meet 
the requirements of criterion (a). If historical identifications of a 
historical Burt Lake Indian entity are rejected as identifications of 
the current petitioner, because that historical entity is significantly 
different in composition from the petitioning entity, then the 
petitioner has not been identified on a substantially continuous basis. 
The available evidence does not demonstrate that both components of the 
petitioner's membership were identified as constituting a single Indian 
entity, or separate Indian entities that amalgamated, from 1900 to 
1978. Alternatively, if historical identifications of a historical Burt 
Lake settlement are accepted as identifications of the current 
petitioner, because a substantial portion of the

[[Page 20028]]

petitioning group has connections to that historical settlement, then 
the petitioner has not been identified on a substantially continuous 
basis because of the lack of such identifications between 1917 and 1931 
and between 1956 and 1978.
    The BLB petitioner does not meet criterion 83.7(b), which requires 
that a predominant portion of the petitioning group comprises a 
distinct community from historical times until the present. The current 
membership divides into two main groups of descendants, that have never 
formed a single social community nor did they form two separate 
communities that amalgamated. Evidence shows that the descendants of 
the Cheboygan band lived in an exclusive Indian Village on Burt Lake 
until the burnout of 1900, when they established a settlement on Indian 
Road, which remained exclusively Indian until as recently as 1938. Its 
residents primarily married Indians within a regional marriage system, 
attended a Roman Catholic Indian mission, buried their dead in its 
cemetery, and socialized with one another. Since WWII, most of the 
descendants of Indian Road have lived elsewhere, in regional centers 
and downstate cities. Descendants of Indian Road continued to identify 
with the historical Indian Village and Indian Road settlement, and 
maintained a Burt Lake identity. The evidence does not demonstrate that 
younger generations, born away from Indian Road, maintained social ties 
to each other and to the residents of the tiny settlement remaining on 
Indian Road.
    The second main group of descendants consists of John B. Vincent's 
descendants through two of his children. The available evidence shows 
that their family's history is different from and unrelated to the 
history of the Indians living at Burt Lake. No evidence demonstrates 
that these two groups of descendants ever socialized at any time before 
1984, as a distinct social community, or that the Vincents participated 
in an Indian community at any time before 1984. Since 1984, the 
evidence shows that only a tiny portion of the petitioner's membership 
descending from John B. Vincent has ever attended a BLB event. The 
evidence does not demonstrate that the petitioner formed a distinct 
community at present.
    The petitioner does not meet criterion 83.7(c), which requires that 
it has maintained political influence or authority over its members as 
an autonomous entity from historical times until the present. 
Acknowledgment precedent accepts that group political influence and 
authority were maintained within historical Indian villages, such as 
the Indian Village on Burt Lake before it was burned in 1900. From 1900 
to 1977, individuals associated with the Indian Road settlement made 
political representations for various groups, but the political 
connection of those named individual(s) to any Burt Lake political 
entity, and the composition of any group they represented, was almost 
always ambiguous. The existing record contains only a few examples of a 
bilateral political relationship, such as in letters from 1911 and 
1914. It was not demonstrated that in the 1930's, groups which possibly 
took opposing views on the Indian Reorganization Act, represented a 
Burt Lake entity or faction of a Burt Lake entity. Oral history 
recounts that ``gatherings'' of men met at Indian Road to discuss 
political issues, but this information is too general to be useful in 
showing the internal political processes of a Burt Lake entity. In 
1977, when former Indian Road resident Margaret Martell began to 
formally organize the petitioner, she recruited family and close 
friends tied to Indian Road. The group sought retribution for the 
destruction of the historical village, an issue of personal 
significance to older members. A small core group, raised in the Indian 
Road settlement, served on the board of directors, until 1984, when 
Donald Moore, a descendant of John B. Vincent, joined the group and 
immediately became its chairman.
    There is no evidence in the record that the ancestors of John B. 
Vincent ever participated in political activity with Indians at Burt 
Lake until Moore became chairman in 1984. Nor is there any evidence 
that they were part of another Indian entity that exercised political 
influence and amalgamated with a Burt Lake entity to form a single 
political entity before 1984. In 1991, Carl L. Frazier, another 
descendant of John B. Vincent, became chairman. Immediately, a group of 
Burt Lake descendants initiated an unsuccessful recall of the Vincents 
from the group's board, after which participation by Burt Lake 
descendants diminished. Since Congress recognized Little Traverse Bay 
Band (LTBB) in 1994, 174 Burt Lake descendants, \1/4\ of its members, 
including past leaders and long-term members descending from Burt Lake 
joined LTBB, which recognizes its ancestors on the Durant Roll as 
qualifying ancestors for membership. With the exception of about five 
members of the Vincent families, including the chairman and two board 
members, the part of the petitioner descending from John Vincent 
otherwise has extremely low participation rates. No other evidence 
shows them influencing or being influenced by other Burt Lake members 
or leaders. The two groups of descendants together do not participate 
in a common political process, and thus, the petitioner does not 
exercise political influence or authority over its members at present. 
Therefore, the petitioner does not meet criterion 83.7(c).
    The BLB petitioner meets criterion 83.7(d), which requires the 
petitioner to submit its governing document including its membership 
criteria. The petitioner's current membership by-laws require members 
to document their descent from an Indian appearing (1) in Special Agent 
Horace B. Durant's 1908 field notes for the ``Burt Lake'' band, 
identifying descendants of the 33 family heads of the Joseph Way-bway-
dum band as listed on page 31 of the 1870 annuity list for Ottawa and 
Chippewa Indians of Michigan; or (2) as recipients of the Cheboiganing/
Burt Lake Band's land allotments or homesteads pursuant to the 1855 
Treaty of Detroit; or, (3) as residents enumerated on the 1910 Indian 
population schedule of the Federal Census of Burt Township, Cheboygan 
County, Michigan.
    The BLB petitioner does not meet criterion 83.7(e), which requires 
that the petitioner's members descend from a historical Indian tribe or 
from tribes that combined and functioned as a single autonomous 
political entity. This criterion further requires that the petitioner 
submit an official membership list of all known current members, and 
that the governing body provide a separate certification of that 
membership list. The official membership list of December 23, 2002, 
contained 861 entries, but only 490 individuals on that list were 
alive, had submitted signed application forms, and had not submitted 
written relinquishment forms.
    About 46 percent of those 490 current members descend from 
historical individuals identified as members of the band under chief 
Joseph Way-bway-dum in the 1870 annuity list of the Ottawa and Chippewa 
Indians of Michigan that was termed the ``Burt Lake Band'' by Special 
Agent Horace B. Durant in 1908. By acknowledgment precedent, this level 
of descent from the historical tribe is not sufficient to meet the 
requirements of the criterion.
    About 48 percent of the 490 current members descend from one 
historical individual, John B. Vincent (1816-1903), who in 1873 sold 
his interest in an allotment patented to him in 1875

[[Page 20029]]

located in the reserve set aside for the Cheboygan band by the 1855 
Treaty of Detroit. However, John B. Vincent did not participate in the 
band's allotment selections of 1857 and 1864, and the petitioner did 
not provide any documentation demonstrating that John B. Vincent 
descended from the Cheboygan band. John B. Vincent did not appear on 
any Ottawa and Chippewa annuity list furnished by the petitioner. Since 
individuals from Ottawa and Chippewa bands other than Cheboygan 
obtained allotments in 1875 in the Cheboygan reserve, the 1875 list of 
allottees in that reserve is not a list of members of the Cheboygan 
band. Earlier allotment selection records of 1857 and 1864 contain band 
affiliation information, are deemed reliable evidence of Cheboygan 
members, and do not include John B. Vincent.
    The BLB petitioner meets criterion 83.7(f), which requires that a 
petitioning group be composed principally of persons who are not 
members of any acknowledged North American Indian tribe. Enrollment of 
some of the petitioner's members in federally recognized tribes has 
occurred since at least 1994, the first year in which written 
relinquishments gave the reason as ``enrollment at Little Traverse Bay 
Bands.''
    Fifty of the 490 current members of the BLB petitioner are also 
members of the federally acknowledged LTBB or the Sault Ste. Marie Band 
of Chippewa Indians without having formally relinquished their 
membership in the petitioner. As 90 percent of the group is not 
enrolled elsewhere, the petitioner meets this criterion.
    The BLB petitioner meets criterion 83.7(g), because there is no 
evidence in the record that the petitioner or its members have been 
explicitly terminated or forbidden a Federal relationship by an act of 
Congress.
    Based on this preliminary factual determination, the Department 
proposes not to extend Federal Acknowledgment under 25 CFR part 83 to 
the petitioner known as the Burt Lake Band of Ottawa and Chippewa 
Indians, Inc.
    As provided by 25 CFR 83.10(h) of the regulations, 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.
    Comments on the proposed finding and/or requests for a copy of the 
report of evidence should be addressed to the Office of the Assistant 
Secretary--Indian Affairs, 1951 Constitution Avenue, NW., Washington, 
DC 20240, Attention: Office of Federal Acknowledgment, Mail Stop 34B-
SIB.
    Comments on the proposed finding should be submitted within 180 
calendar days from the date of publication of this notice. The period 
for comment on a proposed finding may be extended for up to an 
additional 180 days at the AS-IA's discretion upon a finding of good 
cause (83.10(i)). Comments by interested and informed parties must be 
provided to the petitioner as well as to the Federal government 
(83.10(h)). After the close of the 180-day comment period, and any 
extensions, the petitioner has 60 calendar days to respond to third-
party comments (83.10(k)). This period may be extended at the AS-IA's 
discretion, if warranted by the extent and nature of the comments.
    After the expiration of the comment and response periods described 
above, the Department will consult with the petitioner concerning 
establishment of a schedule for preparation of the final determination. 
After consideration of the written arguments and evidence rebutting the 
proposed finding and within 60 days after beginning preparation of the 
final determination, the AS-IA will publish the final determination of 
the petitioner's status in the Federal Register as provided in 25 CFR 
83.10(1).

    Dated: April 5, 2004.
Aurene M. Martin,
Principal Deputy Assistant Secretary--Indian Affairs.
[FR Doc. 04-8599 Filed 4-14-04; 8:45 am]
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