[Federal Register Volume 75, Number 226 (Wednesday, November 24, 2010)]
[Notices]
[Pages 71732-71733]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-29585]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs


Proposed Finding Against Federal Acknowledgment of the Tolowa 
Nation

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice of proposed finding.

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SUMMARY: The Department of the Interior (Department) gives notice that 
the Assistant Secretary--Indian Affairs proposes to determine that the 
Tolowa Nation, of Fort Dick, CA is not an Indian tribe within the 
meaning of Federal law. This notice is based on a determination that 
the group does not meet one of the seven mandatory criteria for a 
government-to-government relationship with the United States. This 
proposed finding is based on one criterion alone.

DATES: We must receive comments on this proposed finding by May 23, 
2011. We must receive any request for a technical assistance meeting by 
January 24, 2011. See the SUPPLEMENTARY INFORMATION section of this 
notice for more information about these dates.

ADDRESSES: Address comments on the proposed finding or requests for a 
copy of the report to the Office of Federal Acknowledgment, 1951 
Constitution Avenue, NW., MS: 34B-SIB, Washington, DC 20240. Parties 
who make comments on the proposed finding must also provide a copy of 
their comments to the petitioner.

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

SUPPLEMENTARY INFORMATION: Pursuant to 25 CFR 83.10(h), the Department 
gives notice that the AS-IA proposes to determine that the Tolowa 
Nation, P.O. Box 213, Fort Dick, CA 95538, c/o Ms. Sharon Sligh, is not 
an Indian tribe within the meaning of Federal law. This notice is based 
on a preliminary finding that the petitioner fails to satisfy one of 
the seven mandatory criteria for acknowledgment set forth in 25 CFR 
83.7(a) through (g), and thus, does not meet the requirements for a 
government-to government relationship with the United States.
    The Tolowa Nation, Petitioner 85, submitted a letter of 
intent to petition for Federal acknowledgment on September 11, 1982. It 
submitted partial documentation on March 22, 1983, and made subsequent 
submissions in 1983, 1986, 1987, 1996, and 1999. The Department 
provided technical assistance in 1988 and in 1995. The petition was 
ready for evaluation on August 3, 2009.
    To evaluate unambiguous previous Federal acknowledgment under 25 
CFR 83.8, OFA's review of Petitioner 85's narrative and 
documentation revealed three factors for consideration: the 
establishment of the Klamath Reservation from 1855 to 1861 and the 
Smith River Reservation from 1862 to 1869; the establishment of the 
Smith River, Elk Valley, and Resighini Rancherias in 1906, 1908, and 
1938 respectively; and Federal interaction with the Del Norte Indian 
Welfare Association (DNIWA) from 1941 through 1968.
    There is not substantial evidence in the record to show previous 
unambiguous Federal acknowledgment of the Athabascan-speaking Indians, 
residing in the villages in Del Norte County, California, known as 
``Tolowa,'' either as separate entities or as one entity that included 
the ancestors of Petitioner 85. Evidence is also insufficient 
to show that the petitioner evolved from the Indian groups at the 
Klamath Reservation established in 1855, or at the Smith River lease in 
1862, or from the Resighini Rancheria.
    Unambiguous Federal acknowledgment of the Elk Valley and Smith 
River Rancherias, which include descendants of Athabascan-speaking 
Tolowas from Del Norte County, California, continues to the present 
day. Because a group of the petitioner's ancestors did not enroll at 
these rancherias and did not evolve as a group from them, Petitioner 
85 has not shown unambiguous previous Federal acknowledgment 
based on the government's acknowledgment of the Smith River and Elk 
Valley Rancherias.
    The Federal Government never recognized DNIWA as a tribal political 
entity. There is no substantial evidence of unambiguous previous 
Federal acknowledgment in the record. Therefore, the petitioner is 
evaluated under 25 CFR 83.7. Whether the petitioner is eligible to be 
evaluated under 83.8 of the regulations is subject to reconsideration 
based on new evidence at the time of an amended proposed finding, if 
any, or the final determination.
    Petitioner 85 maintains that its membership and its 
ancestors existed continuously as a tribe of Indians descended from the 
Tolowa, an Athabascan-speaking group of Indians residing in Del Norte 
County, California. The petitioner maintains that its members 
specifically are the descendants of those Tolowa who were not enrolled 
at the Smith River and Elk Valley Rancherias.
    In order to meet criterion 83.7(b) a petitioner must demonstrate 
that a predominant portion of its group comprises a distinct community 
and has existed as a community from historical times until the present. 
Petitioner 85 did not provide sufficient evidence to 
demonstrate the petitioner's ancestors existed as a distinct community 
from first sustained contact in 1853 to 1903, before the rancherias 
formed. The evidence shows that some of Petitioner 85's 
ancestors were involved in interaction indicative of a social 
community, but does not to show that they constituted an entity 
distinct from the others, or were part of any entity evolving from the 
people described in the record. For the period 1903 through 1949, 
Department researchers examined recollections from this time gathered 
from interviews conducted during their site visit in 2010, as well as 
Federal census material, BIA enrollments, and BIA correspondence to 
document further DNIWA's activities and informal social interaction. 
Researchers also consulted BIA enrollments conducted by Henry Roe Cloud 
in 1939. The evidence is insufficient to show that the petitioner's 
ancestors evolved as a distinct community from 1903 through the 1930s, 
after the Elk Valley and Smith River Rancherias formed, or later. 
DNIWA, claimed by the petitioner as its precursor, did not function as 
a distinct community from its alleged beginnings in the 1930s through 
the 1980s. The evidence for this time does not support the assertion by 
Petitioner 85 that DNIWA provided leadership over an evolving 
entity that included both the ancestors of Petitioner 85 and 
the Smith River or Elk Valley Rancherias, or that it evolved into the 
petitioner in the

[[Page 71733]]

early 1980s. Evidence for this time is insufficient to show the 
existence or evolution of a community distinct from these rancherias 
and ancestral to the petitioner.
    Finally, the evidence does not show the petitioner's membership 
functioning as a community from 1980 to the present. Petitioner 
85 thus did not provide sufficient evidence to demonstrate 
that its members interact with each other, outside of the organization 
itself, or that there are significant social relationships within its 
membership and that its members are differentiated from, and identified 
as distinct from, nonmembers. A comparison of Petitioner 85's 
membership lists shows a high variability and turnover between 1986 and 
1996, with the 2009 membership list reflecting a remnant of the 1996 
membership. Such high variability or turnover is indicative of 
individuals or families recruited by the leadership from a population 
which has little other involvement in the petitioner's organization. 
This indication is further supported by interviewee accounts, and the 
fact that very few individuals who were not on successive membership 
lists joined Smith River Rancheria between 1991 and 1995, as some of 
the petitioner maintained. Petitioner 85 does not meet the 
requirements of criterion 83.7(b), based upon the materials submitted 
by the petitioner and developed by Department researchers during active 
consideration of this petition.
    The evidence in the record is insufficient to demonstrate that 
Petitioner 85 meets the criterion 83.7(b), one of the seven 
mandatory criteria of the regulations for a determination that the 
petitioning group is an Indian tribe. In accordance with the 
regulations, the failure to meet all seven criteria requires a 
determination that the petitioning group is not an Indian tribe within 
the meaning of Federal law (Sec.  83.6(d), Sec.  83.10(m)). Therefore, 
the Department proposes to decline to acknowledge Petitioner 
85 as an Indian tribe.
    According to the Assistant Secretary--Indian Affairs Office of 
Federal Acknowledgment; Guidance and Direction Regarding Internal 
Procedures of May 23, 2008:

    If during the evaluation of a petition on active consideration 
it becomes apparent that the petitioner fails on one criterion, or 
more, under the reasonable likelihood of the validity of the facts 
standard, OFA may prepare a proposed finding or final determination 
not to acknowledge the group on the failed criterion or criteria 
alone, setting forth the evidence, reasoning, and analyses that form 
the basis for the proposed decision. (73 FR 30147)

    The burden of providing sufficient evidence under the criteria in 
the regulations rests with the petitioner, 25 CFR 83.5(c). Because 
Petitioner 85 has not met criterion Sec.  83.7(b) as a 
distinct community, it is not necessary for the Department to make 
conclusions regarding the other six mandatory criteria.
    This proposed finding is based on the evidence currently in the 
record. Additional evidence may be submitted during the comment period 
that follows publication of this finding. If new evidence provided 
during the comment period results in a reversal of this conclusion, the 
Assistant Secretary--Indian Affairs will issue an amended proposed 
finding evaluating all seven criteria. (73 FR 30147)
    Publication of the Assistant Secretary's PF in the Federal Register 
initiates a 180-day comment period during which the petitioner and 
interested and informed parties may submit arguments and evidence to 
support or rebut the conclusions in the PF (25 CFR 83.10(i)). Comments 
should be submitted in writing to the address listed in the ADDRESSES 
section of this notice. Interested or informed parties must provide 
copies of their submissions to the petitioner. The regulations at 25 
CFR 83.10(k) provide petitioner with a minimum of 60 days to respond to 
any submissions on the PF received from interested and informed parties 
during the comment period.
    At the end of the periods for comment and response on a PF, the 
Assistant Secretary will consult with the petitioner and interested 
parties to determine an equitable timeframe for consideration of 
written arguments and evidence. The Department will notify the 
petitioner and interested parties of the date such consideration 
begins. After consideration of the written arguments and evidence 
rebutting or supporting the PF and the petitioner's response to the 
comments of interested parties and informed parties, the Assistant 
Secretary will either issue an amended proposed finding or make a final 
determination regarding the petitioner's status. The Department will 
publish a summary of this determination in the Federal Register.
    Before including your address, phone number, e-mail address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

    Dated: November 18, 2010.
George T. Skibine,
Acting Principal Deputy Assistant Secretary--Indian Affairs.
[FR Doc. 2010-29585 Filed 11-23-10; 8:45 am]
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