[Federal Register Volume 80, Number 130 (Wednesday, July 8, 2015)]
[Notices]
[Pages 39142-39144]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-16710]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

[156A2100DD/AAKC001030/A0A501010.999900 253G]


Final Decision on Remand Against Federal Acknowledgment of the 
Duwamish Tribal Organization

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice of final decision on remand.

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SUMMARY: The Department of the Interior (Department) gives notice that 
the Assistant Secretary--Indian Affairs (AS-IA) declines to acknowledge 
that the Duwamish Tribal Organization (DTO), c/o Cecile Maxwell-Hansen, 
is an Indian tribe within the meaning of Federal law. This notice 
follows a Final Decision on Remand (FD on Remand) that the petitioner 
does not satisfy all seven mandatory criteria in the either the 1978 or 
1994 regulations, 25 CFR part 83. Therefore, the DTO does not meet the 
requirements for a government-to-government relationship with the 
United States. The Department issues the FD on Remand in response to 
judicial review in Hansen v. Salazar, 2013 U.S. Dist. LEXIS 40622 (3/
22/2013).

DATES: This decision is final for the Department on publication of this 
notice.

ADDRESSES: Requests for a copy of this FD on Remand should be addressed 
to the Office of the Assistant Secretary--Indian Affairs, Attention: 
Office of Federal Acknowledgment, 1951 Constitution Avenue NW., MS 34B-
SIB, Washington, DC 20240. The FD on Remand is also available through 
www.bia.gov/WhoWeAre/AS-IA/OFA/RecentCases/index.htm.

FOR FURTHER INFORMATION CONTACT: Mr. R. Lee Fleming, Director, Office 
of Federal Acknowledgment, (202) 513-5650.

SUPPLEMENTARY INFORMATION: This FD on Remand determines that the 
petitioner does not satisfy all seven mandatory criteria in the either 
the 1978 or 1994 regulations, 25 CFR part 83. It affirms the 
conclusions of the 1996 Proposed Finding (PF) notice of which was 
published in the Federal Register, 61 FR 33762 (1996), that found the 
DTO did not meet all seven of the mandatory criteria for Federal 
acknowledgment as an Indian tribe under the regulations 25 CFR part 83 
published in 1978.
    This FD on Remand concludes the administrative process during which 
the AS-IA issued a PF against acknowledgment and a Final Determination 
against acknowledgment on September 25, 2001, notice of which was 
published in the Federal Register, 66 FR 49966 (2001). On December 31, 
2001, the DTO, as the ``Duwamish Tribe of Washington,'' filed a request 
for reconsideration with the Interior Board of Indian Appeals (IBIA). 
The IBIA docketed the petitioner's request, dismissed it for lack of 
jurisdiction and referred two issues, not within its purview, to the 
Secretary of the Interior as possible grounds for reconsideration (37 
IBIA 95). The two issues concerned a January 19, 2001 draft decision by 
the Acting AS-IA that proposed to acknowledge the DTO under the 1994 
regulations.
    On May 8, 2002, in response to the IBIA referral, the Secretary 
declined to request that the AS-IA reconsider the FD against 
acknowledgment of the DTO. The FD declining to acknowledge the DTO as 
an Indian tribe became final and effective May 8, 2002.
    On May 7, 2008, the DTO petitioned for judicial review and other 
relief in the U.S. District Court for the Western District of 
Washington. On March 22, 2013, the Court vacated the FD of September 
25, 2001, and remanded the decision to the Department, ordering it to 
``consider the Duwamish petition under the 1994 acknowledgment 
regulations or explain why it declines to do so.'' The court referred 
to the unsigned draft of the former Acting AS-IA and provided that 
``Whatever the significance of that document, it clearly gave decision 
makers in the Department notice that consideration of the Duwamish 
petition under both sets of regulations might be appropriate'' 
(Coughenour 3/22/2013, 18). The Court did not address the merits of the 
decision under the criteria in the FD.
    The United States filed a notice of appeal and following 
settlement, the Ninth Circuit granted the motion to dismiss the appeal 
voluntarily on June 9, 2014. This FD on Remand addresses the Court's 
procedural concerns by reevaluating the evidence in the record under 
the provisions of the 1994 revised regulations. It also evaluates the 
evidence under the 1978 regulations and refers to those regulations to 
explain or clarify how the Department evaluated evidence in the PF and 
FD, now superseded by this FD on Remand. Finally, the FD on Remand 
refers to the Acting AS-IA draft document.
    This FD on Remand is made following a review of the DTO's response 
to the PF, the public comments on the PF, the documents submitted in 
court proceedings, and it incorporates the evidence considered in the 
1996 PF and the 2001 FD. This notice declining to acknowledge the DTO 
is based on a determination that of the seven mandatory criteria for 
Federal acknowledgment as an Indian tribe, the petitioner has met 
criteria 83.7(d), (e), (f), and (g), but has failed to meet criteria 
83.7(a), (b), and (c) under both the 1978 and 1994 regulations.
    Documentary sources describe a historical Duwamish tribe comprising 
Indians living at the confluence of the Black, Cedar, and Duwamish 
Rivers south of Lake Washington as well as along the Green and White 
Rivers, around Lake Washington, and along the eastern shore of Puget 
Sound in the area of Elliott Bay. Federal negotiators combined the 
Duwamish with other allied tribes and bands into confederated ``treaty 
tribes'' to make a treaty in 1855, and continued to deal with these 
treaty tribes as the ``D'Wamish and other allied tribes.'' These treaty 
tribes moved to four reservations and the separate tribes and bands 
eventually consolidated as four reservation tribes that continue today 
as the Lummi Tribe of the Lummi Reservation, Suquamish Indian Tribe of 
the Port Madison Reservation, Swinomish Indian Tribal Community, and 
Tulalip Tribes of Washington. A few Duwamish tribal members moved to 
the Muckleshoot Reservation after its creation in 1857. The 
petitioner's ancestors, primarily Duwamish Indian women who married 
non-Indian settlers, did not go to the reservations with the treaty 
tribes. Rather, before and after the treaty, they left the tribes as 
individuals and families and, by the 1880s, lived dispersed throughout 
western Washington. There is no evidence that their descendants, who 
are the DTO's ancestors, maintained tribal relations with the 
``D'Wamish and other allied tribes'' on the reservations or that they 
were a part of a community of similarly situated Duwamish descendants.
    The DTO petitioner first came into existence in 1925 when eight men

[[Page 39143]]

announced their ``intention of forming'' an organization. No evidence 
indicates this new organization was a continuation of the historical 
``D'Wamish and other allied tribes'' on the reservations or that it 
evolved as a group from them. Nor does the evidence show that the 1925 
organization continued activities of a previous group of Duwamish 
Indians listed by Charles Satiacum in 1915 in his efforts to identify 
``the true Duwamish'' as part of an intertribal organization's pursuit 
of claims for unallotted Indians in Washington State. Having formed 
only in 1925, the petitioner cannot show any identifications before its 
formation and, therefore, does not meet criterion 83.7(a), requiring 
identifications as ``American Indian,'' or ``aboriginal'' since 
historical times to the present, under the 1978 regulations, and as an 
Indian entity since 1900, under the 1994 regulations. Outside observers 
first identified the DTO in 1939 and Federal officials have identified 
the petitioner intermittently since 1940 as an Indian organization. 
Contemporary Government officials and American settlers, and later 
ethnographers, historians, and the Indian Claims Commission identified 
a historical Duwamish tribe, which existed at the time of first 
sustained contact with non-Indians. External observers also identified 
a Duwamish community at a traditional location near the junction of the 
Black and Cedar Rivers as late as 1900, but DTO's ancestors were not 
part of that community. Multiple sources, including congressional 
appropriations, have identified the ``D'Wamish and other allied 
tribes'' on the reservations, and the subsequently consolidated 
reservation tribes, continuously since the treaty in 1855, but these 
identifications are not of the petitioner. Because the petitioner was 
created only in late 1925 and is not a continuation of any earlier 
Duwamish entity, the various identifications of a Duwamish tribe before 
1925 do not identify the petitioner. The petitioner has not meet 
criterion 83.7(a) at any time before 1939, and, therefore, it does not 
meet it under either the 1978 or 1994 regulations.
    The petitioner does not meet criterion 83.7(b) for community under 
either the 1978 or the 1994 regulations. Under the former, although the 
members descend from a historical Duwamish tribe, the petitioner's 
members and their ancestors have not inhabited a specific area or lived 
in a community distinct from other populations at any time. Under the 
latter regulation, a predominant portion of the petitioner has never 
formed a distinct social or geographical community. The petitioner did 
not present evidence showing a majority of its members undertook joint 
social or cultural activities, married one another, spoke the Duwamish 
language, participated in cooperative economic activities, or undertook 
informal social activities together, the types of evidence described in 
the 1994 regulations that may be used to show a community exists. The 
petitioner described families living in isolated households as typical 
of the petitioner's ancestors, but did not show that these 
geographically dispersed families interacted in social networks 
involving most of the members at any time. Since 1925, other than the 
organization's annual meetings, social activities between members took 
place within their own extended families, not among a broader DTO 
membership. The petitioner's current members do not maintain a 
community that is distinct from the surrounding non-Indian population. 
The group's geographical dispersion is consistent with other evidence 
showing that members do not maintain, and have not maintained, 
significant social contact with each other. Before 1925, the 
petitioner's ancestors, primarily descendants of marriages between 
Duwamish Indians and pioneer settlers, had little or no interaction 
either with the Indians of the historical Duwamish settlements or with 
those Duwamish who moved to reservations. Because the petitioner has 
not maintained a community that is socially distinct from the general 
populations from historical contact to the present it has not met the 
requirements of criterion (b) under either the 1978 or the 1994 
regulations.
    The petitioner does not meet criterion 83.7(c) under the 1978 and 
1994 regulations requiring a petitioner to show political influence or 
other political authority over its members. The DTO formed in late 1925 
and since then it has not exercised political influence or authority 
over its members. It has limited itself, in general, to pursuing 
Federal acknowledgment and claims against the United States for its 
dues-paying members. The petitioner did not submit any evidence to show 
the group's leaders mobilized members to undertake group activities and 
that members were involved in making decisions for the group at any 
time. Because the petitioner formed in 1925 and has not maintained 
tribal political influence or authority over its members, there is 
insufficient evidence in the record that it exercised political 
influence of authority over its members ``throughout history until the 
present'' under the 1978 regulations or ``from historical times until 
the present'' under the 1994 regulations. The DTO does not meet the 
requirements of criterion (c) under the 1978 and 1994 regulations.
    The petitioner has met criterion (d) by providing copies of the 
constitution and by-laws the DTO adopted in 1925 and are still in 
effect today. These governing documents also describe the petitioner's 
membership criteria. The petitioner has satisfied criterion (e), under 
the 1978 and 1994 regulations, because the available evidence 
demonstrates that about 99 percent (386 of 390) of its members on the 
1992 list descend from historical Duwamish Indians. Evidence submitted 
to the court in Hansen v. Salazar relates to criterion 83.7(f). One 
exhibit, ``Combination of 1942 and 1979 Suquamish rolls compared with 
1971 Duwamish Judgment Roll and Lane Report,'' shows DTO Chairwoman 
Cecile Ann (Oliver) Hansen and her brother Charles ``Manny'' Oliver, 
Jr., on both the 1942 and 1979 Suquamish rolls, which also identifies 
their great-grandmother, Jane Garrison, as their ``Duwamish Ancestor.''
    To confirm or refute Muckleshoot's allegation that at least some 
members of DTO, including its leaders, may be enrolled in Federal 
tribes, the Department reviewed BIA censuses of Tulalip, Muckleshoot, 
and Quinault Reservations for Ms. Hansen's ancestors who were 
considered members of federally recognized tribes. Her father 
(Quinault-Cowlitz) and her paternal grandparents were allotted lands on 
Quinault Reservation. Her mother (``Snohomish-Duwamish'') was recorded 
on Tulalip Reservation censuses with her parents and is buried on the 
Tulalip Reservation. Hansen's maternal grandfather (Snohomish) was also 
allotted land on Tulalip; however, his wife, Hansen's maternal 
grandmother, Anna Garrison, was not allotted land. It is through Jane 
Garrison, mother of Anna (nee Garrison) Henry, that Cecile Hansen 
claims descent from the historical Duwamish Indian tribe. Thus, it 
appears that the Oliver siblings were eligible to enroll, or were 
enrolled, with the Suquamish Indian Tribe. Only 11 individuals (less 
than 3 percent of 390 DTO members) descend from Jane Garrison.
    The PF did not find a ``significant percentage'' of the DTO are 
enrolled in federally recognized tribes. There is no evidence that a 
significant percentage of the petitioner's members belong to any 
federally-recognized tribe, or that the petitioner was subject to 
legislation terminating or forbidding a Federal relationship. Thus, the 
petitioner has met criteria (f) and (g), under both the 1978 and 1994 
regulations.

[[Page 39144]]

    The 1994 regulations clarified the 1978 regulations, but did not 
change the standard of proof for weighing evidence to determine whether 
a petitioner has demonstrated the required continuity of tribal 
existence from historical times to the present. As the preamble to the 
1994 regulations states, ``additional language has been added to 
clarify the standard of proof,'' which would continue to be that 
``facts are considered established if the available evidence 
demonstrates a reasonable likelihood of their validity'' (59 FR 9280). 
``[P]etitioners that were not recognized under the previous regulations 
would not be recognized by these revised regulations'' (59 FR 9282).
    The 1994 regulations included a new provision for previously 
recognized tribes at section 83.8. To qualify for evaluation under 
83.8, a group must provide substantial evidence of unambiguous Federal 
acknowledgment, and must provide evidence that it is a continuation of 
a previously acknowledged tribe or evolved from that entity by showing 
it is a group comprised of members who together left the acknowledged 
tribe. The DTO ancestors, however, did not leave the treaty tribe as a 
group and the dispersed ancestors did not form DTO until 1925. 
Therefore, the DTO does not qualify for evaluation under 83.8 of the 
1994 regulations, for previously acknowledged tribes. Since DTO 
ancestors were not part of the D'Wamish and other allied tribes, the 
evidence of government-to-government relations between the reservation 
tribes and the United States cannot be used to demonstrate the DTO 
meets either the 1978 or the 1994 regulations.
    Based on the evaluation of the evidence, the AS-IA concludes that 
the Duwamish Tribal Organization should not be granted Federal 
acknowledgment as an Indian tribe under 25 CFR part 83.
    A report summarizing the evidence, reasoning, and analyses that are 
the basis for the FD on Remand will be provided to the petitioner and 
interested parties, will be available to other parties upon written 
request, and will be available on the Department of the Interior's Web 
site at http://www.doi.gov. Requests for a copy of the summary 
evaluation of the evidence should be addressed to the Federal 
Government as instructed in the ADDRESSES section of this notice.
    This decision is final for the Department on publication of this 
notice in the Federal Register.

    Dated: July 2, 2015.
Kevin K. Washburn,
Assistant Secretary--Indian Affairs.
[FR Doc. 2015-16710 Filed 7-2-15; 4:15 pm]
 BILLING CODE 4337-15-P