[Federal Register: July 12, 2002 (Volume 67, Number 134)]
[Notices]               
[Page 46204-46206]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12jy02-75]                         

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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

 
Reconsidered Final Determination To Decline To Acknowledge the 
Chinook Indian Tribe/Chinook Nation

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice of reconsidered final determination.

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SUMMARY: This notice is published in the exercise of authority 
delegated by the Secretary of the Interior (Secretary) to the Assistant 
Secretary--Indian Affairs (Assistant Secretary) by 209 DM 8. Pursuant 
to 25 CFR 83.10(m) and 25 CFR 83.11(h)(3), notice is hereby given that 
the Assistant Secretary declines to acknowledge the Chinook Indian 
Tribe/Chinook Nation, c/o Mr. Gary Johnson, P.O. Box 228, Chinook, 
Washington 98614, 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 in the 1978 regulations, or 
in 25 CFR 83.7 as modified by 25 CFR 83.8 in the 1994 regulations.

DATES: Pursuant to 25 CFR 83.11(h)(3), this reconsidered determination 
is final and effective upon publication.

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

SUPPLEMENTARY INFORMATION: The Department published a proposed finding 
to decline to acknowledge the Chinook Indian Tribe, Inc., in the 
Federal Register on August 22, 1997 (62 FR 44714). The Department 
published a final determination to acknowledge the Chinook Indian 
Tribe/Chinook Nation in the Federal Register on January 9, 2001 (66 FR 
1690). The Quinault Indian Nation requested reconsideration of the 
final determination before the Interior Board of Indian Appeals (IBIA). 
On August 1, 2001, the IBIA affirmed the final determination with 
respect to matters within its jurisdiction (36 IBIA 245). However, the 
IBIA referred to the Secretary nine additional issues that it found to 
be outside of its jurisdiction. The Secretary then referred eight of 
those issues to the Assistant Secretary for reconsideration of the 
final determination. Those issues require a reconsideration of only 
criteria (a), (b), and (c). This decision addresses the eight issues 
referred and reconsiders the final determination to the extent impacted 
by the resolution of those issues. This reconsidered final 
determination is based on a reconsideration of all the evidence before 
the Department relevant to those criteria in accordance with the 
analysis of the eight referred issues.
    The Chinook petitioner's members descend from the Lower Band of 
Chinook and also from the Wahkiakum, Kathlamet, and Willapa bands of 
Chinook, and the Clatsop tribe, also a Chinookan-speaking group, that 
lived historically along the lower Columbia River. The population of 
the Chinook bands was severely reduced by a series of epidemics in the 
1780's, the 1830's, and the late 1850's. The United States negotiated 
treaties with these separate Chinook bands in 1851, but the Senate did 
not ratify them. Chinook representatives refused to sign a treaty 
negotiated in 1855. The Government created the Shoalwater Bay 
Reservation by executive order in 1866 for the ``Indians on Shoalwater 
Bay,'' who were intermixed Chinook and Chehalis Indians. The Government 
enlarged the Quinault Reservation by executive order in 1873 for the 
``fish-eating Indians on the Pacific coast,'' a definition that has 
been interpreted as including the Chinook. By 1900, some Chinook 
descendants were listed on the censuses of these and other 
reservations. Other Chinook descendants lived off reservations among 
the non-Indian population and tended to cluster geographically in three 
separate settlements: at Bay Center on Shoalwater Bay, at Ilwaco at the 
mouth of the Columbia, and upriver along the shore of the Columbia 
around Dahlia. After the mid-1850's, the evidence of Chinook band or 
tribal organization becomes scarce. Chinook descendants participated in 
claims activities, seeking compensation for the loss of Chinook 
aboriginal territory, in the first decade of the 20th century, the 
decade after 1925, and the 1950's. These judicial proceedings also 
resulted, however, in a conclusion by the Court of Claims in 1906 that 
the Lower Band of Chinook had ``long ceased to exist'' as a band and a 
conclusion by a Federal district court in 1928 that the Chinook had 
lost their tribal organization. From the mid-1850's until 1951, when 
Chinook descendants organized to pursue historical Chinook claims, 
there is scant evidence to suggest that any Chinook community or 
organization existed as a distinct entity or that informal leaders had 
political influence over ancestors of the petitioner.
    On the eight issues referred by the Secretary, this reconsidered 
final determination concludes that the previous Assistant Secretary had 
the authority to review the Chinook petition under the 1994 revised 
acknowledgment regulations, and that a reconsidered final determination 
should be made under both the 1978 and 1994 regulations to resolve the 
questions raised in this case about whether the result would be 
different under the revised 1994 regulations than under the original 
1978 regulations. It also concludes that the previous Assistant 
Secretary had authority to retain an outside consultant to assist him 
in his consideration of the Chinook petition.
    The final determination explicitly relied upon 1911, 1912, and 1925 
statutes in deciding that the petitioner met criteria (a), (b) and (c). 
This reconsidered final determination concludes that those three 
statutes are not evidence that the Federal Government understood or 
identified the Chinook as still existing at the time the statutes were 
enacted. The 1925 claims statute, used in the final determination as 
evidence of previous Federal acknowledgment of the petitioner, was not 
``clearly premised'' on the existence in 1925 of a Chinook political 
entity with a government-to-government relationship with the United 
States, which is the standard under the acknowledgment regulations for 
finding unambiguous previous Federal acknowledgment. This conclusion 
regarding these statutes is important for the reconsidered final 
determination because the final determination expressly found that 
``[w]ere it not for the acts of Congress in 1911, 1912, and most 
importantly, 1925, it would not have been possible to make a positive 
determination on the evidence presented.''

[[Page 46205]]

    This reconsidered final determination also concludes that the final 
determination improperly relied on the petitioner's members or 
ancestors living in Bay Center, combined with the petitioner's claims 
and acknowledgment activities, to find that the petitioner as a whole 
met the requirement of community, criterion (b). With respect to 
Chinook claims organizations and their activities between 1920 and 
1970, this reconsidered final determination concludes that the final 
determination incorrectly relied on them as sufficient evidence for 
satisfying criteria (b) and (c) under both the 1978 or 1994 
regulations. This reconsidered final determination also clarifies and 
restates the Department's position that there is no presumption of 
continuous existence and that the evidentiary benefits afforded to 
previously acknowledged petitioners are already incorporated in the 
regulations. The evidence under criteria (a), (b), and (c) is evaluated 
below in the context of these conclusions on these referred issues.
    The 1994 regulations require an evaluation of whether the 
petitioner was a previously acknowledged tribe within the meaning of 
the regulations. Because the United States engaged in treaty 
negotiations with a Chinook tribal entity in 1851 and 1855, it has been 
determined that the petitioner meets the definition of unambiguous 
Federal acknowledgment in section 83.1 and is eligible to be evaluated 
under modified requirements provided in section 83.8 of the 1994 
regulations, with 1855 as the date of last Federal acknowledgment. 
Conclusions concerning previous acknowledgment are solely for the 
purposes of a determination of previous acknowledgment under 25 CFR 
part 83, and are not intended to reflect conclusions concerning 
successorship in interest to a particular treaty or other rights.
    Criterion 83.7(a) requires a demonstration of external 
identification of the petitioner as an Indian entity, from first 
sustained contact with non-Indians under the 1978 regulations or from 
the date of last Federal acknowledgment under sections 83.8(d)(1) or 
83.8(d)(5) of the 1994 regulations. The proposed finding concluded that 
the petitioner did not meet criterion 83.7(a) under the 1978 
regulations. The final determination concluded that the petitioner met 
the criterion under both the 1978 and 1994 regulations. Given the 
conclusions of the proposed finding that a historical Chinook tribe had 
been identified until 1873 and that several Chinook organizations had 
been identified since 1951, the petitioner needed to demonstrate that 
it was identified as an Indian entity by external observers on a 
substantially continuous basis between 1873 and 1951.
    The petitioner did not provide new evidence of identifications of a 
Chinook Indian entity between 1873 and 1924. The petitioner provided 
examples to show that some of its ancestors were identified in 1925 and 
1927, and again in 1951 and the following years, as a group or groups 
bringing claims on behalf of a historical Chinook tribe against the 
United States, but that evidence does not show that a Chinook entity 
was identified on a substantially continuous basis between 1927 and 
1951. A few identifications during a three-year period of the three-
quarters of a century between 1873 and 1951 does not constitute 
``substantially continuous'' identification. The evidence is 
insufficient to show that the petitioner meets the requirements of this 
criterion between 1873 and 1951. Because the evidence in the record 
does not show that the petitioning group has been identified as an 
Indian entity ``from historical times until the present,'' or from last 
acknowledgment in 1855 until the present, on a ``substantially 
continuous'' basis, this reconsidered final determination concludes 
that the petitioner does not meet the requirements of criterion 83.7(a) 
either under the 1978 regulations or as modified by sections 83.8(d)(1) 
or 83.8(d)(5) under the 1994 regulations.
    Criterion 83.7(b) in the 1978 regulations requires the petitioner 
to demonstrate that ``a substantial portion of the petitioning group 
inhabits a specific area or lives in a community viewed as American 
Indian and distinct from other populations in the area.'' The 1994 
regulations similarly require that a ``predominant portion of the 
petitioning group comprises a distinct community.'' As modified by 
section 83.8(d)(2), a petitioner that has been previously acknowledged 
is required only to meet this criterion ``at present.'' ``Community'' 
is defined in the 1994 regulations, section 83.1, as ``any group of 
people which can demonstrate that consistent interactions and 
significant social relationships exist within its membership and that 
its members are differentiated from and identified as distinct from 
nonmembers.'' The proposed finding concluded that the petitioner did 
not meet criterion 83.7(b) under the 1978 regulations. The final 
determination concluded that the petitioner met the criterion under 
both the 1978 and 1994 regulations.
    The final determination found that evidence submitted by the 
petitioner in response to the proposed finding was sufficient to show 
continuous significant social interaction between the Indians living in 
Bay Center and the Chinook descendants concentrated in Dahlia or Ilwaco 
between 1880 and 1950. The social interaction in the 1930's and 1940's 
appears to be based on relations that were established during earlier 
periods and to rest primarily in the older generation. As people who 
had been closely connected as children and young adults died, the 
succeeding generations interacted less often and intensely until the 
community of Chinook descendants became indistinguishable from the rest 
of the population. For the post-1950 time period, there is insufficient 
evidence regarding actual social interaction among a predominant 
portion of the petitioner's membership. Because the petitioner has not 
demonstrated that ``a substantial portion of the petitioning group'' 
has formed a community ``distinct from other populations in the area'' 
since 1950, nor that a ``predominant portion of the petitioning group 
comprises a distinct community'' at present, this reconsidered final 
determination concludes that the petitioner does not meet the 
requirements of criterion 83.7(b) either under the 1978 regulations or 
as modified by section 83.8(d)(2) under the 1994 regulations.
    Criterion 83.7(c), in both the 1978 and 1994 regulations, requires 
the petitioner to demonstrate that it has maintained ``political 
influence'' or authority over its members as an autonomous entity 
throughout history. The definition of ``political influence or 
authority'' in section 83.1 of the 1994 regulations is ``a tribal 
council, leadership, internal process or other mechanism'' which the 
group has used to influence or control the behavior of its members in 
significant respects, or make decisions for the group which 
substantially affect its members, or represent the group in dealing 
with outsiders in matters of consequence. As modified by 83.8(d)(3), a 
petitioner that has been previously acknowledged is required to 
demonstrate that it meets the requirements of the criterion ``at 
present'' and, for the period between last Federal acknowledgment and 
the present, the petitioner must demonstrate that ``authoritative, 
knowledgeable external sources'' identified leaders or a governing body 
who exercised political influence or authority over the petitioning 
group, and also demonstrate one form of evidence listed in section 
83.7(c). This reconsidered final determination concludes that the 
petitioner did not provide such

[[Page 46206]]

evidence. In this situation, the regulations provide, in section 
83.8(d)(5), that the petitioner alternatively may demonstrate that it 
meets the requirements of criterion 83.7(c) from ``last Federal 
acknowledgment until the present.'' The proposed finding concluded that 
the petitioner did not meet criterion 83.7(c) under the 1978 
regulations. The final determination concluded that the petitioner met 
the criterion under both the 1978 and 1994 regulations.
    The record for this case lacks examples of an internal political 
process, either formal or informal, among the petitioner's ancestors, 
or of formal or informal political leadership or influence over the 
petitioner's ancestors as a group between 1855 and 1925. There is 
evidence of some leadership by George Charley during the late 1920's on 
behalf of a federally recognized tribe and a portion of the 
petitioner's ancestors at Bay Center, but not on behalf of the 
petitioner's ancestors along the Columbia River. There is also very 
limited evidence that a claims organization existed in the late 1920's 
and early 1930's, but no evidence that it had any internal political 
process which resulted in group decisions. There is almost no evidence 
of political activities or leadership between the early 1930's and 
1951. There is evidence for the years between 1951 and 1970 that two 
organizations were active to pursue a claims case, but insufficient 
evidence that either organization had an internal decision-making 
process that embodied a bilateral political relationship between 
leaders and members which existed broadly among the membership. During 
the most recent decades the petitioner has had a formal political 
organization. The proposed finding concluded that there was ``very 
little information available about the internal political processes of 
the petitioner from 1970 to the present,'' and a lack of evidence that 
the organization was broadly based. The petitioner's new evidence does 
not change this conclusion. Because the available evidence does not 
include identifications of leaders or a governing body by 
``authoritative, knowledgeable external sources,'' this reconsidered 
final determination concludes that the petitioner does not meet 
criterion 83.7(c) as modified by section 83.8(d)(3) under the 1994 
regulations. Because the available evidence does not demonstrate that 
the petitioning group has exercised political influence over its 
members from historical times until the present, or from last 
acknowledgment in 1855 until the present, this reconsidered final 
determination concludes that the petitioner does not meet the 
requirements of criterion 83.7(c) either under the 1978 regulations or 
as modified by section 83.8(d)(5) under the 1994 regulations.
    The available evidence demonstrates that the petitioner does not 
meet all seven criteria required for Federal acknowledgment. 
Specifically, the petitioner does not meet criteria 83.7 (a), (b), or 
(c) under the 1978 regulations, nor those three criteria under the 1994 
regulations as modified by sections 83.8(d)(1), (d)(2), (d)(3), or 
(d)(5). The petitioner was found to meet criteria 83.7 (d), (e), (f), 
and (g) in the original final determination. Those criteria were not at 
issue in the referral by the Secretary. In accordance with the 
regulations set forth in 25 CFR 83.7 [1978] and 25 CFR 83.10(m) [1994], 
failure to meet any one of the seven criteria requires a determination 
that the group does not exist as an Indian tribe within the meaning of 
Federal law.
    The final determination on whether or not the Chinook petitioner 
meets criteria (a), (b), and (c) is superceded by this reconsidered 
final determination. The Federal Register notice of the final 
determination published on Jan. 9, 2001 (66 FR 1690), is superceded by 
this notice. This reconsidered determination is final and effective 
upon publication.

    Dated: July 5, 2002.
Neal A. McCaleb,
Assistant Secretary--Indian Affairs.
[FR Doc. 02-17551 Filed 7-10-02; 9:48 am]
BILLING CODE 4310-4J-P