[Federal Register Volume 79, Number 20 (Thursday, January 30, 2014)]
[Notices]
[Pages 4953-4955]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-01831]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

[DR.5A211.IA000414]


Final Determination Against Federal Acknowledgment of the Tolowa 
Nation

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice of final determination.

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SUMMARY: The Department of the Interior (Department) gives notice that 
the Assistant Secretary--Indian Affairs (AS-IA) declines to acknowledge 
the petitioner known as the Tolowa Nation (Petitioner 85) as 
an Indian tribe within the meaning of Federal law. The AS-IA makes this 
final determination

[[Page 4954]]

(FD) because the petitioner does not satisfy one of the seven mandatory 
criteria in the applicable regulations (25 CFR 83.7), specifically 
criterion 83.7(b), and therefore, does not meet the requirements for a 
government-to-government relationship with the United States. Based on 
the limited nature and extent of comment, and consistent with previous 
practices, the Department did not produce a separate detailed report or 
other summary under the criteria pertaining to this FD. This notice is 
the FD.

DATES: This determination is final and will become effective on April 
30, 2014, pursuant to section 83.10(1)(4), unless a request for 
reconsideration is filed pursuant to section 83.11.

ADDRESSES: Requests for a copy of the Federal Register notice should be 
addressed to the Office of the Assistant Secretary--Indian Affairs, 
Attention: Office of Federal Acknowledgment, 951 Constitution Avenue 
NW., MS: 34B-SIB, Washington, DC 20240. The Federal Register notice is 
also available through www.bia.gov/WhoWeAre/AS-IA/OFA/RecentCases/index.htm.

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

SUPPLEMENTARY INFORMATION: On November 18, 2010, the Department issued 
a proposed finding (PF) that the Tolowa Nation was not an Indian tribe 
within the meaning of Federal law because the petitioner did not meet 
one of the seven mandatory criteria for Federal acknowledgment as an 
Indian tribe, criterion 83.7(b). This criterion requires that a 
predominant portion of the petitioner comprises a distinct community 
and has existed as a community since historical times to the present. 
The evidence for the PF was insufficient to demonstrate that the 
petitioner met criterion 83.7(b) from first sustained contact in 1853 
to the present. The Department issued a PF denying acknowledgment under 
that one criterion, 83.7(b). This FD affirms the PF and concludes that 
the Tolowa Nation does not satisfy criterion 83.7(b).
    The acknowledgment process is based on the regulations at 25 CFR 
Part 83. Under these regulations, the petitioner has the burden to 
present evidence that it meets the seven mandatory criteria in section 
83.7. Failure to meet any one of the mandatory criteria results in a 
determination that the petitioning group is not an Indian tribe within 
the meaning of Federal law. The Department issues this determination 
under 25 CFR 83.10(m) and the Guidance and Direction notice (73 FR 
30148) published by the AS-IA on May 23, 2008, which permit decisions 
against acknowledgment based on failure to meet fewer than seven 
criteria.
    The Department published a notice of the PF in the Federal Register 
on November 24, 2010 (75 FR 71732). Publishing notice of the PF 
initiated a 180-day comment period during which time the petitioner, 
and interested and informed parties, could submit arguments and 
evidence to support or rebut the PF. The initial comment period ended 
May 23, 2011. At the petitioner's request, the comment period was 
extended 180 days to November 21, 2011. The petitioner submitted 267 
pages of documents on that same day by express service, which the 
Department received on the following day. None of the interested 
parties submitted comments. Two third parties, however, submitted 
comments. Wesley D. Taukchiray submitted a five-page letter on February 
9, 2011, and Gordon Bonser submitted a two-page letter on May 17, 2011. 
The petitioner submitted no response to these third-party comments.
    On June 21, 2013, the AS-IA announced a ``preliminary discussion 
draft of potential revisions to Part 83.'' By letter dated May 31, 
2013, the Department provided the petitioner the option to request a 
suspension of consideration of its petition during the process of 
revising the regulations or to continue under the existing Part 83 
regulations. By letter postmarked July 23, 2013, received at OFA on 
July 29, Petitioner 85 requested to proceed with a FD under 
the existing regulations. The Department started active consideration 
of the FD on September 3, 2013.
    Criterion 83.7(b) requires that ``[a] predominant portion of the 
petitioning group comprises a distinct community and has existed as a 
community from historical times until the present.'' As stated in the 
PF, the petitioner contends its membership and its ancestors lived as a 
continuously existing tribe of Indians descended from the Tolowa, a 
group of Indians residing in Del Norte County, California at first 
sustained contact. The petitioner also claims its members are the 
descendants of those Tolowa who were not enrolled at the Smith River 
and the Elk Valley Rancherias (``Tribe'' or ``Tribes''), two federally-
recognized Indian tribes from that region. The Federal Government set 
aside land for the Smith River Rancheria and the Elk Valley Rancheria 
in 1906 and 1908, respectively. The PF, however, concluded that the 
evidence in the record was insufficient to show the petitioner's 
ancestors existed as a distinct community from first sustained contact 
in the early 1850s to the early 1900s before lands for the Smith River 
and the Elk Valley Rancherias were set aside. The evidence in the 
record was not sufficient to show that the petitioner's ancestors 
constituted an entity distinct within, or from, the Smith River and the 
Elk Valley Tribes. The evidence in the record was insufficient to show 
the petitioner's ancestors evolved as a distinct community after the 
lands for the Smith River and the Elk Valley Rancherias were set aside, 
or from any other Tolowa entity that may have existed before 1908. The 
evidence in the record was not sufficient to show that the Del Norte 
Indian Welfare Association (DNIWA) was a distinct community or provided 
leadership over an evolving entity that included both the petitioner's 
ancestors and the Smith River or the Elk Valley Tribes from the 1930s 
to the 1980s. The evidence in the record did not show that petitioner's 
ancestors were distinct within the DNIWA or that the DNIWA evolved into 
the petitioner as a community after the 1980s. Noting the shortcomings 
in the evidence in the record, the PF requested the petitioner to 
provide a list of its ancestors, their locations, and an analysis of 
their relations with others in a community to determine whether the 
petitioner evolved from one or several villages. The analysis also 
needed to show how those ancestors evolved as a community to become the 
current petitioner with its specific membership (PF 12). The PF 
encouraged the petitioner to submit evidence that its ancestors 
constituted a distinct community from the time of sustained contact in 
1853 to the setting aside of land for the Rancherias from 1903-1915, 
that it was distinct from or evolved from the tribes inhabiting the 
Rancherias, and that its present-day activities involve the broader 
membership on a consistent basis (PF 41). The comments the petitioner 
submitted, however, do not provide evidence that changes the analysis 
or conclusions in the PF that the petitioner's ancestors did not form a 
distinct community.
    Many of the petitioner's submissions are brief excerpts from both 
old and recent secondary sources covering the pre-contact period, the 
Spanish Colonial era, or the very early years of American settlement in 
northern California in the 1850s and 1860s. These documents did not 
provide any new evidence because they discussed the Tolowa Indians or 
northern California Indians in very general terms and provided little 
evidence about the petitioner's ancestors.
    Many of the petitioner's documents for the period from the 1900s to 
the 1980s were secondary sources that dealt

[[Page 4955]]

with individual Tolowa Indians associated with the Smith River Tribe. 
These documents do not show the petitioner or its ancestors were a 
community distinct within, or from, the Smith River Tribe during those 
years. Other documents from this period were marriage and death 
certificates or land records from the first three decades of the 20th 
century. These documents dealt with just a few of the petitioner's 
ancestors, particularly the Fred Charles family, who were Elk River 
Rancheria members. While these records provided some evidence of 
genealogical connections or residence and land ownership for some of 
the group's ancestors, they did not demonstrate any social interaction 
among those ancestors as a distinct group. Nor did they show the 
petitioner was part of a community of Indians separate from the Smith 
River and the Elk Valley Tribes. The petitioner also submitted Indian 
censuses from around the 1920s for the Hoopa Valley Reservation of 
northern California. These same censuses were evaluated and cited in 
the PF and did not provide evidence that the petitioner's ancestors 
formed a distinct social community.
    The petitioner submitted some articles from unidentified newspapers 
from the 1950s and 1960s that dealt with the Smith River Tribe and not 
the petitioner. A few articles, some already referenced in the PF, 
discussed activities related to the DNIWA. These documents also did not 
show the DNIWA later evolved into the petitioner or that petitioner's 
ancestors were distinct within the DNIWA.
    Given that Petitioner has failed to satisfy 83.7(b) for the period 
from 1930 to 1980, petitioner has failed to satisfy this criterion. The 
petitioner's evidence for the 1980s to the present is also insufficient 
to demonstrate criterion 83.7(b). For example, some documents dealt 
with the activities of the Smith River Tribe, while others, like 
portions of the Advisory Council on California Indian Policy 
Recognition Report (1997), dealt with recommendations for revising the 
Federal acknowledgment regulations as they applied to California Indian 
groups in general. Two letters from 1982 concerned a group much broader 
than the petitioner and did not provide evidence of community for the 
petitioner. Other documents included flyers from the 1990s and 2000s 
announcing gatherings the petitioner sponsored. These events, such as 
the ``National Indian Observance Day,'' ``Drums on the Beach,'' or 
``California Indian Observance Day,'' without more information, 
appeared pan-Indian in orientation and standing alone did not provide 
sufficient evidence that the petitioner was a distinct community. Other 
evidence, such as photographs, minutes of limited meetings attended by 
some council members, and environmental efforts attended by the general 
public and a few of petitioner's members were insufficient evidence to 
demonstrate significant social relationships.
    Comments on the PF by two third parties added no significant 
information on community. Wesley Taukchiray detailed his analysis of 
the location or composition of the Tolowa Indian villages in the late 
19th century. He believes that the modern-day petitioner's ancestors 
are ``successors in interest'' to these villages. Mr. Taukchiray did 
not provide any documentation with his submission to support his 
arguments. None of his analysis shows the petitioner's ancestors were a 
community distinct within or from the Smith River and the Elk Valley 
Tribes, or that the petitioner evolved out of those two Tribes.
    Gordon Bonser wrote that he had lived in the Crescent City area 
since the early 1990s and had many friends among the petitioning group. 
Based on his personal experience, he attested to the fact the 
petitioner's members viewed ``themselves as being both Native American 
and Tolowa'' and as ``separate from the Smith River or Elk Valley 
people.'' He provided no documentation to support this opinion and 
contrary evidence in the record outweighs his claims.
    In summary, the evidence for the PF and the FD does not demonstrate 
that the petitioner's ancestors evolved as a community distinct either 
from the Smith River and Elk Valley Tribes or from any other Tolowa 
entity that may have existed before 1908. The evidence does not 
demonstrate that the group's claimed precursor, the DNIWA, was an 
entity that constituted a community distinct from the membership of the 
Smith River and the Elk Valley Tribes from the 1930s to the 1980s, or 
that petitioner's ancestors were distinct within it. Finally, the 
evidence of the petitioner's activities since the 1980s does not 
satisfy the regulations or change the conclusion that the evidence was 
insufficient between 1930 and the 1980s. Thus, the evidence in the 
record is insufficient to demonstrate that the petitioner constituted a 
distinct community.
    The evidence in the record for the PF and the FD is insufficient to 
change the conclusions in the PF. Thus, the Department declines to 
acknowledge the petitioner known as the Tolowa Nation as an Indian 
tribe within the meaning of Federal law. The Department will provide a 
copy of this Federal Register Notice to the petitioner and interested 
parties, and is available to other parties upon written request or as 
posted on the BIA Web site. Those parties wishing a paper copy of the 
FD should address their requests to the Assistant Secretary as 
instructed in the ADDRESSES section of this notice. After the 
publication of this notice in the Federal Register, the petitioner or 
any interested party may file a request for reconsideration with the 
Interior Board of Indian Appeals (IBIA) under the procedures in section 
83.11 of the regulations. The IBIA must receive this request no later 
than 90 days after the publication of this notice in the Federal 
Register. The FD will become effective, as provided in the regulations, 
90 days after the Federal Register publication unless the IBIA receives 
a request for reconsideration within that time.

    Dated: January 24, 2014.
Kevin K. Washburn,
Assistant Secretary--Indian Affairs.
[FR Doc. 2014-01831 Filed 1-29-14; 8:45 am]
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