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 ( print 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. ( print 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 .