[Federal Register: December 3, 2007 (Volume 72, Number 231)]
[Notices]
[Page 67948-67951]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03de07-84]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
Proposed Finding Against Acknowledgment of the Juane[ntilde]o
Band of Mission Indians, Acjachemen (Petitioner 84A)
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Notice of Proposed Finding.
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SUMMARY: Pursuant to 25 CFR 83.10(h), the Department of the Interior
(Department) gives notice that the Assistant Secretary--Indian Affairs
(AS-IA) proposes to determine that the Juane[ntilde]o Band of Mission
Indians, Acjachemen Nation (JBA, Petitioner 84A), c/o Anthony
Rivera, Jr., 31411-A La Matanza Street, San Juan Capistrano, California
92675, is not an Indian tribe within the meaning of Federal law.
This notice is based on a determination that the petitioner does
not satisfy all seven of the criteria set forth in Part 83 of Title 25
of the Code of Federal Regulations (25 CFR part 83), specifically
criteria 83.7(a), 83.7(b), 83.7(c), and 83.7(e), and therefore, does
not meet the requirements for a government-to-government relationship
with the United States.
DATES: Comments on this proposed finding (PF) are due on or before June
2, 2008. Publication of this notice of the 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 evidence relied upon in the PF. Interested or
informed parties must provide a copy of their comments to the
petitioner. The regulations, 25 CFR 83.10(k), provide petitioners a
minimum of 60 days to respond to any submissions on the PFs received
from interested and informed parties during the comment period.
ADDRESSES: Comments and requests for a copy of the summary evaluation
of the evidence should be addressed to the Office of the Assistant
Secretary--Indian Affairs, Attention: Office of Federal Acknowledgment,
1951 Constitution Avenue, NW., Mail Stop 34B-SIB, Washington, DC 20240.
FOR FURTHER INFORMATION CONTACT: R. Lee Fleming, Director, Office of
Federal Acknowledgment, (202) 513-7650.
SUPPLEMENTARY INFORMATION: The Department publishes this notice in the
exercise of authority that the Secretary of the Interior delegated to
the AS-IA by 209 DM 8. The JBA petitioner is located in the town of San
Juan Capistrano, Orange County, California, approximately 40 miles
south of Los Angeles and 20 miles south of the town of Santa Ana.
A group known as the Juane[ntilde]o Band of Mission Indians (JBM)
submitted a letter of intent to petition for Federal Acknowledgment as
an Indian tribe to the AS-IA. The Department received the letter of
intent on August 17, 1982. The Department designated the JBM as
Petitioner 84. The JBM submitted its first documentation that
included a narrative entitled ``Petition for Federal Recognition of the
Juane[ntilde]o Band of Mission Indians in Compliance with CFR Part
83,'' as well as photocopies of documents discussed in the JBM
petitioner's narrative. The Department received this material on
February 2, 1988. The group claimed to descend from the historical
Indian tribe of San Juan Capistrano (SJC) Mission, formed from
residents of a pre-contact network of politically autonomous villages
prior to Spanish colonization who spoke a Uto-Aztecan language.
The Department conducted an initial technical assistance (TA)
review of the petition and sent an obvious deficiency (OD) letter dated
January 25, 1990, to the JBM. The JBM responded to the first OD letter
on September 24, 1993, when it submitted additional materials and
requested to be placed on the ``Ready, Waiting for Active
Consideration'' (``Ready'') list. The Department placed JBM on the
``Ready'' list on September 24, 1993.
An election in 1993 resulted in a dispute within the JBM. A group
of members led by Sonia Johnston challenged the results of the election
and the leadership of the chairman David Belardes. On December 17,
1994, the Johnston-led group held an election and elected Sonia
Johnston chairperson. Belardes and Johnston simultaneously claimed to
be the chairperson of the JBM. The Department removed the JBM from the
``Ready'' list on May 19, 1995, pending revision of the JBM membership
list, because of the petitioner's stated intent to substantially revise
its membership roll, making it not ready for evaluation. Following the
submission of the revised membership list, the JBM, in a letter signed
by Davis Belardes, requested the Department to place it on the ``Ready
for Active Consideration'' list, and the Department determined that the
Belardes-led group was ready for evaluation on February 12, 1996.
On February 17, 1996, another group submitted a letter of intent to
petition, signed by Sonia Johnston. Both groups claimed to be the
legitimate successor of the JBM, both claimed the JBM petition
narrative and research materials, and both used similar names (the
Johnston-led group used the name ``The Juane[ntilde]o Band of Mission
Indians,'' while the Belardes-led group used ``The Juane[ntilde]o Band
of Mission Indians, Acjachemen Nation''). The Department designated the
Belardes-led group Petitioner 84A (JBA), and the Johnston-led
group Petitioner 84B (JBB). The Department placed the JBB
petitioner on the ``Ready'' list on May 23, 1996.
Another election within the JBA on April 19, 1997, resulted in the
election of Jean Frietze as chairperson. David Belardes, however,
disputed the election results. Both Jean Frietze and David Belardes
claimed to be the legitimate leader of the JBA. On September 22, 1997,
David Belardes requested ``interested party'' status if Jean Frietze
were to form a ``new'' group. At the same time, he requested
``interested party'' status to the JBB petitioner. Neither the
Belardes-led group nor the Frietz-led group submitted a separate letter
of intent to petition. The Department determined that the disagreement
over leadership was an internal issue. The Department takes no part in
the internal disputes of petitioning groups.
In 1998, 1999, and 2000, the JBA submitted additional documents
including ones related to the disputed April 19, 1997, election and
subsequent formation of a separate Belardes-led group. The JBA
petitioner under the new leadership of Anthony Rivera, Jr.,
[[Page 67949]]
submitted new materials to OFA in April 2005, including a summary of
documents the petitioner claimed supported its petition, as well as a
new membership roll. In a letter dated July 19, 2005, the JBB requested
that the AS-IA waive the regulations so that the JBA and the JBB could
be considered simultaneously. On August 5, 2005, the Department
responded that it would consider this request. OFA also conducted an
informal TA meeting with JBA on August 29, 2005, in Washington, DC, and
requested additional documentation.
The Department waived the priority provisions of the regulations at
25 CFR 83.10(d) in order to consider the petition of JBA at the same
time as the petition of JBB. Both petitioners went on ``Active
Consideration'' on September 30, 2005. However, David Belardes still
claimed to be the leader of Petitioner 84A. The Department
assigned the Belardes-led group (JBMI-IP) ``interested party'' status
when the JBA and JBB went on ``Active Consideration'' status on
September 30, 2005. This action was consistent with Belardes' previous
request for interested party status for both the JBA and the JBB.
The Department received comments from other parties after the
submission deadline. Consistent with the Federal Register notice of
March 31, 2005 (70 FR 16513), the Department will consider these
comments for the final determination (FD).
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. The JBA petitioner did not satisfy criteria 83.7(a), 83.7(b),
83.7(c), and 83.7(e). The JBA petitioner satisfied criteria 83.7(d),
83.7(f), and 83.7(g).
Criterion 83.7(a) requires that the petitioner be identified as an
American Indian entity on a substantially continuous basis since 1900.
The evidence does not demonstrate that external observers identified
the petitioning group or a group antecedent to the JBA petitioner as an
Indian entity on a substantially continuous basis from 1900 to 1997. An
identification of a group in the 1930's and identifications at least
from 1959 to 1965 of groups Clarence Lobo headed have not been
demonstrated to be identifications of the same entity as the JBA
petitioner and do not constitute substantially continuous
identification of an Indian entity. There were identifications of the
similarly named JBM organization between 1979 and 1994. However, the
JBA petitioner has a membership substantially different from JBM and
one that has been much larger than JBM. Because the JBA petitioner is
nearly contemporaneous with the JBM, has a substantially different
membership, and other evidence does not show continuity in community or
political influence between the JBM and the JBA petitioner, the
identifications of the JBM between 1979 and 1994 cannot be considered
identifications of the JBA petitioner. For the period since 1997,
external observers have identified the JBA petitioner as an Indian
entity. Therefore, the JBA meets the requirements of criterion 83.7(a)
only from 1997 to the present.
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. The available
evidence does not demonstrate that the petitioner evolved from the
historical SJC Indian tribe that lived at SJC Mission between 1776 and
1834. The petitioner's ancestors derive from the general population of
residents of the town of SJC in the mid-19th century, which included
non-Indians, individual SJC Indians, and non-SJC Indians. While some
members of the current JBA petitioner do have SJC Indian ancestry,
there is no evidence that the SJC Indian ancestors were part of an
Indian entity that evolved from the SJC Indian tribe in 1834; rather,
they appear to be Indian individuals who became part of the general,
ethnically-mixed population. Some of the JBA petitioner's non-Indian
and non-SJC Indian ancestors moved to the town of SJC during the
mission period (1776-1834), arrived there soon after the 1834
secularization of the mission, or migrated to California around the
time of the 1849 Gold Rush. Some of these ancestors established social
relationships with SJC Indian descendants, including serving as
godparents and confirmation sponsors. Some of these ancestors later
married or entered into relationships with descendants of SJC Indians
and established kin ties.
The current composition of the JBA petitioner mirrors the
composition of the mid-19th century general population of the town and
differs from the JBB petitioner. The JBA group includes more of the
lifelong residents of SJC town who claim descent from the historical
SJC Indian tribe. The JBA group also includes more claimed SJC Indian
descendants who maintained contact with people in the town even after
they moved away. In contrast, the JBB group includes primarily members
who claim descent from the historical SJC Indian tribe, but whose
ancestors left the town decades ago and do not appear to have
maintained contact with those who remained in the town, outside of a
few close family members.
There is insufficient evidence in the record to establish that a
predominant portion of the ancestors of the petitioning group comprised
a continuous community distinct from the other residents of SJC prior
to 1920 and the establishment of the Mission Indian Federation (MIF).
From 1920 to 1964, some of the petitioner's ancestors (and some living
members) took part in a variety of activities related to the settlement
of the 1928 Claims Act, particularly those organized by non-Indian
Marcos H. Forster and SJC Indian descendant Clarence Lobo, but the
evidence indicates that most of this interaction was limited to the
claims activities. There is no evidence in the record of any
organization of members between the 1964 settlement of the claims issue
and the 1975 establishment of the Capistrano Indian Council (CIC), and
little evidence that JBA members residing outside of SJC participated
in the CIC organization or associated with any town residents other
than close relatives. There is some evidence of social interaction and
communication among some JBM members, especially those involved in
archaeological site monitoring, between 1978 and 1995. This evidence
occurred predominantly within the realm of the JBM organization and
does not demonstrate the widespread significant interactions required
to demonstrate the existence of a community under 83.7(b). The JBA
petitioner has not explained the inclusion in the membership of many
new people and families with no former connection to the JBM after the
separation of the JBB and the formation of the JBA, or explained the
absence of many of the former JBM members who are no longer present on
the JBA group's membership lists (and who do not appear as members of
the JBB or JBMI-IP). The JBA experienced another substantial change in
membership when the JBMI-IP formed a group in 1997. The fluctuations in
membership also demonstrate that the JBA is not the JBM under a
different name, as the membership of the JBA has changed dramatically,
and no other evidence demonstrates that a cohesive continuing social
community remained in place throughout these membership fluctuations.
From 1995 to the present, there is insufficient evidence that the
petitioner's members comprise a distinct community. The historical SJC
Indian tribe would meet this criterion until 1834, but the JBA
petitioning
[[Page 67950]]
group has not demonstrated that it meets the requirements of the
criterion since 1834. Therefore, the JBA does not meet the requirements
of criterion 83.7(b) at any time from 1834 to the present.
Criterion 83.7(c) requires that the petitioner maintain political
influence or authority over its members as an autonomous entity from
historical times until the present. The evidence in the record
demonstrates that the JBA petitioner is not a continuation of the
historical SJC Indian tribe present at the SJC Mission until 1834. Only
a portion of the petitioner's members have demonstrated descent from
Indians of the historical SJC Indian tribe, and these individuals
appear to have left the historical SJC Indian tribe as individuals,
often before 1834. There is also no available evidence from the early
statehood period which demonstrates by a reasonable likelihood that
representatives of a political entity of descendants from the
historical SJC Indian tribe signed any of the 1852 unratified treaties.
The petitioner did not present sufficient evidence of formal or
informal leadership within an Indian group of which its ancestors were
part during the late 19th century or early 20th century. The formation
of the umbrella organization of the MIF in 1920 appears to have served
as a catalyst for the organization of the local SJC MIF chapter.
However, the information provided about the SJC MIF chapter indicates
that it functioned predominantly as a claims organization, and does not
indicate that the claims were of importance to the petitioner's
ancestors prior to the founding of the MIF. There is no evidence in the
petition to indicate that the leadership of the SJC chapter of the MIF
addressed diverse issues of immediate importance to its membership.
Evidence in the record related to claimed SJC leader Clarence
Lobo's activities in the late 1940's through the mid-1960's provides
little evidence of a bilateral political relationship between Lobo and
the undefined group of people claiming to be SJC Indian descendants.
His activities also appear to focus almost exclusively on claims
activities, and in this regard, his advocacy on behalf of pan-Indian
organizations and a discrete group of Indian descendants in the town of
SJC is sometimes uncertain. The record included no evidence of Clarence
Lobo's leadership outside of his involvement with a number of pan-
Indian organizations and the California claims issues. Lobo himself
complained that few SJC claimants joined him in his political
activities, although some claimants provided limited financial support
for his claims work. There is little evidence that SJC Indian claimants
influenced or informed Lobo's actions.
The record presents no evidence of any formal political activity
between the settlement of the California Claims in 1964 and the
establishment of the CIC. There is also no indication of any informal
leadership during this time. After the 1975 establishment of the CIC,
an organization which included non-Indians and non-SJC Indians, some
information showed limited political organization among some of the SJC
residents claiming to be SJC Indian descendants. However, the evidence
indicated very little participation in the organization of people who
lived outside the town, and there is no indication that the people
outside of SJC formed any parallel organizations of their own. From
1975 until 1978, the CIC appears to have politically influenced some of
the residents of the town of SJC. The JBM, which first organized in
1978 as a part of the CIC, quickly became a separate organization. From
1978 until approximately 1989, the JBM and CIC provided some
leadership. These organizations appear to have represented two
populations (with little crossover): The JBM was composed predominantly
of those who lived outside the town of SJC, while the CIC was composed
of those who lived inside the town of SJC. The 1989 change in
leadership (from Raymond Belardes to his cousin, SJC town resident
David Belardes) and the JBM involvement in the Floyd Nieblas dispute
with the administration of the Catholic Church located at the
historical SJC Mission in 1990 does appear to have opened a door of
membership to local CIC members not previously identified as members of
the JBM organization. From approximately 1990 to 1996, the JBM
demonstrated some influence over its members, both inside and outside
of the town of SJC, but rates of participation in its activities and
decision-making were exceedingly low. This influence continued until a
group of members under the leadership of Sonia Johnston separated in
1996. Both groups claimed to be JBM, and the Department designated the
group under David Belardes as ``JBA'' and the Johnston-led group as
``JBB.'' In 1997, the JBMI-IP then separated from the JBA. From 1996
until the present, the JBA petitioner has not demonstrated political
influence over its members that satisfies the requirements of the
regulations. The historical SJC Indian tribe would meet this criterion
until 1834, but the JBA petitioner has not demonstrated that it meets
the requirements of the criterion since 1834. Further, it has not
demonstrated political authority within such a continuously existing
entity at any time since 1834. Therefore, the JBA does not meet the
requirements of criterion 83.7(c) at any time from 1834 to the present.
Criterion 83.7(d) requires that the petitioner provide a copy of
the group's present governing document including its membership
criteria. The JBA petitioner submitted a copy of its governing document
which includes its membership criteria. Therefore, the JBA petitioner
meets the requirements of criterion 83.7(d).
Criterion 83.7(e) requires that the petitioner's membership
consists of individuals who descend from a historical Indian tribe or
from historical Indian tribes which combined and functioned as a single
autonomous political entity. The November 28, 2005, JBA membership list
included 1,640 living, adult members. The list did not include minors
under age 18. The evidence in the record demonstrates that most of the
the JBA petitioner's members claim descent only from individuals who
were not part of the historical Indian tribe at Mission SJC as it
existed between 1776 and 1834. This PF finds that only 2 percent (37 of
1,640) of JBA members have actually demonstrated descent from one of
the Indians of the historical SJC Indian tribe. Therefore, because the
JBA petitioner's membership does not consist of individuals who descend
from the historical SJC Indian tribe in 1834 (98 percent have not
demonstrated descent), JBA does not meet the requirements of criterion
83.7(e).
Criterion 83.7(f) requires that the membership of the petitioning
group be composed principally of persons who are not members of any
acknowledged North American Indian tribe. A review of the membership
rolls of those mission Indian tribes in California that would most
likely include the JBA petitioner's members revealed that the JBA
membership is composed principally of persons who are not members of
any acknowledged North American Indian tribe. Therefore, the JBA meets
the requirements of criterion 83.7(f).
Criterion 83.7(g) requires that neither the petitioner nor its
members be the subject of congressional legislation that has expressly
terminated or forbidden the Federal relationship. No evidence has been
found to indicate that the JBA petitioner was the subject of
congressional legislation to terminate or prohibit a Federal
relationship as an Indian tribe. The JBA petitioner meets the
requirements of criterion 83.7(g).
[[Page 67951]]
Based on this preliminary factual determination, the Department
proposes not to extend Federal Acknowledgment as an Indian tribe under
25 CFR part 83 to the JBA petitioner known as the Juane[ntilde]o Band
of Mission Indians, Acjachemen Nation.
As provided by 25 CFR 83.1(h), a report summarizing the evidence,
reasoning, and analyses that are the basis for the PF will be provided
to the petitioner and interested parties, and is available to other
parties upon written request.
Comments on the PF and/or requests for a copy of the summary
evaluation of the evidence should be addressed to the Office of the
Assistant Secretary--Indian Affairs, Attention: Office of Federal
Acknowledgment, 1951 Constitution Avenue, NW., Mail Stop 34B-SIB,
Washington, DC 20240.
Comments on the PF should be submitted within 180 calendar days
from the date of publication of this notice. Comments by interested and
informed parties must be provided to the petitioner as well as to the
Federal Government (83.10(h)). After the close of the 180-day comment
period, the petitioner has 60 calendar days to respond to third-party
comments (83.10(k)).
After the expiration of the comment and response periods described
above, the Department will consult with the petitioner concerning
establishment of a schedule for preparation of the FD. The AS-IA will
publish the FD of the petitioner's status in the Federal Register as
provided in 25 CFR 83.10(1), at a time that is consistent with that
schedule.
On November 23, 2007, the AS-IA Carl J. Artman, approved the
Proposed Finding Against Acknowledgment of the Juane[ntilde]o Band of
Mission Indians, Acjachemen Nation (Petitioner 84A). On
November 26, 2007, he authorized his acting AS-IA to approve this
Federal Register notice.
Dated: November 26, 2007.
Debbie Clark,
Acting Assistant Secretary--Indian Affairs.
[FR Doc. E7-23360 Filed 11-30-07; 8:45 am]
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