[Federal Register: December 3, 2007 (Volume 72, Number 231)]
[Notices]
[Page 67951-67954]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03de07-85]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
Proposed Finding Against Acknowledgment of the Juaneno Band of
Mission Indians (Petitioner 84B)
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) notice is hereby given that the Assistant Secretary,
Indian Affairs (AS-IA) proposes to determine that the Juaneno Band of
Mission Indians (Petitioner 84B, JBB), c/o Joe Ocampo, 1108
East Fourth Street, Santa Ana, California 92701, and c/o Bud Sepulveda,
P.O. Box 25628, Santa Ana, California 92799, is not an Indian tribe
within the meaning of Federal law. Due to the group's recent internal
leadership conflict, this notice is addressed to both individuals who
claim to be its leader. The Department has not addressed this dispute
in this proposed finding (PF). These individuals hopefully will resolve
this conflict by the time of the final determination (FD).
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 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 JBB petitioner is located in the town of
Santa Ana, Orange County, California, approximately 25 miles south of
Los Angeles and 20 miles north of the town of San Juan Capistrano.
A group known as the Juaneno 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
Juaneno 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, consisting of 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
(Petitioner 84) from the ``Ready'' list on May 19, 1995,
pending revision of the JBM's membership list, because of the
petitioner's stated intent to revise substantially its membership roll,
making it not ready for evaluation. Following the submission of the
revised membership list, the JBM, in a letter signed by David Belardes,
requested the Department to place it on the ``Ready'' 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-
[[Page 67952]]
led group used the name ``The Juaneno Band of Mission Indians,'' while
the Belardes-led group used ``The Juaneno Band of Mission Indians,
Acjachemen Nation''). The Department designated the Johnston-led group
Petitioner 84B (JBB) and the Belardes-led group Petitioner
84A (JBA). The Department placed the JBB petitioner on the
``Ready'' list on May 26, 1996.
On April 19, 1997, the JBA experienced a contested election,
resulting in the formation of two groups, one led by David Belardes and
the other by Jean Frietze, both of whom claimed to be the legitimate
leader of Petitioner 84A (JBA). On September 22, 1997, David
Belardes requested ``interested party'' status if Jean Frietze were to
form a ``new'' group, and also requested ``interested party'' status to
the JBB petitioner. Neither the Belardes-led group nor the Frietze-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.
The JBB submitted material in March 1996, and OFA conducted a
technical assistance (TA) review of these documents. OFA sent a TA
review letter to JBB on May 15, 1996. This letter identified obvious
deficiencies in the JBB's submitted materials. In 2004, the JBB
submitted additional materials in response to the 1996 TA review
letter. OFA considered the petitioner ready for evaluation and placed
it on the ``Ready'' list effective May 23, 1996, following the
petitioner's written request of May 31, 1996. In a letter dated July
19, 2005, the JBB requested that the AS-IA waive the regulations so
that the JBB and JBA could be considered simultaneously. On August 5,
2005, the Department responded that it would consider this request. OFA
also conducted informal TA with the JBB on September 6, 2005, by
telephone.
The Department waived the priority provisions of the regulations at
25 CFR 83.10(d) in order to consider the petition of Petitioner
84B (JBB) at the same time as the petition of Petitioner
84A (JBA). 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 JBB
and JBA went on ``Active Consideration'' status on September 30, 2005.
This action was consistent with David Belardes' previous request for
``interested party'' status for both the JBB and the JBA.
On November 21, 2005, JBB submitted a letter requesting a temporary
suspension of consideration of its petition in order to secure
additional documentation. This suspension was not granted.
On November 27, 2005, JBB timely submitted new materials to its
petition. 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 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 JBB petitioner did not satisfy criteria 83.7(a), 83.7(b),
83.7(c), and 83.7(e). The JBB 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 available evidence does not demonstrate that external observers
identified the petitioning group or a group antecedent to the JBB
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 JBB 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 JBB petitioner has a membership substantially
different from JBM and one that has been much larger than JBM. Because
the JBB 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
JBB petitioner, the identifications of the JBM between 1979 and 1994
cannot be considered identifications of the JBB petitioner. For the
period since 1997, external observers have identified the JBB
petitioner as an Indian entity. Therefore, the JBB petitioner 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
the 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 JBB 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 JBB 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 JBB petitioner mirrors the
composition of the mid-19th century general population of the town and
differs from the JBA petitioner. The JBB group includes primarily
members who claim descent from the historical SJC Indian tribe, but
whose ancestors left the town many years ago and do not appear to have
maintained contact with those who remained in the town, outside of
close family members. In contrast, the JBA group includes more of the
lifelong residents of SJC town. These residents claim to be descendants
of 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.
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
[[Page 67953]]
between the 1964 settlement of the claims issue and the 1975
establishment of the Capistrano Indian Council (CIC), and little
evidence that members 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 JBB
petitioner has not explained the inclusion of many new people and
families with no former documented connection to the JBM, after the
group separated from the JBM in 1996, or has it explained the absence
of some of the other JBM members who are no longer present on the JBB
group's membership lists (other than those who are now members of the
JBA or JBMI-IP). The fluctuations in membership also demonstrate that
the JBB is not the JBM under a different name, as the membership of the
JBB has changed dramatically and no other evidence demonstrates that a
cohesive continuing social community remained in place throughout these
membership fluctuations. From 1996 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 JBB petitioning group has not demonstrated that it
meets the requirements of the criterion since 1834. Therefore, the JBB
petitioner 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 JBB petitioner is not a continuation of the
historical SJC Indian tribe present at 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 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 member 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
Johnston-led group as ``JBB'' and the group under David Belardes as
``JBA.'' From 1996 until the present, the JBB 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 JBB 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
JBB petitioner 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 JBB petitioner submitted a copy of its current governing
document which includes its membership criteria. Therefore, the JBB
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, JBB membership list
included 908 living adult members. The JBB petitioner indicated that
nearly 600 of its members did not appear on the membership list
submitted for this PF. The evidence in the record demonstrates that
most of the
[[Page 67954]]
JBB 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 4 percent (36 of 908) of
JBB members have actually demonstrated descent from one of the Indians
of the historical SJC Indian tribe. Therefore, because the petitioner's
membership does not consist of individuals who descend from the
historical SJC Indian tribe in 1834 (96 percent have not sufficiently
demonstrated descent), JBB petitioner 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 JBB petitioner's members revealed that the JBB
membership is composed principally of persons who are not members of
any acknowledged North American Indian tribe. Therefore, the JBB
petitioner 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 JBB petitioner was the subject of
congressional legislation to terminate or prohibit a Federal
relationship as an Indian tribe. The JBB petitioner meets the
requirements of criterion 83.7(g).
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 JBB petitioner known as the Juane[ntilde]o Band
of Mission Indians.
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 for 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 (Petitioner 84B). 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. E7-23361 Filed 11-30-07; 8:45 am]
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