June 18, 2010

Final Determination for Federal Acknowledgment of the Shinnecock Indian Nation

SUMMARY: The Department of the Interior (Department) gives notice that the Acting Principal Deputy Assistant Secretary-Indian Affairs (PDAS- IA) has determined the Shinnecock Indian Nation is entitled to be acknowledged as an Indian tribe within the meaning of Federal law. This notice is based on a determination that affirms the reasoning, analysis, and conclusions in the Proposed Finding (PF). The petitioner satisfies the seven mandatory criteria for acknowledgment set forth in the applicable regulations, and therefore, meets the requirements for a government-to-government relationship with the United States. This notice is the Final Determination (FD). Based on the limited nature and extent of comment and consistent with prior practices, the Department did not produce any detailed report or other summary under the criteria pertaining to this FD.
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[Federal Register: June 18, 2010 (Volume 75, Number 117)]
[Notices]               
[Page 34760-34765]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18jn10-88]                         


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

 
Final Determination for Federal Acknowledgment of the Shinnecock 
Indian 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 Acting Principal Deputy Assistant Secretary-Indian Affairs (PDAS-
IA) has determined the Shinnecock Indian Nation is entitled to be 
acknowledged as an Indian tribe within the meaning of Federal law. This 
notice is based on a determination that affirms the reasoning, 
analysis, and conclusions in the Proposed Finding (PF). The petitioner 
satisfies the seven mandatory criteria for acknowledgment set forth in 
the applicable regulations, and therefore, meets the requirements for a 
government-to-government relationship with the United States. This 
notice is the Final Determination (FD). Based on the limited nature and 
extent of comment and consistent with prior practices, the Department 
did not produce any detailed report or other summary under the criteria 
pertaining to this FD.

DATES: This determination is final and will become effective 30 days 
from publication of this notice in the Federal Register on July 19, 
2010, unless the petitioner or an interested party files within 30 days 
of this notice a request for reconsideration pursuant to 25 CFR 83.11.

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

SUPPLEMENTARY INFORMATION: Pursuant to 25 CFR 83.10(h), the Department 
publishes this notice in the exercise of authority delegated by the 
Secretary of the Interior to the Assistant Secretary--Indian Affairs 
(AS-IA) by 209 DM 8. The AS-IA delegated authority to sign certain 
Federal acknowledgment findings, including this FD, to the PDAS-IA on 
June 4, 2009, to avoid the appearance of any possible conflict of 
interest. The Department issued a PF to acknowledge the Shinnecock 
Indian Nation, Petitioner 4, on December 14, 2009, and 
published notice of that preliminary determination in the Federal 
Register on December 21, 2009. This FD affirms the PF that the 
Shinnecock Indian Nation, P.O. Box 5006, Southampton, NY 11969-0751, c/
o Messrs. Lance Gumbs, Randall King, and Gordell Wright, satisfies the 
seven mandatory criteria for acknowledgment as an Indian tribe.
    The issuance of this FD complies with the June 18, 2010, deadline 
set by the settlement agreement that the petitioner and the Department 
negotiated and the Federal District Court approved by order on May 26, 
2009, in Shinnecock v. Salazar, No. CV-06-5013, 1 (E.D.N.Y.). The 
settlement agreement controls whenever the schedule for processing the 
Shinnecock petition under this agreement differs from the timelines 
provided by the regulations in 25 CFR part 83. The settlement agreement 
shortened the 180-day comment period provided in the regulations at 
Sec.  83.10(i) to 90 days; hence, the comment period closed March 22, 
2010. Neither the Shinnecock petitioner nor other parties asked for an 
on-the-record technical assistance meeting under Sec.  83.10(j)(2) or 
to extend the comment period to 180 days. The petitioner submitted 
comments certified by its Board of Trustees; however, no third parties 
submitted comments on the PF during the comment period. Under the 
settlement agreement the petitioner did not have a response period 
because no interested or informed party submitted comment.
    As part of a consultation process provided by the settlement 
agreement, the Department wrote a letter to the group's trustees on 
April 2, 2010, followed by a telephone call to their counsel. These 
communications informed the petitioner that the Department planned to 
begin active consideration of its comments on April 19, 2010, and to 
issue a FD on or before Friday, June 18, 2010. The petitioner did not 
object to this schedule. Accordingly, the Department began the 60-day 
period for issuing a FD on April 19, 2010.
    The petitioner's comments included a 9-page cover letter signed by 
the group's attorney with 71 pages of exhibits. It also contained a 73-
page report with 45 exhibits by the petitioner's consulting historian 
disputing the PF's conclusion that the petitioner did not qualify for 
processing under the unambiguous previous Federal acknowledgment 
provision in Sec.  83.8 of the acknowledgment regulations. A second 
report (``Comment'') by the group's consulting anthropologist, 
commenting on issues under Sec.  83.7, consisted of 46 pages, of which 
12 pages pertained to criterion Sec.  83.7(b) and the remaining 34 
pages concerned criterion Sec.  83.7(e). The second report included 21 
exhibits. In addition, the petitioner submitted membership and 
genealogy updates in electronic form. These items included an updated 
and separately certified Family Tree MakerTM (FTM) 
genealogical database of the petitioner's members and their ancestry as 
well as a Microsoft AccessTM database containing tables of 
all current members, re-enrolled members, current members who had been 
represented as ``potential'' members in the PF materials, and deceased 
members.
    This FD reviews and considers the petitioner's argument and 
evidence submitted as comments along with the record for the PF. Most 
of the exhibits included in the petitioner's comments that did not 
concern enrollment contained the same, similar, or related documents 
already in the record for the PF and proffered arguments already 
considered in the PF. Because the PF addressed in detail these 
documents and arguments, this FD must be read in conjunction with the 
PF.
    This FD considers the petitioner's submissions to determine if they 
change the Department's reasoning, analysis, and conclusions under 
Sec.  83.7 and regarding Sec.  83.8. The petitioner's comments raise 
legal issues already responded to in other documents prior to the PF, 
attempt to rebut a small number of factual conclusions in the PF, and 
provide limited new analyses. After considering the petitioner's 
comments, this FD concludes that the materials submitted for the FD 
contain essentially the same evidence as the petitioner provided 
previously and do not merit revision of the reasoning, analysis, and 
conclusions in the PF. This FD modifies only a few specific findings in 
the PF concerning criterion Sec.  83.7(e), but these revised 
calculations, based on updated and newly submitted membership 
information, do not change the overall conclusions of the PF that the 
petitioner meets all seven mandatory criteria. This FD affirms the PF.
    Unambiguous Previous Federal Acknowledgment: Previous Federal 
acknowledgment means, ``action by the Federal Government clearly 
premised on identification of a tribal political entity and indicating 
clearly the recognition of a relationship between that entity and the 
United States'' (Sec.  83.1). The preamble to the 1994 regulations 
states, ``the regulations require that previous acknowledgment be 
unambiguous and clearly premised on acknowledgment of a government-to-
government relationship with the United States'' (59 FR 9283). This FD 
finds that evidence in the record does not show that the Federal 
Government established, by its actions, a relationship between the 
United States and the petitioner as an Indian tribe at any time.
    In its comments concerning previous acknowledgment, the petitioner

[[Page 34761]]

revisited the Thomas v. Hendricks trespass litigation of 1936-1937 that 
was reviewed in the PF (Shinnecock PF, Appendix A, 18-19), providing 
additional biographical detail about Charles C. Daniels, a special 
assistant to the U.S. Attorney General, and the nature of his 
involvement in the Hendricks case. This evidence further corroborates 
conclusions in the PF that Daniels was authorized only to assist the NY 
Attorney General in the Hendricks case, that Daniels requested to 
participate ``without making an appearance or intervening in the 
action'' (Daniels 12/28/1936) to which the Department concurred 
(Chapman 2/4/1937), and that the United States did not bring suit on 
behalf of a Shinnecock tribal entity. This evidence of limited 
involvement contrasts with the role of the U.S. Department of Justice 
in bringing suit on behalf of the Burt Lake Indians from 1911 to 1917 
(United States of America v. John W. McGinn and A. L. Agate; Burt Lake 
Band FD, 8). The evidence submitted in the petitioner's comments 
strengthens and affirms the PF's conclusions that the litigation 
materials do not demonstrate unambiguous previous Federal 
acknowledgment.
    In its comments concerning Sec.  83.8, the petitioner also 
revisited correspondence involving officials at the Department of the 
Interior during the late 1930s and early 1940s, Felix Cohen's 
``Handbook of Federal Indian Law'', the 1914 Reeves Report, the 
``Clancy Bill'' (H.R. 18735, 63rd Congress, 1914), the annual report of 
the Commissioner of Indian Affairs in 1915, the Criminal Jurisdiction 
Act of 1948, and the Civil Jurisdiction Act of 1950. The PF addressed 
this evidence with respect to Sec.  83.8 (Shinnecock PF, 14; Appendix 
A, 9-14, 16-18, 22-23). As explained in the PF and confirmed here, 
these materials, when placed in context of the complete record, provide 
evidence that the Department was aware of the Shinnecock of Long Island 
and held internal discussions as to whether the Department should 
establish a Federal relationship with them, but the Department took no 
action to do so. As the PF discussed in detail, during this same 
period, the Federal Government explicitly rejected the opportunity to 
establish a relationship with the petitioner, sometimes stating that 
the petitioner was the State of New York's responsibility (Shinnecock 
PF, 17). Nothing in this evidence now alters the Department's earlier 
detailed analysis and conclusions regarding these same materials in the 
PF.
    The comments also argued against acknowledgment precedent and the 
standard used in interpreting evidence under Sec.  83.8, issues that 
were addressed in correspondence from the Department before the PF and 
in the PF. Nothing in this argument alters the Department's analysis 
and conclusions regarding Sec.  83.8.
    The petitioner's comments, combined with the rest of the argument 
and evidence in the record, do not provide evidence of previous 
unambiguous Federal acknowledgment and the reasoning, analysis, and 
conclusions pertaining to Sec.  83.8 in the PF are affirmed. Therefore, 
the petitioner will be evaluated under the requirements of the 
mandatory acknowledgment criteria Sec.  83.7(a) through (g) without 
modification by the provisions of Sec.  83.8(d).
    Historical Indian Tribe: The petitioner's comments maintained that 
the Department's identification of the historical Shinnecock Indian 
tribe in the PF was inconsistent (Comment, 12-16). To be clear, the PF 
determined that the Shinnecock Indians of the Shinnecock leasehold in 
1789 is the historical Indian tribe from which the Department evaluated 
continuous tribal existence. To allow for the inclusion of available 
documents from before and after this specific year in the analysis, the 
PF sometimes referred to the historical Indian tribe as it existed in 
the late 18th century, especially from 1792 to 1800, a period when the 
some of the group's members were named and their specific activities 
were documented. The PF stated, ``[t]his PF treats the Indian 
population on or associated with the Shinnecock leasehold in the late 
18th century as the `historical Indian tribe' '' (Shinnecock PF, 10).
    The petitioner's comments implied that the PF sometimes treated the 
group in 1865 as the historical Indian tribe, rather than the 1789 
Indian tribe as the historical Indian tribe. This comment is 
inaccurate. For purposes of demonstrating descent from the historical 
Indian tribe in 1789 for Sec.  83.7(e), the PF used an 1865 New York 
State census as the earliest complete list of reservation residents. 
The PF noted that this practice of using a list with a later date than 
1789 or the date of ``first contact'' is consistent with precedent and 
the explanation in the preamble to the 1994 regulations. It stated that 
the regulations ``have not been interpreted to require tracing ancestry 
to the earliest history of a group'' (Shinnecock PF, 13), and that, 
``for most groups, ancestry need only to be traced to rolls and/or 
other documents created when their ancestors can be identified clearly 
as affiliated with the historical tribe'' (59 FR 9288). Other documents 
discussed in detail in the PF, especially in sections dealing with 
criteria Sec.  83.7(a) and (c), identified, described, and located the 
historical Indian tribe from 1789 to 1865.
    Evaluation under the Criteria: Criterion Sec.  83.7(a) requires 
that external observers have identified the petitioner as an American 
Indian entity on a substantially continuous basis since 1900. None of 
the petitioner's comments explicitly referred to the PF's conclusions 
under criterion Sec.  83.7(a). The petitioner meets criterion Sec.  
83.7(a) based on the summary findings in the PF. This FD affirms the PF 
under criterion Sec.  83.7(a).
    Criterion Sec.  83.7(b) requires that a predominant portion of the 
petitioning group has comprised a distinct community since historical 
times. The petitioner met this criterion in the PF. No new evidence 
under criterion Sec.  83.7(b) was submitted; however, the petitioner 
provided a new partial analysis and argument concerning ``extant'' 
marriages between 1800 and 1910 (Comment, 5-9) and charted ``Kinship 
Relations of [specific] Households'' on the 1850 Federal census of 
Shinnecock Neck as evidence described in Sec.  83.7(b)(2)(i) and (ii) 
(Exh. 126). The petitioner also compiled a list of seven categories of 
identifications between 1792 and 1865 of Shinnecock as evidence 
described in Sec.  83.7(b)(1)(vii) (Comment, 2-3).
    The comments implied that these submissions were in response to 
information requested in the PF concerning a demonstrable lack of 
evidence of generation-to-generation genealogical links of Shinnecock 
members during this period (Comment, 1-2). Such information, although 
not needed to meet any of the criteria, would further define lines of 
descent between early 19th century and 1865 reservation populations 
under Sec.  83.7(e) (Shinnecock PF, 59).
    The PF did not request evidence to demonstrate criterion Sec.  
83.7(b). Because the petitioner meets criterion Sec.  83.7(b) utilizing 
``crossover'' evidence from criterion Sec.  83.7(c) at Sec.  
83.7(b)(2)(v), it is not necessary to reanalyze the evidence to 
demonstrate the petitioner meets criterion Sec.  83.7(b) or to 
explicate how the petitioner might meet criterion Sec.  83.7(b) using 
evidence listed under Sec.  83.7(b)(1) or (b)(2)(i)-(iv). Evaluation of 
the comments by the Department does not change the overall conclusions 
of the PF that the petitioner meets criterion Sec.  83.7(b). Therefore, 
this FD affirms the reasoning, analysis, and conclusion of the PF under 
criterion Sec.  83.7(b).
    In the case of the Shinnecock petition, only evidence of the type 
described at

[[Page 34762]]

Sec.  83.7(c)(2)(i) to show that the petitioner ``allocate[d] group 
resources such as land, residence rights and the like on a consistent 
basis'' from 1789 to the present was used for the petitioner to meet 
both criteria Sec.  83.7(b) and (c) (Shinnecock PF, 29). The PF 
provided a general discussion of the community historically and at 
present only for purposes of identifying the community allocating these 
resources, not for purposes of evaluating evidence described at Sec.  
83.7(b)(1) or (b)(2)(i)-(iv) to directly demonstrate social community 
(Shinnecock PF, 29).
    None of the evidence submitted with the petitioner's comments is 
new, and the petitioner does not attempt to rebut the findings under 
criterion Sec.  83.7(c), or to change the overall conclusions in the PF 
that the petitioner met criterion Sec.  83.7(b). The petitioner's 
analyses, reasoning, and summary conclusions to show how the petitioner 
could meet Sec.  83.7(b) using this evidence directly, however, 
sometimes misinterprets data or diverges from how such evidence has 
been evaluated under acknowledgment precedent. The petitioner's 
alternative analysis is not adopted here.
    The petitioner, for example, submitted a listing of seven types of 
identifications of a Shinnecock entity, presumably to demonstrate the 
petitioner meets criterion Sec.  83.7(b) using corroborating evidence 
of ``the persistence of a named, collective, Indian identity'' as 
described in Sec.  83.7(b)(viii). Six of these identifications were by 
non-Shinnecock and were therefore the type of identifications of an 
Indian entity by outsiders used to demonstrate criterion Sec.  83.7(a), 
not evidence demonstrating collective group ``identity'' by members. 
The seventh category of evidence mentioned in the petitioner's comment 
relates to criterion (b) because it deals with ``identity'' and not 
``identification.'' This category included two petitions signed by 
Shinnecock Indians in 1800 and 1822. This category of evidence, 
however, was already addressed in the PF. The PF used evidence in these 
petitions to demonstrate in part that the petitioner met Sec.  83.7(c) 
at a high level (Shinnecock PF, 49-50) and referenced them in a 
background statement in the PF section discussing the Shinnecock's 
``collective Indian identity.'' The PF stated that the ``Indians 
claiming this identity have consistently referred to their group since 
the early 1600s as the Shinnecock, the Shinnecock Indian tribe, the 
Shinnecock Indians, and similar names incorporating various spellings 
of ``Shinnecock'' (Shinnecock PF, 31, 32). The petitioner's comment 
fails to distinguish between identifications by outsiders (criterion 
Sec.  83.7(a)) and a ``named, collective, Indian identity,'' maintained 
by the group itself (criterion Sec.  83.7(b)), as established in 
precedent, and its new analysis is not adopted here.
    The petitioner submitted new analysis under Sec.  83.7(b)(2) for 
high rates of marriage within the group for the period 1800 to 1920. 
The PF section on criterion (b) considered the marriage data generally 
and found that members who mostly married outside the group after 1880 
were more likely to move from the reservation and their descendants are 
less likely to be members of the current membership. In contrast, those 
who married within the group and continued to reside on the reservation 
were more likely to have descendants in the membership. These 
statements in the PF were not made to demonstrate that the petitioner 
met criterion Sec.  83.7(b); rather, they were made to identify the 
general makeup of the group and to trace its continuous association 
with the reservation because this was the group over which political 
authority was exercised.
    The petitioner contends that an analysis of ``extant marriages'' 
based on the length each marriage lasted, rather than a general 
analysis of ``marriage events,'' would demonstrate that the petitioner 
meets Sec.  83.7(b)(2) from 1800 to 1920. The PF did not make a 
determination that the petitioner met criterion Sec.  83.7(b) using 
evidence for marriage as described at Sec.  83.7(b)(1) or (b)(2); nor 
is it necessary to do so here. This FD's consideration of this 
argument, however, finds that the petitioner's analysis is flawed. It 
does not account for the group's historical membership and does not 
submit any historical membership lists, annuities lists, rolls, or 
similar documents that would include on- and off-reservation members, 
as precedent has established in other cases. In addition, the analysis 
deals with descendants of only two couples from the early 1800s to 
1920, thus representing only a partial analysis of the Shinnecock 
population.
    It is impossible to calculate accurate percentages of marriages 
between members of the group as required under Sec.  83.7(b)(2)(ii), 
whether one attempts to analyze single ``marriage events'' or ``extant 
marriages,'' without tracking the group's actual membership and without 
accounting for all of the marriages, not just select lines of descent. 
This FD does not accept the comment's conclusion that ``extant'' 
marriages predominated within the group from 1800 to 1920. The 
petitioner seeks to substitute a different analysis from that in the 
PF, and its analysis uses incomplete data for purposes of criterion 
Sec.  83.7(b) from 1800 to 1920. That specific analysis is flawed, and 
it diverges from precedent. It is also unnecessary to show that the 
petitioner meets criterion Sec.  83.7(b), using direct evidence of 
community, as the petitioner meets criterion Sec.  83.7(b) using 
crossover evidence from criterion Sec.  83.7(c)(2). The PF's conclusion 
that the petitioner meets criterion 83.7(b) using crossover evidence 
under criterion Sec.  83.7(c) is affirmed.
    Criterion Sec.  83.7(c) requires that the petitioning group has 
maintained political influence over its members as an autonomous entity 
since historical times. The petitioner met this criterion in the PF. 
Neither the petitioner nor any other party submitted new evidence or 
analysis under criterion Sec.  83.7(c). The PF found that the 
Shinnecock petitioner met criterion Sec.  83.7(c) from 1789 to the 
present using a type of evidence described at Sec.  83.7(c)(2)(i), that 
demonstrates a petitioner has allocated ``group resources such as land, 
residence rights and the like on a consistent basis.'' Under the 
regulations, this form of evidence is sufficient in itself to 
demonstrate the presence of political influence within a group as 
required by criterion Sec.  83.7(c). This FD affirms the conclusions of 
the PF that the petitioner meets the requirements of criterion Sec.  
83.7(c).
    Criterion Sec.  83.7(d) requires that the petitioner provide a copy 
of its governing document including its membership criteria. The PF 
found that the Shinnecock petitioner met criterion Sec.  83.7(d) 
because, in lieu of a formal governing document, it described in full 
its governing procedures and membership criteria in 1978, 1998, 2008, 
and 2009 (Shinnecock  PF, 92-93).
    The petitioner did not submit new criterion Sec.  83.7(d) evidence 
for the FD but commented that the Office of Federal Acknowledgment 
(OFA) ``failed to include in its iteration [of membership requirements] 
the letter from the Nation's attorney'' dated May 27, 2009, that 
``clearly describes the petitioner's current membership criteria'' 
(Comment, 16).
    The cited transmittal letter does not constitute petition 
documentation and repeats information already provided to the 
Department in 2008 and cited in the PF. The petitioner's comment does 
not affect the analysis or conclusion of the PF under this criterion. 
Therefore, the FD affirms the PF that the petitioner meets the 
requirements of criterion Sec.  83.7(d).
    Criterion Sec.  83.7(e) requires that the petitioner's members 
descend from a historical Indian tribe or from historical

[[Page 34763]]

Indian tribes that combined and functioned as a single autonomous 
political entity and that the petitioner submits a membership list. The 
PF found that the Shinnecock petitioner met criterion Sec.  83.7(e) 
because it submitted a separately certified membership list and 
demonstrated that its 1,066 members descend from the historical Indian 
tribe. In the comment period, the petitioner submitted a 46-page report 
by its anthropologist with its 21 numbered exhibits (Exh. 123-143) 
including an updated membership list (Exh. 140); membership files for 
62 members re-enrolled in the group (Exh. 142); an updated genealogical 
database; and separate lists of re-enrolled members, formerly 
``potential'' members, and members deceased since the PF.
    Evaluation under criterion Sec.  83.7(e) considers the comments 
addressing: (1) The petitioner's current members; (2) the historical 
Indian tribal members they claim as ancestors; and (3) the evidence of 
that descent. Each of those three considerations is addressed here in 
that order.
    New membership evidence for the FD includes the Shinnecock Board of 
Trustee's March 18, 2010, resolution stating that it ``hereby opens the 
membership roll on a limited basis to add 169 individuals, to re-enroll 
62 individuals, and to remove five deceased individuals from the roll 
for a final total of 1,292 enrolled members'' (Petitioner resolution 3/
18/2010). The 169 individuals were analyzed in the PF as the petitioner 
identified them as ``potential members''; the 62 re-enrolled persons 
are reviewed here for the first time. The petitioner submitted a 
separately certified, updated membership list of 1,292 members (Exh. 
140). Added members included 10 of the 13 non-members who voted in the 
2009 Shinnecock elections (Shinnecock PF, 95, 103, 110, 112, 114).
    For the FD, the petitioner did not add to the 2010 membership list 
the remaining 139 of 201 members disenrolled in 2009 for lack of 
descent documentation. Neither did the petitioner add to its 2010 
membership list the 100 applicants whose files had been approved by the 
enrollment officer prior to the PF. The petitioner apparently did not 
overturn its longstanding bar to membership for children born to 
Shinnecock fathers not married to their non-Shinnecock mothers, 99 of 
whom were noted in the PF as additional prospective members.
    The PF concluded that the historical Shinnecock Indian tribe of 
1789 evolved as a continuously existing Indian tribe to 1865, which is 
the date of the earliest record to state plainly that it is an 
enumeration of all residents of the Shinnecock Reservation. This record 
is part of the 1865 New York State census of Southampton, Suffolk 
County. The PF invited the submission of evidence that would support or 
rebut the Department's conclusion about the tribe's continuity between 
1789 and 1865, and, therefore, its reliance on the 1865 list to measure 
descent from the 1789 Shinnecock tribe (Shinnecock PF, 21, 100, 103, 
113, 115).
    The petitioner submitted limited new evidence addressing the 
petitioner's continuity as an Indian tribe between 1789 and 1865 or the 
Department's use of the 1865 State census to measure current members' 
descent from the 1789 Shinnecock tribe. None of this new evidence was 
created before 1865. Their submissions also included argument and 
analyses. If accepted, these submissions would support the Department's 
conclusion of continuity.
    The petitioner offered alternative theories or interpretations of 
the 1806 and 1815 debarments (prohibiting individuals from drawing land 
on the Shinnecock Reservation) and of an 1836 deed (Comment, 30-35). 
The alternative debarment theory is plausible in some respects, but, 
when analyzed, does not account for all the known aspects of the 1806 
debarment. The petitioner's argument about the Department's 
characterization of the 1836 deed reflects an incomplete reading of the 
deed. Neither alternative, however, would change the conclusion reached 
in the PF to rely upon descent from the 1865 Indians to measure descent 
from the 1789 Shinnecock tribe.
    The petitioner's comment about ``Shinnecock households'' recorded 
in the early (1790-1840) Federal census records provides the 
opportunity to present a clarification here, which the PF did not 
include, of how the 1790-1880 Federal census enumerated Indians 
(Comment, 9). In establishing the Federal census, the U.S. Constitution 
directed that ``Indians not taxed'' be excluded (Art. 1, Sec. 2). 
Indians documented in contemporary records as residents of the 
Shinnecock leasehold or reservation--such as David Waukus (b.bef.1773-
d.aft.1828) and Abraham Jacob (b.bef.1771-d.aft.1822)--constituted 
``Indians not taxed.'' They were not enumerated in the early censuses, 
apparently because the census enumerators complied with their 
instructions (Shinnecock PF Appendix F, 7). Indians or spouses of 
Indians who owned property off of the reservation--such as Paul Cuffee 
or James Bunn--were taxable, and that may explain the appearance of 
these individuals on early census records. Their appearance in the 
early censuses does not demonstrate either reservation residence or 
Shinnecock ancestry, as the comments presume. The pre-1840 Federal 
census enumerations that include individuals associated with the 
Shinnecock Indians are not treated as enumerations of Shinnecock 
Reservation residents in either the PF or the FD.
    (It should be noted that, by 1840 and 1850, the census enumerators 
appeared to depart from their instructions, as they recorded 
individuals known to be reservation residents from contemporary court 
records. Further, in 1870 the enumerator prepared two returns of 
``Shinnecock,'' one of which is marked as a special report of ``Indians 
not taxed.'')
    The petitioner submitted additional descent evidence and comment. 
Submitted evidence (Exh. 132-134) resolved parentage questions for the 
three current members among the four individuals noted in the PF, but 
not for the fourth noted individual, Frederick Cuffee (b.1782) 
(Shinnecock PF, 111).
    Additional evidence clarified the identity and parentage of a 
current member whose previous FTM entry the petitioner had erroneously 
tagged as ``adopted'' (Exh. 135). The petitioner provided acceptable 
indirect evidence of parentage for Roxanna Bunn (b.ca.1809-d.1899) 
(Exh. 130). This additional genealogical connection helps support the 
PF's finding of 1789-to-1865 continuity and increases the number of 
1865 reservation residents represented by current members, although it 
does not affect the number of current members demonstrating descent 
from 1865 Shinnecock Indians.
    Another submission consisted of two charts of the descendants of 
James Bunn (b.ca.1767) and of David Walker/Waukus (b.bef.1773)--
handwritten and dated by a Dr. Morris Steggerda on October 2, 1930--
offered as parentage evidence for Elizabeth ``Betsy'' Bunn (b.1796) and 
for the various children the petitioner ascribed to David Waukus (Exh. 
129). This type of evidence, created more than 100 years after the 
births it illustrates, is useful only as a guide to research. The named 
informants (born in 1845 and 1848) could not have provided firsthand 
knowledge of events occurring before their own births. Here, too, the 
number of current members demonstrating descent from 1865 Shinnecock 
Indians is not affected by determinations of these specific parentages.
    The bulk of the new descent evidence consisted of membership files 
for the 62 re-enrolled members (Exh. 142) and for one member whose file 
had not been

[[Page 34764]]

submitted previously (Exh. 138). The Department genealogist analyzed 
the new descent evidence for the historical individuals, the questioned 
2009 members, and the 62 new 2010 members. The result is that 1,254 
current members demonstrate descent from the historical Indian tribe 
and 38 do not.
    Thirty-one of the 38 current members who did not demonstrate 
descent from the 1865 reservation residents documented back to within a 
generation of the 1865 residents. They documented descent from 
Frederick Cuffee (b. 1872) for whom contemporary evidence of parentage 
has not been found. Five of the remaining seven current members who did 
not demonstrate descent from the 1865 reservation residents consist of 
one re-enrolled member and four previously ``potential'' members. They 
are depicted as close relatives of current members but need better 
evidence of their own parentage, and the two remaining members who did 
not demonstrate descent are documented as their children.
    The 38 current members who did not demonstrate descent from an 1865 
reservation resident may all be described as lacking satisfactory 
evidence of a single child-to-parent link in their line of descent from 
the 1865 reservation residents they claim as ancestors. In no instance 
did the evidence demonstrate that any of them descend from a specific 
non-Indian instead of the specific 1865 Shinnecock Reservation resident 
they claim as an ancestor.
    The petitioner also submitted considerable descent argument. 
However, most of it is not applicable to the FD because it centers on 
the PF's Appendix D descriptions of the group's pre-1800 progenitors 
and the PF's calculations of members' descent from these pre-1800 
individuals (Comment, 19-32) and from reservation residents in 1900 and 
1910 (Comment, 35-36, 39; Exh. 137). The PF provided the pre-1800 and 
post-1900 information and calculations as background information that 
gave context for the Department's rebuttable use of the 1865 State 
census as a reliable list for measuring members' descent from the 1789 
historical Indian tribe under criterion Sec.  83.7(e). However, descent 
from the pre-1800 or post-1900 historical individuals was not and is 
not the measurement relied upon to determine whether the petitioner 
meets criterion Sec.  83.7(e). Rather, descent from individuals on the 
1865 list is the measurement for criterion Sec.  83.7(e).
    Analysis of the petitioner's comments addressing pre-1800 or post-
1900 descent calculations neither supports nor rebuts the Department's 
use of the 1865 State census as a reliable list of the 1789 historical 
Shinnecock tribe as it evolved or the PF's conclusions under criterion 
Sec.  83.7(e). Thus, the individual comments on descent calculations 
are not addressed in this FD.
    The Department's measurement of descent from the historical Indian 
tribe for criterion Sec.  83.7(e) differs from the petitioner's 
measurement of descent for membership purposes; however, the results of 
both types of descent measurements are similar. The petitioner requires 
its 1,292 members to demonstrate direct or collateral descent from any 
of the 130 Indian individuals on the 1900 or 1910 Indian schedules of 
Southampton, NY. Analysis for the FD showed 93 percent of the members 
claimed a direct ancestor on the 1900 or 1910 Indian schedule, and 
another 7 percent claimed descent from one of two siblings of one such 
Indian. The Department verified that 92 percent demonstrated descent 
from 1900 or 1910 reservation residents and 7 percent demonstrated 
descent from a sibling of such a resident, resulting in 99 percent 
descent overall. For purposes of demonstrating descent from the 
historical Indian tribe under criterion Sec.  83.7(e), the Department 
evaluated members' direct descent from any of the 156 Indian 
individuals of the 1865 Shinnecock Reservation. Analysis for the FD 
verified that 97 percent of the 1,292 members demonstrated descent from 
an 1865 Shinnecock Reservation resident.
    For the FD, the Department continues to rely upon the enumeration 
of the 146 individuals within the 28 Indian families residing on the 
Shinnecock Reservation from the 1865 New York State census. For the 
purposes of criterion Sec.  83.7(e), the Department determines this 
state census to be a reliable list for measuring descent from the 1789 
historical Shinnecock tribe as it evolved. The Department finds that 
the petitioner demonstrates descent from 48 of those 146 individuals.
    Had the petitioner included the 139 members who were disenrolled in 
2009, the petitioner would have also met criterion (e) (1,262 of 1,431, 
or 88 percent). The petitioner submitted a separately certified and 
updated list of all current members and evidence that demonstrates 97 
percent of the members (1,254 of 1,292) descend from the historical 
Shinnecock tribe. Therefore, the FD affirms the PF's conclusion that 
the petitioner meets the requirements of criterion Sec.  83.7(e) but 
with a revised membership total and percentage of descent.
    The membership list used for the FD of an acknowledged tribe 
becomes its base roll for purposes of Federal funding and other 
administrative purposes (see Sec.  83.12(b)). Therefore, the list of 
1,292 members certified by the Shinnecock trustees as its complete 
membership list on March 18, 2010, is the base roll for purposes of 
Federal funding and other administrative purposes for the acknowledged 
Shinnecock Indian tribe. Under Sec.  83.12, any additions to be made to 
subsequent tribal membership rolls of this acknowledged Indian tribe, 
other than descendants of those on the base roll and who meet the 
tribe's membership criteria, ``shall be limited to those meeting the 
requirements of Sec.  83.7(e) and maintaining significant social and 
political ties with the Indian tribe (i.e., maintaining the same 
relationship with the tribe as those on the list submitted with the 
group's documented petition).''
    Criterion Sec.  83.7(f) requires that the petitioner's membership 
be composed principally of persons who are not members of another 
federally recognized Indian tribe. The Shinnecock petitioner met this 
criterion in the PF. Four of the 169 new members added since the PF 
stated on consent forms that they belonged to federally recognized 
Indian tribes. None of the 62 re-enrolled members claimed enrollment in 
a federally recognized Indian tribe but one claimed membership in the 
Hassanamisco Nipmuc and two in the Unkechaug or Poospatuck groups. A 
total of ten current members claim enrollment in federally recognized 
tribes: Fort Sill Apache Tribe of Oklahoma (1 member), Hoopa Valley 
Tribe (2 members), Mashantucket Pequot Tribe of Connecticut (2 
members), Navajo Nation (1 member), Pueblo of Taos (3 members), and 
White Mountain Apache Tribe of the Fort Apache Reservation (1 member).
    The evidence in the record demonstrates that the membership of the 
petitioning group is composed principally of persons who are not 
members of any acknowledged North American Indian tribe. The FD affirms 
the PF's conclusion that the petitioner meets the requirements of 
criterion Sec.  83.7(d).
    Criterion Sec.  83.7(g) requires that the petitioner not be subject 
to congressional legislation that has terminated or forbidden the 
Federal relationship. The PF found that the Shinnecock petitioner met 
criterion Sec.  83.7(g), because there is no evidence that Congress has 
either terminated or forbidden a Federal relationship with the 
petitioner or its members. The

[[Page 34765]]

petitioner did not submit comment on this criterion; therefore, this FD 
affirms the PF's conclusion that the petitioner meets the requirements 
of criterion Sec.  83.7(g).
    This notice is the FD to extend Federal acknowledgment under 25 CFR 
part 83 to the Shinnecock Indian Nation petitioner. As provided in 
Sec.  83.10(h) of the regulations, this FD summarizes the evidence, 
reasoning, and analyses that form the basis for this decision. In 
addition to its publication in the Federal Register, this notice will 
be posted on the Department's Indian Affairs Web site at http://
www.bia.gov.
    The May 26, 2009, settlement agreement that the petitioner and the 
Department negotiated and the Court approved by order on May 26, 2009, 
in Shinnecock v. Salazar, No. CV-06-5013, 1 (E.D.N.Y.), shortens 
several of the regulatory periods following publication of a notice of 
a FD provided in Sec.  83.11. A copy of the court-approved stipulation 
and order for settlement appears as Appendix B of the Shinnecock Indian 
Nation Proposed Finding (PF), which is available at http://www.bia.gov/
WhoWeAre/AS-IA/OFA/RecentCases/index.htm.
    This FD on the Shinnecock petitioner will become a final and 
effective agency decision 30 days after the publication of this notice 
in the Federal Register, unless the petitioner or an interested party 
files a request for reconsideration, pursuant to Sec.  83.11, with the 
Interior Board of Indian Appeals (IBIA) within that shortened time 
period. If the IBIA receives a request for reconsideration within the 
30-day period, the party requesting reconsideration has an additional 
30 days to file a detailed statement in support of its request. This 
statement shall be the requesting party's opening brief. The IBIA must 
receive the detailed statement no later than 60 days after the 
publication of this FD notice in the Federal Register. The Shinnecock 
petitioner or interested parties opposed to the requested 
reconsideration shall have 30 days to file an answer brief in 
opposition to the reconsideration request. The IBIA must receive the 
answer brief no later than 90 days after the publication of this FD 
notice in the Federal Register.

    Dated: June 13, 2010.
George T. Skibine,
Acting Principal Deputy, Assistant Secretary--Indian Affairs.
[FR Doc. 2010-14733 Filed 6-17-10; 8:45 am]
BILLING CODE 4310-G1-P


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