Final Determination Against Federal Acknowledgment of the Little Shell Tribe of Chippewa Indians of Montana, 56861-56866 [E9-26373]

Agencies

• DEPARTMENT OF THE INTERIOR
• Bureau of Indian Affairs
• Indian Affairs Bureau

[Federal Register Volume 74, Number 211 (Tuesday, November 3, 2009)]
[Notices]
[Pages 56861-56866]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-26373]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs


Final Determination Against Federal Acknowledgment of the Little 
Shell Tribe of Chippewa Indians of Montana

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice of Final Determination.

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SUMMARY: Pursuant to 25 CFR 83.10(l)(2), notice is hereby given that 
the Department of the Interior (Department) has determined the Little 
Shell Tribe of Chippewa Indians of Montana, P.O. Box 1384, Great Falls, 
Montana 59403, is not entitled to be acknowledged as an Indian Tribe 
within the meaning of Federal law. This notice is based on a 
determination the petitioner does not satisfy all seven mandatory 
criteria set forth in 25 CFR 83.7, and thus does not meet the 
requirements for a government-to-government relationship with the 
United States.

DATES: This determination is final and will become effective 90 days 
from publication of this notice in the Federal Register on February 1, 
2010, pursuant to 25 CFR 83.10(l)(4), unless a request for 
reconsideration is filed pursuant to 25 CFR 83.11.

ADDRESSES: Requests for a copy of the summary evaluation under the 
criteria should be addressed to the Office of the Assistant Secretary--
Indian Affairs, Attention: Office of Federal Acknowledgment, 1951 
Constitution Avenue, NW., MS: 34B-SIB, Washington, DC 20240, and the 
decision is available at https://www.bia.gov/ofa_recent_cases.html.

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

SUPPLEMENTARY INFORMATION: This notice is published in the exercise of 
authority delegated by the Assistant Secretary--Indian Affairs (AS-IA) 
to the Acting Principal Deputy Assistant Secretary--Indian Affairs. 
This notice is based on a determination the Little Shell Tribe of 
Chippewa Indians (LS), based on the complete record of available 
evidence, does not meet all seven of the mandatory criteria for 
acknowledgment in 25 CFR 83.7. Specifically, the LS petitioner does not 
meet criteria 83.7(a), (b), and (c).
    On July 21, 2000, the AS-IA published notice of a proposed finding 
(PF) to acknowledge the Little Shell petitioner in the Federal 
Register. 65 FR 45394 (July 21, 2000). The PF concluded that, in a 
departure from certain practices and precedent related to how to weigh 
the available evidence at the time, the petitioner met all seven 
mandatory criteria under the acknowledgment regulations. The notice and 
PF invited public comment on these proposed departures. The LS 
petitioner was also strongly encouraged to provide additional evidence 
during the comment period to demonstrate that it met all the mandatory 
criteria. The notice and PF stated that additional evidence from the LS 
could create a different record and a more complete factual basis for 
the FD, thus eliminating

[[Page 56862]]

or reducing the scope of the proposed departures from precedent.
    Publishing notice of the PF in the Federal Register initiated a 
180-day comment period during which time the petitioner, interested and 
informed parties, and the public could submit arguments and evidence to 
support or rebut the PF. The petitioner requested, and the Department 
provided, a series of extensions for good cause that eventually 
extended the deadline for the comment period to February 5, 2005. The 
time period for the petitioner to respond to the comments closed on 
April 13, 2005.
    The petitioner requested and received six informal technical 
assistance (TA) meetings from the OFA during the comment period and 
received a copy of OFA's 2000 recommendation. It also received comments 
on the PF from two third parties, one known as the ``Lineal Mikisew-
Asiniwiin Ojibwa Clan Council,'' in May 2004, and one from Terry Long 
Fox in September 2004. The OFA received the petitioner's response to 
these third-party comments on April 13, 2005. This FD is made following 
a review of the evidence in the record for the PF, comments on the PF, 
petitioner's response to the comments, and on evidence the Department 
researchers developed during their verification research.
    The Department began consideration of the Little Shell petition for 
the FD on August 1, 2007. The AS-IA established July 27, 2009, as the 
due date for the issuance of the FD following two 180-day extensions 
for good cause. Subsequently, the Solicitor was granted first a 60-day, 
and then a 30-day extension, to complete her legal review.
    The PF concluded that, in a departure from precedent and looking at 
the evidence as a whole, external observers had identified the 
petitioner as an American Indian entity on a substantially continuous 
basis since 1900 despite there being no specific evidence that external 
observers identified the petitioner's ancestors as an American Indian 
entity from 1900 to 1935. The Department concludes that, based on the 
current available evidence, a 35-year period of non-identification by 
external observers is too long to meet the criterion under the 
reasonable likelihood standard of proof and is inconsistent with the 
language of the regulations which require substantially continuous 
external identification since 1900. There was no evidence that the lack 
of identification between 1900 and 1935 was a fluctuation in activity. 
Applying the standards of the regulations, the evidence proved too 
limited even when taking into account 83.6(e) concerning historical 
circumstances and fluctuations in group activity.
    The PF proposed to depart from precedent by allowing the petitioner 
to meet criterion 83.7(b) without requiring ``specific evidence showing 
the continuity of Tribal existence substantially without 
interruption.'' LS was strongly encouraged to provide additional 
evidence to meet this criterion in order to uphold the proposed 
finding. The regulatory standards of proof provide that a criterion 
``is not met if the available evidence is too limited to establish it, 
even if there is no evidence contradicting facts asserted by the 
petitioner.'' The regulations provide that either the lack of evidence 
of social interaction or evidence of little or no contact would mean 
the petitioner has not met criterion 83.7(b) (59 FR 9280). LS did not 
provide sufficient evidence during the comment period to meet this 
criterion.
    A conclusion that the limited interaction in a minority portion of 
the petitioner is sufficient for the petitioner as a whole would be 
inconsistent with the plain meaning of a ``predominant portion'' of a 
group having to be engaged in social interaction. Further, such an 
assumption does not work for purposes of defining the boundary of the 
petitioner's community, which is a significant part of the evaluation 
done by the Department researchers.
    Criterion 83.7(b) requires a demonstration of continuous existence 
(meaning substantially without interruption) by a distinct community 
since historical times by a predominant portion of the petitioning 
group. When considered against the lack of additional evidence, the 
plain language, the intent, regulatory standards of proof, and 
precedent established in other findings both before and after the PF, 
the PF's proposed departures from precedent cannot be supported.
    The acknowledgment regulations require for purposes of criterion 
83.7(c) that a petitioner maintain political authority or influence 
over its members as an autonomous entity from historical times until 
the present. Political influence or authority means some mechanism that 
the group has used as a means of influencing or controlling the 
behavior of its members in significant respects, or making decisions 
for the group which substantially affect its members, or representing 
the group in dealing with outsiders in matters of consequence (83.1). A 
petitioner needs to demonstrate continuous existence of a political 
entity substantially without interruption.
    The PF proposed to depart from precedent by accepting ``as a 
reasonable likelihood that patterns of social relationships and 
political influence'' among the petitioner's ancestors in their 
``settlements in North Dakota and Canada during the mid-19th century 
persisted among their descendants who migrated to Montana and appeared 
on the Federal census records of Montana for 1910 and 1920.'' 
Regulatory standards of proof and Department precedent have not 
accepted ``patterns'' of political influence among a petitioner's 
ancestors in the middle 19th century would persist among their 
descendants 50 years later to meet this criterion without contemporary 
evidence of actual, significant political leadership among the group. 
To do so would be to base a conclusion of continuous political 
influence on supposition rather than evidence, and would be contrary to 
the standards of proof in the regulations. LS was again encouraged in 
the PF to provide additional evidence during the comment period to 
support meeting this criterion. The evidence provided by LS, however, 
was insufficient to satisfy the regulatory standard of proof.
    The standards of proof in the regulations provide that the 
Department shall deny acknowledgment if there is insufficient evidence 
the petitioner meets one or more of the seven mandatory criteria 
83.10(m). Accepting as a reasonable likelihood that patterns of 
political influence persisted among a group of descendants for over 50 
years while simultaneously acknowledging the available evidence did not 
show such persistence is inconsistent with the regulatory standards of 
proof and cannot be justified.
    The PF proposed to depart from acknowledgment precedent by 
accepting ``descent from the historical Indian Tribe by 62 percent of 
the petitioner's members as adequate'' for satisfying the criterion, 
although every previous petitioner had met the criterion with ``at 
least 80 percent'' of its members descended from a historical Indian 
Tribe.
    The review of the petition is to be conducted by a team of 
professional researchers working in consultation with each other, using 
its expertise and knowledge of sources to evaluate the accuracy and 
reliability of the evidence submitted (70 FR 16515). The PF found a 
``reasonable probability that a strong majority'' of a group's members 
have descent from the historical Tribe based on assumptions not in 
keeping with professional genealogical standards or the regulatory 
standards of proof.

[[Page 56863]]

    The available evidence does not demonstrate the petitioner meets 
the requirements of previous unambiguous Federal acknowledgment in the 
regulations. The evidence concerning an appropriations act, treaty 
negotiations in 1851 and 1863, and actions in 1934 were not clearly 
premised on petitioner's ancestors being a Tribal political entity with 
a government-to-government relationship with the United States. 
Therefore, the petitioner was not evaluated under the provisions of 
section 83.8(d) that modify the mandatory criteria for Federal 
acknowledgment.
    Criterion 83.7(a) requires external observers have identified the 
petitioner as an American Indian entity on a substantially continuous 
basis since 1900. For the period from 1900 to 1935, the available 
evidence did not show external observers identified the petitioner's 
ancestors or an antecedent group as an Indian entity. Generally, the 
evidence demonstrates external observers only described some of the 
petitioner's ancestors as individuals of Indian or mixed Indian 
ancestry, living mostly among the general population. For these 
reasons, the petitioner does not meet criterion 83.7(a), which requires 
substantially continuous identification since 1900.
    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 Department 
finds, as detailed in the Summary under the Criteria for this FD, that 
the evidence did not show the petitioner's ancestors evolved from a 
distinct community in the 19th century or that they migrated to Montana 
as a group by the early 20th century. For the period since the early 
1900's, the evidence did not show the petitioner's ancestors 
constituted a distinct community with significant social relationships 
and social interactions.
    The combined evidence does not demonstrate a predominant portion of 
the petitioner had demonstrated community since historical times. The 
evidence for this finding did not demonstrate the petitioner's 
ancestors formed a community which had evolved from a historical Indian 
Tribe or Tribes. The available evidence did show a large majority of 
the petitioner's current members have ancestry from Pembina Band of 
Chippewa Indians of North Dakota. Yet the available evidence showed 
that although a small number of the petitioner's earliest ancestors 
were part of the Band, a much larger percentage of the petitioner's 
ancestors composed some of the population of multiple settlements along 
the Red River in Canada which were not part of Indian Tribes, but 
populations of individuals descended from a variety of Indian-European 
marriages.
    Before 1870, many of the petitioner's ancestors were part of the 
M[eacute]tis populations along the Red River at the settlements of St. 
Francis Xavier, St. Boniface, and St. Norbert Parishes in Canada and at 
Pembina and St. Joseph in North Dakota. Many of the M[eacute]tis in 
these settlements were not the petitioner's ancestors, or part of the 
group's claimed historical community. The evidence does not demonstrate 
the petitioner's ancestors were a distinct community or communities 
within these M[eacute]tis populations.
    About 89 percent of the petitioner's members descend either from 
individuals who received land scrip in the 1870's as ``mixed-blood'' 
relatives of the Pembina Band of Chippewa Indians, were identified as 
``mixed-blood'' relatives of the band on various land scrip treaty 
schedules, or received treaty annuities as members of the band from 
1865 to 1874. The scrip evidence does not demonstrate these ``mixed-
blood'' relatives were politically part of the Pembina Band at that 
time. The available evidence does not show the ``mixed-blood'' Pembina 
documented on scrip records formed a distinct community at the time of 
the treaties, or at the time they received or applied for the scrip, 
either as a part of a treaty Tribe or as a separate community.
    Some of the petitioner's ancestors who received annuities, however, 
were members of the Pembina Band of Chippewa at the time of their 
receipt. Yet the available evidence also shows these ancestors and 
their children dispersed widely soon after they received annuities. 
After the 1870's, some became part of the Turtle Mountain Band of 
Chippewa in North Dakota, where they maintained social and political 
affiliation rather than with any claimed historical group of the 
petitioner's ancestors that migrated to Montana. Others migrated 
gradually to settlements in Saskatchewan, Alberta, Manitoba, and 
northern Montana where they lost any possible social and political 
cohesion. A similar dispersal process took place among the petitioner's 
ancestors who received or were identified on treaty scrip, and there is 
no available evidence that showed these two groups of ancestors ever 
combined to form a distinct community during or after their migration.
    In Montana, some of the petitioner's ancestors who came from the 
various settlements of Canada and North Dakota originally settled in 
two geographically separate areas, each of which covered a large 
expanse of territory--the Highline and the Lewistown area, and the 
other, the Front Range. The available evidence does not indicate the 
petitioner's ancestors who migrated to Montana and elsewhere from 
Dakota or Canada moved together as a group or in a pattern that 
maintained ties to places of origin. The evidence does not show that 
individuals from the petitioner's ancestral families at the Red River 
settlements in North Dakota or Manitoba, those identified as having 
Pembina Band ancestry through treaty scrip schedules or annuities, or 
those who appeared on Turtle Mountain Band censuses, migrated to 
Montana, or elsewhere, at the same time or to the same location. Rather 
the evidence demonstrates the migration was individualistic, gradual, 
and dispersed widely in a manner that did not maintain social cohesion. 
The available information does not demonstrate the petitioner's 
ancestors who settled in Montana had previous social ties with each 
other and evolved, as communities, from predecessor communities. In 
sum, the available evidence does not demonstrate that the petitioner's 
ancestors comprised a distinct community from the middle of the 19th 
century to the beginning of the 20th century.
    The available evidence does not indicate that the petitioner's 
ancestors formed a distinct community or communities in the areas of 
Montana where they first settled. In reviewing the petitioner's 
residential analyses based on homestead and Federal census data, the 
Department found evidence of residential proximity of the petitioner's 
ancestors only for those in Lewistown from 1900 through the 1920's. In 
reviewing the petitioner's marriage data and analysis, the Department 
found a number of errors, the most fundamental being the petitioner did 
not establish a baseline community for the group. Neither has the 
petitioner delineated a social group for subsequent periods.
    For the period of 1900-1930, the petitioner also submitted limited 
interview data on social relationships and social interactions. This 
information was mostly limited to social interactions between family 
members within specific geographic areas. There were no interviews in 
which an individual mentioned a distinct community comprised of the 
ancestors of Little Shell members. The Department did not find evidence 
of community in witnessing at baptisms data since it only described 
witnessing events between family members. The

[[Page 56864]]

petitioner's data and analyses do not provide sufficient evidence of 
community for the period from 1900-1930.
    From the 1930's through the 1950's, the evidence for the PF showed 
some of the petitioner's ancestors and current members in Montana moved 
from rural areas into segregated Indian-M[eacute]tis neighborhoods on 
the edges of towns. There they intermarried with Indian and 
M[eacute]tis residents, participated in a culture distinct from non-
Indians, and endured negative social distinctions and discrimination 
from non-Indians in the area. However, this evidence did not 
demonstrate the extent to which its population was distinct from other 
Indians and M[eacute]tis residents in these neighborhoods. Nor did the 
petitioner show how its members were socially tied to each other across 
regions.
    In response to the PF, the petitioner submitted new interview 
information as well as Federal and school census data identifying a 
greater number of its members residing in Montana during this time, 
which it claimed showed its population clustered residentially in 
``enclaves'' on the edges of towns. However, the Department did not 
find evidence of residential clustering. Rather, the petitioner's 
ancestors and current members lived interspersed with other individuals 
who were neither Indian nor M[eacute]tis. In addition, the Department 
found the petitioner's ancestors dispersed widely throughout other 
locations outside of the segregated neighborhoods. None of the data 
provided evidence of a distinct community comprised of the petitioner's 
ancestors and or current members. For the period from 1930-1950 the 
petitioner has not provided sufficient evidence demonstrating a 
distinct community.
    From 1950-1992, a large number of the petitioner's members began 
moving to urban centers, such as Great Falls and Helena, as well to 
cities outside of Montana. The PF noted the petitioner had not 
demonstrated the extent to which its members in Great Falls comprised a 
community or were socially connected to members living elsewhere in 
Montana or out of State.
    In comments on the PF, the petitioner did not submit new evidence 
for this specific period indicating how group members were socially 
connected within Great Falls, across regions, and with members residing 
out of the State of Montana. Neither did the petitioner indicate the 
extent to which members living outside of the State maintained 
community interactions among themselves. In the PF, the Department 
noted that strong patterns of discrimination declined in the 1950's 
through the present. However, in comments on the PF, the petitioner 
again claimed strong patterns of discrimination against group members 
persisted into this period. In examining the petitioner's combined 
interview material for the period from 1950-1992, the Department did 
not find evidence of discrimination against Little Shell group members. 
Rather, the evidence indicated negative social distinctions against 
members from non-Indians for being Indian as well as from reservation 
Indians for not being Indian enough, but not against them as Little 
Shell. The petitioner has not provided sufficient evidence of community 
for this period.
    For the period from 1993 through 2007, the petitioner's ancestors 
continued to live primarily in Great Falls as well as in locations 
throughout Montana and out of State. The PF requested further 
information demonstrating how the petitioner's members comprised a 
community within and across Montana and with members out of State. In 
response, the petitioner did not present any new information on social 
interactions indicating it comprised a distinct community during this 
period. The new data on Joe Dussome Day indicated that the numbers of 
Little Shell attendees were low in comparison to the overall size of 
the petitioner's group.
    In an attempt to show social interactions for modern community, the 
petitioner also submitted a number of analyses and models. These models 
did not provide evidence for distinct community for the following 
reasons. First, they were primarily based on statistical correlations 
between individuals without demonstrating actual community events and 
interactions. Second, they did not provide the social and economic 
contexts for interactions and how they pertained to Little Shell 
events, issues, or activities. Third, without a clear description of 
the group's community over time it is not possible to calculate 
percentages of various social activities such as in-group marriage. 
Fourth, in each of its analyses the petitioner aggregated like units of 
analyses without proving connections. The petitioner has not provided 
sufficient evidence of community for this period.
    Overall, the available evidence shows Little Shell is an 
organization of individuals of shared ancestry from the Pembina Band of 
Chippewa. They share some cultural traditions and historical 
experiences as M[eacute]tis. While the membership includes large 
extended families, the evidence does not show these are or were in the 
past linked to each other by kinship or other social ties into one or 
several communities. The evidence also does not indicate how the 
current organization evolved from a historical community or 
communities. The large extended families in the 20th century are not 
and have not been connected by regular social interactions and 
obligations, community events, internal disputes, or by common issues 
that unite them as a group.
    Many Little Shell ancestors, and some older current members, shared 
the experience of homesteading in Montana, and, subsequently, living in 
segregated neighborhoods on the edges of towns. In the past, many 
experienced negative social distinctions from non-Indians, as well as 
from reservation Indians as not being Indian enough. However, these 
common experiences do not demonstrate there was social interaction and 
social relationships that bound them together into a community. 
Therefore, for the above reasons, the petitioner does not meet 
criterion 83.7(b) for any period.
    Criterion 83.7(c) requires the petitioner has maintained political 
influence and authority over its members as an autonomous entity from 
historical times until the present. The Department concludes the 
available evidence is insufficient to support the conclusion that a 
significant portion of the petitioner has demonstrated political 
influence over its members since historical times under this criterion. 
Specifically from 1850 to 1900 the evidence did not reveal political 
continuity from a historical Indian Tribe. Most of the petitioner's 
ancestors were some of the population of various M[eacute]tis 
settlements along the Red River in Manitoba and North Dakota early in 
this period. The available evidence showed these M[eacute]tis 
settlements had political leaders and systems separate from the 
historical Pembina Band of Chippewa Indians that inhabited the area. 
While some of the petitioner's ancestors provided limited forms of 
leadership within some of these settlements, these ancestors did not 
amalgamate and evolve as a political group into the petitioner in 
Montana or elsewhere.
    Many of the petitioner's ancestors who resided in these 
M[eacute]tis settlements before 1880 later dispersed in a gradual, 
individualistic migration process that brought them to new settlements 
throughout the Northern Plains by the early 20th century. The available 
evidence did not demonstrate the petitioner's ancestors maintained any 
significant form of group leadership, formal or informal, as part of 
these new settlements. Thus, the available evidence does not 
demonstrate the

[[Page 56865]]

petitioner met the requirements of criterion 83.7(c) before 1900.
    From 1900 through 1930, the petitioner claimed group members were 
under the authority of both Turtle Mountain leadership as well as local 
leaders located in both the Front Range and Highline regions of 
Montana. The petitioner's claimed political ties to Turtle Mountain 
were based on the receipt of allotments by some of the group's 
ancestors. Information on local leadership in Montana consisted of a 
limited number of descriptions of a few local M[eacute]tis leaders 
located in Highline and Front Range communities.
    In comments on the PF, the petitioner submitted additional 
information on allotments for 233 individuals it claimed were part of 
its ancestral population during this period. However, the Department 
did not consider this submission to supply adequate evidence of 
political influence for the following reasons. First, only a small 
number of the claimed allotment recipients have descendants in the 
modern membership. Second, the number of allotment recipients was only 
a very small percent of the population of the claimed size of the 
Little Shell group at the time. Third, a large number of allotment 
recipients were living outside of Montana at the time of receipt 
indicating they were not part of a group of the petitioner's ancestors 
in Montana.
    In comments on the PF, the petitioner submitted additional 
information on alleged local leaders it claimed served as ``labor 
brokers'' from the 1900's through the 1950's. Based on its analysis, 
the Department did not find evidence the petitioner's ancestors 
functioned as ``labor brokers'' for its members. While a few local 
people of M[eacute]tis ancestry living in the Front Range and Highline 
did obtain work contracts, interviews indicated that these individuals 
did not specifically hire other Little Shell group members.
    While the petitioner claimed Joe Dussome was the leader of its 
first formal political organization in 1927, the evidence did not show 
that this organization encompassed the petitioner's ancestors across 
regions. In its comments on the PF, the petitioner claimed that Dussome 
had interregional support based on the fact that six of the 51 
attendees at the organization's 1927 meeting were from the Front Range. 
In analyzing the petitioner's data, the Department found that none of 
the six individuals or their spouses was living in the Front Range at 
the time of the meeting. Most were part of one large family, the Doney 
family from the Highline, or intermarried with them.
    During the middle 1930's, a second organization claiming to 
represent the Landless Chippewa Cree Indians of Montana developed in 
competition with the Dussome organization. This group was lead by 
Raymond Gray whose supporters came mostly from the Front Range. Without 
a clear description of the Little Shell community at this time as well 
as in earlier periods, it was not clear the extent to which these 
organizations represented two political factions within the same group 
or were political organizations representing two different populations 
and, or, communities.
    From the period of the middle 1950's through the publication of the 
PF in 2000, the petitioner provided evidence of a unified political 
organization that extended to a substantial portion of its membership. 
However, without a description of the group's community, it was not 
possible to determine whether the group's political organization 
represented the group as a whole. The petitioner did provide further 
updates on conflicts surrounding the group's elections and political 
leadership. While the evidence showed some conflict among opposing 
political leaders, it did not show active participation or widespread 
knowledge of political activities among a significant percentage of the 
membership. Thus, the petitioner does not meet criterion 83.7(c) since 
1950. Based on the foregoing reasons, the petitioner does not meet 
criterion 83.7(c) for any period.
    Criterion 83.7(d) requires a copy of the group's present governing 
document including its membership criteria. The PF found that the 
petitioner satisfied the requirements of criterion 83.7(d) by 
submitting a copy of its 1977 constitution and a 1987 resolution that 
clarified the membership criteria in Article V of the constitution. The 
petitioner did not submit any new evidence for the FD concerning the 
governing document or the group's membership requirements. This FD 
confirms that the LS petitioner has satisfied the requirements of 
criterion 83.7(d).
    Criterion 83.7(e) requires that the petitioner's membership consist 
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 PF proposed to depart from 
acknowledgment precedent and find that descent by 62 percent of the 
group was sufficient to meet this criterion. The Department did not 
apply the PF's lower standard to any subsequent finding. Further, for 
this criterion, additional evidence submitted during the comment period 
has eliminated any need to rely upon the departure from precedent 
stated in the Little Shell PF.
    The Department's analyses for the FD are based on its determination 
that there are 4,332 members in the group. The LS petitioner submitted 
a certified membership list on July 18, 2006, with the names and 
birthdates for 4,336 individuals. After eliminating some duplicate 
entries, the Department determined that list represents 4,332 members. 
With the exception of about 1,100 cases where the only address was a 
post office box number rather than a residential address, the list 
includes all of the elements required by the regulations.
    The LS petitioner submitted its genealogical data in an electronic 
format that linked the parent-child connections between the generations 
from the present back to the group's claimed ancestors. This new 
evidence included many new names and family connections that were not 
in the record for the PF. The petitioner also submitted a genealogical 
report and considerable new evidence that the group used to document 
their claims, including Lake Superior Chippewa and Pembina and Red Lake 
Bands treaty schedules and the Pembina annuity lists (1864-1865, 1868-
1874). The Department investigated each of these claims and verified 
that 99 of the 123 claimed ancestors were descendants of the historical 
Pembina Band. In some of the remaining cases, the evidence showed that 
the petitioner's claimed ancestor, who was not a Pembina Band 
descendant, had the same name as the individual identified in the 
historical records as ``Pembina mixed-blood.'' Therefore, Pembina Band 
descent was wrongly attributed to the petitioner's ancestor of the same 
name. In some other cases, reliable evidence identified the claimed 
ancestors as Cree, Sarsee, Saulteaux, or Assiniboine Indians, but the 
Department did not find other contemporary evidence that also 
identified the individuals as Pembina Band descendants. The 
Department's analyses finds that about 89 percent of the LS 
petitioner's members have at least one ancestor who was identified in 
the historical records as a descendant of the Pembina Band of Chippewa 
Indians.
    Ten percent of the members have not demonstrated descent from a 
Pembina Band descendant. About 6 percent descend from an Indian on one 
of the censuses of the Chippewa-Cree of Rocky Boy's Reservation, about 
3 percent descend from other Tribes in Canada, Montana, or elsewhere, 
and less than 1 percent descends from a member of the

[[Page 56866]]

Turtle Mountain Band of Chippewa Indians. Less than 1 percent of the LS 
members did not have ancestry charts or were not in the group's 
genealogical database and the Department could not determine their 
ancestry.
    The more complete record of the petitioner's ancestors and the 
additional evidence in the record for the FD demonstrates that about 89 
percent of LS petitioner's members (3,865 of 4,332) descend from at 
least one ancestor who was a descendant of the historical Pembina Band. 
This FD finds that the petitioner has satisfied 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. The Department's research for 
the FD finds that less than 1 percent of the petitioner's members (19 
of 4,332) are enrolled in Federally acknowledged Tribes. This FD 
confirms the findings in the PF that the LS petitioner is principally 
composed of persons who are not members of any acknowledged Indian 
Tribe and therefore 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. A review of the 
available documentation showed no evidence that the petitioning group 
was the subject of congressional legislation to terminate or prohibit a 
Federal relationship as an Indian Tribe. Therefore, the petitioner 
meets the requirements of criterion 83.7(g).
    A report summarizing the evidence, reasoning, and analyses that are 
the bases for the FD will be provided to the petitioner and interested 
parties, and is available to other parties upon written request and 
will be posted on the Bureau of Indian Affairs Web site. After the 
publication of notice of the FD, the petitioner or any interested party 
may file a request for reconsideration with the Interior Board of 
Indian Appeals (IBIA) under the procedures set forth in section 83.11 
of the regulations. The IBIA must receive this request no later than 90 
days after the publication of the FD in the Federal Register. The FD 
will become effective as provided in the regulations 90 days from the 
Federal Register publication unless a request for reconsideration is 
received within that time.
    The regulations state that when the Department declines to 
acknowledge a petitioner it shall inform the petitioner of ``other 
means through which the petitioning group may achieve the status of an 
acknowledged Indian Tribe or through which many of its members may 
become eligible for services and benefits'' as Indians (Sec.  
83.10(n)). Congress has plenary power over Indian affairs and, 
considering two historical factors, could recognize this petitioner as 
an Indian Tribe. First, the Department initiated action under the 
Indian Reorganization Act of 1934 that affected the ancestors of a 
significant majority of the petitioner's members. And, second, Congress 
passed the Act of December 31, 1982 (96 Stat. 2022) conditionally 
allocating certain trust funds to ``the Little Shell Tribe of Chippewa 
Indians of Montana'' petitioner.
    In the 1930's, the Department considered using appropriations 
available under the Indian Reorganization Act of 1934 to buy land for, 
and then to reorganize as a Tribe, Indians in Montana of one-half 
degree or more Indian blood. The Department prepared the Roe Cloud Roll 
of these Indians, many of whom are among the Little Shell petitioner's 
ancestors. Seventy-four percent of the Little Shell petitioner's 
current members descend from an individual on the roll. Lands purchased 
by the Department at that time, however, were added to the Rocky Boy's 
Indian Reservation.
    In the 1982 Act, which provided for the distribution of the funds 
awarded by the Indian Claims Commission to the Pembina Chippewa Indians 
in the Turtle Mountain decision of 1978, Congress allocated a portion 
of those funds to the ``Little Shell Band.'' Eighty percent of the 
allocated funds were distributed per capita to the Pembina Chippewa 
descendants who were members of the Little Shell Tribe of Chippewa 
Indians of Montana and otherwise met the general qualifications to 
participate in the distribution as descendants. The other 20 percent of 
the award allocated to the Little Shell Tribe was to be held in trust 
and invested until the Secretary acted on its petition for recognition. 
If the Secretary failed to recognize the Band, the 20 percent was to be 
distributed per capita when the action on the petition was final. See 
Sections 2 and 6.
    Those funds remain in trust and now total more than $3 million. 
Congress could direct that they be used to purchase land for the group, 
as contemplated in the 1930's, should Congress choose to recognize the 
Little Shell petitioner. The funds set aside in 1982 may be considered 
for the use of the current petitioner because calculations at the time 
of the proposed finding on the Little Shell petitioner indicated that 
51 percent of the petitioner's 1987 membership was on the Department's 
1994 judgment roll prepared under the 1982 statute, and because there 
is continuity between the petitioner's 1987 membership and the current 
membership.

    Dated: October 27, 2009.
George T. Skibine,
Acting Principal Deputy, Assistant Secretary--Indian Affairs.
[FR Doc. E9-26373 Filed 11-2-09; 8:45 am]
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