Proposed Finding for Federal Acknowledgment of the Shinnecock Indian Nation, 67895-67897 [E9-30209]

Agencies

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

[Federal Register Volume 74, Number 243 (Monday, December 21, 2009)]
[Notices]
[Pages 67895-67897]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-30209]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs


Proposed Finding for Federal Acknowledgment of the Shinnecock 
Indian Nation

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice of proposed finding.

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SUMMARY: The Department of the Interior (Department) gives notice that 
the Acting Principal Deputy Assistant Secretary--Indian Affairs (PDAS-
IA) proposes to determine that the Shinnecock Indian Nation, P.O. Box 
5006, Southampton, NY 11969-0751, c/o Messrs. Frederick C. Bess, 
Randall King, and Gordell Wright, is an Indian Tribe within the meaning 
of Federal law. This notice is based on a preliminary finding that the 
petitioner satisfies the seven mandatory criteria for acknowledgment 
set forth in the applicable regulations, and thus, meets the 
requirements for a government-to-government relationship with the 
United States.

DATES: Comments on this proposed finding (PF) are due on or before 
March 22, 2010. The petitioner then has until April 20, 2010 to respond 
to those comments. Requests for a formal, on-the-record technical 
assistance meeting must be received by the Department by January 20, 
2010. See the SUPPLEMENTARY INFORMATION section of this notice for more 
information about these dates.

ADDRESSES: Comments on the PF and/or requests for a copy of the report 
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., MS: 34B-SIB, 
Washington, DC 20240. Interested and informed parties who make 
submissions to the Assistant Secretary--Indian Affairs (AS-IA) must 
also provide copies to the petitioner at Shinnecock Indian Nation, P.O. 
Box 5006, Southampton, NY 11969-0751, c/o Messrs. Frederick C. Bess, 
Randall King, and Gordell Wright.

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 
gives notice that the Acting PDAS-IA proposes to determine that the 
Shinnecock Indian Nation, P.O. Box 5006, Southampton, NY 11969-0751, c/
o Messrs. Frederick C. Bess, Randall King, and Gordell Wright, is an 
Indian Tribe within the meaning of Federal law. This notice is based on 
a preliminary finding that the petitioner satisfies the seven mandatory 
criteria for acknowledgment set forth in 25 CFR 83.7(a) through (g), 
and thus, meets the requirements for a government-to-government 
relationship with the United States.
    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 some Federal acknowledgment findings, including this PF, to the 
Acting PDAS-IA effective June 4, 2009.
    The Shinnecock Indian Nation, Petitioner 4, submitted a 
letter of intent to petition for Federal acknowledgment on February 8, 
1978. It submitted partial documentation in 1998, and made multiple 
submissions in 2003. The petition was ready for evaluation on September 
15, 2003. Under the May 23, 2008, Federal Register notice of

[[Page 67896]]

guidance and direction regarding OFA's internal procedures (73 FR 
30146), OFA recommended a waiver of the regulatory provisions regarding 
the priority for consideration of the petitioner. The AS-IA placed the 
Shinnecock petitioner on active consideration November 10, 2008, ahead 
of six other petitioners.
    The Shinnecock petitioner claims that the Federal Government 
recognized it at various times from 1889 to the present, and, 
therefore, it would be eligible to be evaluated under 25 CFR 83.8, 
which reduces the burden of evidence required of previously 
acknowledged petitioners. The evidence in the record shows that the 
Federal Government was aware of the Shinnecock, but never established a 
relationship with it. To qualify for evaluation under Sec.  83.8, there 
must be substantial evidence that the Federal Government, by its 
actions, unambiguously established a political relationship with the 
petitioner as an Indian Tribe, not that the Federal Government was 
merely aware of the petitioner's existence. There is not substantial 
evidence of unambiguous Federal acknowledgment in the record. 
Therefore, the petitioner is not eligible to be evaluated under 25 CFR 
83.8. An evaluation under section Sec.  83.7 rather than section Sec.  
83.8 does not result in a different finding. Whether the petitioner is 
eligible to be evaluated under Sec.  83.8 of the regulations is subject 
to reconsideration at the time of the final determination.
    The May 23, 2008, Federal Register notice of guidance and direction 
included a provision interpreting ``first sustained contact'' as on or 
after March 4, 1789, thus ``reducing the time period for which 
petitioners must submit evidence.'' Petitioners like the Shinnecock, 
which experienced first sustained non-Indian contact prior to March 4, 
1789, are required to demonstrate continuous existence from 1789 only.
    The Shinnecock Indians lived on a historical land base on and near 
Shinnecock Neck, near the eastern end of Long Island, New York, since 
first contact in the early 1600s to the present. In 1703, the Town of 
Southampton agreed to lease approximately 3,500 acres of the Shinnecock 
Hills and Neck to the Shinnecock Indians for 1,000 years. In 1792, the 
New York Assembly passed legislation that reorganized the Indians on 
the Shinnecock leasehold under a three-man Indian Trusteeship in which 
the Indians would elect trustees annually. In 1859, the State of New 
York passed legislation regarding the 1,000-year lease to the 
Shinnecock Indians and granted the Shinnecock Indians title in fee 
simple to a much smaller parcel of land. This reduced land base, 
consisting of approximately 650 acres, is the current New York State 
``reservation'' inhabited by the Shinnecock petitioner today.
    The Shinnecock petitioner meets criterion 83.7(a), because external 
observers have identified it as an American Indian entity on a 
substantially continuous basis since 1900. The record contains 
acceptable identifications of the petitioner nearly every year since 
1900; this is sufficient to satisfy the criterion. Evidence that 
identifies the petitioner appears in the records of the Town of 
Southampton, the State of New York, and the Federal Government. 
Furthermore, scholarly writings identify the petitioner as an American 
Indian entity, as do writings from newspapers and magazines. Although 
some documents in the record express doubt that the petitioner is an 
American Indian entity, the criterion allows for occasional questioning 
of the petitioner's Indian character, holding that such evidence 
``shall not be considered to be conclusive evidence that this criterion 
has not been met.'' Therefore, the petitioner satisfies criterion 
83.7(a).
    The Shinnecock petitioner meets criterion 83.7(b) under a ``cross-
over'' provision in the regulations at Sec.  83.7(b)(2)(v). This cross-
over provision allows groups to meet criterion 83.7(b) for a particular 
period in time provided that they meet criterion 83.7(c) during that 
same period using a form of evidence which is sufficient in itself to 
demonstrate political influence and authority. Such forms of evidence 
are described at Sec.  83.7(c)(2). The Shinnecock petitioner meets 
criterion 83.7(b) from 1789 to the present because it meets criterion 
83.7(c) during that same period using the form of evidence described in 
Sec.  83.7(c)(2)(i).
    The Shinnecock petitioner meets criterion 83.7(c) from 1789 to the 
present using the form of evidence described at Sec.  83.7(c)(2)(i), 
that a petitioner allocates ``group resources such as land, residence 
rights and the like on a consistent basis.'' This form of evidence is 
sufficient in itself to demonstrate the presence of political influence 
within a group as required by criterion 83.7(c). The evidence in the 
record demonstrates that the Indian group located at Shinnecock Neck 
and its leaders have maintained a Trusteeship system that has allocated 
land, residence rights, and the like from 1789 to the present. The 
Shinnecock petitioner also defended its common land base through 
litigation, and the Shinnecock petitioner has managed the land base for 
the benefit of the group's members. The evidence for political 
influence and authority showing the petitioner meets criterion Sec.  
83.7(c)(2) from 1789 to the present also provides sufficient cross-over 
evidence to demonstrate the Shinnecock petitioner meets criterion Sec.  
83.7(b) for community from 1789 to the present as provided at Sec.  
83.7(b)(2)(v).
    The Shinnecock petitioner meets the requirements of criterion Sec.  
83.7(d), even though it does not have a formal, written governing 
document. A combination of written statements, historical New York 
State legislation, and group actions define the historical governance 
of the group. Meeting minutes reflect the petitioner's efforts since 
2003 to finalize a constitution. Historically, the petitioner required 
that any individual awarded an allotment of land on the reservation be 
a ``Blood Shinnecock,'' that is, a descendant of any of four historical 
individuals born between 1757 and 1810: Paul Cuffee, James Bunn, 
Charles Kellis, or David Waukus. Since 1978, the petitioner has 
developed membership criteria that require a demonstration of descent 
from a Shinnecock reservation resident as enumerated on the Indian 
Population schedule of the 1900 or 1910 Federal census of Southampton, 
Suffolk County, New York.
    The Shinnecock petitioner meets the requirements of criterion 
83.7(e). The petitioner's membership list of January 8, 2009, includes 
1,066 adult and minor members. A total of 1,022 of these members, or 96 
percent, demonstrate descent from Indian residents of the 1865 
Shinnecock reservation, which the Department determined to be a 
reliable list of members of the historical Shinnecock Tribe for the 
purposes of this PF.
    The petitioner submitted membership lists in 1998 (1,363 members), 
2003 (1,330 members), 2008 (994 members and 275 members ``placed in 
pending file''), and 2009 (1,066 members). No new members have been 
added since 1998. In January 2009, the petitioner ``disenrolled'' 201 
members when it determined there was insufficient evidence of descent 
and furnished descent documentation for most of the 169 individuals 
submitted as ``potential'' members. Evidence shows that some 
disenrolled members reside on the reservation and were permitted to 
vote in the 2009 trustee election, and that some potential members 
reside on the reservation and were permitted to vote in 2009 and 
previous trustee elections. The 2009 trustee voter list includes three 
other individuals not on any type of membership list. For these 
reasons, the Department's evaluation

[[Page 67897]]

was not limited to the 2009 membership list.
    Evidence identifies 113 historical individuals associated with the 
Shinnecock reservation 1792-1799, but the petitioner's members 
demonstrate descent from individuals appearing on or near the 
reservation after that time. A few pre-1800 reservation residents 
continued to serve as Shinnecock trustees and petition signers through 
the 1820s alongside individuals who most likely include those known to 
have married Shinnecock women before 1800, but whose identities are not 
in the record. Genealogical evidence demonstrates that descendants of 
some of the 1800-1820s reservation residents resided on the reservation 
in 1865. Additional evidence for the Shinnecock population 1800-1865 
may be submitted during the comment period to provide further context.
    The Department finds that the historical Tribe is the Shinnecock 
Indian Tribe of the Shinnecock leasehold in 1789. This historical 
Indian Tribe continued to evolve and exist up to 1865. The earliest 
record to state plainly that it is an enumeration of all residents of 
the Shinnecock reservation is in the 1865 New York State census of 
Southampton. For purposes of criterion 83.7(e), current members who 
demonstrate descent from an Indian on the 1865 State census of the 
Shinnecock reservation are deemed to demonstrate descent from the 
historical Shinnecock Tribe. The petitioner demonstrates such descent 
at an acceptable level whether the analysis considers the current 
members only (1,022 of 1,066, or 96 percent), the current and 
disenrolled members (1,030 of 1,267, or 81 percent), or the current, 
disenrolled, and potential members (1,178 of 1,436, or 82 percent). The 
current, disenrolled, and potential members who lack evidence of 
descent for the PF are closely related as kin to current members with 
demonstrated descent from the 1865 reservation residents. The 
Department anticipates that they should be able to locate the 
documentation necessary to resolve the few missing generation-to-
generation connections.
    The Shinnecock petitioner meets the requirements of criterion 
83.7(f). Since the petition contained evidence of only four members 
enrolled in Federally recognized Tribes, OFA researchers did not 
examine any Tribal rolls for the presence of the petitioner's members. 
Evidence in the record indicates that the petitioning group is composed 
principally of persons who are not members of any acknowledged North 
American Indian Tribes.
    The Shinnecock petitioner meets criterion 83.7(g), because there is 
no evidence that Congress has either terminated or forbidden a Federal 
relationship with the petitioner or its members.
    Based on this preliminary factual determination, the Department 
proposes to extend Federal acknowledgment under 25 CFR Part 83 to the 
petitioner known as the Shinnecock Indian Nation.
    As provided by 25 CFR 83.10(h) of the regulations, a report 
summarizing the evidence, reasoning, and analyses that are the basis 
for the proposed decision will be provided to the petitioner and 
interested parties, and is available to other parties upon written 
request. Requests for a copy of the report of evidence should be 
addressed to the Federal Government as instructed in the ADDRESSES 
section of this notice. It will be posted on the Department's Indian 
Affairs Web site at https://www.bia.gov.
    Consistent with 25 CFR 83.10(l), the Department will consult with 
the petitioner within two weeks of the close of the response period (or 
the close of the comment period if neither the petitioner nor parties 
submit comments or Shinnecock waives its response period to 
submissions) to discuss any issues related to an equitable timeframe 
for consideration of all written arguments and evidence received during 
the comment and response periods. The Department will issue a final 
determination (FD) regarding the petitioner's status within 60 days of 
the date active consideration begins for the Shinnecock FD.
    This PF meets the December 15, 2009, deadline the petitioner and 
U.S. negotiated in a settlement agreement that the Court approved by 
order on May 26, 2009, in Shinnecock v. Salazar, No. CV-06-5013, 1 
(E.D.N.Y.). To the extent that the schedule for processing the 
Shinnecock petition under the agreement differs from the regulatory 
timelines provided by the regulations in 25 CFR Part 83, the settlement 
agreement controls. Under the terms of the settlement agreement, any 
individual or organization wishing to challenge or support the PF may 
submit factual or legal arguments and evidence, to rebut or support the 
evidence relied upon, by the date set out in the ADDRESSES section of 
this notice. However, if the Shinnecock petitioner or an interested 
party requests additional time in writing, the Department will extend 
the comment period to the full 180 days that would otherwise be 
available under the regulations at 83.10(i).
    During the comment period, the Shinnecock petitioner and the 
interested parties may request in writing that the AS-IA hold a formal, 
on-the-record technical assistance meeting as provided by the 
acknowledgment regulations at Sec.  83.10(j)(2). To accommodate the 
shortened comment period, requests for such a meeting on the Shinnecock 
PF must be received by the Department within 30 calendar days of the 
publication of this Federal Register notice.
    The settlement agreement provides the petitioner 30 days to respond 
to comments on the PF submitted by interested or informed parties. This 
reduced response period starts automatically at the close of the 
comment period. The petitioner may request restoration of the full 60-
day response period, although it must notify the Department in writing 
prior to the close of the response period. If parties do not submit 
comments or if the petitioner submits a written waiver to the 
interested and informed party submissions, the response period will not 
apply.
    Before including your address, phone number, e-mail address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

    Dated: December 14, 2009.
George T. Skibine,
Acting Principal Deputy, Assistant Secretary--Indian Affairs.
[FR Doc. E9-30209 Filed 12-18-09; 8:45 am]
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