Final Determination for Federal Acknowledgment of the Pamunkey Indian Tribe, 39144-39150 [2015-16711]

Agencies

• DEPARTMENT OF THE INTERIOR
• Bureau of Indian Affairs

[Federal Register Volume 80, Number 130 (Wednesday, July 8, 2015)]
[Notices]
[Pages 39144-39150]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-16711]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

[156A2100DD/AAKC001030/A0A501010.999900 253G]


Final Determination for Federal Acknowledgment of the Pamunkey 
Indian Tribe

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice of final determination.

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SUMMARY: The Department of the Interior (Department) gives notice the 
Assistant Secretary--Indian Affairs (AS-IA) has determined to 
acknowledge the Pamunkey Indian Tribe (Petitioner #323) 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), as modified by additional evidence. The 
petitioner has submitted more than sufficient evidence to satisfy each 
of the seven mandatory criteria for acknowledgment set forth in the 
regulations under 25 CFR 83.7, and, therefore, meets the requirements 
for a government-to-government relationship with the United States. 
Based on the limited nature and extent of comments and consistent with 
prior practices, the Department did not produce a separate detailed 
report or other summary under the criteria pertaining to this final 
determination (FD). The proposed finding, as supplemented by this 
notice, is affirmed and constitutes the FD.

DATES: This determination is final and will become effective on October 
6, 2015, pursuant to 25 CFR 83.10(l)(4), unless the petitioner or an 
interested party files a request for reconsideration under Sec.  83.11.

ADDRESSES: Requests for a copy of the Federal Register notice 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. The Federal Register notice is 
also available through www.bia.gov/WhoWeAre/AS-IA/OFA/RecentCases/index.htm.

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

SUPPLEMENTARY INFORMATION: The Department publishes this notice in the 
exercise of authority the Secretary of the Interior delegated to the 
AS-IA by 209 DM 8. The Department issued a PF to acknowledge Petitioner 
#323 on January 16, 2014, and published notice of that preliminary 
decision in the Federal Register on January 23, 2014, pursuant to part 
83 of title 25 of the Code of Federal Regulations (25 CFR part 83) (79 
FR 3860). This FD affirms the PF and concludes that the Pamunkey Indian 
Tribe, c/o Mr. Kevin M. Brown, 331 Pocket Road, King William, VA 23086, 
fully satisfies the seven mandatory criteria for acknowledgment as an 
Indian tribe. Since the promulgation of the Department's regulations in 
1978, the Department has reviewed over 50 complete petitions for 
Federal acknowledgment. OFA experts view this petition and the 
voluminous and clear documentation as truly extraordinary. Based on the 
facts and evidence, Petitioner #323 easily satisfies the seven 
mandatory criteria.
    Publication of the PF in the Federal Register initiated the 180-day 
comment period provided in the regulations at Sec.  83.10(i). The 
comment period closed July 22, 2014. Neither the Pamunkey petitioner 
nor other parties asked for an on-the-record technical assistance 
meeting under Sec.  83.10(j)(2). The petitioner submitted comments 
certified by its governing body, and a third party submitted comment on 
the PF during the comment period. The Department also received 10 
letters from trade associations and businesses that raised concerns 
over the potential impact acknowledgment of the petitioner might have 
on tax revenues to the Commonwealth and on their own economic interests 
should the petitioner venture into commercial enterprises. Three of 
these letters were received after the close of the comment period. Not 
all of the correspondence was copied to the petitioner as is required 
for comment under Sec.  83.10(i). The correspondence did not address 
the evidence or analysis in the PF, is not substantive comment on 
whether the petitioner meets the mandatory criteria, and is therefore 
not further addressed in this FD. Further, as provided under Sec.  
83.10(l)(1), untimely comment cannot be considered. The petitioner 
submitted its response to the third-party comment and some of the 
correspondence before the close of the 60-day response period on 
September 22, 2014.
    As part of the consultation process provided by the regulations at 
Sec.  83.10(k)(1), the OFA wrote a letter to the petitioner and 
interested parties on October 16, 2014, followed by contact

[[Page 39145]]

with the petitioner's attorney. These communications informed the 
petitioner and interested parties that the Department planned to begin 
active consideration of all comments and the petitioner's response on 
November 3, 2014, and to issue a FD on or before March 31, 2015. The 
Department received no objections to this schedule. On March 27, 2015, 
the Department notified the petitioner and interested parties that the 
deadline for issuing the FD was extended 90 days to on or before July 
29, 2015, to allow the Office of the AS-IA additional time based on the 
AS-IA's overall workload and travel schedule.
    In addition to the record for the PF, this FD reviews and considers 
the arguments and evidence submitted as comments by the petitioner and 
third parties as well as the petitioner's response to the third-party 
comment. This FD addresses the third-party arguments under the 
appropriate criteria below. Because the PF addressed in detail the 
wealth of evidence showing how it is more than sufficient to fully 
satisfy the criteria, as well as some of the arguments presented in the 
third-party comment, this FD supplements, and must be read in 
conjunction with, the PF.
    The third party comment that specifically addresses the PF was co-
authored by the organizations ``Stand Up for California!'' and MGM 
National Harbor (Stand Up for California! and MGM 2014). Its Attachment 
1 contains documents that are the same as, similar to, or related to 
documents that were already in the record and considered in the 
Department's PF. This commenter presents three issues in particular 
that do not relate to any specific criterion. None of these three 
issues merits a revision in the evaluation and conclusions under the 
criteria nor justifies the delay in issuing the FD. First, the 
commenter discussed the Department's proposed changes to the 
acknowledgment regulations (79 FR 30766, May 29, 2014) and proposes 
that the Department should not proceed with the issuance of the 
Pamunkey FD until the Department ``resolves what standards are 
sufficiently `objective' for establishing that an American Indian group 
exists as an Indian Tribe '' (Stand Up for California! and MGM 2014, 
3). The comment does not challenge the existing regulations, and in 
fact refers to the existing regulatory criteria as ``longstanding, 
clearly defined criteria that have been in effect since 1978.'' (Stand 
Up for California! and MGM 2014, 3-4). This issue does not merit delay 
in issuing the FD. The existing regulations remain in effect until July 
30, 2015, and the Department's authority to promulgate them has been 
universally affirmed by the courts. Miami Nation of Indians of Indiana 
v. Babbitt, 255 F.3d 342 (7th Cir. 2001); James v. United States Dep't 
of Health & Human Servs., 824 F.2d 1132 (D.C. Cir. 1987); Western 
Shoshone Business Council v. Babbitt, 1 F.3d 1052 (10th Cir. 1993). In 
Miami Nation of Indians of Indiana, the unanimous opinion authored by 
Judge Posner squarely rejected a challenge to the Department's 
authority to promulgate the Federal acknowledgment regulations, 
explaining ``Recognition is, as we have pointed out, traditionally an 
executive function. When done by treaty it requires the Senate's 
consent, but it never requires legislation, whatever power Congress may 
have to legislate in the area.'' In addition, as a general matter, a 
proposed rule does not preclude action under existing regulatory 
authority. Delay, therefore, is not appropriate. This decision is 
issued under the rules in effect at the time of this decision. The 
revisions to the federal acknowledgment regulations have now been 
finalized and published, but they are not effective until July 31, 
2015. (80 FR 37862, July 1, 2015). In any event, the Pamunkey 
petitioner had the choice to suspend review pending revision of the 
regulations, and they chose to proceed under the regulations as they 
currently exist.
    Second, the commenter maintains that the Pamunkey petitioner is in 
violation of the Indian Civil Rights Act (ICRA) because its membership 
standards specifically prohibit its members from marrying African-
Americans (Stand Up for California! and MGM 2014, 5-7). The commenter 
maintains that prohibiting female members from voting and holding 
office are violations of the ICRA as well. The ICRA applies to 
federally recognized tribes, and thus does not apply to a petitioner, 
which by definition is not a federally recognized tribe. Further, the 
petitioner's submission in response to the PF and third-party comment 
indicates that it has removed the designation ``male'' with regard to 
voting members, changed all male pronouns in this document to include 
both male and female pronouns, and deleted the first section of its 
``Ordinances'' document, which had mandated that members marry only 
persons of ``white or Indian blood.'' These changes address the 
specific concerns raised by the third party. Finally, the Department 
notes that it examines the evidence in its historical context for 
purposes of the evaluation under the criteria. The Commonwealth of 
Virginia's history is relevant to the historical context. For example, 
interracial marriage was a crime in the Commonwealth of Virginia until 
the United States Supreme Court struck down that law in 1967. Loving v. 
Virginia, 388 U.S. 1 (1967). Although such historical evidence often 
offends today's sensibilities, it is, nonetheless, evidence to be 
analyzed. This argument does not merit a revision to the evaluation or 
conclusions under the criteria.
    Finally, the commenter takes issue with the 2008 notice issued by 
the AS-IA providing guidance and direction to OFA on an interpretation 
of the acknowledgment regulations. The commenter objects that this 
notice allows petitioners to document their claims of continuous tribal 
existence only since 1789, rather than at first sustained contact, 
which in this case would have been nearly 200 years prior with the 
founding of the Jamestown colony in 1607 (72 FR 30146). According to 
the commenter, the AS-IA's ``illegal guidance'' resulted in an improper 
finding by the Department (Stand Up for California! and MGM 2014, 7-
11). The AS-IA's 2008 directive is an interpretation of the 
regulations, not a change to the regulations, and it is within the 
authority of the AS-IA to make such interpretations and offer such 
guidance., Perez v. Mortgage Bankers Assn., 135 S. Ct. 1199 (2015). The 
commenter did not provide evidence that the petitioner did not exist 
before 1789, and other evidence in the record actually supports the 
finding of continued existence since first sustained contact. In fact, 
even though it was not required to do so, the petitioner submitted 
considerable evidence that the 1789 population at Indian Town connects 
to the Pamunkey population described by politicians, travelers, and the 
Colony of Virginia from the mid-1600s onward (PIT PF 2014, 4-6, 22-23). 
The commenter did not challenge this evidence ``show[ing] that a 
Pamunkey Indian tribe or settlement continued throughout the colonial 
period,'' nor the documented connection between the 1789 and mid-1600s 
``first contact'' population (PIT PF 2014, 5). This general comment 
without any evidence does not merit a revision in the evaluation or 
conclusions under the criteria.
    Although the PF found that the petitioner satisfied all seven 
mandatory criteria, the petitioner submitted even more evidence as part 
of its comment on the PF. The petitioner's timely comments on the PF 
included a 93-page narrative and 4 appendices of exhibits.

[[Page 39146]]

These exhibits included historical documents related to the Pamunkey 
church; an updated and separately certified membership list identifying 
208 members as of July 19, 2014; an updated genealogical database of 
the petitioner's members and their ancestry; 99 ancestor files; and 208 
member files (PIT Comments 2014). The petitioner's timely response to 
third-party comments included 59 pages of explanatory information on 
how it satisfies the criteria and 31 pages of exhibits, primarily 
genealogical in content (PIT Response 2014).
    The petitioner provided additional new evidence and analyses 
addressing community, some revisions to its governing document, and 
additional documentation tracing descent from the historical Indian 
tribe. The third-party comment provided no new evidence and their 
arguments did not merit revision of the PF's conclusions. Although the 
PF found that petitioner satisfied the criteria, the petitioner 
submitted even more evidence. This FD finds that the general arguments 
against the conclusions of the PF are not persuasive and do not 
necessitate a change in the reasoning, analyses, and conclusions for 
the FD. This FD modifies only a few specific findings in the PF 
concerning criterion 83.7(e), based on the information submitted by the 
petitioner, but these revised calculations, based on updated and newly 
submitted membership information, only strengthen the PF's overall 
conclusion that the petitioner meets all seven mandatory criteria. In 
summary, the amount and quality of evidence submitted by the petitioner 
both prior to and after the PF sets this petition apart as one of the 
most well documented petitions ever reviewed by OFA and the Department. 
Petitioner's extraordinary amount of quality evidence and documentation 
easily satisfies the mandatory criteria for acknowledgment. Therefore, 
this FD affirms the PF.

Evaluation Under the Criteria

    Criterion 83.7(a) requires that external observers have identified 
the petitioner as an American Indian entity on a substantially 
continuous basis since 1900. Neither the petitioner's nor third-party 
comments explicitly addressed the PF's conclusions that the petitioner 
met criterion 83.7(a). The evidence in the record is voluminous and 
extraordinary. The evidence identifies Pamunkey as an American Indian 
entity by various external observers, including newspaper articles, 
state and local officials, and scholars. This evidence shows external 
observers identified the Pamunkey petitioner as an American Indian 
entity on a substantially continuous basis since 1900; therefore, this 
FD affirms the PF's conclusions that the petitioner meets criterion 
83.7(a).
    Criterion 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 from 1789 until 1899 
with a combination of evidence under criterion 83.7(b)(1). From 1900 to 
the present, the high level of evidence available under criterion 
83.7(c)(2) was used to demonstrate community under criterion 83.7(b), 
using the ``crossover'' evidence provision under 83.7(b)(2)(v). The PF 
did not request additional evidence to demonstrate criterion 83.7(b), 
as the comprehensive evidence in the record for the PF more than 
satisfies the criterion. Taking nothing for granted, the petitioner 
submitted additional new information concerning the Pamunkey Baptist 
Church and its role in the historical Pamunkey community. This new 
evidence documented that the ``body of individuals residing at Indian 
Town'' petitioned the organization to form a new church (the future 
Colosse Church) after a theological schism had resulted in the 
expulsion of the Lower College Church from the Dover Baptist 
Association, circa 1835. Further, when the Dover representatives came 
to visit, they met non-Pamunkeys who sought to establish a new 
congregation, as well as the Pamunkey group, who had actually initiated 
the investigation. The Pamunkey group agreed to attach itself to this 
new congregation. The petitioner also referenced some mid-19th century 
documents from the chancery court records of Petersburg, VA., that 
contain additional information about Lavinia Sampson, a Pamunkey woman 
who was discussed in the PF (PIT PF 2014, 38-39). Such information, 
although not needed to meet any of the criteria, further described and 
corroborated the role of the church in the petitioner's community 
before and after the Civil War, and also provided some additional 
discussion about Lavinia Sampson's relationship with some of the 
Pamunkey still living in King William County. This information 
strengthened the conclusions reached in the PF under criterion 83.7(b).
    Other new evidence further supports the conclusions reached in the 
PF. Department researchers located a copy of the 1864 U.S. Navy court-
martial of William Terrill Bradby, who was convicted of manslaughter 
for killing his brother Sterling Bradby in February of that year (NARA, 
Court Martial Case Files 1809-1894, NN1665). Previous researchers had 
known of the court-martial, but none had been able to locate a copy of 
the documents, possibly because it had been filed under the erroneous 
name ``Gerrill.'' According to the court-martial documents, several men 
elsewhere identified as Indians from King William County lived in a 
temporary settlement off the reservation for a short time during the 
Civil War (all but one are known to have returned to their homes in 
King William County immediately after the war ended). The settlement 
was located on Mumford's Island, near Gloucester Point in Gloucester 
County, about 50 miles from the Pamunkey reservation. Four other men 
(two named on censuses of the Pamunkey reservation and two associated 
with the neighboring Mattaponi state Indian reservation) testified that 
they also lived on Mumford's Island in 1864. The older men likely 
served as civilian boat pilots for the Union Army during their stay 
there. Sterling Bradby's wife, Ellen, is specifically identified as 
having been at Mumford's Island. This document provides additional 
information describing the relations among Pamunkey members and some of 
their relatives from the Mattaponi reservation during the 19th century, 
and further demonstrates that these members left the reservation as a 
group and later returned to it. This new evidence and analysis further 
supports the conclusions regarding the social relationships among group 
members reached in the PF for criterion 83.7(b).
    Stand Up for California! and MGM maintained that the petitioner 
should not have been able to satisfy criterion 83.7(b) for a number of 
reasons. The commenter maintained that the ``crossover'' evidence from 
criterion 83.7(c)(2) used to satisfy criterion 83.7(b) should not have 
been used for the period from 1900 to the present because the 
reservation population was less than a ``predominant proportion'' of 
the group (Stand Up for California! and MGM 2014, 11-12). The 
regulations, 83.7(b), define community using the terms ``predominant 
portion.'' Section 83.7(b)(2) further provides that a petitioner 
``shall be considered to have provided sufficient evidence of 
community'' at a given point in time if ``the group has met the 
criterion in Sec.  83.7(c) using evidence described in Sec.  
83.7(c)(2).'' The regulations under Sec.  83.7(c) or Sec.  83.7(c)(2), 
however, do not require that a ``predominant proportion'' of members 
live within a limited area, and Sec.  83.7(b)(2) defines the Sec.  
83.7(c)(2) evidence as ``sufficient'' to meet Sec.  83.7(b). Therefore, 
the third-party

[[Page 39147]]

argument that less than a predominant portion lived on the reservation 
does not merit a change in the analysis or conclusions reached in the 
PF under criterion 83.7(b). The Sec.  83.7(c)(2) evidence included 
multiple relevant and remarkably exceptional examples of the group's 
leadership allocating reservation land, determining residence rights, 
collecting taxes and fines from residents, and resolving disputes 
between members. The third party does not provide any evidence; instead 
it argues that the regulations should be applied in an unconventional 
manner contrary to the language of the regulations. In summary, the 
third party comment does not in any substantive manner undermine the 
sufficiency of this substantial body of evidence.
    Further, the commenter characterized the migration of members away 
from the reservation as the ``steady and deliberate abandonment of the 
reservation by Petitioner's members'' (Stand Up for California! and MGM 
2014, 13) and maintained that ``there is evidence that affirmatively 
establishes that a substantial portion of the petitioner ceased to 
participate in the group'' (Stand Up for California! and MGM 2014, 11). 
These broad statements are contrary to the truly exceptional evidence 
in the record. First, the PF described a core reservation population 
throughout the 19th and 20th centuries (PIT PF 40-42, 46-47, 72-79); at 
no time was the reservation itself ever ``abandoned,'' even if some 
people moved away. Most, if not every, federally recognized Indian 
tribe has citizens who do not reside on the tribe's reservation. 
Indeed, some federally recognized Indian tribes do not have a 
reservation. Second, the PF acknowledged that some people left the 
community permanently; however, the PF also noted that other people 
left the reservation for various economic opportunities over the years 
and described how some of those who left stayed in contact with those 
still on the reservation, as well as with others who also left for 
economic reasons. This pattern of behavior is entirely consistent with 
that of citizens of federally recognized Indian tribes. The PF noted 
that members who moved to cities such as Philadelphia often sought out 
other Pamunkey who had moved there earlier to help them obtain 
employment or a place to live. It also noted that people who moved away 
from the reservation returned to visit when they could, and often 
returned to live there years later (PIT PF 2014, 54-55).
    Indeed, most successful petitioners do not have a state reservation 
or a land base. Notwithstanding this basic fact, past Department 
findings have noted other communities where people moved away from the 
area where a number of members resided for work or other opportunities, 
but remained in contact with those relatives still living in a core 
community (see findings for Huron Potawatomi and Match-E-Be-Nash-She-
Wish Band of Pottawatomi), and the evidence in the record indicates 
that this pattern also occurred with the Pamunkey. In many respects, it 
is irrelevant that people left the Pamunkey reservation. What is 
relevant for purposes of community is the evidence in the record that 
other members knew where they were, and often stayed in contact with 
them (PIT PF 2014,74-75; 77-78). Likewise, there is no requirement that 
all descendants of historical members remain in the membership at 
present. Current rules for membership in the group specify a social 
connection to the community as well as to current members living on the 
reservation (PIT PF 2014, 83-84). That the present membership consists 
of members whose families have remained in contact with each other 
demonstrates that the group is more than just a group of descendants 
with little in common other than a distant genealogical connection. It 
is inaccurate to describe the economic migration of members as 
``abandonment'' of the group. Virtually every federally recognized 
Indian tribe has members who do not live on the reservation. Like those 
members of federally recognized Indian tribes, Pamunkey members remain 
a part of the community, even though they may no longer live on the 
reservation.
    The Department finds that the third-party comments do not change 
the analysis of the PF's substantial body of evidence and overall 
conclusions that a distinct Pamunkey community has existed from 
historical times to the present. The evidence in the record is more 
than sufficient to satisfy this criterion. Therefore, the Pamunkey 
petitioner meets criterion 83.7(b).
    Criterion 83.7(c) requires that the petitioning group has 
maintained political influence over its members as an autonomous entity 
since historical times. ``Autonomous'' is defined in terms of political 
influence or authority independent of the control of any other Indian 
governing entity. The petitioner met this criterion in the PF. Stand Up 
for California! and MGM argued, ``It is impossible to determine from 
the evidence in the PF that the Indian community at Pamunkey Island 
actually meets the criteria for tribal acknowledgment in 1789, i.e., 
that it existed as a self-governing tribe, rather than simply as an 
increasingly assimilated community of Indian families'' (Stand Up for 
California! and MGM 2014, 9-10). The commenter contends that the 
evidence in the record indicated the Pamunkey were not politically 
autonomous in the late 18th and early 19th centuries because of the 
involvement of the Pamunkey trustees, whom the commenter describes as 
``non-Indians appointed by the Commonwealth'' (Stand Up for California! 
and MGM 2014, 10).
    While there is some indication that the Commonwealth of Virginia 
appointed the trustees before 1799, the legislature then passed an act 
specifically authorizing the Indians to directly elect trustees. Even 
prior to 1799, there is evidence that the Pamunkey still had some input 
into those decisions, and that the choice of trustees was not a matter 
for the Assembly alone. The Department also rejects the commenter's 
argument because there is more than sufficient evidence in the record 
to determine that the Commonwealth considered the Pamunkey a tribe in 
1789, and not just a collection of families. That the Commonwealth 
established the procedure by which the Pamunkeys themselves selected 
trustees to deal with issues specific to the Pamunkey, including the 
disposition of land and the resolution of residency rights, indicates 
that Virginia recognized the Pamunkey as a political entity.
    Further, the extensive evidence demonstrates that the Pamunkey 
consulted the trustees on a variety of matters over the years and 
valued their advice and recommendations, but the Pamunkey themselves 
made the ultimate decisions. The historical record demonstrates that 
the trustees served as intermediaries and advisors on legal affairs 
between the Pamunkey and the outside world (see, for example, PIT PF 
2014, 38 and 60). While various states may have historically passed 
laws or appointed trustees for state tribes, the regulations in this 
regard simply require that the petitioner exercise political authority 
independent of the control of another Indian tribe. In any event, there 
is no evidence in the record that the Pamunkey trustees ever exercised 
any political authority over the group. The extensive record provided 
significant evidence of regular elections of chiefs and councils 
throughout the 19th and 20th centuries. The highly detailed records 
from the 20th century also demonstrate that the group managed its own 
affairs and exercised political influence and authority over its 
members. Previous acknowledgment decisions establish that the presence 
of non-Indian trustees, justices of the

[[Page 39148]]

peace or overseers does not prevent a petitioner from meeting criterion 
83.7(c) (Mashpee PF 2006, 14, 37, 89, 98).
    The commenter also questioned the PF's description of the Pamunkey 
Indian reservation (alternately referred to as ``Pamunkey Island,'' 
``Indian Island,'' and ``Indian Town'') as a distinctly Pamunkey 
community because of the presence of some other Indian individuals and 
an unspecified number of non-Indians (Stand Up for California! and MGM 
2014, 9-11). Even if other Indians or non-Indians lived on the 
reservation, the petitioner has submitted more than sufficient evidence 
demonstrating that it maintained a distinct community. The PF did note 
that there were other individual Indians and some non-Indians living 
among the Pamunkey, and described the Pamunkey settlement as ``very 
nearly exclusive,'' although not completely exclusive in the late 18th 
and early 19th centuries (PIT PF 2014, 23). The regulations have never 
required complete or nearly complete exclusivity. Further, the PF 
acknowledged the presence of unauthorized squatters living on the 
reservation, but specifically noted that there was no indication that 
these squatters ever became part of the Pamunkey community. The PIT 
response to the Stand Up for California! and MGM comments stated that 
the squatters did not live on Indian Island proper, but lived on other 
lands that were then owned by the Pamunkey and later sold (PIT Response 
2014, 23). However, there is no indication there was ever an Indian 
entity on Indian Island or on any of the land owned by the Pamunkey 
separate from the Pamunkey itself. In the case of the families living 
on the nearby Mattaponi state Indian reservation, individuals did go 
back and forth between the two communities, particularly when they 
married a member of the opposite group. The overwhelming evidence in 
the record easily demonstrates that there was a distinct self-governing 
community residing on the Pamunkey Indian Reservation, which was 
autonomous and separate entity from the Mattaponi on its separate state 
Indian reservation. All evidence in the record indicates that some 
Indian individuals from other tribes lived with or married into the 
Pamunkey, but that the Pamunkey reservation remained a distinctly 
Pamunkey settlement under the authority of the Pamunkey leaders. This 
situation is extraordinarily analogous to many federally recognized 
Indian tribes and Indian reservations throughout the United States. As 
further support, the regulations provide in Sec.  83.6(e), that 
evaluations of petitions shall take into account the limitation 
inherent in demonstrating the historical existence of community and 
political influence or authority.
    Other new evidence further supports the conclusions reached in the 
PF. Department researchers located a document within the chancery court 
records of King William County, Virginia, which described how the 
Pamunkey administered affairs on the reservation at the turn of the 
20th century (Miles v. Miles 1907). The reservation treasurer, Pamunkey 
member J. T. Dennis, testified in this case and explained that the 
Pamunkey council served as a judicial body, adjudicating disputes on 
the reservation, and also explained that the council had the authority 
to regulate the behavior of members on the reservation. Dennis stated 
that the council would allow aggrieved members to take their cases to 
the courts of the Commonwealth if the other party did not comply with 
the rulings issued by the reservation council, and that the council had 
threatened to exercise this authority against the young man in this 
particular case if he did not abide by their dictates. Two other 
reservation residents also testified that the young man had obeyed the 
dictates of the council. Dennis also stated that reservation law did 
allow people to be ``put out'' of the tribe if they did not obey the 
dictates of the tribal council, and characterized this as ``a pretty 
severe punishment.'' Dennis did not say if the young man had been 
threatened with being ``put out'' of the tribe, although the 
plaintiff's lawyer seems to intimate that he had feared that might 
happen if he did not obey the council. This new evidence supplements 
the already voluminous and substantial evidence and further underscores 
the authority the Pamunkey council held over the reservation residents 
even in personal matters, and demonstrates that the members living 
there recognized this authority.
    The commenter's arguments are unsupported by the voluminous, 
substantial evidence in the record, not persuasive, and new evidence in 
the record further supports the conclusions reached in the PF that the 
petitioning group has maintained political influence and authority over 
its members since historical times. This FD affirms the PF's 
conclusions. Therefore, the Pamunkey petitioner meets criterion 
83.7(c).
    Criterion 83.7(d) requires that the petitioning group provide a 
copy of its governing document, including its membership criteria. For 
the PF, the petitioner submitted a copy of its governing document which 
included its membership criteria, satisfying the requirements of 
criterion 83.7(d). In its response to comments, the petitioner 
submitted an amended governing document, entitled ``Laws of the 
Pamunkey Indians,'' and an amended secondary governing document, 
entitled ``Ordinances of the Pamunkey Indian Reservation'' (PIT 
Response 2014, 60-78, Exhibit 1). The petitioner revised its governing 
document (``Laws'') on July 12, 2012, to remove the designation 
``male'' with regard to voting members, to modify the qualification for 
service on the group's governing body, and to revise rights to 
residence on the Pamunkey reservation. On September 4, 2014, the 
petitioner changed all male pronouns in this document to include both 
male and female pronouns. On August 27, 2014, the petitioner deleted 
the first section of its ``Ordinances'' document, which had mandated 
that members marry only persons of ``white or Indian blood.''
    The documents submitted for the FD provide new evidence under 
criterion 83.7(d) concerning how the Pamunkey petitioner governs itself 
and determines its membership, supporting the conclusions in the PF. 
This FD affirms the PF's conclusions. Therefore, the Pamunkey 
petitioner meets criterion 83.7(d).
    Criterion 83.7(e) requires that the petitioner's members descend 
from a historical Indian tribe or from historical Indian tribes which 
combined and functioned as a single autonomous political entity. The PF 
found the petitioner met criterion 83.7(e) because it submitted a 
separately certified membership list and because 162 of its 203 members 
(80 percent) demonstrated descent from members of the historical 
Pamunkey Indian tribe. During the comment period, the petitioner 
submitted an updated membership list, separately certified by its 
governing body, and additional genealogical evidence, that demonstrates 
that all of its current 208 members (100 percent) document descent from 
members of the historical Pamunkey Indian tribe as of July 19, 2014 
(PIT Comment 2014, Appendix 4). Accordingly, the evidence in the record 
is more than sufficient to establish that petitioner has satisfied this 
criterion. Supplemental genealogical evidence included certified birth 
records for 11 members and one member's parent, and parentage 
documentation for deceased forebears Robert W. Miles, Ezekiel Langston, 
and Daizy/Hazie Bloomfield Allmond (PIT Comment 2014, Appendix 4, Item 
5, 47-93).

[[Page 39149]]

    The PF found that 41 of the petitioner's 203 members either had not 
documented descent from their claimed Pamunkey ancestor, or claimed 
ancestors who were not documented as historical Pamunkey Indians. Of 
these 41 members, 18 (9 percent of the petitioner's members) did not 
document descent from a member of the historical Pamunkey Indian tribe. 
This FD finds that of these 18, all have now documented their 
generation-by-generation descent from a member of the historical 
Pamunkey Indian Tribe. The residual 23 members claimed descent from 
Robert W. Miles, whose ancestry had not been traced to a member of the 
historical Pamunkey Indian tribe at the time of the PF. With new 
evidence submitted by the petitioner for the FD, it is now demonstrated 
that Robert W. Miles is the grandson of Pleasant Miles, a documented 
member of the historical Indian tribe. All of the residual 23 members 
have documented their generation-by-generation descent from Pleasant 
Miles through Robert W. Miles for this FD.
    Materials the petitioner submitted in the comment period 
demonstrated also that some current members descend from an additional 
historical Pamunkey Indian individual who was not claimed as their 
ancestor for the PF (PIT Comment 2014, Appendix 4, Item 5, 76-82). This 
historical individual, known to be a member of the historical Pamunkey 
Indian tribe, is Pleasant Miles (b.bef.1815-d.aft.1836), listed on the 
1836 petition, and now demonstrated to be the father of Isaac Miles 
(b.abt.1828-d.aft.1852) and the grandfather of Robert W. Miles (b.1852-
d.1930). As a result of this new evidence, 40 members of the petitioner 
are able to claim descent from Pleasant Miles, and 33 of those 40 have 
documented that descent. Of the remaining seven members, one has 
documented his descent from Edward Bradby, and the other six have 
documented their descent from Edward Bradby and Isaac Miles, Jr., other 
qualifying historical Pamunkey Indian ancestors.
    Stand Up for California! and MGM argued that the PF did not 
satisfactorily document Matilda Brisby (aka Brisley or Bradby) as a 
historical Pamunkey Indian (Stand Up for California! and MGM 2014, 14-
16). The PF reported that Matilda Brisby was listed on the 1835 Colosse 
Baptist Church ``Island List'' of Indians associated with the Pamunkey 
Indian community on ``Indian Island,'' which the PF considered as a 
list identifying members of the historical Pamunkey Indian tribe (PIT 
PF 2014, App. A). The Southern Claims Commission testimony of Matilda 
Brisby's grandson, son-in-law, and numerous others, all of whom were 
identified as members of the Pamunkey Indian tribe, implied that she 
was considered a member of the Pamunkey community (PIT PF 2014, 97-98; 
see also discussion under criterion 83.7(b)). The PF concluded this 
evidence was sufficient under the reasonable likelihood standard to 
identify her as a historical Pamunkey Indian, whether she was born 
Pamunkey or was married to a Pamunkey Indian. The commenter argues that 
``at most'' the Church record ``establishes that the listed individuals 
were Indians and residents of the state reservation'' and further 
questions whether Martha A. (Brisby) Page Sampson and Matilda A. 
(Brisby) Langston were her daughters. The marriage records of these two 
individuals, however, specifically identify Matilda Brisby as their 
mother. The commenter does not present any evidence that Matilda Brisby 
was non-Indian or other Indian, surmising based on secondary sources 
that she may be Mattaponi ``based on close relationship between 
Pamunkey and Mattaponi.'' Without any direct evidence, the commenter's 
argument is not persuasive. The evidence in the record affirms the 
Department's conclusion that Matilda Brisby is Pamunkey Indian.
    Of the 164 members of the petitioner claiming descent from Matilda 
Brisby, 157 have demonstrated that descent. However, even if Matilda 
Brisby were not Pamunkey Indian, it would not change the finding that 
petitioner has satisfied this criterion. Based on the evidence 
submitted by the petitioner in the comment period, all 164 of those 
members also demonstrate descent from one or more of six other 
historical Pamunkey Indians--Edward ``Ned'' Bradby (Sr.) (122), William 
Bradby (30), James Langston (131), Isaac Miles, Jr. (108), Pleasant 
Miles (5), and John Sampson (65). The commenter provides no primary 
evidence that these individuals are not Pamunkey Indian, and under the 
regulations, the evidence demonstrates they are Pamunkey. Thus, the 
commenter's argument regarding Matilda Brisby, even if true, does not 
require a change in the conclusions of the PF that the petitioner meets 
criterion 83.7(e).
    In summary, the petitioner's evidence for 100 percent of its 
membership is more than sufficient to demonstrate that it descends from 
a historical Indian tribe. For all of the above reasons, the argument 
presented by the third party does not result in a change in the 
conclusion that Matilda Brisby was a member of the historical Pamunkey 
Indian tribe. (This FD notes and corrects an error in the PF that gave 
``1850'' instead of ``1820'' as the approximate date of Matilda 
Brisby's marriage to Edward Brisby; PIT PF 2014, 97).
    The commenter Stand Up for California! and MGM also argued that 
demonstrating Matilda Brisby's non-Indian status would result in the 
group's failure to meet criterion 83.7(e) because too many members 
would no longer have descent from the historical Pamunkey Indian tribe 
(Stand Up for California! and MGM 2014, 13). Because evidence the 
petitioner submitted for the FD demonstrates all 208 current members 
descend from the historical Pamunkey Indian tribe through individuals 
other than Matilda Brisby, this argument does not require a change in 
the analysis for the FD (PIT Comment 2014, Appendix 4, Membership Files 
and Item 5, 47-93; PIT Response 2014, Narrative, 48-50).
    The Department's evaluation of new evidence submitted for the FD 
further strengthens the overall conclusions reached in the PF under 
criterion 83.7(e). For the FD, the Pamunkey petitioner has demonstrated 
that 100 percent of its members descend from the historical Pamunkey 
Indian tribe, with every member having generation-to-generation 
documentation of descent from a member of the historical Pamunkey 
Indian tribe. This evidence is more than sufficient to satisfy this 
criterion. Therefore, the Pamunkey petitioner fully satisfies criterion 
83.7(e).
    Criterion 83.7(f) requires the petitioner's membership be composed 
principally of persons who are not members of another federally 
recognized Indian tribe. The petitioner met this criterion in the PF. 
All five of the new members added since the PF stated on consent forms 
that they are not enrolled with any federally recognized Indian tribe. 
The evidence in the record demonstrates the membership of the 
petitioner is composed principally of persons who are not members of 
any acknowledged North American Indian tribe. The petitioner and third 
party did not submit comments on this criterion. Therefore, the FD 
affirms the PF's conclusions that the Pamunkey petitioner meets 
criterion 83.7(f).
    Criterion 83.7(g) requires that the petitioner not be subject to 
congressional legislation that has terminated or forbidden the Federal 
relationship. The PF concluded the petitioner met criterion 83.7(g) 
because the petitioner did not submit and the Department did not locate 
any evidence that Congress has either terminated or forbidden a Federal 
relationship with

[[Page 39150]]

the petitioner or its members. The petitioner and third party did not 
submit comments on this criterion. Therefore, this FD affirms the PF's 
conclusion that the Pamunkey petitioner meets criterion 83.7(g).
    This notice is the FD to extend Federal acknowledgment under 25 CFR 
part 83 to the Pamunkey Indian Tribe. Under 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 Bureau of 
Indian Affairs Web site at https://www.bia.gov/WhoWeAre/AS-IA/OFA/RecentCases/index.htm. Requests for a copy of the FD should be 
addressed to the Federal Government as instructed in the ADDRESSES 
section of this notice.
    After the publication of the FD in the Federal Register, the 
Pamunkey petitioner or any interested party may file a request for 
reconsideration with the Interior Board of Indian Appeals (IBIA) under 
the procedures in Sec.  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 
regulation 90 days after the Federal Register publication unless a 
request for reconsideration is received within that time.

    Dated: July 2, 2015.
Kevin K. Washburn,
Assistant Secretary--Indian Affairs.
[FR Doc. 2015-16711 Filed 7-2-15; 4:15 pm]
BILLING CODE 4337-15-P