Indian tribes, acknowledgement of existence determinations, etc.: Yuchi Tribal Organization, OK,

[Federal Register: December 22, 1999 (Volume 64, Number 245)]

[Notices]

[Page 71814-71816]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr22de99-108]

DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

Final Determination Against Federal Acknowledgment of the Yuchi Tribal Organization

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice of Final Determination.

SUMMARY: Notice is hereby given that the Assistant Secretary--Indian Affairs declines to acknowledge that the Yuchi Tribal Organization, P.O. Box 1803, Sapulpa, Oklahoma 74067, exists as an Indian tribe within the meaning of Federal law. This notice is based on the determination that the group does not satisfy one of the criteria set forth in 25 CFR 83.7, namely 83.7(f), and therefore does not meet the requirements for a government-to-government relationship with the United States. Pursuant to 25 CFR 83.10(l)(2), this notice is published in accordance with authority delegated by the Secretary of the Interior to the Assistant Secretary--Indian Affairs by 209 DM 8.

DATES: This determination is final and will become effective 90 days after its publication in the Federal Register, unless a request for reconsideration is filedby the petitioner or any interested party with the Interior Board of Indian Appeals no later than 90 days after publication.

FOR FURTHER INFORMATION CONTACT: R. Lee Fleming, Chief, Branch of Acknowledgment and Research, (202) 208-3592. A request for a copy of the report which summarizes the evidence and analyses that are the basis for this Final Determination should be addressed to the Bureau of Indian Affairs, Branch of Acknowledgment and Research, 1849 C Street NW, Mailstop 4660-MIB, Washington, D.C. 20240.

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SUPPLEMENTARY INFORMATION: A notice of the Proposed Finding to decline to acknowledge the Yuchi Tribal Organization (YTO) was published in the Federal Register on October 24, 1995 (60 FR 54506). The Proposed Finding concluded that the YTO did not meet criterion 83.7(f) of the acknowledgment regulations. The requirement of criterion 83.7(f) is that the membership of a petitioning group be composed ``principally of persons who are not members of any acknowledged North American Indian tribe'' (25 CFR 83.7(f)). The Proposed Finding concluded that the YTO failed to meet this criterion because almost all of its members are also enrolled members in a federally-recognized tribe, the Muscogee (Creek) Nation (MCN).

The acknowledgment regulations provide, however, for an exception in which a petitioner may be acknowledged even though its members are predominantly members of a federally-recognized tribe. In order to benefit from this exception, a petitioner must demonstrate that it satisfies three conditions: that it has functioned throughout history as an autonomous tribal entity, that its members do not maintain a bilateral political relationship with the acknowledged tribe, and that its members have provided written confirmation of their membership in the petitioning group (25 CFR 83.7(f)). The Proposed Finding concluded that the YTO did not meet any of these three conditions, and thus did not qualify for the exception to the basic requirement of criterion 83.7(f).

The YTO petition for Federal acknowledgment was evaluated under the section of the acknowledgment regulations (25 CFR 83.10(e)) which provides for an expedited Proposed Finding on a single criterion when the documented petition and the petitioner's response to the preliminary technical assistance review of the petition by the Bureau of Indian Affairs (BIA) indicates that there is little or no evidence that the petitioner can meet criterion 83.7(f). An expedited Proposed Finding is made after the petitioner has responded to the BIA's technical assistance review of the petition and before the petition is placed under ``active consideration'' (25 CFR 83.10(e)). Under the regulations (25 CFR 83.5(c), 83.6), the petitioner has the burden of establishing that it is entitled to be acknowledged as existing as an Indian tribe. The petitioner's failure to meet any one of the mandatory criteria in section 83.7 results in a finding against acknowledgment (25 CFR 83.10(m)). If the Assistant Secretary's review of the petition finds that the evidence ``clearly establishes'' that the group does not meet one of the mandatory criteria in paragraphs 83.7(e), (f), or (g), the Assistant Secretary shall issue an expedited Proposed Finding denying acknowledgment (25 CFR 83.10(e)(1)).

Publication of the expedited Proposed Finding gives notice that the petition is now under ``active consideration'' (25 CFR 83.10(f)), and starts the process and time periods established in paragraphs 83.10(h) through (l). The expedited Proposed Finding limits the inquiry for the Final Determination to a single criterion. In response to an expedited Proposed Finding, the petitioner or third parties must provide evidence for the Final Determination that the petitioner meets the criterion in question under the ``reasonable likelihood of the validity of the facts'' standard (25 CFR 83.6(d)), the standard which applies to the evaluation of petitions under active consideration. The ultimate burden of establishing that the petitioner is entitled to be acknowledged as an Indian tribe always remains on the petitioner. This Final Determination on the YTO petition is issued based on the conclusion that neither the YTO nor the third parties have shown that the YTO meets criterion 83.7(f) under the ``reasonable likelihood of the validity of the facts'' standard. Because the petitioner and third parties did not provide sufficient evidence that the petitioner meets criterion 83.7(f) under this standard, it was not necessary for the BIA to undertake a full evaluation of the YTO petition under all seven of the mandatory criteria.

This Final Determination is based upon an evaluation of all the materials utilized for preparation of the Proposed Finding, the information submitted by the petitioner in response to the Proposed Finding and in response to third party comments, the public comments on the Proposed Finding, and the evidence collected by the BIA staff for evaluation purposes. The YTO and two members of the public submitted timely comments on the Proposed Finding. The YTO also submitted a timely response to the public comments. Neither the comments of the petitioner nor the public comments disputed the basic conclusion of the Proposed Finding that almost all YTO members are also enrolled members of a federally-recognized tribe. None of these comments demonstrated, or even attempted to demonstrate, that the petitioner satisfies all three conditions necessary to achieve an exception to the basic requirement of criterion 83.7(f). A review of the comments on the Proposed Finding reveals that the YTO petitioner and the public commenters have offered no evidence and no arguments which refute or revise the Proposed Finding.

The YTO petitioner represents only a portion of a larger Yuchi ethnic group, and this Final Determination applies to this petitioner rather than to all the ethnic Yuchi. Independent scholars have estimated the current population of ethnic Yuchi at about 2,000 persons, while a 1956 list of the Yuchi included 1,299 names. The Proposed Finding was based on an evaluation of a membership list submitted by the YTO which contained 165 names. Neither the petitioner nor the public commenters disputed the conclusion of the Proposed Finding that 92 percent of these individuals were enrolled members of the MCN. This Final Determination is based on an evaluation of a revised membership list submitted by the YTO which contains 327 names. The BIA compared the names on the membership list of the YTO to the names in the citizenship database of the MCN. The evidence indicates that 278 of the 327 individuals on the YTO membership list, or 85 percent of them, are members of the MCN. The evidence also indicates that 93 percent of YTO adults are MCN members. These data reveal that the membership of the YTO petitioner is composed principally of members of a federally-recognized tribe.

The provisions of criterion 83.7(f) provide an exception to the basic requirement of the criterion if the petitioner can demonstrate that, despite the inclusion of its members on the MCN roll, it meets three conditions. The petitioner and commenters have not demonstrated that the YTO is a politically autonomous entity at present, as required by the first condition. The petitioner's leaders have conceded that the YTO is not the governing body of a Yuchi tribe. The petitioner and commenters have not challenged the conclusion of the Proposed Finding on the second condition that YTO members have a bilateral political relationship with the MCN because of the reciprocal consent involved in applying for MCN membership and being accepted as members by the MCN. Also, the evidence indicates that individual YTO members have participated extensively in the MCN political and judicial systems since 1962, which confirms the existence of a bilateral political relationship between YTO members and a recognized tribe. The petitioner and commenters have not claimed that the YTO has met the third condition of providing written confirmation from its members of their intention to belong to

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the petitioning group. The evidence indicates that such confirmation can be implied for only a small minority of YTO members. Thus, the YTO petitioner does not meet any of the three conditions which provide an exception to the basic requirement of criterion 83.7(f).

The comments on the Proposed Finding have offered no basis for reversing the Proposed Finding on the petition for Federal acknowledgment of the YTO. The evidence reveals that the petitioner fails to meet the requirement of criterion 83.7(f) that it be composed principally of individuals who are not members of a federally- recognized tribe. The evidence does not show that the petitioner meets all three of the conditions necessary to achieve an exception to the essential requirement of criterion 83.7(f). Neither the petitioner nor the commenters have demonstrated, by the standard of a ``reasonable likelihood of the validity of the facts,'' that the YTO meets the requirements of criterion 83.7(f). Therefore, the Proposed Finding is affirmed. Under 25 CFR 83.10(m), because the Yuchi Tribal Organization fails to meet criterion 83.7(f), a mandatory requirement for Federal acknowledgment, the Assistant Secretary--Indian Affairs declines to acknowledge that the YTO is an Indian tribe.

This determination is final and will become effective 90 days after the date of its publication in the Federal Register (25 CFR 83.10(l)(4)), unless a request for reconsideration of this determination is filedby the petitioner or any interested party with the Interior Board of Indian Appeals (IBIA) pursuant to 25 CFR 83.11. The request for reconsideration by the petitioner or interested party must be received by the IBIA no later than 90 days after publication of this determination in the Federal Register (25 CFR 83.11(a)(2)).

Dated: December 15, 1999. Kevin Gover, Assistant Secretary--Indian Affairs.

[FR Doc. 99-33117Filed12-22-99; 8:45 am]

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