Final Decision To Retract 1979 Decision of the Deputy Commissioner of Indian Affairs Regarding the Delaware Tribe of Indians

DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

Final Decision To Retract 1979 Decision of the Deputy

Commissioner of Indian Affairs Regarding the Delaware Tribe of Indians

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice of final decision.

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SUMMARY: This notice is published in the exercise of authority

delegated by the Secretary of the Interior to the Assistant Secretary--

Indian Affairs (Assistant Secretary) by 209 DM 8.

Based on a comprehensive legal review conducted by the Division of

Indian Affairs, Office of the Solicitor, dated June 19, 1996, and based

on a review of the comments received from the public, the Assistant

Secretary hereby retracts the letter of May 24, 1979, in which the

Bureau of Indian Affairs through the Acting Deputy Commissioner

determined that the Department of the Interior would engage in

government-to-government relations with the Delaware Tribe of Indians

only through the Cherokee Nation and that the Department would deal

directly with the Delaware Tribe of Indians only for purposes of their

claims against the United States. Notice is hereby given that the

Delaware Tribe of Indians is a tribal entity recognized and eligible

for funding and services from the Bureau of Indian Affairs by virtue of

its status as an Indian tribe.

A Notice of Intent to Retract the 1979 Decision was published in

the Federal Register on June 27, 1996 (61 FR 33534, June 27, 1996). The

public was given until July 29, 1996 to comment on the proposed

decision. A copy of the June 19, 1996, legal review prepared by the

Division of Indian Affairs was sent to the Cherokee Nation of Oklahoma

and to the Delaware Tribe of Indians on June 21, 1996, inviting

comments on the proposed decision to retract the May 24, 1979, letter.

Copies of the legal review were sent also to the Chickasaw Nation of

Oklahoma, Choctaw Nation of Oklahoma, Seminole Nation of Oklahoma, and

Muscogee (Creek) Nation of Oklahoma.

Four letters containing public comments were received. Two of these

letters included comments concerning the name of the tribe. The Federal

Register notice of June 27, 1996 referred both to the ``Delaware Tribe

of Eastern Oklahoma'' and to the ``Delaware Tribe.'' By letter dated

July 24, 1996, the Chief of the Delaware Tribe of Indians stated that

although they had ``been

[[Page 50863]]

(unofficially) called `The Delaware Tribe of Eastern Oklahoma' * * *

our legal name is the Delaware Tribe of Indians.'' By letter dated July

28, 1996, the Delaware Tribe of Western Oklahoma expressed concern that

the tribe might be called the ``Delaware Tribe of Oklahoma,'' thereby

causing confusion with the Delaware Tribe of Western Oklahoma. The

Department has dealt with other tribes which have name similarities, as

a review of the Federal Register list of ``Indian Entities Recognized

and Eligible to Receive Services'' demonstrates (60 FR 9250, Feb. 16,

1995). The comment in the July 24, 1996, letter is accepted and the

Department will use the ``Delaware Tribe of Indians'' as the tribe's

name.

The Delaware Tribe of Western Oklahoma expressed concern that this

final status clarification action may prejudice its rights as a

continuation of the Delaware Nation. In response, the Assistant

Secretary directs attention to the June 16, 1996, legal review of the

Division of Indian Affairs which states that the Delaware were the

first Indians to enter into a formal treaty with the federal government

and that over the years, the Delaware became divided into groups. The

legal review notes specifically that one of these groups is the

federally recognized tribe, the Delaware Tribe of Western Oklahoma.

This final decision on the Delaware Tribe of Indians does not change

the status, or history, of the Delaware Tribe of Western Oklahoma.

The comment from the Delaware Tribe of Western Oklahoma states that

the treaties and agreements between the Delaware Nation and the United

States, and the Cherokee Nation and the United States must be examined

with precision, and that the final determination must address the

issues of Delaware sovereignty rather than being a political

determination. The June 19, 1996, legal review was such a comprehensive

and detailed analysis of the relevant legal record, including a

detailed evaluation of pertinent treaties and agreements. This comment

raises no new information meriting additional analysis.

A comment was received from the Cherokee Nation dated July 26,

1996. This comment concerns the Cherokee Nation's jurisdictional

service area, its court system, law enforcement, Indian child welfare

services and civil jurisdiction. Referencing 105 Stat. 990 (1991) and

25 CFR 151.8, the tribe states that it cannot responsibly share its

jurisdictional land base, and provides that if the Delawares ``concede

that their actions will not result in any diminishment of the

Cherokee's present funding, its service area or jurisdictional base,

then separate recognition would be agreeable to the tribe.'' A comment,

by letter dated July 23, 1996, from an individual whose certificate of

Indian blood identifies her as ``Cherokee (adopted Delaware),''

expressed concerns that the proposed decision did not contain language

addressing the issues of dual enrollment and jurisdiction. This comment

notes that the Delaware intend to prohibit dual enrollment, and that a

driving force ``is the acquisition and control of federal dollars.''

The decision to retract the letter of May 24, 1979, is based on a

comprehensive legal analysis of the pertinent treaties and agreements

as well as a review of the Department of the Interior's administrative

practice. Based on this review, the proposed decision published in the

Federal Register concluded that the 1979 letter should be retracted

because it was not consistent with federal law. Within the restraints

imposed by federal law, the Delaware Tribe of Indians as a sovereign

tribe will have the same rights to demand consultation and contracting

as other tribes. As a separate sovereign, the Delaware Tribe of Indians

will have the same legal rights and responsibilities as other tribes,

consistent with federal law, both as to jurisdiction and as to its

right to define its membership. This decision in effect clarifies the

government-to-government relationship between the United States and the

Delaware Tribe of Indians which was understood to exist before the May

1979 letter. Although this decision may have legal consequences

affecting the Cherokee Nation and the members of both tribes, there is

nothing in these comments which indicates that the basis of the

proposed decision is in error or that the legal analysis of June 19,

1996, includes errors or is incomplete. These comments, therefore, do

not merit a change in the proposed decision.

Based on the legal analysis of the Division of Indian Affairs dated

June 19, 1996, and based on the foregoing analysis of the comments

received during the public comment period, the Assistant Secretary

hereby retracts the letter of May 24, 1979. The notice of proposed

decision, 61 FR 33534, is hereby made final. Notice is hereby given

that the Delaware Tribe of Indians is a tribal entity recognized and

eligible for funding and services from the Bureau of Indian Affairs by

virtue of its status as an Indian tribe.

By letter dated August 21, 1996, the attorney for the Delaware

Tribe of Indians indicated that at a meeting of April 30, 1996, the

Delaware Chief was informally advised that after the 30-day comment

period following the Federal Register publication, the Delawares would

have the opportunity to respond to any negative comments submitted. The

letter of August 21, 1996, included the Delaware response to the

comments of the Cherokee Nation and Delaware Tribe of Western Oklahoma.

The notice in the Federal Register did not include a right by the

Delaware Tribe of Indians to respond to the public comments. The letter

of August 21, 1996, was reviewed and because it does not raise any new

information or legal arguments pertinent to the basis of the proposed

decision, the Assistant Secretary need not address whether the Delaware

Tribe of Indians had a right to file this response even though none was

provided for in the Federal Register notice.

Nothing herein should be construed as altering the powers and

duties of the Delaware Trust Board.

Representatives from the Muscogee Area Office of the Bureau of

Indian Affairs shall consult with the Delaware tribal officials and

develop, in cooperation with the tribe, a determination of needs and

recommended budget, including a determination of the tribal service

population.

DATES: This decision is final for the Department and is effective

September 23, 1996.

Dated: September 23, 1996.

Ada E. Deer,

Assistant Secretary--Indian Affairs.

[FR Doc. 96-24749 Filed 9-26-96; 8:45 am]

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