Free Response to Motion [Dispositive] - District Court of Federal Claims - federal

Case 1:02-cv-01383-MMS

Document 60-4

Filed 05/02/2007

Page 1 of 2

Federal Register / Vol. 61, No. 69 / Tuesday. Aprll 9. 1996 / Notices ~Olskettes (3,500 @ S1:00) ......................................................................................................................................... -13.500 'Prtnt(ng (50 Manuals @ 120) ..........................:.....................................* ................... ........ . . -I ___.....-\ : 3ub(otal ...................................................................... 1...............................................................-. ............... :....... . . s'l.sq0 : . . ,: .. _. - -. . I : .. - ! ,/ . ./ . : F. i+~rec! Costs @ 12% (rate as eslab!!shed by.prcvlous Federal audit) ............................................................... : =rs.sio

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(FR'DOC. 96-8589 Flled 4-8-96; 8:4S am1 a~cctnc p o ~ ~ t - ~ s ~ ~ c

active consideyatiocl at the time the until October t 1. 1995. to submlt revised regulations became ellectlve on conlmems to the ASIA on the ALJ's March 28. 1994. were givcn the option recornmended decision. The proccdures to be considered under the revlsed also provided that the ASIA would issue Ruteau of Indian Affalrs regulations or the previous regulations. a final detcrmlnatlon within 30 days of -. I ne Samisn Tribai Grganizacion receipt o i cuniiiiciii;. (UOO360-9 5135420] requested in writing to be considered Comments opposing acknowledgment under the 1978 regulations. Flnal Determination for Federal were received from the Swinomlsh A final determinatiOcl decline to to Acknowledgment of the Samish Tribal Tribal Community. tile Tulalip ~ ~ i b acknowledge the Sarnisl~ Tribal Organizatlon as an Indian Tribe Inc.. and the Upper Skagit Tribe. Organlzarion as a tribe was published In Commenu were the STO AGENCY: Bureau of Indian Affairs. the Federal Register on February 5. urging the approval of the Interior. 1987 (52 FR 3709). The Secretary recommended decision. commenting on AcnoN: Notice of final determination. declined a request for reconslderation Implementation process and and the determination became effective suggesting ,remedial actions to the STO SUMMARY: This determination is made May " 1987. In i992 i n 'reem versus deemed necessary. The chairperson of pursuant to tlle acknowledgment United Stares. the court declined to STO by menlorandum 15 regulations. 25 CFR Part 83. that became consider Lhe STO had requested a meeting with the ASlA on effective October 2. 1978. All citations fishing H ~ the court ~ ~ September 27 ~ discuss formal. ~ ~ to are to thosc regulations unless orhenvisc vacated the 1987 dcterrnination on recognition and to begin the budget and stated. grounds that a 'orma' hearing had natural resources process. The requested Pursuant ro 25 CFR 5 83.9(h). notice is been given to the on the meeting wit11 the ASIA was not held. hereby given that the Assistant question of its tribal status in although the former tribal chairman did Secretary-Indian Affairs has connection with the eligibitity of Its A~lA at a speak with determined that che SamishTribal mcmbers for Federal programs. The conference at the end of October. as an Indian OrganizationISTO) coufl ordered that a new hearing be held Comnlents also provided to (he cribe within t l ~ e meaning of Federal law. which conformed to the requirements of by the Bureau of lndlan ~ & l ~ ~ , This notice is basedon a Act. The which did not participate in the determination that the SamlshTribal 'he Assistant Secretary's determination does deliberations on [his decision, Organization meets all of the seven mandatory criterla for acknowledgment not include a determination of rhe The Assistant Secretaryhas nature or extent of the rights. If any. of set fortll in 25 CFR 583.7 and, therefore. the STO or Its to fish pursuant determined to acknowledge the meets the requiremenu necessary lor a existence of the S T 0 as an lndian tribe. to any treaty. govemn1ent-to-government relationship u n d e r instructions from the court and The reasoning underlying her with the United States. determination Incorporates somc of the agreements between the parties. ALJ's findings and rejects other ~ oATES: This determination is final and proceedingsbefore a n ~ d ~ l ~ i ~ ~ ~ will bccome edective 60 days after the findings. The dctern~ination L~~ judge (ALJ)of D~~~~~~~~ or incorporates additional findings based date on which this notice appears t n t h e ~ ~ r i c e o r ~ e a r i n ~and o ~ gs ~ i ~ ~ , ~ on the admlnistrativc record. including Federal Register unless the Secretary of ~~~~~l~ began in 1992. A formal the interior requests a reconsideration materials presented in the hearing. in hearing before (he ALJ was held ln Seattle. Washington. from August 22 to order document I n final by the Asslstant Secretary-Indian determination that the S T 0 satisned Affalrs pursuant to 25 CFR 5 83.10(a)~~~~~t 30. 1994. ne u l t e r i a that the ALJ's (c). lnstructlons required the ALJ to make a FOR FURTHER ~ N F O R ~ I A T I O N CONTACT: recommendeddecision to ,he ~~~i~~~~~ decision did not specifically address. In the 1987 determination. vacated by Office of the Assistant SecretarySecretary-Indian Allairs on whether (202) 208-7163. the court. the S T 0 was lound to meet Indian Allairs& the S T 0 should be acknowledged to the criteria in 55 83.7 (d). (I) and (g). exist as an Indian tribe. SUPPLEMENTARY INFORMATION: This Both parties to the 1992 proceedings The ALJ signed a recommended notlce Is published In the exerclse of accepred that those criteria were met by decision to acknowledge the Samlsh authority delegated by the Secretary of Tribal Organization on August 31, 1995. the Samlsh Trlbal Organlzarion. NO the Interlor to the Assistant Secretarywere submitted evidence or argun~ents This recommended decislon was Indian Affairs (ASIA) by 209 DM 8. sufficient to refute the proposed finding Thls deternllriation is made under the forwarded through the Director. O&ce chat the Samlsh Tribal Organlzatlon me( acknowledgnlent regulations. 25 CFR of Hearlngs and Appeals. and recelved Part 83. w h i c l ~ became effective In 1978. by the Assistant Secretary on September crlteria d. f. and g. Consequently. they were not at issue tn thc proceedings All cltatlons arc to those 1978 11. 1995. Under the procedures regulations. Revised acknowledgment established by the court. the partles and before the ALJ. Wc find for purposesof (his decision that the Samish Tribal regulatlans became effective March 28, amlci curlae had 30 days from the Organlzarion meets thecriteria In 1991 (59 FR 9280). Petitioners under recelpt or the decision by the ASlA, or

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EXHIBIT 3
In Support of Plaintiff's Opposition to Motion to Dismiss on TPA & IHS Samish v. U.S., No. 02-1383L

Case 1:02-cv-01383-MMS

Document 60-4

Filed 05/02/2007

Page 2 of 2

15826

Fcderal Reglster

I Vol. 61, No. 69 I Tuesday, April 9, 1996 I Notices

53 83.7 (d). (0 and (g)OT tile 1978

successorshlp to the Nuwha'ha. T h e 8ureau of Land Management acknowled ment re ulations. Swlnomlsh Tribal Community by letter [AK-962-14'msP1 We find h a t the tarnish ~ r i b a l of January 5. 1996. requested that the Organintion has been Secrelary direct reconsideration of the Noticef o r Publication, AA-77255; as Indian identified ASIA's declslon to recognlze the Samlsh ~ l Native c , ~ k ~ ~~ ~ ~ ~ , ~ l or aboriginal. has existcd as a distinct T ~T~~ Swlnonllsh Tribal ~ ~ ~ . community slncc first sustained In accordance wlth Dcpanmentai Community had been denied the right to European contact. has maintained participate before the ALJ as a party but regulation 43 CFR 2650.7(d). notice 1s political Influence \vithir~ilseifas an hereby given [hat a decision to Issue had been granted amicus curiae status. autonomous entity and that 80 percent conveyance under the provisions of Sec, o Its members are descecidanu ofthe f Under the the Secretary can Tor any reason request the 19(b) the Alaska Land Status historical Samish tribe or families Technical Corrections Act of October ASIA to reconsider and [Ire Secretary which becanre incorporated into that 14. 1992. 106 Stat. 21 12. and Sec. shall make such a request in certain tribe. We conclude. therefore. that the 14(h)(5) of the Alaska Native Claims Samish Tribal Organization has met the circumstances. See 25 CFR 83-10. Settlement Act of December 18. 1971.43 nlanrlarar). criteria for acknowledgment The Secretary Is considering whether u s c 1601. 16.13(h)(5). will be Isued in 25 CFR 83.7. includingspeclficaliy. he has authority to direct the Asslstant to Calvin John Justin for approximately the requirements of the criteria in Secretary to reconsider and. if h e has 160 acres. The lands Involved are (c) and 83.7(e) 55 83.7 (a) that authority. whether he should direct located within Set. 18. T . 7 N.. R, 14 E.. acknow'edgn'ent her to reconsider. The question of the Copper River Meridian, in the vlcinity determination is based o n the Secretary's authority arises from an of Nabesna Bar. Alaska. membership list used for the 1987 ambiguity In the Joint Status Report A notice of the decislon wlll be under 25 CFR published once a week. for four (4) which states that the decision o f t h e Part 83. This list beconre the base Assistant Secretary shall be final agency consecutive weeks. in the Anchorage nrembershlp roll of the STO. subject to Daily News. Copies of the declslon may action but a,so that verification that the individuals on it reconsideration be done I n be obtained by contacting the Alaska consent to be listed as nrcmbers. Sfate office o f t h e Bureau Land accordance with 25 CFR Part 83. There ~h~ couru have made it clear [hat (he hlanagenlents 222 West Seventh is also a n ambiguiiy with regard to the issue of treaty rights [he STO may A'aska 99513Avenue* llave, if any. arc not an issue on remand tinre within which tile Secretary must 7599 ((907) 271 -5960). act since the time for action under Part to the Department. Tirerefore. we make Any party claiming a property interest 8 3 is 30 days from the date of no determination as to what righu. if is adversely affected by the publication o f t h e notice In the Federal any, [he or its members may have pursuant to any treaty. ~ ~ and (he~ joint status~ i R~~~~ t decision. an~ ~ Federal Or corporation' simply states the dccision will be made shall have until May 9. 1996. to file an The Joint Status Report filed In July 1992 by the parties to Crccne v. Lujan within 30 days. appeal. Howcvcr, parties recelvlng provided: In accordance with 55 83.9 and 83.10 service by certified mall silall have 30 The dccision or the Assistant of the 1978 regulations. this days from the date of receipt to file an Secretary be agency determination will in any event become appeal. Appeals must be filed In the "le Department of the interior' effective In 60 days fronr its publication Bureau of Land Management at the tire Secretary of the Interior determines in the Register unless the address identified above. where the wlthin 3 0 days that is [sic1 should be requirements for filing an appeal may be Secretary o f t h e Interior requests that reconsidered i n with 25 CFR obtained. Paflies who d o not file a n the Assistant Sccrctary-Indian AlYalrs Part 83, in \,,hlch case Secretary appeal in accordance with the reconsider her shall state the basis for this decision and 0r43 CFR Part 4' Subpart The Samish Tribal Organization has establish the procedures and timetable E. shall be deemed to have waived their t o be followed o n reco~lsideration. not requested administrative rights. At the hearing o n thc Joint Status reconsideration of the Assistant Gary L. Cunningham. Re orc. the court found that: Secretary's determination to L=ndL.rfiam*er.ANCSA AGudlcation +he government and the Samish also a c ~ o w l e d g e existence as an lndian its Team. Branch ofCulfRlrn Adjudication. agree that the Assistant Secretary's tribe. However. S T 0 has filed sult IFR Doc. 96861 1 Flicd 4-8-96: 8:45 am] decision should constitute final agency to require a reinstatement action unless the Sccrctary of the BILLING CODE ~ I I O - ~ S - P verbatlm of the ALJ's recommended lnterlor determines within 30 days that declslon and findings the decision should be reconsidered. t~~~-962-1410-00-~1 The Director. Portland Area Office. Although the anricus argues Bureau or Indian Affairs. Is Instructed to ' 'Notice for ~ublica(ion;7h-l1157; otl,envise, I will order (hat what the the Sarnlsh and the government have agreed v c r l f ~ membership list and to Alaska Native Claims Selection develop with the tribe a plan and budget to will be the order of this Court and it for the implementatlon of the ASIA'S In a&ordance with Departmental is so ordered. decision and the provision of servlces to regulation 43 CFR 2650.7(d). notlce is Two tribes have requested that the hereby glven that a deCis!onapfirovlng Secretary direct the Assistant Secretary the members of the Samlsh Trlbal lands for conveyanc'e'inder t h e 1 t o reconsider lrcr decision. The Upper Organlzatlon. provisions of Sec. 14(h)(2) of the Alaska Skagit Indian Tribe by Icttcr of January Dated: 29. 1996. Native Claims Settlement Act or 3. 1996. requested that thc ASIA'S Ada E. Deer. December 18. 1971. 43 U.S.C. 1601. declslon to ackno\\.ledgc thc ST0 be Asls'an'Secrcrar~-lrldianAITalrs. 1613(hj(2). will be issued toTanallan. rcversed arrd the nratter returned to the Inc. for 79.98 acres. The !ands?nvolved ALJ Tor a full hearing on tllc question of [FR Doc. 96-8636 Filed 4-8-96: 8:45 am1 OILUHG COOE 0 1 0 4 1 - M are In the vlclnlty of Port Alsworth. the Upper Skagit India11Tribe's
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