Final Determination for Federal Acknowledgment of the Pamunkey Indian Tribe

AGENCY:

Bureau of Indian Affairs, Interior.

ACTION:

Notice of final determination.

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 § 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 § 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 § 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 § 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 § 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 § 83.10(k)(1), the OFA wrote a letter to the petitioner and interested parties on October 16, 2014, followed by contact 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. 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 § 83.7(c) using evidence described in § 83.7(c)(2).” The regulations under § 83.7(c) or § 83.7(c)(2), however, do not require that a “predominant proportion” of members live within a limited area, and § 83.7(b)(2) defines the § 83.7(c)(2) evidence as “sufficient” to meet § 83.7(b). Therefore, the third-party 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 § 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 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 § 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).

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 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 § 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 http://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 § 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.