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The tribe's federal recognition was terminated in 1979 by the BIA in agreement with the Cherokee Nation of Oklahoma. It took 8 years of tenancity and hard work to restore recongition to the tribe that 1st treatied with the US.
                   --Jack Tatum@cowboy.net

4310-02

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

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 (unofficially) called 'The Delaware Tribe of Eastern Oklahoma, .....our legal name is the Delaware Tribe of Indians. 11 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 C.F.R. 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) , 11 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 fairs 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 immediately.

9-23-96 Date
Ada E. Deer
Assistant Secretary - Indian Affairs

NEWS - U. S. DEPARTMENT OF THE INTERIOR

OFFICE OF THE
ASSISTANT SECRETARY - INDIAN AFFAIRS

FOR IMMEDIATE RELEASE
Ralph E. Gonzales (202) 219-4150
September 23, 1996

DELAWARE TRIBE OF EASTERN OKLAHOMA
INDEPENDENT TRIBAL STATUS
RE-INSTATED

Ada E. Deer, Assistant Secretary for Indian Affairs signed a final decision recognizing a separate government-to-government relationship between the Delaware Tribe of Eastern Oklahoma and the federal government.

A notice of a proposed decision to reconsider a 1979 determination that the Department of the Interior would engage in government-to-government relations with the Delaware Tribe only through the Cherokee Nation was published on June 27, 1996 (61 FR 3 3534). A comprehensive legal review conducted by the Division of Indian Affairs, Office of the Solicitor, concludes that the 1979 determination did not consider the entire relevant legal record and did not construe accurately the provisions of the 1866 Treaty with the Delaware and the 1867 Agreement between the Delaware and Cherokee.

Historically, the Delawares became divided into five groups: the Munsee Delaware; the Kansas Delaware; the Absentee Delaware; the main body of the Tribe which moved to the Indian Territory, now eastern Oklahoma, on lands belonging to the Cherokee Nation, Oklahoma, and later those who left Indian Territory and settled eventually in Idaho. The reconsideration of the 1979 determination deals with the main body of the Tribe -- the Delaware who moved to and remained in Indian Territory, Oklahoma.

In 1866, the United States entered into a treaty with the Cherokee and a separate treaty with the Delaware. The treaty with the Delaware, ratified July 26, 1866, (14 Stat. 793), provided for the sale of lands in Kansas in exchange for removal to a reservation of their own in Indian Country. They were guaranteed rights to participate in any general council or territorial government "that may be established for the nations and tribes residing in said Indian County," and guaranteed peaceable possession. The United States then entered into a treaty with the Cherokee, ratified July 27, 1866 (14 Stat. 799). Article 15 of this Treaty allowed for two payments, one for preservation of their tribal laws, customs and usages not inconsistent with those of the Cherokee, and a second payment to settle within the Cherokee territory and become native Cherokees. The Delaware made these two payments and by this means preserved a right to be a separate tribal government entity.

The administrative practice of the Department of the Interior from 1866 - 1979 was to treat the Delaware as a separate tribe. The decision made in 1979 by the Acting Deputy Commissioner was a departure from this administrative practice and was made apparently without the knowledge that the Delaware had made payments in accordance with the 1866 Treaty to preserve their independent tribal government rights.

The decision to retract the 1979 determination 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. In retracting the 1979 determination, the Delaware Tribe of Eastern Oklahoma within the restraints imposed by federal law, will be considered a sovereign tribe and will have the same rights to demand consultation and contracting as other tribes. As a separate sovereign nation, the Delaware Tribe of Indians will have the same legal rights and responsibilities as other tribes, both in jurisdiction and as to it's right to define its membership. This decision, clarifies the government-to-government relationship between the United States and the Delaware Tribe of Indians which was understood to exist before the 1979 determination. This decision is final for the Department and is effective immediately.