[Federal Register: February 22, 2007 (Volume 72, Number 35)]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
Final Determination for Federal Acknowledgment of the Mashpee
Wampanoag Indian Tribal Council, Inc. of Massachusetts
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Notice of final determination.
SUMMARY: Pursuant to 25 CFR 83.10(l)(2), notice is hereby given that
the Department of the Interior (Department) has determined that the
Mashpee Wampanoag Indian Tribal Council, Inc., P.O. Box 1048, Mashpee,
Massachusetts, 02649, is an Indian tribe within the meaning of Federal
law. This notice is based on a determination that the petitioner
satisfies all seven mandatory criteria set forth in 25 CFR 83.7, and
thus meets the requirements for a government-to-government relationship
with the United States.
DATES: This determination is final and will become effective 90 days
from publication of this notice in the Federal Register on May 23,
2007, pursuant to 25 CFR 83.10(l)(4), unless a request for
reconsideration is filed pursuant to 25 CFR 83.11.
ADDRESSES: Requests for a copy of the Summary Evaluation of the
Criteria 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.
FOR FURTHER INFORMATION CONTACT: R. Lee Fleming, Director, Office of
Federal Acknowledgment, (202) 513-7650.
SUPPLEMENTARY INFORMATION: This notice is published in the exercise of
authority delegated by the Secretary of the Interior to the ADS by
Secretarial Order 3259, of February 8, 2005, as amended on August 11,
2005, and on March 31, 2006. This notice is based on a determination
that the Mashpee Wampanoag Tribal Council, Inc. (MWT) meets all of the
seven mandatory criteria for acknowledgment in 25 CFR 83.7.
The Department considered the Mashpee petition under slightly
modified timeframes set by a July 22, 2005, Joint Settlement Agreement
and Stipulated Dismissal (Agreement) resolving the case of Mashpee
Wampanoag Tribal Council, Inc. v. Norton, 180 F. Supp. 2d 130 (D.D.C.
2001), rev'd, 336 F.3d 1094 (D.C. Cir. 2003), on remand, No. CA 01-111
A notice of the proposed finding (PF) to acknowledge the petitioner
was published in the Federal Register on April 6, 2006 (71 FR 17488).
Publishing notice of the PF initiated a 180-day comment period during
which time the petitioner, and interested and informed parties, could
submit arguments and evidence to support or rebut the PF. The comment
period ended on October 3, 2006. The regulations at 25 CFR 83.10(k)
provide the petitioner a minimum of 60 days to respond to comments that
interested and informed parties submitted on the PF during the 180-day
comment period. The Agreement modified this timeframe, providing the
petitioner a 30-day response period, which ended on November 1, 2006.
This final determination (FD) is made following a review of the
petitioner's and public comments as well as the petitioner's response
to the public comments.
During the comment period, the petitioner submitted an updated
membership list, supplemental genealogical and governmental materials,
and historical documents, in response to requests for information made
by the Department in the PF and in an informal technical assistance
teleconference with the petitioner. These materials did not change the
conclusions of the PF. The Department received several letters of
support from the public for the Mashpee group. These letters did not
provide substantive comment. The Department also received a letter from
a former selectman of the Town of Mashpee pertaining to negotiations
between the petitioner and the Town. This letter did not comment
substantively on the PF. The only substantive comment by interested or
informed parties came from the Office of the Massachusetts Attorney
General (Massachusetts AG), to which the petitioner submitted a
response on October 30, 2006. The Massachusetts AG's comments are
discussed under criteria 83.7(b) and 83.7(c) below.
Criterion 83.7(a) requires external identifications of the
petitioner as an American Indian entity on a substantially continuous
basis since 1900. The PF concluded external observers identified the
petitioning group as an American Indian entity on a substantially
continuous basis since 1900. However, it pointed out that the available
identifications of the Mashpee in the record for 1900-1923 constituted
sufficient but minimal evidence for substantially continuous
identification for those years, and encouraged the petitioner to
strengthen its evidence for criterion 83.7(a) by submitting additional
identifications for that period. In response, the petitioner submitted
a new argument concerning a 1907 document. As reevaluated for the FD,
this document provides an additional identification of the Mashpee.
When combined with the other identifications in the record for the PF
for those years, the additional evidence is sufficient to show
consistent identifications of the Mashpee from 1900 to 1923. The
evidence submitted for both the PF and the FD demonstrates external
observers identified the Mashpee as an Indian entity on a substantially
continuous basis since 1900. Therefore, the petitioner meets the
requirements of criterion 83.7(a).
Criterion 83.7(b) requires that a predominant portion of the
petitioning group comprises a distinct community and has existed as a
community from historical times until the present. The PF concluded
that the petitioner presented sufficient evidence to satisfy this
criterion. During the comment period, in response to the Department's
request for information, the petitioner submitted a copy of the 1776
Gideon Hawley census of Mashpee. As part of an analysis of residential
patterns of the Mashpee group for the colonial and Revolutionary
periods, the PF described this document's details using only
descriptions of it from both State reports and secondary sources. For
the FD, Department researchers analyzed the newly-submitted 1776 Hawley
and found that it supported the PF's conclusions regarding the
residential patterns of the group for the colonial and Revolutionary
In its comments on the PF dated October 2, 2006, the Massachusetts
AG expressed concern that the PF did not adequately consider the
evidence contained in the record of the lengthy jury trial in the
Mashpee's land claim suit of 1977-1978. The jury concluded that the
Mashpee group did not constitute an Indian tribe for purposes of the
Indian Nonintercourse Act (25 U.S.C. 177). See Mashpee Tribe v. Town of
Mashpee, 447 F. Supp. 940 (D. Mass. 1978), aff'd, Mashpee Tribe v. New
Seabury Corp., 592 F. 2d 575 (1st Cir. 1979). In particular, the
Massachusetts AG cited the testimony of the defendants' two expert
witnesses at specific sections of the trial transcript as examples of
evidence that appeared to militate against Federal acknowledgment of
the group. The Massachusetts AG then urged the Department to give the
trial record of the case the fullest review before issuing the FD. In a
follow-up letter dated October 3, 2006, the Massachusetts AG clarified
that it was not taking a position on the recognition of the Mashpee in
its October 2, 2006, comments, but was simply addressing those issues
related to its concerns about adequate consideration of the evidence in
the 1978 trial record.
The Department gave the evidence from the trial record a thorough
review at the time of the PF. The Department examined all of the
transcripts of the testimony (over 7,300 pages) as part of its
evaluation of the Mashpee petition before the PF's issuance. Although
quality, not quantity, is critical, the Department also based the PF on
considerably more evidence, over 10,100 documents totaling about 54,000
pages in the petition record. In contrast, there were only about 274
exhibits before the Court. None of these materials with the exception
of the exhibits were available to the court at the time of the trial.
In response to the Massachusetts AG's comments, the Department reviewed
again the evidence from the trial record, particularly the cited
testimony of the defendants' two expert witnesses. This review did not
change the findings in the PF.
The PF additionally examined the group's community and politics for
the lengthy period since the suit, approximately 30 years, as well as
the earlier periods. It also incorporated more in-depth evaluations of
the evidence, including detailed marriage and residency analyses, as
well as 31 interviews conducted by the Department's anthropologist
during an on-site investigation in 2006.
Criterion 83.7(b) requires that a predominant portion of the
petitioning group comprises a distinct community and has existed as a
community from historical times until the present. The PF addressed the
issues dealing with distinct community raised by the defendants' expert
witnesses in the trial transcript pages cited by the Massachusetts AG.
Generally, the two witnesses argued the Mashpee lacked cultural
distinctiveness and economic autonomy from the wider society and
therefore were not a tribe. The Federal acknowledgment regulations,
however, do not require a petitioner to maintain cultural
distinctiveness or economic autonomy to be an Indian community.
Instead, the regulations require the petitioner to be a socially
distinct group of people within the wider society. In the Mashpee case,
the PF described at length their continued community cohesion and
social distinction from non-Indian populations since first sustained
In sum, neither the comments of the Massachusetts Attorney General
nor the evidence in the trial transcript it referenced changed the PF's
conclusions that the Mashpee were a distinct community (criterion
83.7(b)). The Massachusetts AG raised concerns that the Department may
not have fully considered the evidence and issues raised in the trial
transcript. The PF was thorough in its review of the materials in the
trial transcript and a larger body of evidence that the court did not
have in the land claim suit. This FD reevaluated the evidence in the
trial testimony. In response to the comments submitted by the
Massachusetts AG citing the testimony of the two defendants' witnesses,
the FD reviewed this testimony and finds that the standards and
definitions of a tribe used by these witnesses differ substantially
from the requirements in the seven mandatory criteria of the
regulations. The FD also finds that the trial testimony did not provide
any evidence or arguments not already discussed in the PF, and did not
merit a change in the evaluation of the evidence under criterion
83.7(b) in the PF. Therefore this FD affirms the PF's conclusions. The
petitioner meets the requirements of criterion 83.7(b).
Criterion 83.7(c) requires that the petitioner has maintained
political influence or authority over its members as an autonomous
entity from historical times until the present. The PF concluded that
the petitioner presented sufficient evidence to satisfy this criterion.
Neither the petitioner nor any third parties submitted new evidence
related to the PF's conclusions regarding criterion 83.7(c). Several of
the pages in the trial transcript of the 1977-1978 land claim suit that
the Massachusetts AG cited in its comments dealt with issues related to
criterion 83.7(c). The defendants' expert witnesses claimed, for
instance, that the Mashpee were not a tribe because they lacked
political autonomy from the wider society. The acknowledgment
regulations only require political autonomy in relation to other Indian
groups, defining autonomy as the exercise of political authority
independent of any other Indian governing entity (See 25 CFR section
83.1). Participation in the political processes of the wider society,
as in the Mashpee's case, is not evidence that a group does not exist
as an Indian tribe exercising political influence or authority over its
members. These witnesses also tended to ignore or minimize informal
forms of leadership based on consensus and persuasion, and alternative
forms of governance the Mashpee adopted in response to their unique
history, geography, culture, and social organization, in favor of
restrictive and limited notions of Indian leadership.
Political influence over the group's members was demonstrated by a
long line of Mashpee leaders. Since the colonial period, the Mashpee
have had sachems, proprietors, spiritual leaders, informal leaders,
district and town officials, and council members who influenced and
were influenced by the members on political matters of importance. The
PF also showed group members considered the actions of their leaders
important and were highly involved in political processes.
In sum, the reevaluation of the evidence in the trial transcript
referenced in the comments of the Massachusetts AG did not result in a
modification of the PF's conclusions that the Mashpee demonstrated
political influence (criterion 83.7(c)). The PF dealt with the issues
raised in the trial testimony affecting the evaluation of evidence
under criterion 83.7(c) in its review of the materials in the trial
transcript and a larger body of evidence that the court did not have in
the land claim suit. This FD reevaluated the evidence in the trial
testimony. In response to the comments submitted by the Massachusetts
AG citing the testimony of the two defendants' witnesses, the FD
reviewed this testimony and finds that the standards and definitions of
a tribe used by these witnesses differ substantially from the
requirements in the seven mandatory
criteria of the regulations. The FD finds that this material did not
provide any evidence or arguments not already discussed in the PF, and
did not merit a change in the evaluation under criterion 83.7(c) that
the Mashpee demonstrated political influence from first historical
contact to the present. Therefore, the petitioner meets the
requirements of criterion 83.7(c).
The PF found that the petitioner met the requirements of criterion
83.7(d) by submitting its present governing document: a constitution
dated September 28, 2004, which described the group's membership
criteria and the current governing procedures. For the FD, the
petitioner submitted a membership enrollment ordinance dated September
21, 2006, which clarifies certain sections of the constitution and
provides additional evidence concerning the group's membership
criteria. The FD affirms the PF's conclusion that the petitioner meets
the requirements of criterion 83.7(d).
Criterion 83.7(e) requires that the petitioner's membership consist
of individuals who descend from a historical Indian tribe or from
historical Indian tribes that combined and functioned as a single
autonomous political entity. The PF found that 88 percent of the
petitioning group descended from the historical tribe and met the
requirement for criterion 83.7(e). The PF advised the petitioner to
submit evidence to document descent for the remaining 12 percent and to
update its membership list.
In response, the MWT submitted a properly certified membership list
dated September 13, 2006, naming 1,453 members. The petitioner provided
evidence acceptable to the Secretary demonstrating that about 97
percent of its members (1,403 of 1,453) descend from the historical
Mashpee tribe as defined by the 1861 Earle Report. About 2 percent (41
members) descend from the two Christiantown Wampanoag Indian families,
Peters-DeGrasse and Peters-Palmer, who did not document descent from
the historical tribe as defined in the Earle Report, but who are
defined as qualifying ancestors in the MWT constitution. One of these
families settled in Mashpee shortly after 1861 and became part of the
group by the early 1900's. Descendants of both families became part of
Mashpee community socially and politically by the mid-20th century.
Nine remaining members (about 1 percent), do not have complete birth
records naming parents, but are expected to be able to provide the
The new evidence for the FD modifies the PF's conclusions by
changing the number of members in the MWT from 1,462 to 1,453 and the
percentage of members who have documented descent from the historical
tribe from about 88 percent to approximately 97 percent. The evaluation
of additional documentation submitted strengthens the conclusion that
the Mashpee petitioner meets the requirements of criterion 83.7(e).
This FD concludes that the evidence is sufficient to meet the
requirements of criterion 83.7(e).
Criterion 83.7(f) requires that the membership of the petitioning
group be composed principally of persons who are not members of any
acknowledged North American Indian tribe. A review of the available
documentation for the PF and the FD revealed that the membership is
composed principally of persons who are not members of any acknowledged
North American Indian tribe. Therefore, the petitioner meets the
requirements of criterion 83.7(f).
Criterion 83.7(g) requires that neither the petitioner nor its
members be the subject of congressional legislation that has expressly
terminated or forbidden the Federal relationship. A review of the
available documentation for the PF and the FD showed no evidence that
the petitioning group was the subject of congressional legislation to
terminate or prohibit a Federal relationship as an Indian tribe.
Therefore, the petitioner meets the requirements of criterion 83.7(g).
A report summarizing the evidence, reasoning, and analyses that are
the bases for the FD will be provided to the petitioner and interested
parties, and is available to other parties upon written request.
After the publication of notice of the FD, the petitioner or any
interested party may file a request for reconsideration with the
Interior Board of Indian Appeals (IBIA) under the procedures set forth
in section 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 regulations
90 days from the Federal Register publication unless a request for
reconsideration is received within that time.
Dated: February 15, 2007.
James E. Cason,
Associate Deputy Secretary.
[FR Doc. E7-2966 Filed 2-21-07; 8:45 am]
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