February 22, 2007

Federal Register: Mashpee recognition decision

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.
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[Federal Register: February 22, 2007 (Volume 72, Number 35)]
[Notices]               
[Page 8007-8009]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22fe07-75]                         

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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.

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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 
JR (D.D.C.).
    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 
census

[[Page 8008]]

and found that it supported the PF's conclusions regarding the 
residential patterns of the group for the colonial and Revolutionary 
periods.
    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 
contact.
    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

[[Page 8009]]

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 
proper evidence.
    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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