[Federal Register: October 1, 2001 (Volume 66, Number 190)]
[Notices]
[Page 49967-49970]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01oc01-69]

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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs


Proposed Finding Against Federal Acknowledgment of the Nipmuc
Nation

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice of proposed finding.

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SUMMARY: Pursuant to 25 CFR 83.10(h), notice is hereby given that the
Assistant Secretary--Indian Affairs (AS-IA) proposes to determine that
The Nipmuc Nation, c/o Mr. Walter Vickers, 156 Worcester-Providence
Road, Suite 32, Sutton Square Mall, Sutton, Massachusetts 01590, does
not exist as an Indian tribe within the meaning of Federal law. This
notice is based on a determination that the petitioner does not satisfy
criteria 83.7(a), 83.7(b),

[[Page 49968]]

83.7(c), and 83.7(e) and, therefore, does not meet the requirements for
a government-to-government relationship with the United States.

DATES: As provided by 25 CFR 83.10(i), any individual or organization
wishing to challenge the proposed finding may submit factual or legal
arguments and evidence to rebut the evidence relied upon. This material
must be submitted within 180 calendar days from the date of publication
of this notice. As stated in the regulations, 25 CFR 83.10(i),
interested and informed parties who submit arguments and evidence to
the AS-IA must also provide copies of their submissions to the
petitioner.

ADDRESSES: Comments on the proposed finding and/or requests for a copy
of the report of the summary evaluation of the evidence should be
addressed to the Office of the Assistant Secretary--Indian Affairs,
1849 C Street, NW., Washington, DC 20240, Attention: Branch of
Acknowledgment and Research, Mail Stop 4660-MIB. The names and
addresses of commenters are generally available to the public.

FOR FURTHER INFORMATION CONTACT: R. Lee Fleming, Chief, Branch of
Acknowledgment and Research, (202) 208-3592.

SUPPLEMENTARY INFORMATION: This notice is published in the exercise of
authority delegated by the Secretary of the Interior to the AS-IA by
209 DM.

Introduction

    The Nipmuc Tribal Council, Hassanamisco Reservation, in Grafton,
Massachusetts, submitted a letter of intent to petition for Federal
acknowledgment on April 22, 1980, and was designated as petitioner #69.
The AS-IA placed the original petitioner #69, the Nipmuc Tribe (or
Nipmuc Nation), on active consideration July 11, 1995. A division of
the petitioner, after it was already on active consideration, occurred
in May 1996, with the submission of a separate letter of intent to
petition by the Webster/Dudley Band of Chaubunagungamaug Nipmuck
Indians, now petitioner #69B. The current petitioner, The Nipmuc
Nation, #69A, has continued under the original letter of intent.
    This finding has been completed under the terms of the AS-IA's
directive of February 7, 2000, published in the Federal Register on
February 11, 2000 (65 FR 7052). Under the terms of the directive, this
finding focuses on evaluating the specific conclusions and description
of the group which the petitioner presented, attempting to show that it
has met the seven mandatory criteria and maintained a tribal community
up until the present. Because evaluation of this petition was begun
under the previous internal procedures, this finding includes some
analyses which go beyond evaluation of the specific positions of the
petitioner. Consistent with the directive, a draft technical report,
begun under previous internal procedures, was not finalized.
    In this case, general arguments under the criteria were presented
in the petitioner's 1984 submission. Petitioner #69A has not presented
additional specific arguments which pertain to it alone. The evaluation
addresses petition materials submitted in 1984, 1987, 1995, and 1997,
which contained materials presenting different arguments in favor of
the acknowledgment of petitioner #69 and its successor, #69A, as
defined in three different ways: as those associated with the
Hassanamisco Reservation; as a joint organization encompassing the
Hassanamisco and Chaunbunagungamaug Bands (or the Grafton and Dudley/
Webster reservations); and as an umbrella organization of the
descendants of all historic Nipmuc bands. It has also been necessary to
address the 1996 split between #69A and #69B.
    On January 19, 2001, the Acting AS-IA made a preliminary factual
finding that the Nipmuc Nation met the seven mandatory criteria and
therefore was entitled to be acknowledged as an Indian tribe within the
meaning of Federal law. Until the required notice of the proposed
finding is published in the Federal Register, however, there is no
completed agency action. Notice of the proposed finding was not sent to
the Federal Register before the Acting AS-IA left office because of the
late time in the day when the decision was made and because there was
insufficient time to finally review for legal sufficiency all the
documents necessary to effect the Acting AS-IA's preliminary
determination prior to his leaving the office. Because the agency
action was still pending within the Department when the new
Administration was sworn in and took office, this Administration became
responsible for issuing a proposed finding which is legally sufficient.
As part of that responsibility, it was incumbent upon the new
Administration to review the decision making documents. This review was
also in accordance with the White House memorandum of January 20, 2001,
relating to pending matters.
    The Bureau of Indian Affairs' (BIA) recommended proposed finding
was that the Nipmuc Nation did not meet all of the mandatory criteria
under 25 CFR part 83. The recommendation had the approval of the Office
of the Solicitor as to its legal sufficiency. Although it is the policy
and practice of the Department to require decisions of the AS-IA to be
reviewed by the Office of the Solicitor for their legal sufficiency,
the Acting AS-IA's proposed decision had not been reviewed by that
office because of its lateness. Moreover, the Acting AS-IA's proposed
decision did not provide an explanation for his proposed modifications
to the recommended decision. Therefore, having completed a review of
the decision making documents which did have Solicitor's Office review
as to their legal sufficiency, the AS-IA concurs with the
recommendation of the BIA and publishes this notice of the proposed
finding that the Nipmuc Nation does not meet all seven mandatory
criteria under Part 83.

Evaluation Under the Criteria in 25 CFR 83.7

    Criterion 83.7(a) requires that the petitioner have been identified
as an American Indian entity on a substantially continuous basis since
1900. There have been regular external identifications of persons
associated with the Hassanamisco Reservation as an entity since 1900.
Between 1900 and the late 1970's, there were no external
identifications of any continuing Chaubunagungamaug or Dudley/Webster
Band. Between the late 1970's and 1996, there were frequent
identifications of an entity that comprised both the Hassanamisco and
Chaubunagungamaug or Dudley/Webster Bands. Only since 1992 have there
been identifications of a Nipmuc entity that comprised more than one or
both of the preceding groups. Therefore, the petitioner as self-defined
in the three different ways does not meet criterion 83.7(a).
    The evidence for 83.7(b) and 83.7(c) has been evaluated in the
light of the essential requirement of the Federal acknowledgment
regulations under 83.7 to show tribal continuity. Particular documents
have been evaluated by examination in the context of evidence of
continuity of existence of community and political processes over time.
For earlier historical periods, where the nature of the record limits
the documentation, the continuity can be seen more clearly by looking
at combined evidence than by attempting to discern whether an
individual item provides the level of information to show that the
petitioner meets a specific criterion at a certain date. Between first
sustained contact and 1891 much of the specific evidence cited was
evidence for both community and political influence. Under the
regulations, evidence about

[[Page 49969]]

historical political influence can be used as evidence to establish
historical community (83.7(b)(1)(ix)) and vice versa (83.7(c)(1)(iv)).
The evaluation is done in accord with the provision of the regulations
that, ``Evaluation of petitions shall take into account historical
situations and time periods for which evidence is demonstrably limited
or not available * * * Existence of community and political influence
or authority shall be demonstrated on a substantially continuous basis,
but this demonstration does not require meeting these criteria at every
point in time * * * '' (83.6(e)).
    For the historical Hassanamisco Band centered on the reservation in
Grafton, Massachusetts, there is weak but sufficient evidence that it
retained community from colonial times until the end of the American
Revolution. From the 1780's through 1869, the evidence is insufficient
to demonstrate community. From 1869 until the 1960's, most of the
evidence in the record pertains only to activities of the Cisco
extended family. The evidence does not demonstrate significant social
interaction between the Ciscos and the descendants of the other
Hassanamisco proprietary families, or between the Ciscos and the
families on the Hassanamisco ``Supplementary List'' contained in
Massachusetts Superintendent of Indian Affairs John Milton Earle's 1861
Report. From the mid-19th century to the present, the level of social
interaction among the descendants of the historical Hassanamisco Band
does not meet 83.7(b). There was, for example, no evidence of contact
between the Cisco descendants and the Gigger descendants between the
late 1930's and 1997, a period of nearly 60 years. On the basis of
precedent, the evidence is not sufficient to establish community under
83.7(b).
    For the joint entity that was petitioner #69 as it existed from
1980 through 1996, the combined Hassanamisco Band and Chaubunagungamaug
Band, the record shows no direct social interaction between the
Hassanamisco Nipmuc and the Chaubunagungamaug Nipmuc settlements
(reservations) between the 1730's and the 1920's--a period of nearly
two centuries. From the 1920's through the 1970's, the evidence in the
record showed occasional social interaction between Hassanamisco
descendants and Chaubunagungamaug descendants, most frequently in the
context of pan-Indian or intertribal activities. From 1978 through
1996, the evidence in the record showed interaction between some
Hassanamisco descendants and some Chaubunagungamaug descendants
primarily in the context of the formally established Nipmuc
organization, and comprising primarily the leaders of the subgroups. On
the basis of precedent, the evidence is not sufficient to establish
community under 83.7(b).
    For petitioner #69A as currently defined, including all persons
descended from the historical Nipmuc bands of the early contact period,
i.e. those persons whom the petitioner considers to be of Nipmuc
heritage, there is limited evidence in the 18th century that there
continued to be social interaction among off-reservation Nipmuc
families in south central Massachusetts, northeastern Connecticut, and
northwestern Rhode Island. There is some evidence that the off-
reservation Nipmuc upon occasion intermarried with both Hassanamisco
descendants and Chaubunagungamaug descendants, although there is no
evidence that those two settlements interacted directly with one
another. There is insufficient evidence that these contacts continued
to be maintained in the first half of the 19th century. Beginning with
the 1850 census, there is more evidence that there were limited social
ties in the forms of intermarriages and shared households between off-
reservation Nipmuc families and Hassanamisco descendants, and off-
reservation Nipmuc families and Chaubunagungamaug descendants, though
still no clear evidence of direct interaction between the descendants
of the two reservations. That is, the documents indicate that both the
Hassanamisco descendants and the Chaubunagungamaug descendants
maintained more social interaction with various off-reservation Indian
families than they did with one another. In the first half of the 20th
century, evidence for interaction is limited to pan-Indian and
intertribal events, and the contacts shown involved only a few
individuals. This evidence is insufficient to meet criterion 83.7(b).
From 1950 through 1978, there is insufficient evidence of significant
social ties among the families antecedent to the current membership;
from 1978 through 1989, the petitioning group was defined with a much
smaller membership circle than the current organization. The evidence
indicates that the current membership of petitioner #69A is to a
considerable extent the result of a deliberate recruitment effort
undertaken from 1989 through 1994, and has brought many families that
had no significant social ties prior to that time into the organization
called the Nipmuc Nation. On the basis of precedent, the evidence is
not sufficient to establish community under 83.7(b). Therefore, the
petitioner under its self-defined three distinct entities does not meet
criterion 83.7(b).
    The historical Hassanamisco Band centered on the reservation in
Grafton, Massachusetts, provided sufficient evidence of internal
political authority or influence from the colonial period to the end of
the Revolutionary War through the carryover provisions of
Sec. 83.7(b)(2). From 1790 to 1869, there was not sufficient direct
evidence of political authority, while the evidence for community was
not strong enough to provide for carryover under Sec. 83.7(b)(2). Since
1869, the evidence indicates that the Cisco family, owners of the
remaining ``Hassanamisco reservation'' property in Grafton,
Massachusetts, existed primarily as a single extended family, with only
occasional contact with descendants of other Hassanamisco proprietary
families and without the exercise of significant political influence or
authority among the descendants of the proprietary families, or between
the descendants of the proprietary families and the descendants of the
families on Earle's 1861 ``Hassanamisco Supplementary'' list.
    As to the joint entity, the Hassanamisco and Chaubunagungamaug
Bands, the evidence in the record indicates that from about 1978
through 1996, for the entity that was petitioner #69, there may have
been some form of political influence and authority that extended to at
least a limited portion of the group's membership, primarily those
persons active under the leadership of Walter A. Vickers, on the one
hand, and Edwin W. Morse Sr., on the other hand. However, it has
presented no evidence that this limited political influence or
authority extended to the greatly increased membership that resulted
from the activities of NTAP between 1989 and 1994. The evidence in the
record does not show that there was any political influence or
authority exercised among the group antecedent to Mr. Morse's
organization from 1891 to the late 1970's (see proposed finding for
petitioner #69B), or that there was significant political influence or
authority that comprehended both the Hassanamisco and the
Chaubunagungamaug descendants from the late 19th century to the late
1970's.
    For the petitioner as now defined, the record does not indicate
that from colonial times to the present, any significant political
influence or authority has been exercised among the entirety of the
wider body of descendants of the colonial Nipmuc

[[Page 49970]]

bands as a whole, which is the historical tribe from which it claims
continuity.
    Therefore, petitioner #69A, however defined, does not meet
criterion 83.7(c).
    Criterion 83.7(d) requires that the petitioner provide copies of
the group's current constitution and by-laws. The Nipmuc Nation
submitted such copies certified by the group's governing body.
Therefore, the petitioner meets criterion 83.7(d).
    Criterion 83.7(e) states that the petitioner's membership must
consist of individuals who descend from a historical Indian tribe or
from historical Indian tribes which combined and functioned as a single
autonomous political entity. The petitioner's governing body certified
and submitted a current membership list reflecting, after corrections,
a total of 1,602 members.
    Under 83.7(e), descent from a historical tribe, petitioner #69A
shows 8 percent of its membership descending from Hassanamisco
(including both the proprietary families and Earle's 1861 supplementary
list), 30 percent of its membership descending from Dudley/Webster
(Chaubunagungamaug), and 16 percent of the membership descending from
non-reservation Nipmuc. On the other hand, 31 percent of the membership
are without currently documented Nipmuc ancestry, but are descended
from in-laws or collateral relatives of identified Nipmuc. An
additional 11 percent of its membership falls in a family line which
asserts, but has not documented, descent from the former Indian
``praying town'' of Natick. One percent of the membership is unascribed
to any family line; three percent are not fully documented. As of the
issuance of the proposed finding, only 54 per cent of the petitioner's
members have documented descent from the historical Nipmuc tribe. On
the basis of precedent, this does not meet 83.7(e). Therefore, the
petitioner does not meet 83.7(e).
    Criterion 83.7(f) states that the petitioner's membership must be
composed principally of persons who are not members of any acknowledged
North American Indian tribe. No members of the petitioner are known to
be enrolled in any federally recognized tribe. Therefore the petitioner
meets criterion 83.7(f).
    Criterion 83.7(g) states that neither the petitioner nor its
members can have been the subject of congressional legislation that has
expressly terminated or forbidden the Federal relationship. There is no
evidence that this petitioner has been subject to congressional
legislation terminating a Federal relationship. Therefore the
petitioner meets criterion 83.7(g).
    Based on this preliminary factual determination, the Nipmuc Nation
should not be granted Federal acknowledgment under 25 CFR part 83.
    As provided by 25 CFR 83.10(h) of the regulations, a report
summarizing the evidence, reasoning, and analyses that are the basis
for the proposed decision will be provided to the petitioner and
interested parties, and is available to other parties upon written
request.
    Comments on the proposed finding and/or requests for a copy of the
report of evidence should be addressed to the Office of the Assistant
Secretary--Indian Affairs, Bureau of Indian Affairs, 1849 C Street,
NW., Washington, DC 20240, Attention: Branch of Acknowledgment and
Research, Mail Stop 4660-MIB. Comments on the proposed finding should
be submitted within 180 calendar days from the date of publication of
this notice. The period for comment on a proposed finding may be
extended for up to an additional 180 days at the AS-IA's discretion
upon a finding of good cause (83.10(i)). Comments by interested and
informed parties must be provided to the petitioner as well as to the
Federal Government (83.10(h)). After the close of the 180-day comment
period, and any extensions, the petitioner has 60 calendar days to
respond to third-party comments (83.10(k)). This period may be extended
at the AS-IA's discretion if warranted by the extent and nature of the
comments.
    After the expiration of the comment and response periods described
above, the BIA will consult with the petitioner concerning
establishment of a time frame for preparation of the final
determination. After consideration of the written arguments and
evidence rebutting the proposed finding and within 60 days after
beginning preparation of the final determination, the AS-IA will
publish the final determination of the petitioner's status in the
Federal Register as provided in 25 CFR 83.10(1).

    Dated: September 25, 2001.
Neal A. McCaleb,
Assistant Secretary--Indian Affairs.
[FR Doc. 01-24513 Filed 9-26-01; 3:30 pm]
BILLING CODE 4310-02-P