Bureau of Indian Affairs, Interior.
Notice of proposed finding.
Pursuant to 25 CFR 83.10(h), notice is hereby given that the Assistant Secretary—Indian Affairs (AS-IA) proposes to determine that the Webster/Dudley Band of Chaubunagungamaug Nipmuck Indians, 265 West Main Street, c/o Mr. Edwin W. Morse Sr., P.O. Box 275, Dudley, Massachusetts 01501, 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), and 83.7(c) and, therefore, does not meet the requirements for a government-to-government relationship with the United States.
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.
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, MailStop 4660-MIB. The names and addresses of commenters generally are available to the public.Start Further Info
FOR FURTHER INFORMATION CONTACT:
R. Lee Fleming, Chief, Branch of Acknowledgment and Research, (202) 208-3592.End Further Info End Preamble Start Supplemental Information
This notice is published in the exercise of authority delegated by the Secretary of the Interior to the AS-IA by 209 DM.
The Nipmuc Tribal Council, Hassanamisco Reservation, in Grafton, Massachusetts, submitted a letter of intent to petition for Federal acknowledgment on April 22, 1980, and Start Printed Page 49971was designated as petitioner #69. The AS-IA placed the original petitioner #69, the Nipmuc Tribe (or Nipmuc Nation), on active consideration July 11, 1995. The Webster/Dudley Band of Chaubunagungamaug Nipmuck Indians (aka Nipmuck Indian Council of Chaubunagungamaug, or Chaubunagungamaug Band) submitted a letter of intent to petition for Federal acknowledgment on May 31, 1996, withdrawing from petitioner #69, and was designated as petitioner #69B. Petitioner #69B defines its eligible membership as descendants of persons who were listed as Dudley/Webster (Chaubunagungamaug) Indians on either the 1861 Earle Report or the 1891 Dudley/Webster disbursement list. Of the alternative spellings of the name of the historical tribe, petitioner #69B prefers the use of “Nipmuck.”
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.
The historical tribe with which the petitioner claims continuity is the Chaubunagungamaug Band, or those Nipmuck Indians associated with the Dudley/Webster reservation, Worcester County, Massachusetts. The reservation and the Indians living on it were under guardians appointed by the Commonwealth of Massachusetts from the late 17th century through 1869. In 1869, Massachusetts terminated the relationship and in 1870 the reservation property was sold. In 1891, the funds remaining from the sale of the property were distributed to the surviving members and to descendants of tribal members who had been alive in 1869.
On January 19, 2001, the Acting AS-IA made a preliminary factual finding that the Chaubunagungamaug Band, or Dudley/Webster Indians, did not meet all seven mandatory criteria and therefore is not 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. 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. Having completed that review, the AS-IA concurs with the decision of the former Acting Assistant Secretary and the BIA recommendation and publishes this notice of the proposed finding that the Chaubunagungamaug Band, or Dudley/Webster Indians 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. From 1900 through 1978, the record contains occasional external identifications of individuals and single families as descendants of the historical Chaubunagungamaug, or Dudley/Webster, Nipmuck Indians (the term Pegan Indians was also used, and referred to the same group). However, the documentation for the period from 1900 through 1978 provided no external identifications of the petitioner or any group antecedent to the petitioner as an American Indian entity. Additionally, many of the identifications of Dudley/Webster descendants pertained to persons who have no descendants in the membership of the current petitioner, so that may not be used collectively or in combination to demonstrate the identification of an entity. There are external identifications of the petitioner as an American Indian entity only from 1981 to the present. Therefore, the petitioner does not meet criterion 83.7(a).
The evidence for 83.7(b) and 83.7(c) have 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 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)).
The Chaubunagungamaug Band, or Dudley/Webster Indians, met criterion 83.7(b), on the basis of precedent, from first contact through 1870, largely because of the residence of a significant portion of the group's population on a state-supervised reservation from the 1680's through 1870. For the period from 1870 through 1891, the evidence for community among the Dudley/Webster descendants as a whole is weak but sufficient. The evidence from 1891 through the mid-1970's does not demonstrate community between the extended Morse family, the petitioner's core group, and other Nipmucks of Dudley/Webster descent. For most of the period, there is not even evidence of community between the extended Morse family and other descendants of the Sprague/Henries family line from which it stems. From 1978 through the mid-1990's, the Chaubunagungamaug Band, as an organization, appears to have consisted, essentially, only of the extended Morse family. There is no evidence of significant social interaction between the extended Morse family and the other family lines now included in the membership of #69B for the 1980's. There is some evidence that the petitioner may meet criterion 83.7(b) from 1990 to 1998, but it is not sufficient to demonstrate that the petitioner meets the criterion for this time period. Therefore, the petitioner does not meet criterion 83.7(b).
Although evidence is limited for the period from early contact to the Start Printed Page 49972establishment of the Chaubunagungamaug reservation in the 1680's, the historical Chaubunagungamaug Band, as a portion of the historical Nipmuc tribe, meets criterion 83.7(c) during this time on the basis of precedent. From the late 17th century through 1870, direct evidence of political leadership provided by petitions and similar documents is sparse, but in the context of the existence of a reservation upon which the majority (over 50%) of the Chaubunagungamaug, or Dudley/Webster, Indians resided, the historical Chaubunagungamaug Band meets 83.7(c) from the 1680's through 1870 by carryover from criterion 83.7(b)(2). From 1870 through 1891, the only evidence of political influence or authority is provided by the group's hiring of a lawyer and pursuit of a suit against the State of Massachusetts, which is insufficient under the regulations. From 1891 through 1976, there is no documentary evidence of continuing formal or informal political influence or organization within the petitioner's antecedent group, whether that group be defined as the Dudley/Webster descendants as a whole, or limited to the direct ancestors of the current members of petitioner #69B. For 1977-1980, there is limited evidence that the leaders of the current group began to interact with the Nipmuc group headed by Zara CiscoeBrough and centered on the Hassanamisco Reservation in Grafton, Massachusetts, but no evidence that there was political influence or authority within any organization antecedent to petitioner #69B. During the 1980's, there is evidence that an organization with officers existed, but insufficient evidence that this formal organization exercised political influence or authority over its members who were, additionally, at that period, only a portion of the current petitioner. The evidence in the record for the 1990's is not sufficient to conclude that the petitioner meets 83.7(c) for that period. Therefore, the petitioner does not meet criterion 83.7(c).
Criterion 83.7(d) requires that the petitioner provide copies of the group's current governing document. The Webster/Dudley Band of Chaubunagungamaug Nipmuck Indians submitted its constitution and bylaws. 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. Of the members of #69B, 185 of 212 (87%) descend from the historical Dudley/Webster, or Chaubunagungamaug, reservation and meet the petitioner's own membership requirements. Eighty-seven percent of members showing descent from the historical tribe is within precedents for meeting criterion 83.7(e). Therefore, the petitioner meets criterion 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 petitioner known as the Webster/Dudley Band of Chaubunagungamaug Nipmuck Indians 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, MailStop 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 Assistant Secretary—Indian Affairs will publish the final determination of the petitioner's status in the Federal Register as provided in 25 CFR 83.10(1).Start Signature
Dated: September 25, 2001.
Neal A. McCaleb,
Assistant Secretary—Indian Affairs.
[FR Doc. 01-24512 Filed 9-26-01; 3:31 pm]
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