[Federal Register Volume 66, Number 190 (Monday, October 1, 2001)]
[Notices]
[Pages 49970-49972]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-24512]


-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs


Proposed Finding Against Federal Acknowledgment of the Webster/
Dudley Band of Chaubunagungamaug Nipmuck Indians

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice of proposed finding.

-----------------------------------------------------------------------

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 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.

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, MailStop 4660-MIB. The names and addresses 
of commenters generally are 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

[[Page 49971]]

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. 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

[[Page 49972]]

establishment 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).

    Dated: September 25, 2001.
Neal A. McCaleb,
Assistant Secretary--Indian Affairs.
[FR Doc. 01-24512 Filed 9-26-01; 3:31 pm]
BILLING CODE 4310-02-P