[Federal Register Volume 66, Number 190 (Monday, October 1, 2001)]
[Notices]
[Pages 49967-49970]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-24513]


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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]
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