[Federal Register Volume 70, Number 198 (Friday, October 14, 2005)]
[Notices]
[Pages 60101-60103]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-20719]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs


Reconsidered Final Determination To Decline To Acknowledge the 
Schaghticoke Tribal Nation

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice.

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SUMMARY: Notice is hereby given that the Associate Deputy Secretary has 
determined that the Schaghticoke Tribal Nation (STN) does not satisfy 
all seven criteria for acknowledgment as an Indian tribe in 25 CFR 
83.7. Upon the date of publication of this notice, pursuant to 25 CFR 
83.11(h)(3), the Reconsidered Final Determination (RFD) is final and 
effective for the Department of the Interior (Department).

EFFECTIVE DATE: The procedures defined by this notice are effective on 
October 17, 2005.

FOR FURTHER INFORMATION CONTACT: R. Lee Fleming, Director, Office of 
Federal Acknowledgment (OFA), MS: 34B-SIB, 1951 Constitution Avenue, 
NW., Washington, DC 20240, phone (202) 513-7650.

SUPPLEMENTARY INFORMATION: This notice is published in the exercise of 
authority delegated by the Secretary of the Interior to the Associate 
Deputy Secretary by Secretarial Order 3259, February 8, 2005, as 
amended on August 11, 2005.
    This notice is based on a determination that the Schaghticoke 
Tribal Nation (STN) does not satisfy all of the seven mandatory 
criteria for acknowledgment in 25 CFR 83.7.
    Several lawsuits filed in the Federal courts affected the history 
and administrative handling of the Schaghticoke Tribal Nation petition. 
Two of these were land claims suits under the Non-Intercourse Act, 
Schaghticoke Tribal Nation v. Kent School Corp., Inc., Civil No. 3:98 
CVO1113 (PCD) and Schaghticoke Tribal Nation v. Connecticut Light and 
Power Company, Civil No. 3:00 CV00820 (PCD). The third lawsuit is 
United States of America v. 43.47 Acres of Land, et al., Civil No. H-
85-1078(PCD), filed on December 16, 1985, in which the U.S. sought to 
condemn certain lands on the Schaghticoke Reservation to become part of 
the Appalachian Trail. All three lawsuits involve the question of 
whether the STN is an Indian tribe.
    The Department conducted its evaluation of this petitioner under a 
court-approved negotiated agreement between the Department, STN, and 
parties to the several, concurrent lawsuits mentioned above. This 
scheduling order, entered May 8, 2001, and subsequently amended, 
established timelines for submission of materials to the Department and 
deadlines for submission of comments, issuance of a proposed finding 
(PF), and issuance of a final determination (FD) which superseded the 
provisions of the acknowledgment regulations, 25 CFR part 83.
    The Department published notice of the STN PF on December 11, 2002, 
and found against acknowledgment of STN. Following the comment and 
response periods and the submission of new evidence, the Department 
concluded, relying in part on the state relationship and a calculation 
of marriage rates within the Schaghticoke as carryover evidence for 
criterion 83.7(c), that STN met all the seven mandatory criteria for 
acknowledgment as an Indian tribe. In accordance with the court-
approved negotiated schedule, on January 8, 2003, the Department 
provided the petitioner and interested parties with a copy of the 
Federal Acknowledgment Information Resource (FAIR) database used for 
the STN PF, together with the scanned images of documents that OFA 
researchers added to the administrative record in the course of 
preparing the STN PF, including materials that OFA requested from the 
State and the STN.
    The Department issued the STN FD acknowledging the STN as an Indian 
tribe on January 29, 2004, and notice of the STN FD appeared in the 
Federal Register on February 5, 2004 (69 FR 5570). On May 3, 2004, the 
State of Connecticut (State), jointly with the Kent School Corporation, 
Connecticut Light and Power Company, the towns of Kent, Danbury, 
Bethel, New Fairfield, Newton, Ridgefield, Stamford, Greenwich, 
Sherman, Westport, Wilton, Weston, and the Housatonic Valley Council of 
Elected Officials, the Coggswell family group (CG), and the 
Schaghticoke Indian Tribe (SIT) petitioning group filed timely requests 
for reconsideration of the STN FD with the Interior Board of Indian 
Appeals (IBIA).
    On May 12, 2005, the IBIA vacated the STN FD and remanded it to the 
Assistant Secretary--Indian Affairs for further work and 
reconsideration. The IBIA decision addressed a number of issues within 
the context of the related Federal acknowledgment decision of the 
Historical Eastern Pequot FD that was also vacated and remanded to the 
Department on May 12, 2005. IBIA linked the two cases because of their 
reliance on state recognition as

[[Page 60102]]

additional evidence for criterion 83.7(b) and 83.7(c).
    In its request for reconsideration of the STN FD, the State 
challenged the use of the historically continuous state recognition and 
the state relationship as providing evidence for criterion 83.7(b) 
``community'' and criterion 83.7(c) ``political influence or 
authority.'' Moreover, the State argued that even if the use of the 
state relationship were to be upheld by IBIA in the case of the 
Historical Eastern Pequot, it should not be allowed for STN, since the 
STN FD, in the opinion of the State, ``impermissibly'' expanded the use 
of the state relationship as evidence of political influence or 
authority in the absence of evidence of political activity within the 
group (41 IBIA 34). In regard to the use of the state relationship as 
evidence, IBIA concluded:

    Today, in Historical Eastern Pequot Tribe, the Board concludes 
that the State of Connecticut's ``implicit'' recognition of the 
Eastern Pequot as a distinct political body--even if a correct 
characterization of the relationship--is not reliable or probative 
evidence for demonstrating the actual existence of community or 
political influence or authority within that group. The FD for STN 
used state recognition in the same way that we found to be 
impermissible in Historical Eastern Pequot Tribe. In addition, we 
agree with the State that the STN FD gives even greater probative 
value and evidentiary weight to such ``implicit'' state recognition, 
and therefore it constituted a substantial portion of the evidence 
relied upon. Therefore, in light of our decision in Historical 
Eastern Pequot Tribe, the Board vacates the FD and remands it for 
reconsideration in accordance with that decision (41 IBIA 34).

    The IBIA also evaluated other issues raised by the State and other 
interested parties in the requests for reconsideration that were 
outside of its jurisdiction and referred these issues to the Department 
to consider. The State challenged the STN FD's calculations of marriage 
rates for the period 1801 to 1870 used for carryover evidence to 
satisfy criterion 83.7(c). Moreover, OFA submitted a ``supplemental 
transmission'' to IBIA regarding the calculation of marriage rates on 
December 2, 2004. Based on the allegation raised by the State regarding 
the marriage rate calculations, and within the context of the 
supplemental transmission, the IBIA concluded:

    Because we are already vacating and remanding the FD to the 
Assistant Secretary for reconsideration based on Historical Eastern 
Pequot Tribe, and because OFA has acknowledged problems with the 
FD's endogamy rate calculations--at a minimum, inadequate 
explanation--we conclude that this matter is best left to the 
Assistant Secretary on reconsideration. (41 IBIA 36).

    The IBIA referred other allegations made by the State, SIT, and the 
CG based on the determination that it lacked jurisdiction over the 
issues. The first was the claim that the STN FD enrolled 42 non-STN 
members into the STN petitioning group. The SIT and the CG also raised 
the issue that the enrollment was not based on the notice, consent, or 
equal protection of those added to the STN rolls, that the 42 
individuals in question were not sufficiently linked to STN, and the 
individuals were not a part of the STN social and political community. 
The RFD concluded that the STN FD should be reconsidered on the grounds 
that at least 33 of the 42 individuals on the STN list of ``unenrolled 
members'' were not members of STN because they had not consented to 
enroll. Under the regulations, one must consent to being a member of a 
petitioning group.
    Criterion 83.7(b) ``community'': The STN PF found and the STN FD 
affirmed that STN met criterion 83.7(b), community, from first 
sustained contact to 1900 (STN PF, 15-16, STN FD, 18). The STN FD did 
not rely on the state relationship for criterion 83.7(b), community, 
for this period. Therefore, the RFD reaffirmed the STN FD for this time 
period, first sustained contact to 1900.
    The RFD reanalyzed STN marriage rates, and found that marriage 
rates provided evidence in combination with other evidence sufficient 
to satisfy criterion 83.7(b) for the period 1801-1900. The STN FD did 
not rely on the state relationship for criterion 83.7(b), community, 
for the period 1900-1920. The STN FD used a combination of evidence 
including residential and intermarriage patterns to conclude that STN 
met criterion 83.7(b), community, between 1900 and 1920. The RFD 
reaffirmed the STN FD for this time period.
    The STN FD relied on the state relationship as additional evidence 
for criterion 83.7(b), community, for the periods 1920-1940 and 1940-
1967. The RFD reevaluated the state relationship with the STN, and 
concluded that it did not provide evidence of 83.7(b), community, 
within STN. The RFD reevaluated the evidence for community without the 
state relationship for these periods, and found that there was 
insufficient evidence for STN to meet criterion 83.7(b), community for 
1920-1967.
    The STN FD did not rely on state recognition for community for the 
period 1967-1996. Therefore, the STN FD conclusion that STN met 
criterion 83.7(b), community, for these years was affirmed.
    For the period after 1996, the RFD concluded that at least the 33 
of 42 individuals who specifically declined to consent to be part of 
the STN petitioner cannot be considered members of the STN group. The 
STN, thus, did not represent the entire Schaghticoke community from 
1997 to the present and, therefore, did not meet criterion 83.7(b). 
Therefore, the STN did not meet criterion 83.7(b), community.
    Criterion 83.7(c) ``political influence or authority'': The RFD 
affirmed the finding of the STN FD that the petitioner met the 
requirements of criterion 83.7(c) for political influence or authority 
from the colonial period to 1801. The STN FD used marriage rates for 
the periods 1801 to 1820 and 1841 to 1870 under criterion 
83.7(b)(2)(ii) to provide carryover evidence under 83.7(c)(3). The RFD 
recalculated marriage rates for the period 1801 to 1900, and reversed 
the finding of the STN FD that marriage rates reached the 50 percent 
threshold to provide carryover evidence to meet 83.7(c). The RFD also 
reevaluated the evidence for residency rates for the period 1850 to 
1902. The RFD affirmed the conclusion of the STN FD that the residency 
rates were not high enough to provide carryover evidence to meet 
criterion 83.7(c). The RFD reviewed the evidence for political 
influence or authority for the period 1801 to 1875, and found that 
there was insufficient evidence to satisfy criterion 83.7(c).
    The RFD affirmed the finding of the STN FD that two Schaghticoke 
petitions to the State from the years 1876 and 1884 provided sufficient 
evidence of political influence or authority to meet criterion 83.7(c) 
for the years 1876-1884. The RFD reevaluated the evidence regarding an 
1892 petition based on new evidence submitted to the IBIA, and found 
that this document did not provide evidence of the existence of 
political influence or authority within the Schaghticoke. Therefore, 
the RFD concluded that STN did not meet criterion 83.7(c) for the 
period 1885-1892.
    The STN FD relied on the state relationship to provide sufficient 
evidence to meet criterion 83.7(c) for the period 1892 to 1936. The RFD 
reevaluated the state relationship and concluded that it did not 
provide additional evidence of political influence or authority within 
the Schaghticoke. The RFD reevaluated the remaining evidence for 
political influence or authority without the state relationship and 
found that there was insufficient evidence to meet criterion 83.7(c) 
for this period.

[[Page 60103]]

    For the period 1936-1967, the RFD reevaluated the state 
relationship and concluded that it did not provide additional evidence 
of the exercise of political influence or authority within the 
Schaghticoke. The RFD concluded that the remaining evidence was 
insufficient to meet criterion 83.7(c) for the period 1936-1967.
    The STN FD conclusion that STN exercised political influence or 
authority between 1967 and 1996 was affirmed. No arguments or new 
evidence were submitted regarding this conclusion.
    STN did not meet criterion 83.7(c) for the period after 1996, in 
light of the known continued refusal of most of the 42 individuals to 
be members of the STN. STN's membership list does not reflect a 
significant portion of the political system. STN did not meet criterion 
83.7(c) for the periods 1800-1875, 1885-1967, and 1997-present. 
Therefore, STN did not meet criterion 83.7(c).
    STN met criteria 83.7(a), petitioner was identified as an American 
Indian group from 1900 to present; 83.7(d), petitioner has submitted 
its governing documents; 83.7(e), petitioner's membership has descent 
from an historical tribe; 83.7(f), petitioner does not have membership 
with any federally recognized tribes; and 83.7(g), petitioner has no 
Congressional legislation prohibiting the Federal relationship. No new 
arguments, evidence, or analysis merited revision of the STN FD 
evaluations of these criteria. The conclusions of the STN FD on these 
criteria were affirmed.
    The Associate Deputy Secretary denied to acknowledge that STN was 
an Indian tribe as it failed to satisfy all of the seven mandatory 
criteria for Federal acknowledgment under the regulations. The STN 
petitioner did not submit evidence sufficient to meet criteria 83.7(b), 
community, and 83.7(c), political influence or authority, and, 
therefore, does not satisfy the requirements to be acknowledged as an 
Indian tribe.
    Upon the date of publication of this notice, pursuant to 25 CFR 
83.11(h)(3), the RFD is final and effective for the Department.

    Dated: October 11, 2005.
James E. Cason,
Associate Deputy Secretary.
[FR Doc. 05-20719 Filed 10-12-05; 2:26 pm]
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