E6-5017. Proposed Finding for Federal Acknowledgment of the Mashpee Wampanoag Indian Tribal Council, Incorporated of Massachusetts

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 Associate Deputy Secretary (ADS) proposes to determine that the Mashpee Wampanoag Indian Tribal Council, Inc., P.O. Box 1048, Mashpee, Massachusetts 02649, c/o Mr. Glenn Marshall, is an Indian tribe within the meaning of Federal law. This notice is based on a determination that the petitioner satisfies all seven mandatory criteria, and thus, meets the requirements for a government-to-government relationship with the United States.

DATES:

Comments are due on or before October 3, 2006. Publication of this notice of the proposed finding in the Federal Register initiates a 180-day comment period during which the petitioner, interested and informed parties, and the public may submit arguments and evidence to support or rebut the evidence relied upon in the proposed finding. Interested or informed parties must provide a copy of their comments to the petitioner.

ADDRESSES:

Comments on the proposed finding or requests for a copy of the summary evaluation of the evidence should be addressed to the Office of the Assistant Secretary—Indian Affairs, Attention: Office of Federal Acknowledgment, 1951 Constitution Avenue, NW., Mail Stop 34B-SIB, Washington, DC 20240.

FOR FURTHER INFORMATION CONTACT:

R. Lee Fleming, Director, Office of Federal Acknowledgment, [phone].

SUPPLEMENTARY INFORMATION:

This notice is published in the exercise of authority delegated by the Secretary of the Interior to the ADS by Secretarial Order 3259, of February 8, 2005, as amended on August 11, 2005.

The acknowledgment process is based on the regulations at 25 CFR Part 83. Under these regulations, the petitioner has the burden to present evidence that it meets the seven mandatory criteria in section 83.7.

The Mashpee petition is being considered under time-frame set by a July 22, 2005, Joint Settlement Agreement and Stipulated Dismissal (Agreement) entered into by the petitioner and the Department in the United States District Court for the District of Columbia.

The Mashpee Wampanoag Indian Tribal Council, Inc. of Massachusetts (MWT, petitioner #15) submitted a letter of intent to petition for Federal acknowledgment on July 7, 1975. As per the Agreement, the ADS placed the petitioner on active consideration on October 1, 2005.

The Mashpee petitioner is located in the town of Mashpee, Barnstable County, Massachusetts, on the southeastern portion of Cape Cod along Nantucket Sound.

Criterion 83.7(a) requires that the petitioner be identified as an American Indian entity on a substantially continuous basis since 1900. The available evidence demonstrates that since 1900 external observers identified the petitioning group now known as the Mashpee Wampanoag Indian Tribal Council, Incorporated, or a group of the petitioner's ancestors as an American Indian entity on a substantially continuous basis since 1900.

Criterion 83.7(b) requires that a predominant portion of the petitioning group comprises a distinct community and has existed as a community from historical times until the present. The Mashpee petitioner is located in an area that was traditionally Wampanoag. Based on the evaluation of its 1,462 members, the petitioner represents a group of lineal descendants of the Wampanoag Indians who have inhabited this area since first sustained contact with non-Indians in the early colonial period. From 1665 to 1720, the Mashpee inhabited a praying town that provided considerable political autonomy. In 1720, the colony established a proprietary system for the Mashpee, a system of government that also afforded them significant political authority. In 1746, the colonial legislature limited this self-rule by assigning three guardians to the Mashpee proprietors. For the next 16 years, the Mashpee frequently petitioned the legislature with complaints about the overseers, and were able to govern their affairs despite the presence of the overseers. In 1763, the colony, in response to the Mashpee complaints made the settlement a self-governing “Indian” district. This political structure remained until after the American Revolution.

The evidence shows that almost all of the Mashpee maintained a distinct community during the colonial and revolutionary eras. Colonial officials regularly described the Mashpee as being a distinct Indian entity. Other available evidence of shared religious activities by the Mashpee also demonstrates the existence of a social community distinct from that of surrounding populations. There is also good evidence from the colonial and revolutionary periods to demonstrate that much more than 50 percent, in fact almost all, of the Mashpee resided in a defined geographical area, the town of Mashpee, exclusively, or almost exclusively, composed of its members. This residential patterns provides evidence which, under 83.7(b)(2)(i), is sufficient by itself to demonstrate community during the colonial and revolutionary eras.

From 1788 to 1834, when State overseers were again assigned to the group, the Mashpee remained set apart from surrounding populations. A large portion, as many as two-thirds, of the members demonstrated shared religious practices through the Mashpee Baptist church from 1788 to 1834, which is also good evidence of community. State officials in reports consistently described the distinct Indian character of the Mashpee at this time, thereby providing good evidence of community from 1788 to 1834. This evidence is sufficient under criterion 83.7(b)(i). The available evidence further shows that virtually all the Mashpee from 1802 to 1834 lived in a defined geographical area composed almost exclusively of its members. Evidence shows that the Mashpee who lived outside the town usually did so only on a temporary basis, thereby retaining contact with the majority. This evidence is sufficient in itself to show community during this period under criterion 83.7(b)(2) for the period from 1802 to 1834. The petitioner also provided significant evidence under 83.7(c) of political influence or authority for this period that demonstrates interaction and social ties and thus provides additional evidence of community.

During the period, 1834 to 1870, when the State of Massachusetts designated the town of Mashpee an Indian district, the State generated records, particularly the 1849 Briggs Report and the 1861 Earle Report, which showed the Mashpee settlement was a distinct Indian community with significant social relationships and interactions. Through the district government, the Mashpee controlled most of the social and economic behavior of the Indian community. The Baptist church also maintained its position as an important social institution for a large portion of the Mashpee. The available evidence also shows that a large majority of the Mashpee during this time, as high as 82 percent in the late 1860's, lived in a defined geographical area composed almost exclusively of its members. There is also evidence that those few who lived outside of the town either lived very close by or were doing so only temporarily and were likely to return, thereby maintaining social ties to the majority in the town. This evidence is sufficient in itself to show community during these years under criterion 83.7(b)(2)(i).

Moreover, the petitioner provided sufficient evidence to demonstrate the exercise of political authority from 1834 to 1870, using evidence described in 83.7(c)(2). This evidence shows Mashpee leaders using the district government to allocate group resources on common lands and fisheries and to exert influence on the behavior of the Mashpee, including through law enforcement by the district constables. Under 83.7(b)(2)(v), this political evidence is also sufficient evidence of community during this period.

In 1870, the Mashpee Indian District became an incorporated town, which the Mashpee controlled politically for the next 100 years. From 1870 to 1930, the town records showed that almost all the political offices were held by the Mashpee and contemporary records described a distinct Mashpee Indian community in and around the town of Mashpee. Early in this period, evidence of conflict among the Mashpee over the sale of collective land demonstrated both social interactions among the Mashpee and their distinct character from that of other populations in the area. The Baptist church and Parish Committee remained important social institutions for a majority of the Mashpee from 1870 to 1930. The available evidence further shows a large majority of the Mashpee during this time, as many as 87 percent by the early 1930's, lived in a defined geographical area composed almost exclusively of its members. There is also evidence during this period that those few Mashpee who lived outside of the town, often in adjacent towns or other areas on the Cape, maintained contact with those in the town through a high rate of return migration. This evidence is sufficient in itself to show community during these years, under criterion 83.7(b)(2)(i). There is also good evidence for this period of significantly high patterns of intra-group marriages, as described in 83.7(b)(1), from 1860 to 1930. These high rates of intra-group marriage resulted in extensive kinship ties among the Mashpee that have fostered social interaction and relationships within the Mashpee to this day.

During the remainder of the town period, 1930 to 1974, contemporary records described the Mashpee in a way that demonstrated the group constituted a distinct entity with significant social relationships and interactions among a predominant portion of the membership. It was a community bounded by a common ancestry, politics, geography, culture, and extensive kinship ties. The available evidence shows that the Parish Committee and Baptist church functioned as important social organizations for a significant portion of the group into the early 1970's, although the significance of the latter declined after the 1960's. There is also good evidence of socials and other activities that involved Mashpee from many family lines and multiple generations throughout the period. Significant kinship ties provided by still high intra-group marriage rates also facilitated social relationships and interactions within the group during this time. In addition, the petition record contains evidence of concentrated residential patterns that show a significant part of the group still lived in an exclusive settlement in the town of Mashpee from 1930 to 1974. These residency patterns are good evidence of community.

Moreover, the petitioner provided sufficient evidence to demonstrate the exercise of political influence or authority from 1870 to 1965, using evidence described in 83.7(c)(2). This evidence shows Mashpee selectmen and public officials using the town government to regulate fisheries, including the catching of herring, shellfish, and trout obtained from streams and waterways and exerting influence on the behavior of the Mashpee on a consistent basis through their control of the police department. The Mashpee provided this leadership for a town in which they continued to make up the large majority of the year-round population up to 1965. Under 83.7(b)(2)(v), this political evidence is also sufficient evidence of community during that period.

In 1974, the Mashpee lost control of the town government to non-Indians. For the period since 1974, when the group has been governed by an incorporated council, the petitioner presented good evidence of social interactions and relationships connected to the Mashpee's land claim suit (1976-1983) that mobilized the support of a significant portion of the group. The petition record also contains evidence of social distinction by non-members towards the Mashpee because of the land-claim suit and other controversial events that show distinct community.

For this period, the majority of group members have continued to reside in or near their historical territory of the town of Mashpee. In addition to geographic proximity around an area of exclusive settlement within the town of Mashpee, social relationships and informal social interactions within the community are facilitated by kinship patterns that include substantial rates of intra-group marriage among Mashpee members and a persistent and extensive network of extended family connections. Different family lines are well represented in various Mashpee events and activities, some of which are sponsored by the incorporated council. Group involvement is additionally expressed through a historically recognized political division within its membership of “traditionals” and “non-traditionals.” The petitioner also provided significant evidence under 83.7(c) of political influence or authority since the middle 1970's that demonstrates interaction and social ties and thus provides additional evidence of community.

The petitioner presented sufficient evidence to demonstrate that it has comprised a distinct community since first sustained contact with non-Indians. Therefore, the petitioner meets the requirements of criterion 83.7(b).

Criterion 83.7(c) requires that the petitioner has maintained political influence or authority over its members as an autonomous entity from historical times until the present. Wampanoag leadership at the time of first sustained contact in the 1620's was provided by a hereditary chief or sachem. The area around what is now the town of Mashpee, Massachusetts, had a number of these sachems controlling several villages joined in a loose confederacy. For the period between 1665 and 1746, after the formation of the praying town, there is evidence that the Mashpee exerted political authority over its members, first through a six-member council and then later through a proprietorship. Native religious leaders also exercised important political influence during this period. After the Massachusetts colony appointed guardians in 1746, the Mashpee proprietors regularly petitioned the colonial authorities of Massachusetts for the next 16 years, demanding a change in government. In 1763, shortly after sending one of their members to petition the King of England and his ministers with a list of their grievances, they persuaded the colonial legislature to give them full self-rule once again, a form of government that lasted until 1788. Therefore, the petitioner provided sufficient evidence to demonstrate that it meets 83.7(c) for the colonial and revolutionary periods. In addition, the group supplied evidence of community through the Mashpee's residential patterns during the colonial and revolutionary periods to meet the requirements of paragraph 83.7(b)(2)(i), which is also sufficient to demonstrate political influence, under 83.7(c)(3) during that period.

Following the American Revolution a number of Mashpee women provided notable leadership in defending standards of behavior and opposing outside control of land and resources in the town of Mashpee. Between 1788 and 1834, when Massachusetts again appointed overseers to supervise the group, the Mashpee frequently petitioned State authorities complaining about the activities of these overseers. State records acknowledged that despite the presence of overseers between 1788 and 1834, the Mashpee remained essentially autonomous and self-governing. Indeed, one State investigation report from 1827 stated that the Mashpee had been running their “municipal affairs” for the past hundred years. In 1834, the State, in response to their entreaties, gave the Mashpee greater self-government by establishing an “Indian District” in Mashpee, Massachusetts. Therefore, the petitioner provided good evidence to demonstrate that it meets 83.7(c) for 1788 to 1834. In addition, the group supplied evidence of community through the Mashpee's residential patterns during the overseer period to meet the requirements of paragraph 83.7(b)(2)(i) that is also sufficient to demonstrate political influence, under 83.7(c)(3), during that period.

As an Indian District, between 1834 and 1870, the Mashpee gained complete control of political, legal, and economic affairs in the town once again. District status gave the Mashpee control over government, local justice, schools, roads, parish, and welfare. The Mashpee allocated group resources by regulating common lands and waterways. This regulation included laws regarding grazing of livestock, cutting of timber, and the catching of herring, trout, eels, and shellfish. They also controlled group behavior through law enforcement by the local constables. The consistent allocation of group resources and control of individual behavior are sufficient evidence in themselves, under 83.7(c)(2)(i) and (iii), of political influence, and therefore, under 83.7(b)(2)(v), are also sufficient to demonstrate community during this time as well. In addition, the group supplied evidence of community through the Mashpee's residential patterns during the district period to meet the requirements of paragraph 83.7(b)(2)(i) that is also sufficient to demonstrate political influence, under 83.7(c)(3), during that period.

In 1870, the State of Massachusetts incorporated the Indian district of Mashpee as a town. The evidence shows that from 1870 to 1974, the Mashpee adapted the principal elements of the town governmental system for their own political needs. The Mashpee employed the town government as the primary structure by which they maintained political influence and/or authority over members. The Department's Final Determination for Federal Acknowledgment of the Wampanoag Tribal Council of Gay Head, Inc. provides precedent for evaluating such a governmental form as meeting 83.7(c). This type of government also provided the Mashpee with the means to continue the allocation of group resources through the regulation of fisheries and the ability to control individual behavior of members through the local police department from 1870 to 1965, when they represented much more than a majority of the year-round population in the town. The consistent allocation of group resources and control of individual behavior are sufficient evidence in themselves, under 83.7(c)(2)(i) and (iii), of political influence for those years and, therefore, under 83.7(b)(2)(v), is also sufficient to demonstrate community during this time as well. In addition, the group supplied evidence of community through the Mashpee's residential patterns from 1870 to 1930 to meet the requirements of paragraph 83.7(b)(2)(i) that is also sufficient to demonstrate political influence during that period under 83.7(c)(3).

Since 1974, the petitioner maintained political influence and authority over its members in the following ways. First, the incorporated council, formed in 1974, mobilized significant numbers of members and resources to meet group purposes through ongoing programs, events, and associations. Extended family networks play an important role in facilitating communication and political involvement among members. Second, while there are notable political divisions within the group, most members consider the actions taken by the incorporated council's leaders to be important. Within the incorporated council, leadership is multifaceted including both traditional and business positions. During this period, informal leadership within the group also existed along with the authority of the incorporated council. Third, there is widespread knowledge and communication regarding political processes, which disseminates mostly through family networks. And fourth, there are intense intra-group conflicts that demonstrate controversy over valued group goals, policies, and decisions. Since the late 1990's, internal disputes have intensified because the incorporated council changed its administrative processes and style of leadership, which culminated with the adoption of a new constitution in 2004. The petitioner meets the requirements of 83.7(c) from historical times to the present.

Criterion 83.7(d) requires that the petitioner provide a copy of the group's present governing document including its membership criteria. The petitioner submitted a certified copy of its constitution, and bylaws, which were adopted on June 26, 2004. The constitutional requirements for membership include tracing descent from a Mashpee Indian on the 1861 Earle Report, or from Charles or Leander Peters, who were Christiantown Indians identified on the Earle Report, and maintaining “affiliation with the tribe.” The constitution also describes the duties of the governing body, which is composed of elected officers and council members, and a “chief” and “medicine man” who are “selected by the general Tribal membership according to Tribal custom.” The 2004 constitution also describes the composition and duties of a newly instituted “Tribal Judiciary” branch. The petitioner also sent copies of its previous governing documents and a description of the enrollment practices in place before the adoption of the 2004 constitution.

The petitioner submitted a copy of its current governing document, which includes its membership criteria and the processes by which it governs itself. Therefore, the petitioner meets criterion 83.7(d).

Criterion 83.7(e) requires that the petitioner's membership 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 historical tribe is determined to be Wampanoag Indians or “South Sea Indians” generally residing in and around the area of the Indian villages of Massipee (later Mashpee), Santuit, and Cotuit, Barnstable County, Massachusetts, at the time of first sustained historical contact in the 1620's. The membership of the historical tribe, for purposes of calculating descent from that tribe, consists of the “Marshpee” Indians identified in the 1861 Earle Report on the Indians in Massachusetts. The analysis for this proposed finding shows that the Mashpee Indians identified by Earle were the same individuals, or descendants of individuals, who had been identified previously in 1833, 1842, and 1849 as members of the Mashpee tribe living in the Mashpee Indian District. Thus, the evidence supports Earle's identification of the Mashpee Indian entity as it continued to exist in 1861. The petitioner's documented ancestors were among the 391 “Marshpee Indians” who were named in the 1861 Earle Report as members of the tribe and residents of the “Marshpee Indian District.”

The petitioner claims that about 98 percent of the members (1,427 of 1,462) descend from Mashpee Indians identified on the 1861 Earle Report and that about 2 percent of the group descend from two Christiantown Indians, Charles H. and Leander Peters, who according to the petitioner's governing document, are eligible ancestors.

The petitioner submitted evidence which shows that about 90 percent of the current members (1,323 of 1,462) have documented their claimed ancestry and meet the group's own membership requirements in its 2004 governing document: 88 percent from the historical Mashpee tribe as defined by the 1861 Earle Report, and 2 percent solely from two Christiantown Indians. Based on precedents in previous findings, this 88 percent is sufficient to meet the requirements of 83.7(e)(1) for descent from the historical tribe. However, the petitioner is urged to submit the necessary evidence to document the ancestry for the remaining 139 individuals (10 percent of 1,462).

The petitioner submitted a membership list dated November 15, 2002, with the full names, birth dates, and addresses of 1,462 members, which was separately certified by the current governing body on February 23, 2006.

The MWT submitted a separately certified membership list, and documented that 88 percent of its members descend from the historical Mashpee tribe. Based on precedents, the MWT meets the requirements of criterion 83.7(e).

Criterion 83.7(f) requires that the membership of the petitioning group be composed principally of persons who are not members of any acknowledged North American Indian tribe. A review of the available documentation revealed that the membership is composed principally of persons who are not members of any acknowledged North American Indian tribe. The petitioner meets criterion 83.7(f).

Criterion 83.7(g) requires that neither the petitioner nor its members be the subject of congressional legislation that has expressly terminated or forbidden the Federal relationship. A review of the available documentation showed no evidence that the petitioning group was the subject of congressional legislation to terminate or prohibit a Federal relationship as an Indian tribe. The petitioner meets the requirements of criterion 83.7(g).

Based on this preliminary finding, the Department proposes to acknowledge as an Indian Tribe under 25 CFR Part 83 the petitioner known as the Mashpee Wampanoag Indian Tribal Council, Incorporated.

As provided by 25 CFR 83.1(h), 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.

Publishing notice of the proposed finding in the Federal Register initiates a 180-day comment period during which the petitioner, interested and informed parties, and the public may submit arguments and evidence to support or rebut the evidence used in the proposed finding. Interested or informed parties must provide copies of their submissions to the petitioner. The regulations, 25 CFR 83.10(k), provide the petitioner a minimum of 60 days to respond to any submissions by interested and informed parties on the proposed finding during the comment period. The Agreement modifies this time-frame, providing the MWT a 30-day response period. If the MWT wants the 60-day response period, it must notify the Department in writing prior to the expiration of the 30-day response period. If the interested or informed parties do not provide submissions during the 180-day comment period, the MWT may submit a written waiver of its response period to the Department.

As provided in the Agreement, the Department will issue a final determination on the MWT petition on or before March 30, 2007. If the Mashpee petitioner does not request the full 60-day response period, the Department will work to issue the final determination before March 30, 2007. The Department, as per the Agreement, will exercise due diligence to publish notice of the proposed finding in the Federal Register within 5 business days of being issued.

After the publication of notice of the final determination, the petitioner or any interested party may file a request for reconsideration with the Interior Board of Indian Appeals (IBIA) under the procedures set forth in section 83.11 of the regulations. This request must be received by the IBIA no later than 90 days after the publication of the final determination in the Federal Register. The final determination will become effective as provided in the regulations 90 days from the Federal Register publication unless a request for reconsideration is filed within that time period.

Dated: March 31, 2006.

James E. Cason,

Associate Deputy Secretary.