E9-20285. Proposed Finding Against Acknowledgment of the Brothertown Indian Nation

AGENCY:

Bureau of Indian Affairs, Interior.

ACTION:

Notice of proposed finding.

SUMMARY:

The Department of the Interior (Department) gives notice that the Acting Principal Deputy Assistant Secretary—Indian Affairs (PDAS-IA) proposes to determine that the petitioner known as the Brothertown Indian Nation is not an Indian tribe within the meaning of Federal law. This notice is based on a determination that the petitioner does not satisfy all seven of the criteria set forth in the applicable regulations, and, therefore, does not meet the requirements for a government-to-government relationship with the United States.

DATES:

Comments on this proposed finding (PF) are due on or before February 22, 2010.

ADDRESSES:

Comments and 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. Interested or informed parties must send a copy of their comments to the petitioner at Brothertown Indian Nation c/o Richard Schadewald, 82 South Macy Street, P.O. Box 2206, Fond du Lac, Wisconsin 54936-2206.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

Pursuant to 25 CFR 83.10(h), the Department gives notice that the PDAS-IA proposes to determine that the Brothertown Indian Nation (BIN, Petitioner #67), c/o Richard Schadewald, 82 South Macy Street, P.O. Box 2206, Fond du Lac, Wisconsin 54936-2206, is not an Indian tribe within the meaning of Federal law. This notice is based on a determination that the petitioner does not satisfy all seven of the criteria set forth in part 83 of title 25 of the Code of Federal Regulations (25 CFR part 83), specifically criteria at 83.7(a), 83.7(b), 83.7(c), 83.7(e), and 83.7(g), and therefore does not meet the requirements for a government-to-government relationship with the United States.

The Department publishes this notice in the exercise of authority that the Secretary of the Interior delegated to the Assistant Secretary—Indian Affairs (AS-IA) by 209 DM 8. The AS-IA delegated authority to sign some Federal acknowledgment findings, including this PF, to the PDAS-IA effective June 4, 2009.

A group known as the Brothertown Indian Nation (BIN), under the name of Brotherton Indians of Wisconsin (BIW), submitted a letter of intent to petition for Federal acknowledgment as an Indian tribe to the AS-IA. The Department received the letter of intent on April 15, 1980. The Department designated the BIW as Petitioner #67. The BIW submitted its first documentation that included a narrative as well as some documents outlined in the BIW petitioner's narrative. The Department received this material on February 7, 1996. The group claimed to descend from the historical Brothertown Indian tribe of Wisconsin, which evolved from the Brothertown Indian tribe of New York State when a large portion of the original tribe moved from New York to Wisconsin. At an earlier time, portions of several historical Indian tribes of Rhode Island, Connecticut, and Long Island had combined to form the Brothertown Indian tribe of New York. The historical Brothertown Indian tribe of Wisconsin occupied a reservation created for it in Wisconsin by the United States Senate in 1832. It was last acknowledged by the United States Government in 1839 when the tribe, as provided in an Act of 1839 and at its own request, divided its reservation lands among its members and became citizens. As a result, the tribe's Federal relationship was terminated.

The Department conducted an initial review of the petition and determined the petitioner was ready for consideration and placed the BIW petitioner on the “ready, waiting for active consideration list” on February 28, 1996. In 1995 and 1998, the BIW petitioner submitted additional petition documents on three different occasions. The BIW notified the Department on January 4, 2005, that the group changed its name officially to Brothertown Indian Nation (BIN) on November 20, 2005.

The Department placed the BIN petitioner on active consideration for the PF on June 23, 2008, and received two submissions of additional petitioner documents from the group during the 60 days following, as allowed by the “directive” of March 31, 2005, and a letter to the petitioner of June 20, 2008 (70 FR 16513). The Department will consider any additional material that it received after the submission deadline of August 22, 2008, for the final determination (FD), pursuant to that directive the Department published on March 31, 2005 (70 FR 16515).

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 BIN petitioner does not satisfy criteria 83.7(a), 83.7(b), 83.7(c), 83.7(e), and 83.7(g). The BIN petitioner meets the requirements of criteria 83.7(d) and 83.7(f).

If “substantial evidence” demonstrates the petitioner had “unambiguous” previous Federal acknowledgment as an Indian tribe, then the requirements of the acknowledgment criteria in section 83.7 are modified by the provisions of section 83.8(d). The available record indicates that the Senate proviso to the Treaty of 1831, the Treaty of 1832, and the Act of 1839 constitute unambiguous previous Federal acknowledgment of a Brothertown Indian tribe in Wisconsin. Evidence that a predominant portion of the petitioner's members descend from the previously acknowledged Indian tribe and some evidence in the record of group activities by Brothertown descendants since 1839 allow the petitioner to advance a claim to have evolved from the previously acknowledged Indian tribe. Therefore, the Brothertown petitioner is evaluated on the basis of whether or not it meets the seven mandatory criteria in section 83.7 as modified by section 83.8(d), from last Federal acknowledgment in 1839 until the present.

Criterion 83.7(a) requires that external observers have identified the petitioner as an American Indian entity on a substantially continuous basis since 1900. As modified by section 83.8(d)(1), the petitioner must be identified since last Federal acknowledgment, which for the Brothertown petitioner is 1839. The evidence in the record demonstrates that external observers identified a historical Brothertown group from 1839 until 1855. Between 1855 and 1981, outside observers periodically identified a Brothertown Indian entity, but because these periodic identifications are separated by long periods of time in which the petitioner or its members' ancestors were not identified as an Indian entity, the petitioner does not satisfy the standard of “substantially continuous” identification as required by the regulations. The petitioning group has been identified as an American Indian entity since 1981. However, the petitioner has not been identified on a substantially continuous basis since 1839. Therefore, the BIN petitioner does not meet the requirements of criterion 83.7(a).

Criterion 83.7(b) requires that a predominant portion of the petitioning group has comprised a distinct community since historical times. As modified by section 83.8(d)(2), the petitioner must demonstrate only that a predominant portion of the petitioning group comprises a distinct community “at present,” which for this case is considered to be the period since the petitioner formally organized in 1980. The character of the current group appears to be that of a highly dispersed descent group with some active members. There is no available evidence in the record that an informal community existed in 1980 composed of the same people currently enrolled with the petitioner. Most members who have strong social ties to other members formed these relationships through the activities of the group's formal organization. Outside of these active participants, few members of the group have strong social ties to each other. For the period from 1980 to 2009, there is insufficient evidence that a predominant portion of the petitioning group's members regularly associate with each other or that the petitioner's members comprise a distinct community. Therefore, the BIN petitioner does not meet the requirements of criterion 83.7(b) as modified by section 83.8(d)(2).

Criterion 83.7(c) requires that the petitioning group has maintained political influence over its members as an autonomous entity since historical times. The evidence in the record does not demonstrate that authoritative, knowledgeable external observers identified leaders or a governing body of the petitioning group on a substantially continuous basis since the date of last Federal acknowledgment in 1839. Therefore, the petitioner does not meet the requirements of criterion 83.7(c) as modified by section 83.8(d)(3) for the historical period prior to “at present.” Alternatively under the provisions of section 83.8(d)(5), the evidence in the record is insufficient to demonstrate that the BIN petitioner or any group antecedent to it maintained political influence or authority over its members from 1839 until the group's establishment as a formal organization in 1980. After 1980, when the current petitioner organized, its governing body has provided some services for its members, but this activity is of recent origin and appears to be the result of the group's establishment as a formal organization. The petitioner has not demonstrated it maintained political influence or authority over most of its members at any time since 1839. Therefore, the BIN petitioner does not meet the requirements of criterion 83.7(c).

Criterion 83.7(d) requires that the petitioner provide a copy of its governing document including its membership criteria. The petitioner submitted a copy of its governing document which includes its membership criteria. Therefore, the BIN petitioner meets the requirements of criterion 83.7(d).

Criterion 83.7(e) requires that the petitioner's members descend from a historical Indian tribe or from historical Indian tribes which combined and functioned as a single autonomous political entity. The June 24, 2008, BIN membership list includes 3,137 living members, both adults and minors. The evidence in the record shows that almost all of the petitioner's members claim descent from individuals who were members of the historical Brothertown Indian tribe of Wisconsin in 1839. However, this PF finds that only 51 percent (1,593 of 3,137) of BIN members have demonstrated descent from an individual known to be a member of the historical Brothertown Indian tribe of Wisconsin. The petitioner has not demonstrated for this PF that its members descend from an historical Indian tribe. Therefore, the BIN petitioner does not meet the requirements of criterion 83.7(e).

Criterion 83.7(f) requires that the petitioner's membership be composed principally of persons who are not members of another federally recognized Indian tribe. A review of the membership rolls of those Indian tribes in Wisconsin and Minnesota that would most likely include the BIN petitioner's members revealed that the petitioner's membership is composed principally of persons who are not members of any federally acknowledged North American Indian tribe. Therefore, the BIN petitioner meets the requirements of criterion 83.7(f).

Criterion 83.7(g) requires that the petitioner not be subject to congressional legislation that has terminated or forbidden the Federal relationship. Congress stated in the Act of 1839 that the Brothertown Indian tribe's “rights as a tribe” recognized by the Federal Government, and specifically its power to act as a political and governmental entity, would “cease and determine,” that is, end and be limited permanently. Congress in this Act brought Federal recognition of the relationship with the Brothertown Indian tribe of Wisconsin to an end. By expressly denying the Brothertown of Wisconsin any Federal recognition of a right to act as a tribal political entity, Congress has forbidden the Federal Government from acknowledging the Brothertown as a government and from having a government-to-government relationship with the Brothertown as an Indian tribe. Congress has both expressly ended and forbidden the Federal relationship for this petitioner. Therefore, the BIN petitioner does not meet the requirements of criterion 83.7(g).

Based on this preliminary factual determination, the Department proposes not to extend Federal acknowledgment as an Indian tribe to the petitioner known as the Brothertown Indian Nation.

A report summarizing the evidence, reasoning, and analyses that are the basis for the PF will be provided to the petitioner and interested parties, and is available to other parties upon written request as provided by 25 CFR 83.10(h). Requests for a copy of the summary evaluation of the evidence should be addressed to the Federal Government as instructed in the ADDRESSES section of this notice.

Publication of this notice of the PF in the Federal Register initiates a 180-day comment period during which the petitioner and interested and informed parties may submit arguments and evidence to support or rebut the evidence relied upon in the PF. Comments on the PF should be addressed to both the petitioner and the Federal Government as required by 25 CFR 83.10(i) and as instructed in the ADDRESSES section of this notice by the date listed in the DATES section of this notice.

The regulations, 25 CFR 83.10(k), provide the petitioner a minimum of 60 days to respond to any submissions on the PF received from interested and informed parties during the comment period. After the expiration of the comment and response periods described above, the Department will consult with the petitioner concerning establishment of a schedule for preparation of the FD. The Acting PDAS-IA will publish the FD of the petitioner's status in the Federal Register as provided in 25 CFR 83.10(l), at a time that is consistent with that schedule.

The Acting PDAS-IA George T. Skibine approved the Proposed Finding Against Acknowledgment of the Brothertown Indian Nation (Petitioner #67) and approved the publication of this Federal Register notice.

Dated: August 17, 2009.

George T. Skibine,

Acting Principal Deputy Assistant Secretary—Indian Affairs.