04-14394. Final Determination Against Federal Acknowledgment of the Nipmuc Nation

AGENCY:

Bureau of Indian Affairs, Interior.

ACTION:

Notice of final determination.

SUMMARY:

Pursuant to 25 CFR 83.10(m), notice is given that the Principal Deputy Assistant Secretary—Indian Affairs declines to acknowledge a group known as The Nipmuc Nation, petitioner 69A, c/o Mr. Walter Vickers, 156 Worcester-Providence Road, Suite 32, Sutton Place Mall, Sutton, Massachusetts 01590, as an Indian tribe within the meaning of Federal law. This notice is based on a final 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 83.7(a), (b), (c), and (e), and, therefore, does not meet the requirements for a government-to-government relationship with the United States.

DATES:

Unless a request for reconsideration is filed pursuant to 25 CFR 83.11, this determination is final and will become effective on September 23, 2004, pursuant to 25 CFR 83.10(l)(4).

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

Under delegated authority, the Secretary of the Interior (Secretary) ordered, through the Assistant Secretary—Indian Affairs (AS-IA), the Principal Deputy Assistant Secretary—Indian Affairs (PD AS-IA) “to execute all documents, including regulations and other Federal Register notices, and perform all other duties relating to Federal recognition of Native American tribes.” Pursuant to this order, the PD AS-IA makes the determination regarding the petitioner's status, as defined in the acknowledgment regulations, as one of the duties delegated by the Secretary to the AS-IA (209 Department Manual 8), and from the AS-IA to the PD AS-IA (Secretarial Order No. 3252).

A notice of a proposed finding (PF) to decline to acknowledge petitioner 69A was published in the Federal Register on October 1, 2001. The notice was based on a determination that petitioner 69A did not satisfy all seven of the mandatory criteria set forth in part 83 of title 25 of the Code of Federal Regulations (25 CFR part 83), specifically criteria 83.7(a), (b), (c) and (e), and, therefore, did not meet the requirements for a government-to-government relationship with the United States.

The petitioner and third parties, Connecticut, the Town of Sturbridge, Massachusetts, and Peter Silva submitted comments in response to the PF on September 30, 2002. The petitioner submitted a response to the third party comments on November 11, 2002. The petitioner at the same time submitted a response to petitioner 69B's comments on its own PF, treating them as a comment on the 69A PF.

This FD rejects petitioner 69A's argument that it has had continuous State recognition with a reservation. For at least 107 years, there was no State recognized Indian entity and no State supervision. The State relationship with the Hassanamisco Indians (as well as with the Dudley/Webster Indians) ended with the Massachusetts Enfranchisement Act of 1869. A limited relationship was created between petitioner 69A and Massachusetts after the establishment of the Massachusetts Commission on Indian Affairs (MCIA) in 1976. In addition, most of the petitioner's current membership does not descend from the Hassanamisco Indians (also known as the Grafton Indians) (only 2 percent of petitioner 69A's current members have Hassanamisco ancestry).

The Sisco family, one of the families in petitioner 69A retains ownership, as a family, of 2 1/2 acres of the land originally reserved for the Hassanamisco Indians. The Hassanamisco reservation was sold in 1727, except for 500 acres, which was divided in 1727-1730 among seven Hassanamisco proprietary families, who were given individual title. The land was not the common property of a tribal entity and the State did not hold title to the reserved Hassanamisco property. There was no common fund, but, rather, each proprietary family owned a share in the funds received from sale of the land. The continuous State recognition with a reservation in the Historical Eastern Pequot and Schaghticoke Tribal Nation final determinations is clearly distinct from that alleged by petitioner 69A concerning its relationship with Massachusetts.

The evidence in the record for this FD does not include continuous external identifications of a Hassanamisco Nipmuc entity broader than the Hassanamisco proprietary descendants for the period 1900-1979. An external identification of this Hassanamisco entity is not the same as an external identification of the current petitioner. Petitioner 69A is substantially different from the entity that was being identified, the Hassanamisco descendants constituting only 11 of the petitioner's 526 members (see further discussion under criterion 83.7(e)).

The majority of the external identifications from 1900 through 1979 only referred to the Sisco family property called the “Hassanamisco Reservation” in Grafton, Massachusetts, and to some of its residents. Some external identifications also referred by name to descendants of the other Hassanamisco proprietary families, none of whose descendants are enrolled in petitioner 69A. Therefore, this documentation does not provide identifications of the petitioner. It provides substantially continuous identification of a continuing Hassanamisco entity only in the limited sense of identifying some Hassanamisco descendants, of whom only the Sisco family are part of the petitioner, from 1900 through 1979.

Occasional associations of Dudley/Webster Nipmuc descendants with Hassanamisco are mentioned by external observers during the period from 1900 to 1979, but these occurred primarily in the context of pan-Indian activities in New England rather than being identifications of an Indian entity which was antecedent to the current petitioner, 69A.

External identifications of an entity that comprised the various elements of petitioner 69A (and, for some portions of the period, additional elements no longer included in the petitioner's membership) were found by the PF to exist only from the mid-1970s to the present. The FD affirms this conclusion.

The ancestors of the large majority of the present membership of petitioner 69A were not part of the Hassanamisco entity identified by external observers during the period from 1900 through the mid-1970s. Consequently, those identifications do not apply to petitioner 69A as defined by its current membership list. They were not otherwise identified separately as an Indian entity. Therefore, petitioner 69A does not meet the requirements of criterion 83.7(a).

The evidence submitted for the FD indicates that from 1785 to 1869 and from 1869 through the early 1950s there continued to be a limited community made up of some of the descendants of the original Hassanamisco proprietary families, not including the Gigger (Hassanamsico) family line. The focus of this community of Hassanamisco descendants was not in Grafton, although the “Hassanamisco Reservation” property owned by the Sisco family continued to be an important symbol, but rather among the descendants residing in the city of Worcester, Massachusetts.

Some tenuous ties were re-established between the Sisco family and the Giggers beginning in the 1920s, and some ties were established between the Siscos and one Dudley/Webster family by the 1920s.

The evidence does not bear out the petitioner's argument that a community of Dudley/Webster descendants had “coalesced” around some of the Hassanamisco families by the 1920s. The only family of Dudley/Webster descent which had clearly become associated with, and interacted socially with, any of the Hassanamisco proprietary families by the 1920s was that of George Wilson and his siblings (Pegan/Wilson family line), who had moved to Worcester prior to World War I. This association continued through the 1930s, 1940s, and 1950s. However, from 1900 to 1930 there is little or no evidence showing interaction between the Pegan/Wilson family members and other Dudley/Webster descendants or between Pegan/Wilson family members and petitioner 69A's other ancestors who are not descendants of either Hassanamisco or Dudley/Webster (e.g., Curliss/Vickers). Thus most of the petitioner's ancestors were not associated with the community of some Hassanamisco descendants focused around Worcester, nor were they documented to be interacting among themselves elsewhere.

Sisco family interaction with two other Dudley/Webster families (Jaha and Belden) during the 1920s and 1930s appears to have taken place only in the context of pan-Indian organizations rather than within a community context. The membership of these organizations also included non-Nipmuc Indians and non-Indians.

The other family lines of Dudley/Webster descent who now have members in petitioner 69A are not documented to have associated with Hassanamisco by the 1920s at all (for example, Sprague/Henries, Sprague/Nichols). There is no evidence in the record for this FD that any of these family lines developed any significant social ties to any Hassanamisco entity prior to the activities of Zara CiscoeBrough in the 1960s and 1970s. There is also little evidence for social ties between Hassanamisco and the large body of Curliss/Vickers descendants during this period. The Curliss/Vickers descend from an individual identified in the 1861 Earle Report as a “Miscellaneous Indian,” not part of Hassanamisco, Dudley/Webster or any other tribe.

The attenuated Worcester-based community which was continuous with the Hassanamisco proprietary entity ceased to exist with the deaths of several of the older members in the 1950s. The children and grandchildren of these older members did not play any significant role in the organizations that formed under the leadership of Zara CiscoeBrough from the early 1960s onward, and were not part of the petitioner as it existed from the mid-1970s until it greatly expanded its membership in the 1990s. The evidence does not show interaction from 1900 to 1953 between the Hassanamisco descendants described above and the ancestors of most of the Dudley/Webster or Curliss/Vickers descendants who comprise most of the petitioner's current membership. At the same time, the large majority of the persons who were shown to have been interacting during that period do not have descendants in petitioner 69A.

Of the original Hassanamisco proprietary families, the only one that has continued to function more or less continuously within the 69A petitioner as it has evolved, and its immediate antecedents since the 1950s, is the Sisco family itself (11 individuals out of 526 members). Descendants of the Gigger line and two other Hassanamisco lines, the Scott and Hemenway families, did not appear on the membership lists of the 69A petitioner until 1996 or 1997, respectively. These three Hassanamisco families were dropped from its membership list by the petitioner in 2002 because the petitioner determined that these family lines did not meet its membership requirement, which it created after the PF, to demonstrate participation in the petitioner's community as the petitioner defined it for the FD.

The contemporary documentation concerning Zara CiscoeBrough's creation of lists of Nipmuc in the 1960s and 1970s does not provide good evidence to show that she viewed this process as enrolling an existing community, as the petitioner contends. The evolving “governing documents” of the period are consistent with the process of expanding the definition of the Nipmuc group she was using beyond the Hassanamisco to include families with which she had little or no previous contact.

Petitioner 69A's argument concerning community from the mid-1970s to the present rests in part on the argument that the “historical community” that they describe as existing from the 1920s to the mid-1970s continued to exist up until the present. The petitioner argues that this community continued to exist after the sharp membership expansion that began in 1990 under the Nipmuc Tribal Acknowledgment Project (NTAP) which more than doubled the size of the petitioner. The resulting expanded membership list, of 1,602 names, dated 1997, was in place at the time of the PF and was only reduced in 2002, by petitioner 69A, shortly before the petitioner's submission of its comments on the PF. Petitioner 69A's comments and the accompanying documentation do not show that the persons on the 2002 69A membership list, who are claimed to be a continuation of the 1920s community, made a distinction between themselves and those who were on the much larger 69A membership list from 1990 to 2002 and were subsequently removed from the membership list.

Petitioner 69A states that the 2002 list was created by reducing the 1997 list through a process of research in which the petitioner considered evidence to demonstrate social ties as well as ancestry from specific family lines. This final determination concludes that the petitioner, as defined by the 2002 membership list, does not demonstrate sufficient social ties to meet the requirements of criterion 83.7(b). Many of the examples that petitioner 69A listed as showing informal social interaction and social relationships among the present membership actually concerned formal meetings or political participation, or only involved close kin of the speaker and, thus, did not provide evidence for community for 69A as a whole. There were some examples which indicate broader social ties, between family lines, but these examples were too limited in extent to demonstrate that the petitioner meets criterion 83.7(b). There was relatively little information to demonstrate these ties for the substantial body of Curliss/Vickers descendants, a third of the membership. The family lines themselves are genealogical constructs, categories of individuals sharing a common ancestor, and were not demonstrated to be social units whose members interacted. The evidence in the record does not substantiate the petitioner's claims of distinct, shared cultural traditions within the membership.

The conclusion in the PF that the petitioner does not exist as a community is affirmed as applying to petitioner 69A, even as it has redefined itself for the FD. Petitioner 69A does not meet the requirements of criterion 83.7(b).

The evidence does not indicate that political influence and authority existed within a Hassanamisco entity between 1785 and 1900 at a level sufficient to meet criterion 83.7(c). The community that existed among the Hassanamisco proprietary descendants during the periods from 1785 through 1869 and from 1869 to 1900 was not at a sufficiently high level to provide carry-over evidence under criterion 83.7(c)(3).

The other major components or families antecedent to petitioner 69A (Dudley/Webster and Curliss/Vickers desendants) were not associated with Hassanamisco when the tribe was identified in the official State report (Earle Report) in 1861. They have not been shown to have amalgamated with all or part of the Hassanamisco subsequent to 1861 and prior to 1900 within the meaning of the 25 CFR part 83 regulations. Therefore, petitioner 69A does not meet criterion 83.7(c) prior to 1900.

For the period from 1900 to 1961, the evidence in the record does not demonstrate that a Hassanamisco tribal community that included the majority of the ancestors of petitioner 69A, as currently defined, existed in any definable sense. Through the late 1950s, there continued to be a tenuous community of descendants of the Hassanamisco proprietary families (excluding the Giggers) who maintained a connection with one another as well as maintaining a public identity in connection with the “Hassanamisco reservation” and the annual Indian Fairs held there. Within this group, the evidence clearly indicates that the Sisco family had a certain primacy of place. However, there is no indication that they maintained a bilateral political relationship with the other proprietary descendants, much less with the larger group of Dudley/Webster and Curliss/Vickers descendants antecedent to the family lines currently comprising most of the petitioner's membership.

Most of the “political” events and activities cited by the petitioner took place, from the 1920s through the late 1950s, in the context of pan-Indian organizations in New England. The leaders of these organizations did not exercise political authority or influence over the people who would have been in the “1920s community” as now defined by petitioner 69A, nor is there evidence that the ancestors of most of petitioner 69A's members belonged to these organizations. The majority of the people who were in these organizations do not have descendants in petitioner 69A. Thus, they did not provide a venue for any bilateral political relationship among leaders and followers antecedent to petitioner 69A.

Zara CiscoeBrough from the 1960s to 1980 sought to expand the Hassanamisco Foundation, an organization limited to the immediate Sisco family, that she had created in 1961 to control the Hassanamisco land and support a museum. CiscoeBrough expanded the foundation, beginning in 1969, in order to ensure that the Sisco family's land remained in Indian hands after her death. The revised 1969 Hassanamisco Foundation bylaws and the circa 1980 Hassanamisco-Nipmuc Tribe governing documents expanded the membership beyond the Sisco family to include anyone of any kind of Nipmuc descent. The lists created in 1975 and 1977 by Zara CiscoeBrough in concert with this effort were not the enrollment of an extant community which maintained a bilateral political relationship with the Hassanamisco Foundation or the Hassanamisco council.

Although the petitioner nominally included the Chaubunagungamaug Band (CB) organization, petitioner 69B, from the latter's formation in 1981 until its withdrawal from the Nipmuc Nation in 1996, in practice the CB functioned as a separate organization. Consequently, for purposes of this evaluation, the CB is treated as a separate entity. Evidence concerning political influence within petitioner 69A is evaluated in terms of the Hassanamisco organization until 1990. After 1990 until 2002, evidence concerning political influence is evaluated in terms of the greatly expanded organization which was created beginning in 1990 and which continued until the membership was reduced by approximately two-thirds in 2002.

Concerning the Hassanamisco council from 1978 to 1996, there is little data in the record to show a connection between the council and the general memberships of the Hassanamisco or Nipmuc Nation organizations. There was at best limited evidence to show that council members were “family representatives,” or that there was communication from them to anyone other than immediate family members. Although for some years there were annual membership meetings of the Hassanamisco organization, the evidence is that attendance at these meetings was small and primarily limited to council members. There was only limited evidence that the issues dealt with by the Hassanamisco council were of importance to the members.

There was no evidence in the record that the expansion of the petitioner's membership under NTAP beginning in 1990, to more than twice the estimated size of the Hassanamisco organization in 1988, was a political issue for those within the Hassanamisco membership as it had been defined beginning in the mid-to late 1970s. The narrowing of the enrollment in 2002 came about as a response to the PF against acknowledgment of petitioner 69A, which concluded that this expanded membership was not a community, not as the result of membership opinion. There was no evidence in the record that the reduction was made along the lines of a division within an existing community. Additional evidence that the Hassanamisco council did not exercise political influence in an existing community was there was no evidence there was any membership comments or questions concerning its dissolution in 1996 in favor of the larger Nipmuc Nation Tribal Council (NNTC). Thus, there is no evidence in the record that the Hassanamisco organization as it existed before the expansion was itself a community within which political influence existed.

The evaluation of evidence for political influence within petitioner 69A from 1961 to the present must take into account both the lack of evidence for a community at any point and the greatly fluctuating nature and size of the membership, the claimed “ommunity” in which political influence might have been exercised. This FD finds that there was no community over which political influenced was exercised by Zara CiscoeBrough from the 1960s to 1982, nor, following her, by the Hassanamisco council until its dissolution in 1996, nor, by NTAP and the NNTC over the expanded membership between 1990 and 2002, nor for the present membership, by the present governing body of petitioner 69A.

The limited available information about membership opinion, possible political issues, and participation in conflicts from 1990 to 2002 is not relevant political data to demonstrate political processes within the “Hassanamisco community.” Many of the largest and most active meetings drew from the broader membership, as it was presented for the PF, which is no longer part of petitioner 69A and was not part of the Hassanamisco organization before 1990. This broader membership consisted in large part of persons who were not of either Hassanamisco, Dudley/Webster or Curliss/Vickers ancestry, nor did they descend from the petitioner's claimed 1920s community. A number of petitioner 69A's leaders from 1990 until 2002 were drawn from this broader membership, which was the majority of petitioner 69A's members during that time span.

There was only limited evidence in the record to show that conflicts were over issues of concern to the membership and that interest in them was widespread among the members of the Hassanamisco, CB, and NTAP organizations. Even if there was sufficient evidence that there were conflicts over issues of concern to the membership, these conflicts would not provide evidence under criterion 83.7(c) because there is no evidence to show either that these conflicts occurred within a community or that they were “xternal conflicts” between two communities.

The evidence for this FD is that none of the three units that combined into the Nipmuc Nation under the NNTC in 1994 (Hassanamisco, CB and NTAP) were communities nor exercised political influence within their respective memberships, nor was the overall Nipmuc Nation membership as it was defined by the 1997 69A membership list a community within which political influence was exercised. There is no evidence in the record that the Hassanamisco council and NTAP represented different political constituencies which might have expressed different views.

Although there is some evidence from 1990 to 1998 of conflict and membership opinion concerning the development of a governing document, and the definition of membership used under NTAP and NNTC, there was no evidence that leaders of NTAP, its predecessor, the Federal Recognition Committee, or the NNTC had any followers or represented any constituency within the membership as it was defined at any point.

The conclusion in the PF is affirmed. Therefore, petitioner 69A does not meet the requirements of criterion 83.7(c).

Petitioner 69A has submitted a copy of its current governing document, a 2001 Constitution, and membership criteria, including a “Nipmuc Nation Tribal Roll Policies and Procedures” manual that was approved by the council on January 14, 2002. Therefore, petitioner 69A meets criterion 83.7(d).

Petitioner 69A submitted a revised membership list which listed 526 individuals as members. The list was certified by resolution of petitioner 69A's governing council on September 23, 2002. Applying the revised membership requirements contained in the 2001 constitution and the 2002 “Policies and Procedures” manual, the petitioner reduced its membership from 1,602 at the time of the PF to 526 members for the FD.

With respect to criterion 83.7(e), the requirement under the regulations is that: “The petitioner's membership consists of individuals who descend from a historical Indian tribe or from historical Indian tribes which combined and functioned as a single autonomous political entity.” In this case, there was no amalgamation by which two tribes combined and functioned as a single autonomous political entity.

Petitioner 69A argues that their ancestors living in the 1920s constituted a community that had “oalesced” around Hassanamisco by the 1920s. Their position is that the community included their ancestors, living in the 1920s, who descended from the Dudley Indians identified on the 1861 Earle Report, descended from the “Miscellaneous Indian” category on the 1861 Earle Report, descended from Connecticut Indians, or descended from a few other Indian ancestors living in the 1920s, as well as their ancestors living in the 1920s who descended from the Hassanamisco Indians identified on the 1861 Earle Report. The evidence does not support the assertion that such a “oalesced” entity had come into being by the 1920s (see previous discussion under criteria 83.7(b) and 83.7(c)).

The available evidence indicates that the Dudley/Webster Indians and the Hassanamisco Indians were separate tribes which did not combine into one tribe historically. The members of these two separate historical tribes were identified in the Earle Report of 1861.

The evidence for this FD demonstrates that 2 percent of the members (11 of 526) have Indian ancestry from Arnold/Sisco family who were part of the historical Hassanamisco/Grafton Nipmuc tribe that was identified in 1861. The evidence for this FD demonstrates that 53 percent of its members (277 of 526) descend from six families (Jaha, Humphrey, Belden, Pegan/Wilson, Pegan, and Sprague) who were identified as Dudley/Webster Indians in 1861. Neither the 2 percent of the members who descend from the Hassanamisco tribe as it existed in 1861, nor the 53 percent that descend from the separate Dudley/Webster tribe as it existed in 1861, is sufficient, based on precedent, to meet the requirements of criterion 83.7(e) for descent from a historical tribe.

Thirty-four percent of the petitioner's members have Indian ancestry from an individual identified as a “Miscellaneous Indian” on the Earle Report, 8 percent have Indian descent from individuals identified as Connecticut Indians, and 3 percent have other Indian ancestry. Therefore, 45 percent of the petitioner's membership do not have documented ancestry from either the historical Hassanamisco tribe or the historical Dudley/Webster tribe.

The petitioner has not demonstrated descent from a single historical tribe or from tribes that combined or amalgamated historically and therefore does not meet criterion 83.7(e).

No members of petitioner 69A are known to be dually enrolled with any federally acknowledged American Indian tribe. Therefore, petitioner 69A meets criterion 83.7(f).

There has been no Federal termination legislation with regard to petitioner 69A. Therefore petitioner 69A meets criterion 83.7(g).

Under section 83.10(m), the PD AS-IA is required to decline to acknowledge that a petitioner exists as an Indian tribe if the petitioner fails to satisfy any one of the seven mandatory criteria for Federal acknowledgment. The evidence in the record, including the evidence submitted by petitioner 69A, did not demonstrate that it meets criteria 83.7(a), (b), (c), and (e). Therefore, petitioner 69A, The Nipmuc Nation, does not satisfy the requirements to be acknowledged as an Indian tribe with a government-to-government relationship with the United States.

This determination is final and will become effective September 23, 2004, unless a request for reconsideration is filed pursuant to section 83.11. The petitioner or any interested party may file a request for reconsideration of this determination with the Interior Board of Indian Appeals (section 83.11(a)(1)). These requests must be received no later than 90 days after publication of the PD AS-IA's determination in the Federal Register (section 83.11(a)(2)).

Dated: June 18, 2004.

Aurene M. Martin,

Principal Deputy Assistant Secretary—Indian Affairs.