[Federal Register: October 1, 2001 (Volume 66, Number 190)]
[Notices]
[Page 49970-49972]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01oc01-70]

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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs


Proposed Finding Against Federal Acknowledgment of the Webster/
Dudley Band of Chaubunagungamaug Nipmuck Indians

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 Webster/Dudley Band of Chaubunagungamaug Nipmuck Indians, 265 West
Main Street, c/o Mr. Edwin W. Morse Sr., P.O. Box 275, Dudley,
Massachusetts 01501, 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), and 83.7(c)
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, MailStop 4660-MIB. The names and addresses
of commenters generally are 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

[[Page 49971]]

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. The Webster/Dudley Band of
Chaubunagungamaug Nipmuck Indians (aka Nipmuck Indian Council of
Chaubunagungamaug, or Chaubunagungamaug Band) submitted a letter of
intent to petition for Federal acknowledgment on May 31, 1996,
withdrawing from petitioner #69, and was designated as petitioner #69B.
Petitioner #69B defines its eligible membership as descendants of
persons who were listed as Dudley/Webster (Chaubunagungamaug) Indians
on either the 1861 Earle Report or the 1891 Dudley/Webster disbursement
list. Of the alternative spellings of the name of the historical tribe,
petitioner #69B prefers the use of ``Nipmuck.''
    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.
    The historical tribe with which the petitioner claims continuity is
the Chaubunagungamaug Band, or those Nipmuck Indians associated with
the Dudley/Webster reservation, Worcester County, Massachusetts. The
reservation and the Indians living on it were under guardians appointed
by the Commonwealth of Massachusetts from the late 17th century through
1869. In 1869, Massachusetts terminated the relationship and in 1870
the reservation property was sold. In 1891, the funds remaining from
the sale of the property were distributed to the surviving members and
to descendants of tribal members who had been alive in 1869.
    On January 19, 2001, the Acting AS-IA made a preliminary factual
finding that the Chaubunagungamaug Band, or Dudley/Webster Indians, did
not meet all seven mandatory criteria and therefore is not 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. 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. Having
completed that review, the AS-IA concurs with the decision of the
former Acting Assistant Secretary and the BIA recommendation and
publishes this notice of the proposed finding that the
Chaubunagungamaug Band, or Dudley/Webster Indians 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. From 1900 through 1978, the record contains occasional external
identifications of individuals and single families as descendants of
the historical Chaubunagungamaug, or Dudley/Webster, Nipmuck Indians
(the term Pegan Indians was also used, and referred to the same group).
However, the documentation for the period from 1900 through 1978
provided no external identifications of the petitioner or any group
antecedent to the petitioner as an American Indian entity.
Additionally, many of the identifications of Dudley/Webster descendants
pertained to persons who have no descendants in the membership of the
current petitioner, so that may not be used collectively or in
combination to demonstrate the identification of an entity. There are
external identifications of the petitioner as an American Indian entity
only from 1981 to the present. Therefore, the petitioner does not meet
criterion 83.7(a).
    The evidence for 83.7(b) and 83.7(c) have 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 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)).
    The Chaubunagungamaug Band, or Dudley/Webster Indians, met
criterion 83.7(b), on the basis of precedent, from first contact
through 1870, largely because of the residence of a significant portion
of the group's population on a state-supervised reservation from the
1680's through 1870. For the period from 1870 through 1891, the
evidence for community among the Dudley/Webster descendants as a whole
is weak but sufficient. The evidence from 1891 through the mid-1970's
does not demonstrate community between the extended Morse family, the
petitioner's core group, and other Nipmucks of Dudley/Webster descent.
For most of the period, there is not even evidence of community between
the extended Morse family and other descendants of the Sprague/Henries
family line from which it stems. From 1978 through the mid-1990's, the
Chaubunagungamaug Band, as an organization, appears to have consisted,
essentially, only of the extended Morse family. There is no evidence of
significant social interaction between the extended Morse family and
the other family lines now included in the membership of #69B for the
1980's. There is some evidence that the petitioner may meet criterion
83.7(b) from 1990 to 1998, but it is not sufficient to demonstrate that
the petitioner meets the criterion for this time period. Therefore, the
petitioner does not meet criterion 83.7(b).
    Although evidence is limited for the period from early contact to
the

[[Page 49972]]

establishment of the Chaubunagungamaug reservation in the 1680's, the
historical Chaubunagungamaug Band, as a portion of the historical
Nipmuc tribe, meets criterion 83.7(c) during this time on the basis of
precedent. From the late 17th century through 1870, direct evidence of
political leadership provided by petitions and similar documents is
sparse, but in the context of the existence of a reservation upon which
the majority (over 50%) of the Chaubunagungamaug, or Dudley/Webster,
Indians resided, the historical Chaubunagungamaug Band meets 83.7(c)
from the 1680's through 1870 by carryover from criterion 83.7(b)(2).
From 1870 through 1891, the only evidence of political influence or
authority is provided by the group's hiring of a lawyer and pursuit of
a suit against the State of Massachusetts, which is insufficient under
the regulations. From 1891 through 1976, there is no documentary
evidence of continuing formal or informal political influence or
organization within the petitioner's antecedent group, whether that
group be defined as the Dudley/Webster descendants as a whole, or
limited to the direct ancestors of the current members of petitioner
#69B. For 1977-1980, there is limited evidence that the leaders of the
current group began to interact with the Nipmuc group headed by Zara
CiscoeBrough and centered on the Hassanamisco Reservation in Grafton,
Massachusetts, but no evidence that there was political influence or
authority within any organization antecedent to petitioner #69B. During
the 1980's, there is evidence that an organization with officers
existed, but insufficient evidence that this formal organization
exercised political influence or authority over its members who were,
additionally, at that period, only a portion of the current petitioner.
The evidence in the record for the 1990's is not sufficient to conclude
that the petitioner meets 83.7(c) for that period. Therefore, the
petitioner does not meet criterion 83.7(c).
    Criterion 83.7(d) requires that the petitioner provide copies of
the group's current governing document. The Webster/Dudley Band of
Chaubunagungamaug Nipmuck Indians submitted its constitution and
bylaws. 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. Of the members of #69B, 185 of 212 (87%)
descend from the historical Dudley/Webster, or Chaubunagungamaug,
reservation and meet the petitioner's own membership requirements.
Eighty-seven percent of members showing descent from the historical
tribe is within precedents for meeting criterion 83.7(e). Therefore,
the petitioner meets criterion 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 petitioner
known as the Webster/Dudley Band of Chaubunagungamaug Nipmuck Indians
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, MailStop 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 Assistant
Secretary--Indian Affairs 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. 01-24512 Filed 9-26-01; 3:31 pm]
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