Golden Hill Paugussett Tribe, In re Federal Acknowledgment of the, 32 IBIA 216 (1998)

Docket Number:IBIA 97-59-A
 
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Requests for reconsideration of a final determination against Federal acknowledgment.

Affirmed subject to supplemental proceeding. Five issues to be referred to the Secretary of the Interior following supplemental proceeding.

  1. Indians: Federal Recognition of Indian Tribes: Acknowledgment

    A person who satisfies the definition of "interested party" in 25 C.F.R. § 83.1 may participate in proceedings before the

    Board of Indian Appeals concerning reconsideration of a final determination to acknowledge or not to acknowledge an entity as an Indian tribe, regardless of whether that person participated in the original proceedings before the Assistant Secretary - Indian Affairs.

  2. Indians: Federal Recognition of Indian Tribes: Acknowledgment

    In order to constitute "new evidence" under 25 C.F.R. § 83.11(d)(1), evidence must not have been before the Assistant Secretary - Indian Affairs at the time he/she made a final determination concerning the acknowledgment of an entity as an Indian tribe.

    1/ The Assistant Secretary participated in these proceedings only with respect to the determination of interested parties.

    IBIA 97-59-A, 97-60-A

    OPINION BY ADMINISTRATIVE JUDGE VOGT

    The Golden Hill Paugussett Tribe (Petitioner) and the Golden Hill Paugeesukq Tribal Nation (Requester) each seek reconsideration of the "Final Determination Against Federal Acknowledgment of [Petitioner]" which was issued by the Assistant Secretary - Indian Affairs on September 16, 1996, and notice of which was published at 61 Fed. Reg. 50,501 (Sept. 26, 1996). Subject to the supplemental proceeding ordered below, the Board affirms the Final Determination. Following completion of the supplemental proceeding, the Board will refer five issues to the Secretary of the Interior under 25 C.F.R. § 83.11(f).

    Background

    In 1982, Petitioner submitted a letter of intent to petition for Federal acknowledgment as an Indian tribe. It submitted a documented petition on April 12, 1993. The Bureau of Indian Affairs (BIA) advised Petitioner of deficiencies it perceived in the documented petition, and Petitioner responded with additional information. Third parties also submitted comments, and Petitioner responded to them.

    On June 8, 1995, the Assistant Secretary published a Notice of "Proposed Finding Against Federal Acknowledgment of [Petitioner]." 60 Fed. Reg. 30,430. The Notice stated that the Proposed Finding was "based on a determination that [Petitioner] does not meet one of the seven mandatory criteria set forth in 25 CFR 83.7, specifically criterion 83.7(e)." Id.

    Following a period for response and comments, the Assistant Secretary issued her Final Determination. The Federal Register notice of the determination stated in part:

    A substantial body of documentation was available about the petitioning entity and its ancestors. None of the documentation demonstrated descent from the historic Paugussett tribe or from any other tribe for [Petitioner]. The available documentation did not demonstrate any American Indian descent, regardless of tribal affiliation. Even if Paugussett or other Indian ancestry could be determined for William Sherman, [2/] descent through one person with Indian ancestry does not meet the requirements of criterion 83.7(e) for tribal descent.

    [Petitioner] has not demonstrated that its membership is descended from a historic tribe, or tribes that combined and functioned as a single autonomous political entity. Therefore, [Petitioner] does not meet criterion 83.7(e).

    2/ The Notice of Final Determination stated that Petitioner claimed "ancestry from the historic Paugussett tribe through a single individual, William Sherman, a common ancestor of the entire present membership." 61 Fed. Reg. at 50,502.

    IBIA 97-59-A, 97-60-A

    61 Fed. Reg. at 50,502-50,503. The Notice also indicated that Petitioner's petition had been considered under 25 C.F.R. § 83.10(e). 3/ Id. at 50,502.

    Petitioner's Request for Reconsideration was filed on December 24, 1996, and was assigned Docket No. IBIA 97-59-A. Petitioner alleged that there was new evidence which could affect the determination; that a substantial portion of the evidence relied upon by BIA was unreliable or of little probative value; that BIA's research was inadequate and incomplete; and that there were reasonable alternative interpretations of the evidence before BIA. Petitioner's Brief in Support of Request for Reconsideration at 94-96. On December 27, 1996, the Board determined under 25 C.F.R. § 83.11(c)(2) that Petitioner had alleged grounds for reconsideration under 25 C.F.R. § 83.11(d). 4/

    Requester's Request for Reconsideration was filed on December 26, 1996, and was assigned Docket No. 97-60-A. With respect to this request, the Board made its finding under 25 C.F.R. § 83.11(c)(2) on January 15, 1997. Following that determination, the Board consolidated the two Requests for Reconsideration.

    Interested Parties

    In response to a request from the Board, the Assistant Secretary furnished a list of persons (i.e., individuals and entities), who were considered interested parties when the matter was pending before BIA. Requester also furnished an extensive list of persons, which it may have

    3/ 25 C.F.R. § 83.10(e) provides: "Prior to active consideration, the Assistant Secretary shall investigate any petitioner whose documented petition and response to the technical assistance review letter indicates that there is little or no evidence that the group can meet the mandatory criteria in paragraph (e), (f), or (g) of § 83.7. "(1) If this review finds that the evidence clearly establishes that the group does not meet the mandatory criteria in paragraph (e), (f), or (g) of § 83.7, a full consideration of the documented petition under all seven of the mandatory criteria will not be undertaken pursuant to paragraph (a) of this section. Rather, the Assistant Secretary shall instead decline to acknowledge that the petitioner is an Indian tribe and publish a proposed finding to that effect in the FEDERAL REGISTER. * * * "(2) If the review cannot clearly demonstrate that the group does not meet one or more of the mandatory criteria in paragraph (e), (f), or (g) of § 83.7, a full evaluation of the documented petition under all seven of the mandatory criteria shall be undertaken during active consideration of the documented petition pursuant to paragraph (g) of this section."

    4/ Under 25 C.F.R. § 83.11(c)(2), the Board is required to determine, "within 120 days after publication of the Assistant Secretary's final determination in the FEDERAL REGISTER, whether the request alleges any of the grounds in paragraph (d) of [section 83.11]."

    IBIA 97-59-A, 97-60-A

    intended as a list of interested parties. The Board allowed persons appearing on either list to show that they were "interested parties" under the definition in 25 C.F.R. § 83.1. 5/ Upon receipt of several requests for "interested party" status, the Board allowed responses from the parties. 6/

    [1] In a March 25, 1997, order, the Board made determinations concerning the interested party status of the several applicants. First, however, it addressed an argument made by the Assistant Secretary that, in order to be an interested party before the Board, a person must have requested interested party status when the acknowledgment petition was pending before the Assistant Secretary. The Board stated:

    The definition of "interested party" in 25 C.F.R. § 83.1 does not contain the limitation advocated by the Assistant Secretary. Nor does the Assistant Secretary identify any provision in the regulations that would put potential interested parties on notice that they are required to enter the acknowledgment proceedings by a certain point in the proceedings or lose any right to participate in the future.

    Moreover, the preamble to the final regulations clearly recognizes that the Board may determine "interested parties" for purposes of reconsideration proceedings before the Board: "The Assistant Secretary and the Interior Board of Indian Appeals (IBIA), respectively, will determine which third parties qualify as interested parties in the formal meeting and the process of review of requests for reconsideration." 59 Fed. Reg. 9283 (Feb. 25, 1994). This statement evidences no intent to limit the Board's authority to determine interested parties in the manner suggested by the Assistant Secretary.

    The Board concludes that a person who "can establish a legal, factual or property interest in an acknowledgment determination" may be recognized as an interested party in proceedings before

    5/ Section 83.1 provides: "Interested party means any person, organization or other entity who can establish a legal, factual or property interest in an acknowledgment determination and who requests an opportunity to submit comments or evidence or to be kept informed of general actions regarding a specific petitioner. 'Interested party' includes the governor and attorney general of the state in which a petitioner is located, and may include, but is not limited to, local governmental units, and any recognized Indian tribes and unrecognized Indian groups that might be affected by an acknowledgment determination."

    6/ In addition to Petitioner and Requester, these included the Governor and Attorney General of Connecticut, who are interested parties under 25 C.F.R. § 83.1, and a group known as the Connecticut Homeowners Held Hostage (CHHH), which had participated extensively in...

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