Nipmuc Nation, In re Federal Acknowledgment of the, 45 IBIA 231 (2007)

Docket NumberIBIA 04-151-A

and Referring Sixteen Issues to the

Secretary of the Interior

The Nipmuc Nation, petitioner 69A, (Petitioner) seeks reconsideration, pursuant to 25 C.F.R. § 83.11, of the final determination against Federal acknowledgment of Petitioner as an Indian tribe within the meaning of Federal law. The final determination was approved by the Principal Deputy Assistant Secretary - Indian Affairs (Principal Deputy Assistant Secretary) on June 18, 2004, and notice of the determination was published in the on June 25, 2004. 69 Fed. Reg. 35,667. 1

The final determination concluded that Petitioner failed to demonstrate that it satisfies the following four of the seven mandatory criteria for Federal acknowledgment as an Indian tribe under 25 C.F.R. Part 83:

  1. : This criterion requires that a petitioner be identified by external sources as an American Indian entity on a substantially continuous basis since 1900. 25 C.F.R. § 83.7(a) ("criterion (a)"); 59 Fed. Reg. 9286 (Feb. 25, 1984).

  2. : This criterion requires that a predominant portion of a petitioning group comprises a distinct community and has existed as a community on a substantially continuous basis from historical times until the present. 25 C.F.R. 2

    §§ 83.7(b) ("criterion (b)"); § 83.6(e).

  3. : This criterion requires that a petitioner has maintained political influence or authority over its members as an autonomous entity on a substantially continuous basis from historical times until the present. §§ 83.7(c) ("criterion (c)"); § 83.6(e).

  4. : This criterion requires that a "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." § 83.7(e) ("criterion (e)").

    Petitioner contends that the final determination erred in finding that Petitioner did not satisfy these criteria and that reconsideration is warranted. The jurisdiction of the Board of Indian Appeals (Board) to review challenges to a final acknowledgment determination is limited to reviewing allegations that fall within one of four grounds for reconsideration: (1) there is new evidence that could affect the determination; (2) a substantial portion of the evidence relied upon in the determination was unreliable or of little probative value; (3) research for the determination appears to be inadequate in some material respect; or (4) there are reasonable alternative interpretations, not previously considered, of the evidence used for the final determination that would substantially affect the determination that the petitioner meets or fails to meet one or more of the seven mandatory criteria. 25 C.F.R. § 83.11(d)(1)-(4).

    The party requesting reconsideration bears the burden to establish before the Board, by a preponderance of the evidence, one or more of these four grounds for reconsideration. § 83.11(e)(9), (10). Additional alleged grounds for reconsideration that are not within the Board's jurisdiction must be referred to the Secretary of the Interior (Secretary), if the Board affirms the final determination, or to the Assistant Secretary, if the Board vacates and remands it for further work and reconsideration. § 83.11(e)(10), (f)(1), (f)(2).

    In the present case, some of Petitioner's alleged grounds for reconsideration are within our jurisdiction; others are not. With respect to those over which we do have

    jurisdiction, we affirm the final determination because Petitioner has failed to establish, by a preponderance of the evidence, that reconsideration is warranted. With respect to the alleged grounds for reconsideration that fall outside the Board's jurisdiction, we describe those alleged grounds and refer the request for reconsideration to the Secretary for consideration, as appropriate.

    At the time of first sustained contact with non-Indians, which began in the early 1600's, the Nipmuc Indians lived in small groups in what is now central Massachusetts and northern Connecticut and Rhode Island. Summary under the Criteria and Evidence for Proposed Finding [Against Federal Acknowledgment of] The Nipmuc Nation (PF), Sept. 25, 2001, at 25-26 & n.51. Beginning in the 1640's, English colonists undertook efforts to convert the Indians of Massachusetts to Christianity, establishing twelve Nipmuc "praying towns" for the "praying Indians." at 22, 33-35. Among these Nipmuc praying towns were Hassanamisco at Grafton, Massachusetts, and Chaubunagungamaug at Dudley and now Webster, Massachusetts. at 22, 35.3

    King Philips War (1675-1676) significantly disrupted the Nipmuc population, and following the war, only a small number of Nipmuc remained in central Massachusetts and northeastern Connecticut, some resettling at Hassanamisco and at Chaubunagungamaug. at 22, 38-39. In 1727, Massachusetts passed an act allowing white settlers to purchase 7,500 of the 8,000 acres of reserved Hassanamisco lands, while the remaining 500 acres were divided among the seven Indian families residing there. at 48. These families were referred to as the Hassanamisco "proprietary" families. at 48, 74. Eventually, only about four and one-half acres of the original Hassanamisco lands remained in the possession of a descendant of a proprietary family, Sarah Maria (Arnold) Cisco (1818-1891). at 76; FD at 11, 181. In addition to Arnold and Cisco, family names associated with the

    Hassanamisco Nipmuc include Printer, Lawrence, Gimbee/Gimby, Hector, Bowman, Hemenway, and Giger (or Gigger). FD at 175, 181. 4

    Family surnames associated with the Dudley/Webster Nipmucs and their descendants include but are not limited to Pegan/Wilson, Belden, Jaha, Humphrey, and Sprague. at 168, 171.

    In 1980, Zara CiscoeBrough, on behalf of the "Nipmuc Tribal Council,5

    Hassanamisco Reservation, Grafton, Massachusetts," submitted a letter of intent to BIA to petition for Federal acknowledgment as an Indian tribe. PF at 6. BIA assigned this6

    petition #69 in priority. FD at 2.

    In 1984, "The Nipmuc Tribal Council Federal Recognition Committee" submitted a narrative and documented petition #69 to BIA. at 2-3. At the time, the documentation indicated that the petitioner included descendants from a Hassanamisco Band historically associated with the Hassanamisco Reservation, and descendants from a Chaubunagungamaug Band historically associated with its original reservation at Dudley/Webster, Massachusetts. A 1983 governing document of the "Nipmuc Tribe (or Nation)" was signed by Walter A. Vickers, who had been appointed by Zara CiscoeBrough to succeed her as leader of the Hassanamisco Band of Nipmuc, and by Edwin W. Morse, Sr., as leader of the Chaubunagungamaug Band of Nipmuck.

    In 1995, BIA placed the petition in active consideration status. at 3.

    In 1996, Morse announced that the Chaubunagungamaug Band was withdrawing from petitioner #69 and notified BIA that the Band would pursue Federal recognition on its own. BIA accepted the withdrawal of the Chaubunagungamaug Band, after which Petitioner was designated petitioner #69A and the Chaubunagungamaug Band was designated petitioner #69B. 7

    Subsequently, Petitioner identified itself as composed of individuals descended from the Hassanamisco and Chaubunagungamaug bands, as well as other historic Nipmuc bands. PF at 4-5. Because OFA found that the self-definition of Petitioner had changed during the course of its petition for acknowledgment, OFA reviewed the evidence in light of arguments in favor of acknowledging petitioner #69 and its successor, Petitioner, as defined in three different ways: (1) those associated with the Hassanamisco Reservation at Grafton, (2) a joint organization encompassing the Hassanamisco and Chaubunagungamaug Bands (or the Grafton and Dudley/Webster reservations); and (3) an umbrella organization of the descendants of all historic Nipmuc bands. 66 Fed. Reg. 49,967, 49,968 (Oct. 1, 2001).

    On September 25, 2001, the Assistant Secretary - Indian Affairs signed a proposed finding against acknowledging Petitioner as an Indian tribe, based on a failure to satisfy criteria (a), (b), (c), and (e) of the acknowledgment regulations. Notice of the proposed finding was published on October 1, 2001. 66 Fed. Reg. 49,967.

    Following publication of the proposed finding and further proceedings, including the receipt of comments and additional evidence in response to the proposed finding, the Principal Deputy Assistant Secretary signed the final determination on June 18, 2004, and notice of the determination was published in the on June 25, 2004. 69 Fed. Reg. 35,667. The final determination concluded, based on the evidentiary record, that Petitioner did not satisfy criteria (a), (b), (c), and (e) for Federal acknowledgment as an Indian tribe.

    As an initial matter, the final determination found that following the proposed finding, Petitioner redefined its membership and membership eligibility, and now described itself as "[t]he 2018historic Nipmuc tribe,' . . . interpreted as meaning 2018those individuals and families of Nipmuc and other Indian ancestry who were part of the Hassanamisco tribal community by the 1920's.'" FD at 37. Therefore, for purposes of making a final determination, OFA also took this revised self-definition of Petitioner into consideration.

    The final determination is 196 pages long. We offer the following summary to provide a context for understanding the issues raised in the request for reconsideration, recognizing that a summary will not capture all of the evidence considered of importance to Petitioner nor or all of the analysis contained in the final determination.

    The final determination concluded that for the period 1900 to 1979, there were external identifications of the "Hassanamisco Reservation" and its Nipmuc residents, and thus the evidence provided substantially continuous identification of a continuing Hassanamisco entity in a limited sense. FD at 40-41. The final determination also8

    concluded, however, that the evidence did not include continuous...

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