[Federal Register: October 14, 2005 (Volume 70, Number 198)]
[Notices]
[Page 60101-60103]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14oc05-59]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
Reconsidered Final Determination To Decline To Acknowledge the
Schaghticoke Tribal Nation
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Notice.
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SUMMARY: Notice is hereby given that the Associate Deputy Secretary has
determined that the Schaghticoke Tribal Nation (STN) does not satisfy
all seven criteria for acknowledgment as an Indian tribe in 25 CFR
83.7. Upon the date of publication of this notice, pursuant to 25 CFR
83.11(h)(3), the Reconsidered Final Determination (RFD) is final and
effective for the Department of the Interior (Department).
EFFECTIVE DATE: The procedures defined by this notice are effective on
October 17, 2005.
FOR FURTHER INFORMATION CONTACT: R. Lee Fleming, Director, Office of
Federal Acknowledgment (OFA), MS: 34B-SIB, 1951 Constitution Avenue,
NW., Washington, DC 20240, phone (202) 513-7650.
SUPPLEMENTARY INFORMATION: This notice is published in the exercise of
authority delegated by the Secretary of the Interior to the Associate
Deputy Secretary by Secretarial Order 3259, February 8, 2005, as
amended on August 11, 2005.
This notice is based on a determination that the Schaghticoke
Tribal Nation (STN) does not satisfy all of the seven mandatory
criteria for acknowledgment in 25 CFR 83.7.
Several lawsuits filed in the Federal courts affected the history
and administrative handling of the Schaghticoke Tribal Nation petition.
Two of these were land claims suits under the Non-Intercourse Act,
Schaghticoke Tribal Nation v. Kent School Corp., Inc., Civil No. 3:98
CVO1113 (PCD) and Schaghticoke Tribal Nation v. Connecticut Light and
Power Company, Civil No. 3:00 CV00820 (PCD). The third lawsuit is
United States of America v. 43.47 Acres of Land, et al., Civil No. H-
85-1078(PCD), filed on December 16, 1985, in which the U.S. sought to
condemn certain lands on the Schaghticoke Reservation to become part of
the Appalachian Trail. All three lawsuits involve the question of
whether the STN is an Indian tribe.
The Department conducted its evaluation of this petitioner under a
court-approved negotiated agreement between the Department, STN, and
parties to the several, concurrent lawsuits mentioned above. This
scheduling order, entered May 8, 2001, and subsequently amended,
established timelines for submission of materials to the Department and
deadlines for submission of comments, issuance of a proposed finding
(PF), and issuance of a final determination (FD) which superseded the
provisions of the acknowledgment regulations, 25 CFR part 83.
The Department published notice of the STN PF on December 11, 2002,
and found against acknowledgment of STN. Following the comment and
response periods and the submission of new evidence, the Department
concluded, relying in part on the state relationship and a calculation
of marriage rates within the Schaghticoke as carryover evidence for
criterion 83.7(c), that STN met all the seven mandatory criteria for
acknowledgment as an Indian tribe. In accordance with the court-
approved negotiated schedule, on January 8, 2003, the Department
provided the petitioner and interested parties with a copy of the
Federal Acknowledgment Information Resource (FAIR) database used for
the STN PF, together with the scanned images of documents that OFA
researchers added to the administrative record in the course of
preparing the STN PF, including materials that OFA requested from the
State and the STN.
The Department issued the STN FD acknowledging the STN as an Indian
tribe on January 29, 2004, and notice of the STN FD appeared in the
Federal Register on February 5, 2004 (69 FR 5570). On May 3, 2004, the
State of Connecticut (State), jointly with the Kent School Corporation,
Connecticut Light and Power Company, the towns of Kent, Danbury,
Bethel, New Fairfield, Newton, Ridgefield, Stamford, Greenwich,
Sherman, Westport, Wilton, Weston, and the Housatonic Valley Council of
Elected Officials, the Coggswell family group (CG), and the
Schaghticoke Indian Tribe (SIT) petitioning group filed timely requests
for reconsideration of the STN FD with the Interior Board of Indian
Appeals (IBIA).
On May 12, 2005, the IBIA vacated the STN FD and remanded it to the
Assistant Secretary--Indian Affairs for further work and
reconsideration. The IBIA decision addressed a number of issues within
the context of the related Federal acknowledgment decision of the
Historical Eastern Pequot FD that was also vacated and remanded to the
Department on May 12, 2005. IBIA linked the two cases because of their
reliance on state recognition as
[[Page 60102]]
additional evidence for criterion 83.7(b) and 83.7(c).
In its request for reconsideration of the STN FD, the State
challenged the use of the historically continuous state recognition and
the state relationship as providing evidence for criterion 83.7(b)
``community'' and criterion 83.7(c) ``political influence or
authority.'' Moreover, the State argued that even if the use of the
state relationship were to be upheld by IBIA in the case of the
Historical Eastern Pequot, it should not be allowed for STN, since the
STN FD, in the opinion of the State, ``impermissibly'' expanded the use
of the state relationship as evidence of political influence or
authority in the absence of evidence of political activity within the
group (41 IBIA 34). In regard to the use of the state relationship as
evidence, IBIA concluded:
Today, in Historical Eastern Pequot Tribe, the Board concludes
that the State of Connecticut's ``implicit'' recognition of the
Eastern Pequot as a distinct political body--even if a correct
characterization of the relationship--is not reliable or probative
evidence for demonstrating the actual existence of community or
political influence or authority within that group. The FD for STN
used state recognition in the same way that we found to be
impermissible in Historical Eastern Pequot Tribe. In addition, we
agree with the State that the STN FD gives even greater probative
value and evidentiary weight to such ``implicit'' state recognition,
and therefore it constituted a substantial portion of the evidence
relied upon. Therefore, in light of our decision in Historical
Eastern Pequot Tribe, the Board vacates the FD and remands it for
reconsideration in accordance with that decision (41 IBIA 34).
The IBIA also evaluated other issues raised by the State and other
interested parties in the requests for reconsideration that were
outside of its jurisdiction and referred these issues to the Department
to consider. The State challenged the STN FD's calculations of marriage
rates for the period 1801 to 1870 used for carryover evidence to
satisfy criterion 83.7(c). Moreover, OFA submitted a ``supplemental
transmission'' to IBIA regarding the calculation of marriage rates on
December 2, 2004. Based on the allegation raised by the State regarding
the marriage rate calculations, and within the context of the
supplemental transmission, the IBIA concluded:
Because we are already vacating and remanding the FD to the
Assistant Secretary for reconsideration based on Historical Eastern
Pequot Tribe, and because OFA has acknowledged problems with the
FD's endogamy rate calculations--at a minimum, inadequate
explanation--we conclude that this matter is best left to the
Assistant Secretary on reconsideration. (41 IBIA 36).
The IBIA referred other allegations made by the State, SIT, and the
CG based on the determination that it lacked jurisdiction over the
issues. The first was the claim that the STN FD enrolled 42 non-STN
members into the STN petitioning group. The SIT and the CG also raised
the issue that the enrollment was not based on the notice, consent, or
equal protection of those added to the STN rolls, that the 42
individuals in question were not sufficiently linked to STN, and the
individuals were not a part of the STN social and political community.
The RFD concluded that the STN FD should be reconsidered on the grounds
that at least 33 of the 42 individuals on the STN list of ``unenrolled
members'' were not members of STN because they had not consented to
enroll. Under the regulations, one must consent to being a member of a
petitioning group.
Criterion 83.7(b) ``community'': The STN PF found and the STN FD
affirmed that STN met criterion 83.7(b), community, from first
sustained contact to 1900 (STN PF, 15-16, STN FD, 18). The STN FD did
not rely on the state relationship for criterion 83.7(b), community,
for this period. Therefore, the RFD reaffirmed the STN FD for this time
period, first sustained contact to 1900.
The RFD reanalyzed STN marriage rates, and found that marriage
rates provided evidence in combination with other evidence sufficient
to satisfy criterion 83.7(b) for the period 1801-1900. The STN FD did
not rely on the state relationship for criterion 83.7(b), community,
for the period 1900-1920. The STN FD used a combination of evidence
including residential and intermarriage patterns to conclude that STN
met criterion 83.7(b), community, between 1900 and 1920. The RFD
reaffirmed the STN FD for this time period.
The STN FD relied on the state relationship as additional evidence
for criterion 83.7(b), community, for the periods 1920-1940 and 1940-
1967. The RFD reevaluated the state relationship with the STN, and
concluded that it did not provide evidence of 83.7(b), community,
within STN. The RFD reevaluated the evidence for community without the
state relationship for these periods, and found that there was
insufficient evidence for STN to meet criterion 83.7(b), community for
1920-1967.
The STN FD did not rely on state recognition for community for the
period 1967-1996. Therefore, the STN FD conclusion that STN met
criterion 83.7(b), community, for these years was affirmed.
For the period after 1996, the RFD concluded that at least the 33
of 42 individuals who specifically declined to consent to be part of
the STN petitioner cannot be considered members of the STN group. The
STN, thus, did not represent the entire Schaghticoke community from
1997 to the present and, therefore, did not meet criterion 83.7(b).
Therefore, the STN did not meet criterion 83.7(b), community.
Criterion 83.7(c) ``political influence or authority'': The RFD
affirmed the finding of the STN FD that the petitioner met the
requirements of criterion 83.7(c) for political influence or authority
from the colonial period to 1801. The STN FD used marriage rates for
the periods 1801 to 1820 and 1841 to 1870 under criterion
83.7(b)(2)(ii) to provide carryover evidence under 83.7(c)(3). The RFD
recalculated marriage rates for the period 1801 to 1900, and reversed
the finding of the STN FD that marriage rates reached the 50 percent
threshold to provide carryover evidence to meet 83.7(c). The RFD also
reevaluated the evidence for residency rates for the period 1850 to
1902. The RFD affirmed the conclusion of the STN FD that the residency
rates were not high enough to provide carryover evidence to meet
criterion 83.7(c). The RFD reviewed the evidence for political
influence or authority for the period 1801 to 1875, and found that
there was insufficient evidence to satisfy criterion 83.7(c).
The RFD affirmed the finding of the STN FD that two Schaghticoke
petitions to the State from the years 1876 and 1884 provided sufficient
evidence of political influence or authority to meet criterion 83.7(c)
for the years 1876-1884. The RFD reevaluated the evidence regarding an
1892 petition based on new evidence submitted to the IBIA, and found
that this document did not provide evidence of the existence of
political influence or authority within the Schaghticoke. Therefore,
the RFD concluded that STN did not meet criterion 83.7(c) for the
period 1885-1892.
The STN FD relied on the state relationship to provide sufficient
evidence to meet criterion 83.7(c) for the period 1892 to 1936. The RFD
reevaluated the state relationship and concluded that it did not
provide additional evidence of political influence or authority within
the Schaghticoke. The RFD reevaluated the remaining evidence for
political influence or authority without the state relationship and
found that there was insufficient evidence to meet criterion 83.7(c)
for this period.
[[Page 60103]]
For the period 1936-1967, the RFD reevaluated the state
relationship and concluded that it did not provide additional evidence
of the exercise of political influence or authority within the
Schaghticoke. The RFD concluded that the remaining evidence was
insufficient to meet criterion 83.7(c) for the period 1936-1967.
The STN FD conclusion that STN exercised political influence or
authority between 1967 and 1996 was affirmed. No arguments or new
evidence were submitted regarding this conclusion.
STN did not meet criterion 83.7(c) for the period after 1996, in
light of the known continued refusal of most of the 42 individuals to
be members of the STN. STN's membership list does not reflect a
significant portion of the political system. STN did not meet criterion
83.7(c) for the periods 1800-1875, 1885-1967, and 1997-present.
Therefore, STN did not meet criterion 83.7(c).
STN met criteria 83.7(a), petitioner was identified as an American
Indian group from 1900 to present; 83.7(d), petitioner has submitted
its governing documents; 83.7(e), petitioner's membership has descent
from an historical tribe; 83.7(f), petitioner does not have membership
with any federally recognized tribes; and 83.7(g), petitioner has no
Congressional legislation prohibiting the Federal relationship. No new
arguments, evidence, or analysis merited revision of the STN FD
evaluations of these criteria. The conclusions of the STN FD on these
criteria were affirmed.
The Associate Deputy Secretary denied to acknowledge that STN was
an Indian tribe as it failed to satisfy all of the seven mandatory
criteria for Federal acknowledgment under the regulations. The STN
petitioner did not submit evidence sufficient to meet criteria 83.7(b),
community, and 83.7(c), political influence or authority, and,
therefore, does not satisfy the requirements to be acknowledged as an
Indian tribe.
Upon the date of publication of this notice, pursuant to 25 CFR
83.11(h)(3), the RFD is final and effective for the Department.
Dated: October 11, 2005.
James E. Cason,
Associate Deputy Secretary.
[FR Doc. 05-20719 Filed 10-12-05; 2:26 pm]
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