Final Determination to Acknowledge the Schaghticoke Tribal Nation

[Federal Register Volume 69, Number 24 (Thursday, February 5, 2004)]
[Notices]
[Pages 5570-5574]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 04-2532]

———————————————————————–

DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

Final Determination To Acknowledge the Schaghticoke Tribal Nation

AGENCY: Office of Federal Acknowledgment, Interior.

ACTION: Notice of final determination.

———————————————————————–

SUMMARY: Pursuant to 25 CFR 83.10(m), notice is hereby given that the
Assistant Secretary–Indian Affairs acknowledges the Schaghticoke
Tribal Nation c/o Mr. Richard L. Velky, 33 Elizabeth Street, 4th Floor,
Derby, Connecticut 06148, as an Indian tribe within the meaning of
Federal law. This notice is based on a determination that the
petitioning group satisfies all seven criteria for Federal
acknowledgment as a tribe in 25 CFR 83.7, and therefore meets the
requirements for a government-to-government relationship with the
United States.

DATES: This determination is final and is effective May 5, 2004,
pursuant to 25 CFR 83.10(l)(4), unless a request for reconsideration is
filed pursuant to 25 CFR 83.11. On-going negotiations in current
litigation may modify or eliminate the applicability of this provision
of the regulations.

FOR FURTHER INFORMATION CONTACT: R. Lee Fleming, Director, Office of
Federal Acknowledgment, (202) 513-7650 .

SUPPLEMENTARY INFORMATION: This notice is published in the exercise of
authority delegated by the Secretary of the Interior to the Assistant
Secretary–Indian Affairs by 209 DM 8.

This notice is based on a determination that the Schaghticoke
Tribal Nation (STN) satisfies the seven criteria for Federal
acknowledgment as an Indian tribe in 25 CFR 83.7.
The Department is considering the STN petition under a court
approved negotiated agreement between the STN, the State of
Connecticut, and other interested parties involved in pending
litigation. This agreement neither modifies the criteria nor the
standards required to demonstrate that all of the criteria have been
met.

A notice of proposed finding (PF) to decline to acknowledge the STN
was published in the Federal Register December 11, 2002 (67 FR 76184).
That notice was based on a determination

[[Page 5571]]

that the petitioner did not satisfy all seven of the criteria set forth
in 25 CFR 83.7, specifically criteria 83.7(b), and (c), and therefore
did not meet the requirements for a government-to-government
relationship with the United States.

The evidence available at the time of the PF showed that the STN
petitioner and its antecedents met criteria 83.7(a) for identification
as a Indian entity since 1900, 83.7(d) for providing a governing
document, 83.7(e) for having a membership list and demonstrating
descent from the historical tribe, 83.7(f) for not being members of an
acknowledged Indian tribe, and 83.7(g) for not being the subject of
legislation that terminated or forbade the Federal relationship. The PF
concluded that the petitioner did not meet the requirements for
criteria 83.7(b) to demonstrate community from first sustained
historical contact to the present because there was insufficient
evidence to demonstrate that community existed between 1940 and 1967.
The PF concluded that the petitioner did not meet criterion 83.7(c) for
political influence or authority from first sustained historical
contact to the present. The PF concluded that the evidence was
insufficient to demonstrate that the Schaghticoke met criterion
83.7(c), political influence within the group, from 1801 to 1875, that
there was almost no specific evidence of Schaghticoke political
activity from 1885 to 1949, and that there was insufficient evidence of
political activity from 1949 to 1967. The PF concluded further
concerning criterion 83.7(c) that the continuous state relationship
with a reservation did not provide additional evidence during those
periods when there was an absence of specific evidence of the exercise
of political influence within the group within the meaning of the
acknowledgment regulations.

Criteria 83.7(b) and 83.7(c) were also not met after 1996 because
the STN’s 2001 membership list (317 members) used for the PF did not
include approximately 60 individuals, who were a part of the
Schaghticoke social and political community between 1967 and 1996.
These criteria were also not met because almost a third of the
membership (110 of 317) were from a family line that was not part of
the community and had no known social and political contact with the
Schaghticoke before 1996.

This final determination (FD) is made following a review of the
responses to the PF, the public comments on the PF, and STN responses
to the public comments. This FD has reviewed the evidence considered
for the PF, and evaluated that evidence in the light of the new
documentation and argument received from third parties and the
petitioners. This FD reevaluates the evidentiary weight given to
continuous state recognition with a reservation.

The PF found that the Schaghticoke were regularly identified as an
American Indian entity in Federal and state documents, by local
authorities, by academic scholars, and in newspaper articles since
1900, thus meeting criterion 83.7(a). Neither the petitioner nor the
third parties addressed criterion 83.7(a) in the comments on the PF.
Some exhibits submitted for the FD provided additional external
identifications of Schaghticoke as an American Indian entity from 1900
to the present. The conclusion of the STN PF that the petitioner meets
criterion 83.7(a) is affirmed.

The PF found that Moravian mission records (1743 through 1771), the
continued existence of a distinct residential settlement, repeated
petitions by the group to the Colony and the State, and a detailed
external enumeration of all members by name and age in 1789,
demonstrated that there was a Schaghticoke community from the 1740’s to
1801. Throughout the 19th century, the overseers’ reports, the
existence of a distinct geographical settlement to which off-
reservation residents frequently returned, and the close kinship ties
between reservation residents and non-resident members provided
sufficient evidence to show that a Schaghticoke community existed until
about 1900. The additional analysis of the evidence undertaken for the
FD strengthened these conclusions. The FD affirms that the Schaghticoke
meet 83.7(b) through 1900.

Additional evidence submitted for the FD confirms the conclusions
of the PF that a portion of the Schaghticoke formed a residential
community on the reservation between 1900 and 1920. Other Schaghticoke,
resident off-reservation, maintained social ties as part of the group,
had been born on and/or lived on the reservation, and were close
relatives of the reservation residents. Additional analysis of
residential and intermarriage patterns for the 19th century, which
provided sufficient evidence for community until 1870 and strong
evidence for community for the balance of the 19th century, provides
supporting evidence for the existence of a community in the first two
decades of the 20th century. Additional documentary sources were
provided which identified a community on the reservation and recognized
the connection between reservation and non-reservation residents. These
forms of evidence combined provide sufficient evidence to demonstrate
that criterion 83.7(b) is met from 1900 to 1920.

For 1920 to 1940 there was less specific evidence concerning
community, but the reservation continued to be occupied during these
decades. Interview evidence demonstrated social ties between the three
major Schaghticoke family lines. The State made appropriations in both
decades for the Schaghticoke and passed legislation transferring
supervision of the Schaghticoke from one state agency to another.
Documentary evidence from this period includes references to the
Schaghticoke as an existing group. Continuous state recognition with a
reservation provides additional evidence here, where specific evidence
of community exists. Therefore, the STN meets criterion 83.7(b) from
1920 to 1940.

A thorough review of the existing data together with the new data
submitted in response to the PF demonstrates that community existed
among the Schaghtcoke between 1940 and 1967. A review of the oral
histories, including new information added to the record in response to
the PF, demonstrates that significant social relationships existed
between, as well as within, the three main family lines during this
time period.

The documents and oral histories of the 1936 to 1967 era concerning
political activities demonstrate social and political contact, as does
the oral history of reservation meetings during that period. Additional
evidence is that the enrollments in 1949 and 1954 generally correspond
with the families of Schaghticoke who enrolled between 1967 and 1973,
indicating the continuity of the Schaghticoke’s definition of their
community.

Continuous state recognition provides additional evidence here,
where specific evidence of community exists. Based on the new evidence
and the analysis and reevaluation of the evidence already in the
record, this FD concludes that criterion 83.7(b) is met between 1940
and 1967.

The evidence for community and political processes for 1967 to 1996
was based on the the political processes in the internal conflicts in
this period, as well as the nature of the membership. Supportive
evidence for community from 1967 to 1996 for the PF and for this FD was
that enrollment in the Schaghticoke organization beginning in 1970 was
almost entirely drawn from a select subset of the much larger pool of
all Schaghticoke descendants, those who were from families that had

[[Page 5572]]

remained in social contact since the petitions of 1876 and 1889. This
FD confirms the conclusion of the PF that there is sufficient evidence
for political processes for 1967 to 1996. This FD adds additional
evidence and analysis of conflicts which mobilized substantial number
of members and showed contact between members, providing additional
evidence to demonstrate community. Therefore, this FD confirms that
criterion 83.7(b) is met from 1967 to 1996.

The evidence for community and political processes for 1967 to 1996
and the nature of membership and the political processes in the
internal conflicts exist for 1996 to the present as well. The conflicts
have continued up until the present, and social contacts have continued
between the enrolled and unenrolled portions of the Schaghticoke
community.

The evidence demonstrates that the Schaghticoke have existed as a
community from first sustained contact until the present. The most
recent STN membership list is incomplete and does not include a
substantial portion of the present Schaghticoke community. This FD
concludes that the STN, including the presently unenrolled portion of
the community, meets the requirements of 83.7(b).

The State of Connecticut has, since colonial times, continuously
recognized the Schaghticoke as a distinct tribe with a separate land
base provided by and maintained by the State. The continuous state
relationship manifested itself in the distinct, non-citizen status of
the tribe’s members until 1973. There is implicit in the relationship
between the State and the Schaghticoke a recognition of a distinct
political body, in part because the relationship originates with and
derives from the Colony’s relationship with a distinct political body
at the time the relationship was first established. Colonial and state
laws and policies directly reflected this political relationship until
the early 1800’s. The distinct political underpinning of the laws is
less explicit from the early 1800’s until the 1970’s, but the
Schaghticoke remained non-citizens of the State until 1973. The State
continued the main elements of the earlier relationship (legislation
that determined oversight, established and protected land holdings, and
exempted tribal lands from taxation) essentially without change or
substantial questioning throughout this time period.

The state relationship is documented to be continuously active
throughout the history of the Schaghticoke, as demonstrated by state
overseer actions, state statutes, and other actions of the executive,
judicial and legislative branches of Connecticut’s colonial and state
governments. There are such state actions throughout the periods where
there is little or no direct evidence of political influence within the
group, 1820 to 1840 and 1892 to 1936.

In making this FD, the Department has reevaluated the evidentiary
weight that was given to continuous state recognition with a
reservation from colonial times until the present in the STN PF and in
the Historical Eastern Pequot (HEP) PF and FD decisions. The position
in those decisions was that the state relationship was not a substitute
for direct evidence of political processes in a given period of time
and could only add evidence where there was some, though insufficient,
direct evidence of political processes.

The Department’s reevaluated position is that the historically
continuous existence of a community recognized throughout its history
as a political community by the State and occupying a distinct
territory set aside by the State (the reservation), provides sufficient
evidence for continuity of political influence within the community,
even though direct evidence of political influence is almost absent for
two historical time periods. This conclusion applies only because it
has been demonstrated that the Schaghticoke have existed continuously
as a community, within the meaning of criterion 83.7(b), and because of
the specific nature of their continuous relationship with the State.
Further, political influence was demonstrated by direct evidence for
very substantial historical periods before and after the two historical
periods. Finally, there is no evidence to indicate that the tribe
ceased to exist as a political entity during these periods.

For this FD, the historical periods in which there is insufficient
direct evidence of political processes are substantially reduced from
the PF. These periods are 1820 to 1840 and 1892 to 1936. Within the
first period, evidence of community is strongly established. During the
decade 1821-1830, there was an overall endogamy rate of 40 percent.
During the decade 1831-1840, there was an overall endogamy rate of 35
percent. The rates for these two decades were substantial and provide
strong evidence for the existence of community. However, they are below
the 50 percent level required to provide carryover by themselves to
demonstrate political influence or authority for the petitioner under
83.7(c)(3) for the two decades 1821-1840.

The conclusion of the FD is that the antecedents to this
petitioner, the Weantinock (which were centered at New Milford) and
Potatuck (which were centered at Newtown), existed as tribes at the
time of first sustained contact. The Schaghticoke did not, as the third
parties argue, begin as a “group of individual Indians and families”
who in the mid-1700s “coalesced from diverse locations and tribes long
after there was a sustained presence of Europeans in western
Connecticut.” This FD does not accept the third parties’ argument that
the Schaghticoke did not exist at the time of first sustained contact
with non-Indians nor the second argument that they do not derive from
nor are a successor to any tribe or tribes that existed at the time of
first sustained contact.

This FD rejects the third party argument that there must be
evidence in the record of continuity of tribal political and social
processes and conscious acts of amalgamation to create a Schaghticoke
Tribe from the antecedent Weantinock and Potatuck. Neither the 25 CFR
part 83 regulations nor precedent require an express decision when two
tribes amalgamate. Amalgamation can occur over time. In this case, a
specific early example of such common action is the May 13, 1742,
petition directed to the General Assembly in which, “Mowchu Cherry and
others hereunto subscribing Being Indian Natives of this Land Humbly
Sheweth, that there are at New Milford, and Potatuck the Places where
we Dwell about Seventy Souls of us” and requested missionaries.
For the time period 1736-1801, the PF found the petitioner met
criterion 83.7(c) for political authority or influence within the group
from the appearance of a distinct group at Schaghticoke, where the
Connecticut General Assembly assigned it land in 1736 and where there
was a Moravian mission from 1743 until 1771, until about 1801. The FD
confirms this conclusion.

The PF found that there was insufficient evidence to demonstrate
that the Schaghticoke met criterion 83.7(c) for the period from 1801 to
1875. There remains little direct evidence concerning political
authority or influence among the Schaghticoke for this time period.
However, criterion 83.7(c)(3) provides: “A group that has met the
requirements in paragraph 83.7(b)(2) at a given point in time shall be
considered to have provided sufficient evidence to meet this criterion
at that point in time.” For the FD, taking into account submissions by
the petitioner and third parties, a detailed,

[[Page 5573]]

decade-by-decade, analysis was made to determine whether petitioner
meets 83.7(b)(2): “At least 50 percent of the marriages in the group
are between members of the group.” On the basis of these calculations,
the endogamy rate was sufficient that the STN meets criterion 83.7(c)
from 1801-1820 and 1841-1870 under 83.7(c)(3).

The PF concluded that two petitions submitted in 1876 and 1884,
signed by a number of Schaghticoke Indians living on the reservation
and some living off the reservation, provided sufficient evidence that
the group exercised some political influence or authority for that
limited time period. For the FD, there is limited additional context
for the two above petitions, which strengthens the conclusion of the PF
that they show political influence and authority within the group at
these dates. Both the 1876 and 1884 Schaghticoke petitions for
appointment of an overseer were presented shortly after the passage by
the Connecticut legislature of legislation that affected the
Schaghticoke tribe. The evidence submitted for the FD also documented a
third petition, which requested an audit of the tribe’s funds. It was
submitted in 1892 on behalf of the tribe by a member who had signed
both the 1876 and 1884 petitions and was acted upon by the court, which
appointed the auditors requested by the tribe. The auditors were paid
from tribal funds.

The residency rate on the reservation in 1870 was 48 percent and in
1880 it was 40 percent. This is strong evidence for community for the
period 1870-1880, which is supporting evidence for political influence,
under section 83.7(c)(1)(iv).

On the basis of the additional evidence provided by the 1892
petition, the strong evidence of community in combination with the
direct evidence for political influence demonstrates that the STN meets
criterion 83.7(c) from 1870 through 1892.

This FD concludes there is little direct evidence to demonstrate
political influence within the Schaghticoke between 1892 and 1936. This
FD rejects many of the specific arguments presented by the petitioner
to demonstrate significant political influence within the Schaghticoke
between 1892 and 1936.

There was no evidence to demonstrate the political influence did
not exist within the Schaghticoke from 1892 to 1934. There are several
individuals who were well-known to non-Indians and were of some
stature, but no contemporary evidence to demonstrate that they were
identified as leaders by Schaghticoke or outsiders. Oral histories
collected substantially later identify several individuals as leaders.
The lack of evidence of overt political activity may have been
influenced by demographic trends, which resulted in the relatively
early deaths of many of the children of the petition signers of 1876
and 1884, limiting potential leaders in this time period. Two reports,
one in 1934 and one in 1936, denied that the Schaghticoke at that time
or “in recent years,” had leaders. The first report does not provide
definitive evidence by itself, and the second, in 1936, is at the point
in time when there is specific evidence of Schaghticoke leaders.

A well defined community of on and off-reservation residents
existed throughout the 1892 to 1936 time period. Community, when it is
demonstrated to exist at more than a minimal level, which has been done
here, provides supporting evidence for direct evidence of political
processes (83.7(b)(1)(iv)).

Although there is insufficient direct evidence to demonstrate
criterion 83.7(c) between 1892 and 1936, this FD concludes that
overall, based on the continuous state relationship with a state-
provided reservation, and the demonstration of continuous community
under 83.7(b), there is sufficient evidence of political continuity
throughout the Schaghticoke history that the STN meets the requirements
of 83.7(c) between 1892 and 1936.

For this FD, the evidence is significantly greater than for the PF
concerning political processes within the Schaghticoke from 1936 to
1967. The evidence is that the organization that Franklin Bearce helped
initiate, and the activities of named leaders, lasted for a
substantially longer period of time, from 1936 to the mid-1960’s, than
was demonstrated for the PF. There is better evidence that the
organization and office holders dealt with issues of significance to
the group and that there was continuity of concern with the issue of
protecting the reservation throughout this period, beginning with a
possible Court of Claims suit in 1936, letters to the State in 1939, a
1943 letter to the U.S. Indian Service, a 1950 claim before the Indian
Claims Commission (ICC) and a renewed land claims lawsuit in 1963,
after the rejection of the ICC claim. There is also evidence of
continued internal conflicts and involvement of individuals from each
the three major family lines throughout the entire time period,
indicating that the conflicts involved the entire community. The years
between 1959 and 1969 were a period of political division, rather than
there being a hiatus, as had appeared based on the analysis and
evidence for the PF.

For the PF, there was not sufficient evidence to demonstrate that
community had been demonstrated for the time period from 1940 to 1967.
For this FD, community has been demonstrated for 1940 to 1967. For this
FD, for the period from 1936 to 1967, where there is more evidence in
the record than for the PF, the state relationship in combination with
the specific evidence in the record for this period adds sufficient
evidence that criterion 83.7(c) is met from 1936 to 1967.

This FD confirms the PF conclusion that there is ample evidence for
political processes for 1967 to 1996. No information was submitted
which demonstrated that the conflicts, described in some detail in the
PF, had not occurred or not mobilized most of the membership. For this
FD, there is additional evidence and analysis of the conflicts between
1967 and 1974 which mobilized substantial number of members and show
contact between members. This provides additional evidence for
criterion 83.7(c) for this time period.

The same evidence for political influence for 1967 to 1996, based
on the political processes in the internal conflicts, exists for 1996
to the present as well. The conflicts have continued up until the
present, especially, but not entirely, between the enrolled and
unenrolled portions of the Schaghticoke community. This FD concludes
that a single political body continues to exist, notwithstanding the
absence from the certified membership list of an important segment of
those involved in STN political processes from the 1960’s to the
present. This FD acknowledges the entirety of this political body.

There has been a continuous, active relationship from colonial
times to the present between the State and the Schaghticoke in which
the State treated them as a distinct political community. The
historical continuity of the group has been demonstrated. This state
relationship provides sufficient evidence to conclude that political
influence existed continuously within the Schaghticoke, including two
specific historical periods during where there is almost no direct
evidence of political influence, but during which community has been
demonstrated. The Schaghticoke therefore meet criterion 83.7(c)
throughout their history.

The STN meets the requirements of criterion 83.7(d) because it
submitted a copy of its governing document: A constitution adopted in
1997 which

[[Page 5574]]

included a description of its membership criteria.
The regulations require, under criterion 83.7(e), that a petitioner
submit a complete list of its membership. In this instance, the
petitioner has identified its most current certified list as not
complete. It submitted two lists, the certified membership list and a
list of the “Unenrolled Schaghticoke Community.” This FD acknowledges
the tribe as defined by the STN’s 2003 membership list, 273 members,
and its additional list of 42 individuals, identified by the STN as
part of its community and meeting its membership requirements. Together
these two lists comprise the STN’s base membership roll and its present
membership for Federal purposes.

The STN provided sufficient evidence to show that all 273
individuals on the September 28, 2003, certified membership list and
the 42 individuals listed on the September 28, 2003, amendment to the
constitution who are “unenrolled tribal community members” descend
from the historical tribe.

One hundred percent of the STN membership descends from the
historical Schaghticoke tribe. Therefore the conclusion in the PF that
the STN meets criterion 83.7(e) is confirmed.
No members of the STN are known to be dually enrolled with any
federally acknowledged American Indian tribe. Neither the petitioner
nor any of the interested parties addressed this criterion. Therefore,
the conclusion in the PF that the STN meets criterion 83.7(f) is
confirmed.

There has been no Federal termination legislation in regard to the
STN. Neither the STN nor any interested parties addressed this
criterion. Therefore, the conclusion in the PF that the STN meets
criterion 83.7(g) is confirmed.

The Schaghticoke Tribal Nation, as defined by its 2003 membership
list and its 2003 list of unenrolled community members meets all of the
criteria for Federal acknowledgment as a tribe stated in 25 CFR 83.7
and, therefore, meets the requirements to be acknowledged as tribe with
a government-to-government relationship with the United States.
This determination is final and will become effective May 5, 2004,
unless a request for reconsideration is filed before the Interior Board
of Indian Appeals (IBIA) pursuant to 25 CFR 83.11 or unless any party
or amici in the litigation files for Administrative Procedures Act
(APA) review with the district court. In addition, the court approved
negotiated agreement calls for negotiation as to whether a request for
reconsideration may be filed before the IBIA or whether judicial review
under the APA is the only review. The on-going negotiation will
continue until no later than 30 days after publication of this Notice.
This negotiation may impact the ability of interested parties, whether
parties to the litigation or not, to seek reconsideration before IBIA.
Inquiries by interested parties concerning the availability of the IBIA
review should be directed to the Office of the Solicitor, Branch of
Tribal Government and Alaska, 202-208-6526 , Attention: Scott Keep or
Barbara Coen.

Dated: January 29, 2004.
Aurene M. Martin,
Principal Deputy Assistant Secretary–Indian Affairs.
[FR Doc. 04-2532 Filed 2-4-04; 8:45 am]
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