Proposed Finding for Federal Acknowledgment of the Mashpee Wampanoag Indian Tribal Council, Incorporated of Massachusetts, 17488-17492 [E6-5017]

Agencies

• DEPARTMENT OF THE INTERIOR
• Bureau of Indian Affairs
• Indian Affairs Bureau

[Federal Register Volume 71, Number 66 (Thursday, April 6, 2006)]
[Notices]
[Pages 17488-17492]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-5017]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs


Proposed Finding for Federal Acknowledgment of the Mashpee 
Wampanoag Indian Tribal Council, Incorporated of Massachusetts

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 
Associate Deputy Secretary (ADS) proposes to determine that the Mashpee 
Wampanoag Indian Tribal Council, Inc., P.O. Box 1048, Mashpee, 
Massachusetts 02649, c/o Mr. Glenn Marshall, is an

[[Page 17489]]

Indian tribe within the meaning of Federal law. This notice is based on 
a determination that the petitioner satisfies all seven mandatory 
criteria, and thus, meets the requirements for a government-to-
government relationship with the United States.

DATES: Comments are due on or before October 3, 2006. Publication of 
this notice of the proposed finding in the Federal Register initiates a 
180-day comment period during which the petitioner, interested and 
informed parties, and the public may submit arguments and evidence to 
support or rebut the evidence relied upon in the proposed finding. 
Interested or informed parties must provide a copy of their comments to 
the petitioner.

ADDRESSES: Comments on the proposed finding or requests for a copy of 
the summary evaluation of the evidence should be addressed to the 
Office of the Assistant Secretary--Indian Affairs, Attention: Office of 
Federal Acknowledgment, 1951 Constitution Avenue, NW., Mail Stop 34B-
SIB, Washington, DC 20240.

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 ADS by 
Secretarial Order 3259, of February 8, 2005, as amended on August 11, 
2005.
    The acknowledgment process is based on the regulations at 25 CFR 
Part 83. Under these regulations, the petitioner has the burden to 
present evidence that it meets the seven mandatory criteria in section 
83.7.
    The Mashpee petition is being considered under time-frame set by a 
July 22, 2005, Joint Settlement Agreement and Stipulated Dismissal 
(Agreement) entered into by the petitioner and the Department in the 
United States District Court for the District of Columbia.
    The Mashpee Wampanoag Indian Tribal Council, Inc. of Massachusetts 
(MWT, petitioner 15) submitted a letter of intent to petition 
for Federal acknowledgment on July 7, 1975. As per the Agreement, the 
ADS placed the petitioner on active consideration on October 1, 2005.
    The Mashpee petitioner is located in the town of Mashpee, 
Barnstable County, Massachusetts, on the southeastern portion of Cape 
Cod along Nantucket Sound.
    Criterion 83.7(a) requires that the petitioner be identified as an 
American Indian entity on a substantially continuous basis since 1900. 
The available evidence demonstrates that since 1900 external observers 
identified the petitioning group now known as the Mashpee Wampanoag 
Indian Tribal Council, Incorporated, or a group of the petitioner's 
ancestors as an American Indian entity on a substantially continuous 
basis since 1900.
    Criterion 83.7(b) requires that a predominant portion of the 
petitioning group comprises a distinct community and has existed as a 
community from historical times until the present. The Mashpee 
petitioner is located in an area that was traditionally Wampanoag. 
Based on the evaluation of its 1,462 members, the petitioner represents 
a group of lineal descendants of the Wampanoag Indians who have 
inhabited this area since first sustained contact with non-Indians in 
the early colonial period. From 1665 to 1720, the Mashpee inhabited a 
praying town that provided considerable political autonomy. In 1720, 
the colony established a proprietary system for the Mashpee, a system 
of government that also afforded them significant political authority. 
In 1746, the colonial legislature limited this self-rule by assigning 
three guardians to the Mashpee proprietors. For the next 16 years, the 
Mashpee frequently petitioned the legislature with complaints about the 
overseers, and were able to govern their affairs despite the presence 
of the overseers. In 1763, the colony, in response to the Mashpee 
complaints made the settlement a self-governing ``Indian'' district. 
This political structure remained until after the American Revolution.
    The evidence shows that almost all of the Mashpee maintained a 
distinct community during the colonial and revolutionary eras. Colonial 
officials regularly described the Mashpee as being a distinct Indian 
entity. Other available evidence of shared religious activities by the 
Mashpee also demonstrates the existence of a social community distinct 
from that of surrounding populations. There is also good evidence from 
the colonial and revolutionary periods to demonstrate that much more 
than 50 percent, in fact almost all, of the Mashpee resided in a 
defined geographical area, the town of Mashpee, exclusively, or almost 
exclusively, composed of its members. This residential patterns 
provides evidence which, under 83.7(b)(2)(i), is sufficient by itself 
to demonstrate community during the colonial and revolutionary eras.
    From 1788 to 1834, when State overseers were again assigned to the 
group, the Mashpee remained set apart from surrounding populations. A 
large portion, as many as two-thirds, of the members demonstrated 
shared religious practices through the Mashpee Baptist church from 1788 
to 1834, which is also good evidence of community. State officials in 
reports consistently described the distinct Indian character of the 
Mashpee at this time, thereby providing good evidence of community from 
1788 to 1834. This evidence is sufficient under criterion 83.7(b)(i). 
The available evidence further shows that virtually all the Mashpee 
from 1802 to 1834 lived in a defined geographical area composed almost 
exclusively of its members. Evidence shows that the Mashpee who lived 
outside the town usually did so only on a temporary basis, thereby 
retaining contact with the majority. This evidence is sufficient in 
itself to show community during this period under criterion 83.7(b)(2) 
for the period from 1802 to 1834. The petitioner also provided 
significant evidence under 83.7(c) of political influence or authority 
for this period that demonstrates interaction and social ties and thus 
provides additional evidence of community.
    During the period, 1834 to 1870, when the State of Massachusetts 
designated the town of Mashpee an Indian district, the State generated 
records, particularly the 1849 Briggs Report and the 1861 Earle Report, 
which showed the Mashpee settlement was a distinct Indian community 
with significant social relationships and interactions. Through the 
district government, the Mashpee controlled most of the social and 
economic behavior of the Indian community. The Baptist church also 
maintained its position as an important social institution for a large 
portion of the Mashpee. The available evidence also shows that a large 
majority of the Mashpee during this time, as high as 82 percent in the 
late 1860's, lived in a defined geographical area composed almost 
exclusively of its members. There is also evidence that those few who 
lived outside of the town either lived very close by or were doing so 
only temporarily and were likely to return, thereby maintaining social 
ties to the majority in the town. This evidence is sufficient in itself 
to show community during these years under criterion 83.7(b)(2)(i).
    Moreover, the petitioner provided sufficient evidence to 
demonstrate the exercise of political authority from 1834 to 1870, 
using evidence described in 83.7(c)(2). This evidence shows Mashpee 
leaders using the district government to allocate group resources on 
common lands and fisheries and to exert influence on the behavior of 
the

[[Page 17490]]

Mashpee, including through law enforcement by the district constables. 
Under 83.7(b)(2)(v), this political evidence is also sufficient 
evidence of community during this period.
    In 1870, the Mashpee Indian District became an incorporated town, 
which the Mashpee controlled politically for the next 100 years. From 
1870 to 1930, the town records showed that almost all the political 
offices were held by the Mashpee and contemporary records described a 
distinct Mashpee Indian community in and around the town of Mashpee. 
Early in this period, evidence of conflict among the Mashpee over the 
sale of collective land demonstrated both social interactions among the 
Mashpee and their distinct character from that of other populations in 
the area. The Baptist church and Parish Committee remained important 
social institutions for a majority of the Mashpee from 1870 to 1930. 
The available evidence further shows a large majority of the Mashpee 
during this time, as many as 87 percent by the early 1930's, lived in a 
defined geographical area composed almost exclusively of its members. 
There is also evidence during this period that those few Mashpee who 
lived outside of the town, often in adjacent towns or other areas on 
the Cape, maintained contact with those in the town through a high rate 
of return migration. This evidence is sufficient in itself to show 
community during these years, under criterion 83.7(b)(2)(i). There is 
also good evidence for this period of significantly high patterns of 
intra-group marriages, as described in 83.7(b)(1), from 1860 to 1930. 
These high rates of intra-group marriage resulted in extensive kinship 
ties among the Mashpee that have fostered social interaction and 
relationships within the Mashpee to this day.
    During the remainder of the town period, 1930 to 1974, contemporary 
records described the Mashpee in a way that demonstrated the group 
constituted a distinct entity with significant social relationships and 
interactions among a predominant portion of the membership. It was a 
community bounded by a common ancestry, politics, geography, culture, 
and extensive kinship ties. The available evidence shows that the 
Parish Committee and Baptist church functioned as important social 
organizations for a significant portion of the group into the early 
1970's, although the significance of the latter declined after the 
1960's. There is also good evidence of socials and other activities 
that involved Mashpee from many family lines and multiple generations 
throughout the period. Significant kinship ties provided by still high 
intra-group marriage rates also facilitated social relationships and 
interactions within the group during this time. In addition, the 
petition record contains evidence of concentrated residential patterns 
that show a significant part of the group still lived in an exclusive 
settlement in the town of Mashpee from 1930 to 1974. These residency 
patterns are good evidence of community.
    Moreover, the petitioner provided sufficient evidence to 
demonstrate the exercise of political influence or authority from 1870 
to 1965, using evidence described in 83.7(c)(2). This evidence shows 
Mashpee selectmen and public officials using the town government to 
regulate fisheries, including the catching of herring, shellfish, and 
trout obtained from streams and waterways and exerting influence on the 
behavior of the Mashpee on a consistent basis through their control of 
the police department. The Mashpee provided this leadership for a town 
in which they continued to make up the large majority of the year-round 
population up to 1965. Under 83.7(b)(2)(v), this political evidence is 
also sufficient evidence of community during that period.
    In 1974, the Mashpee lost control of the town government to non-
Indians. For the period since 1974, when the group has been governed by 
an incorporated council, the petitioner presented good evidence of 
social interactions and relationships connected to the Mashpee's land 
claim suit (1976-1983) that mobilized the support of a significant 
portion of the group. The petition record also contains evidence of 
social distinction by non-members towards the Mashpee because of the 
land-claim suit and other controversial events that show distinct 
community.
    For this period, the majority of group members have continued to 
reside in or near their historical territory of the town of Mashpee. In 
addition to geographic proximity around an area of exclusive settlement 
within the town of Mashpee, social relationships and informal social 
interactions within the community are facilitated by kinship patterns 
that include substantial rates of intra-group marriage among Mashpee 
members and a persistent and extensive network of extended family 
connections. Different family lines are well represented in various 
Mashpee events and activities, some of which are sponsored by the 
incorporated council. Group involvement is additionally expressed 
through a historically recognized political division within its 
membership of ``traditionals'' and ``non-traditionals.'' The petitioner 
also provided significant evidence under 83.7(c) of political influence 
or authority since the middle 1970's that demonstrates interaction and 
social ties and thus provides additional evidence of community.
    The petitioner presented sufficient evidence to demonstrate that it 
has comprised a distinct community since first sustained contact with 
non-Indians. Therefore, the petitioner meets the requirements of 
criterion 83.7(b).
    Criterion 83.7(c) requires that the petitioner has maintained 
political influence or authority over its members as an autonomous 
entity from historical times until the present. Wampanoag leadership at 
the time of first sustained contact in the 1620's was provided by a 
hereditary chief or sachem. The area around what is now the town of 
Mashpee, Massachusetts, had a number of these sachems controlling 
several villages joined in a loose confederacy. For the period between 
1665 and 1746, after the formation of the praying town, there is 
evidence that the Mashpee exerted political authority over its members, 
first through a six-member council and then later through a 
proprietorship. Native religious leaders also exercised important 
political influence during this period. After the Massachusetts colony 
appointed guardians in 1746, the Mashpee proprietors regularly 
petitioned the colonial authorities of Massachusetts for the next 16 
years, demanding a change in government. In 1763, shortly after sending 
one of their members to petition the King of England and his ministers 
with a list of their grievances, they persuaded the colonial 
legislature to give them full self-rule once again, a form of 
government that lasted until 1788. Therefore, the petitioner provided 
sufficient evidence to demonstrate that it meets 83.7(c) for the 
colonial and revolutionary periods. In addition, the group supplied 
evidence of community through the Mashpee's residential patterns during 
the colonial and revolutionary periods to meet the requirements of 
paragraph 83.7(b)(2)(i), which is also sufficient to demonstrate 
political influence, under 83.7(c)(3) during that period.
    Following the American Revolution a number of Mashpee women 
provided notable leadership in defending standards of behavior and 
opposing outside control of land and resources in the town of Mashpee. 
Between 1788 and 1834, when Massachusetts again appointed overseers to 
supervise the group, the Mashpee frequently petitioned State 
authorities complaining about the activities of these overseers. State 
records acknowledged that despite

[[Page 17491]]

the presence of overseers between 1788 and 1834, the Mashpee remained 
essentially autonomous and self-governing. Indeed, one State 
investigation report from 1827 stated that the Mashpee had been running 
their ``municipal affairs'' for the past hundred years. In 1834, the 
State, in response to their entreaties, gave the Mashpee greater self-
government by establishing an ``Indian District'' in Mashpee, 
Massachusetts. Therefore, the petitioner provided good evidence to 
demonstrate that it meets 83.7(c) for 1788 to 1834. In addition, the 
group supplied evidence of community through the Mashpee's residential 
patterns during the overseer period to meet the requirements of 
paragraph 83.7(b)(2)(i) that is also sufficient to demonstrate 
political influence, under 83.7(c)(3), during that period.
    As an Indian District, between 1834 and 1870, the Mashpee gained 
complete control of political, legal, and economic affairs in the town 
once again. District status gave the Mashpee control over government, 
local justice, schools, roads, parish, and welfare. The Mashpee 
allocated group resources by regulating common lands and waterways. 
This regulation included laws regarding grazing of livestock, cutting 
of timber, and the catching of herring, trout, eels, and shellfish. 
They also controlled group behavior through law enforcement by the 
local constables. The consistent allocation of group resources and 
control of individual behavior are sufficient evidence in themselves, 
under 83.7(c)(2)(i) and (iii), of political influence, and therefore, 
under 83.7(b)(2)(v), are also sufficient to demonstrate community 
during this time as well. In addition, the group supplied evidence of 
community through the Mashpee's residential patterns during the 
district period to meet the requirements of paragraph 83.7(b)(2)(i) 
that is also sufficient to demonstrate political influence, under 
83.7(c)(3), during that period.
    In 1870, the State of Massachusetts incorporated the Indian 
district of Mashpee as a town. The evidence shows that from 1870 to 
1974, the Mashpee adapted the principal elements of the town 
governmental system for their own political needs. The Mashpee employed 
the town government as the primary structure by which they maintained 
political influence and/or authority over members. The Department's 
Final Determination for Federal Acknowledgment of the Wampanoag Tribal 
Council of Gay Head, Inc. provides precedent for evaluating such a 
governmental form as meeting 83.7(c). This type of government also 
provided the Mashpee with the means to continue the allocation of group 
resources through the regulation of fisheries and the ability to 
control individual behavior of members through the local police 
department from 1870 to 1965, when they represented much more than a 
majority of the year-round population in the town. The consistent 
allocation of group resources and control of individual behavior are 
sufficient evidence in themselves, under 83.7(c)(2)(i) and (iii), of 
political influence for those years and, therefore, under 
83.7(b)(2)(v), is also sufficient to demonstrate community during this 
time as well. In addition, the group supplied evidence of community 
through the Mashpee's residential patterns from 1870 to 1930 to meet 
the requirements of paragraph 83.7(b)(2)(i) that is also sufficient to 
demonstrate political influence during that period under 83.7(c)(3).
    Since 1974, the petitioner maintained political influence and 
authority over its members in the following ways. First, the 
incorporated council, formed in 1974, mobilized significant numbers of 
members and resources to meet group purposes through ongoing programs, 
events, and associations. Extended family networks play an important 
role in facilitating communication and political involvement among 
members. Second, while there are notable political divisions within the 
group, most members consider the actions taken by the incorporated 
council's leaders to be important. Within the incorporated council, 
leadership is multifaceted including both traditional and business 
positions. During this period, informal leadership within the group 
also existed along with the authority of the incorporated council. 
Third, there is widespread knowledge and communication regarding 
political processes, which disseminates mostly through family networks. 
And fourth, there are intense intra-group conflicts that demonstrate 
controversy over valued group goals, policies, and decisions. Since the 
late 1990's, internal disputes have intensified because the 
incorporated council changed its administrative processes and style of 
leadership, which culminated with the adoption of a new constitution in 
2004. The petitioner meets the requirements of 83.7(c) from historical 
times to the present.
    Criterion 83.7(d) requires that the petitioner provide a copy of 
the group's present governing document including its membership 
criteria. The petitioner submitted a certified copy of its 
constitution, and bylaws, which were adopted on June 26, 2004. The 
constitutional requirements for membership include tracing descent from 
a Mashpee Indian on the 1861 Earle Report, or from Charles or Leander 
Peters, who were Christiantown Indians identified on the Earle Report, 
and maintaining ``affiliation with the tribe.'' The constitution also 
describes the duties of the governing body, which is composed of 
elected officers and council members, and a ``chief'' and ``medicine 
man'' who are ``selected by the general Tribal membership according to 
Tribal custom.'' The 2004 constitution also describes the composition 
and duties of a newly instituted ``Tribal Judiciary'' branch. The 
petitioner also sent copies of its previous governing documents and a 
description of the enrollment practices in place before the adoption of 
the 2004 constitution.
    The petitioner submitted a copy of its current governing document, 
which includes its membership criteria and the processes by which it 
governs itself. Therefore, the petitioner meets criterion 83.7(d).
    Criterion 83.7(e) requires that the petitioner's membership 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. The historical tribe is determined to be 
Wampanoag Indians or ``South Sea Indians'' generally residing in and 
around the area of the Indian villages of Massipee (later Mashpee), 
Santuit, and Cotuit, Barnstable County, Massachusetts, at the time of 
first sustained historical contact in the 1620's. The membership of the 
historical tribe, for purposes of calculating descent from that tribe, 
consists of the ``Marshpee'' Indians identified in the 1861 Earle 
Report on the Indians in Massachusetts. The analysis for this proposed 
finding shows that the Mashpee Indians identified by Earle were the 
same individuals, or descendants of individuals, who had been 
identified previously in 1833, 1842, and 1849 as members of the Mashpee 
tribe living in the Mashpee Indian District. Thus, the evidence 
supports Earle's identification of the Mashpee Indian entity as it 
continued to exist in 1861. The petitioner's documented ancestors were 
among the 391 ``Marshpee Indians'' who were named in the 1861 Earle 
Report as members of the tribe and residents of the ``Marshpee Indian 
District.''
    The petitioner claims that about 98 percent of the members (1,427 
of 1,462) descend from Mashpee Indians identified on the 1861 Earle 
Report and that about 2 percent of the group

[[Page 17492]]

descend from two Christiantown Indians, Charles H. and Leander Peters, 
who according to the petitioner's governing document, are eligible 
ancestors.
    The petitioner submitted evidence which shows that about 90 percent 
of the current members (1,323 of 1,462) have documented their claimed 
ancestry and meet the group's own membership requirements in its 2004 
governing document: 88 percent from the historical Mashpee tribe as 
defined by the 1861 Earle Report, and 2 percent solely from two 
Christiantown Indians. Based on precedents in previous findings, this 
88 percent is sufficient to meet the requirements of 83.7(e)(1) for 
descent from the historical tribe. However, the petitioner is urged to 
submit the necessary evidence to document the ancestry for the 
remaining 139 individuals (10 percent of 1,462).
    The petitioner submitted a membership list dated November 15, 2002, 
with the full names, birth dates, and addresses of 1,462 members, which 
was separately certified by the current governing body on February 23, 
2006.
    The MWT submitted a separately certified membership list, and 
documented that 88 percent of its members descend from the historical 
Mashpee tribe. Based on precedents, the MWT meets the requirements of 
criterion 83.7(e).
    Criterion 83.7(f) requires that the membership of the petitioning 
group be composed principally of persons who are not members of any 
acknowledged North American Indian tribe. A review of the available 
documentation revealed that the membership is composed principally of 
persons who are not members of any acknowledged North American Indian 
tribe. The petitioner meets criterion 83.7(f).
    Criterion 83.7(g) requires that neither the petitioner nor its 
members be the subject of congressional legislation that has expressly 
terminated or forbidden the Federal relationship. A review of the 
available documentation showed no evidence that the petitioning group 
was the subject of congressional legislation to terminate or prohibit a 
Federal relationship as an Indian tribe. The petitioner meets the 
requirements of criterion 83.7(g).
    Based on this preliminary finding, the Department proposes to 
acknowledge as an Indian Tribe under 25 CFR Part 83 the petitioner 
known as the Mashpee Wampanoag Indian Tribal Council, Incorporated.
    As provided by 25 CFR 83.1(h), 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.
    Publishing notice of the proposed finding in the Federal Register 
initiates a 180-day comment period during which the petitioner, 
interested and informed parties, and the public may submit arguments 
and evidence to support or rebut the evidence used in the proposed 
finding. Interested or informed parties must provide copies of their 
submissions to the petitioner. The regulations, 25 CFR 83.10(k), 
provide the petitioner a minimum of 60 days to respond to any 
submissions by interested and informed parties on the proposed finding 
during the comment period. The Agreement modifies this time-frame, 
providing the MWT a 30-day response period. If the MWT wants the 60-day 
response period, it must notify the Department in writing prior to the 
expiration of the 30-day response period. If the interested or informed 
parties do not provide submissions during the 180-day comment period, 
the MWT may submit a written waiver of its response period to the 
Department.
    As provided in the Agreement, the Department will issue a final 
determination on the MWT petition on or before March 30, 2007. If the 
Mashpee petitioner does not request the full 60-day response period, 
the Department will work to issue the final determination before March 
30, 2007. The Department, as per the Agreement, will exercise due 
diligence to publish notice of the proposed finding in the Federal 
Register within 5 business days of being issued.
    After the publication of notice of the final determination, the 
petitioner or any interested party may file a request for 
reconsideration with the Interior Board of Indian Appeals (IBIA) under 
the procedures set forth in section 83.11 of the regulations. This 
request must be received by the IBIA no later than 90 days after the 
publication of the final determination in the Federal Register. The 
final determination will become effective as provided in the 
regulations 90 days from the Federal Register publication unless a 
request for reconsideration is filed within that time period.

    Dated: March 31, 2006.
James E. Cason,
Associate Deputy Secretary.
 [FR Doc. E6-5017 Filed 4-5-06; 8:45 am]
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