[Federal Register Volume 74, Number 162 (Monday, August 24, 2009)]
[Notices]
[Pages 42683-42685]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-20285]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs


Proposed Finding Against Acknowledgment of the Brothertown Indian 
Nation

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice of proposed finding.

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SUMMARY: The Department of the Interior (Department) gives notice that 
the Acting Principal Deputy Assistant Secretary--Indian Affairs (PDAS-
IA) proposes to determine that the petitioner known as the Brothertown 
Indian Nation is not an Indian tribe within the meaning of Federal law. 
This notice is based on a determination that the petitioner does not 
satisfy all seven of the criteria set forth in the applicable 
regulations, and, therefore, does not meet the requirements for a 
government-

[[Page 42684]]

to-government relationship with the United States.

DATES: Comments on this proposed finding (PF) are due on or before 
February 22, 2010.

ADDRESSES: Comments and 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. 
Interested or informed parties must send a copy of their comments to 
the petitioner at Brothertown Indian Nation c/o Richard Schadewald, 82 
South Macy Street, P.O. Box 2206, Fond du Lac, Wisconsin 54936-2206.

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

SUPPLEMENTARY INFORMATION: Pursuant to 25 CFR 83.10(h), the Department 
gives notice that the PDAS-IA proposes to determine that the 
Brothertown Indian Nation (BIN, Petitioner <greek-i>67), c/o Richard 
Schadewald, 82 South Macy Street, P.O. Box 2206, Fond du Lac, Wisconsin 
54936-2206, is not an Indian tribe within the meaning of Federal law. 
This notice is based on a determination that the petitioner does not 
satisfy all seven of the criteria set forth in part 83 of title 25 of 
the Code of Federal Regulations (25 CFR part 83), specifically criteria 
at 83.7(a), 83.7(b), 83.7(c), 83.7(e), and 83.7(g), and therefore does 
not meet the requirements for a government-to-government relationship 
with the United States.
    The Department publishes this notice in the exercise of authority 
that the Secretary of the Interior delegated to the Assistant 
Secretary--Indian Affairs (AS-IA) by 209 DM 8. The AS-IA delegated 
authority to sign some Federal acknowledgment findings, including this 
PF, to the PDAS-IA effective June 4, 2009.
    A group known as the Brothertown Indian Nation (BIN), under the 
name of Brotherton Indians of Wisconsin (BIW), submitted a letter of 
intent to petition for Federal acknowledgment as an Indian tribe to the 
AS-IA. The Department received the letter of intent on April 15, 1980. 
The Department designated the BIW as Petitioner <greek-i>67. The BIW 
submitted its first documentation that included a narrative as well as 
some documents outlined in the BIW petitioner's narrative. The 
Department received this material on February 7, 1996. The group 
claimed to descend from the historical Brothertown Indian tribe of 
Wisconsin, which evolved from the Brothertown Indian tribe of New York 
State when a large portion of the original tribe moved from New York to 
Wisconsin. At an earlier time, portions of several historical Indian 
tribes of Rhode Island, Connecticut, and Long Island had combined to 
form the Brothertown Indian tribe of New York. The historical 
Brothertown Indian tribe of Wisconsin occupied a reservation created 
for it in Wisconsin by the United States Senate in 1832. It was last 
acknowledged by the United States Government in 1839 when the tribe, as 
provided in an Act of 1839 and at its own request, divided its 
reservation lands among its members and became citizens. As a result, 
the tribe's Federal relationship was terminated.
    The Department conducted an initial review of the petition and 
determined the petitioner was ready for consideration and placed the 
BIW petitioner on the ``ready, waiting for active consideration list'' 
on February 28, 1996. In 1995 and 1998, the BIW petitioner submitted 
additional petition documents on three different occasions. The BIW 
notified the Department on January 4, 2005, that the group changed its 
name officially to Brothertown Indian Nation (BIN) on November 20, 
2005.
    The Department placed the BIN petitioner on active consideration 
for the PF on June 23, 2008, and received two submissions of additional 
petitioner documents from the group during the 60 days following, as 
allowed by the ``directive'' of March 31, 2005, and a letter to the 
petitioner of June 20, 2008 (70 FR 16513). The Department will consider 
any additional material that it received after the submission deadline 
of August 22, 2008, for the final determination (FD), pursuant to that 
directive the Department published on March 31, 2005 (70 FR 16515).
    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 BIN petitioner does not satisfy criteria 83.7(a), 83.7(b), 
83.7(c), 83.7(e), and 83.7(g). The BIN petitioner meets the 
requirements of criteria 83.7(d) and 83.7(f).
    If ``substantial evidence'' demonstrates the petitioner had 
``unambiguous'' previous Federal acknowledgment as an Indian tribe, 
then the requirements of the acknowledgment criteria in section 83.7 
are modified by the provisions of section 83.8(d). The available record 
indicates that the Senate proviso to the Treaty of 1831, the Treaty of 
1832, and the Act of 1839 constitute unambiguous previous Federal 
acknowledgment of a Brothertown Indian tribe in Wisconsin. Evidence 
that a predominant portion of the petitioner's members descend from the 
previously acknowledged Indian tribe and some evidence in the record of 
group activities by Brothertown descendants since 1839 allow the 
petitioner to advance a claim to have evolved from the previously 
acknowledged Indian tribe. Therefore, the Brothertown petitioner is 
evaluated on the basis of whether or not it meets the seven mandatory 
criteria in section 83.7 as modified by section 83.8(d), from last 
Federal acknowledgment in 1839 until the present.
    Criterion 83.7(a) requires that external observers have identified 
the petitioner as an American Indian entity on a substantially 
continuous basis since 1900. As modified by section 83.8(d)(1), the 
petitioner must be identified since last Federal acknowledgment, which 
for the Brothertown petitioner is 1839. The evidence in the record 
demonstrates that external observers identified a historical 
Brothertown group from 1839 until 1855. Between 1855 and 1981, outside 
observers periodically identified a Brothertown Indian entity, but 
because these periodic identifications are separated by long periods of 
time in which the petitioner or its members' ancestors were not 
identified as an Indian entity, the petitioner does not satisfy the 
standard of ``substantially continuous'' identification as required by 
the regulations. The petitioning group has been identified as an 
American Indian entity since 1981. However, the petitioner has not been 
identified on a substantially continuous basis since 1839. Therefore, 
the BIN petitioner does not meet the requirements of criterion 83.7(a).
    Criterion 83.7(b) requires that a predominant portion of the 
petitioning group has comprised a distinct community since historical 
times. As modified by section 83.8(d)(2), the petitioner must 
demonstrate only that a predominant portion of the petitioning group 
comprises a distinct community ``at present,'' which for this case is 
considered to be the period since the petitioner formally organized in 
1980. The character of the current group appears to be that of a highly 
dispersed descent group with some active members. There is no available 
evidence in the record that an informal community existed in 1980 
composed of the same people currently enrolled with the petitioner. 
Most members who have strong social ties to other members formed these 
relationships through the activities of the group's formal

[[Page 42685]]

organization. Outside of these active participants, few members of the 
group have strong social ties to each other. For the period from 1980 
to 2009, there is insufficient evidence that a predominant portion of 
the petitioning group's members regularly associate with each other or 
that the petitioner's members comprise a distinct community. Therefore, 
the BIN petitioner does not meet the requirements of criterion 83.7(b) 
as modified by section 83.8(d)(2).
    Criterion 83.7(c) requires that the petitioning group has 
maintained political influence over its members as an autonomous entity 
since historical times. The evidence in the record does not demonstrate 
that authoritative, knowledgeable external observers identified leaders 
or a governing body of the petitioning group on a substantially 
continuous basis since the date of last Federal acknowledgment in 1839. 
Therefore, the petitioner does not meet the requirements of criterion 
83.7(c) as modified by section 83.8(d)(3) for the historical period 
prior to ``at present.'' Alternatively under the provisions of section 
83.8(d)(5), the evidence in the record is insufficient to demonstrate 
that the BIN petitioner or any group antecedent to it maintained 
political influence or authority over its members from 1839 until the 
group's establishment as a formal organization in 1980. After 1980, 
when the current petitioner organized, its governing body has provided 
some services for its members, but this activity is of recent origin 
and appears to be the result of the group's establishment as a formal 
organization. The petitioner has not demonstrated it maintained 
political influence or authority over most of its members at any time 
since 1839. Therefore, the BIN petitioner does not meet the 
requirements of criterion 83.7(c).
    Criterion 83.7(d) requires that the petitioner provide a copy of 
its governing document including its membership criteria. The 
petitioner submitted a copy of its governing document which includes 
its membership criteria. Therefore, the BIN petitioner meets the 
requirements of criterion 83.7(d).
    Criterion 83.7(e) requires that the petitioner's members descend 
from a historical Indian tribe or from historical Indian tribes which 
combined and functioned as a single autonomous political entity. The 
June 24, 2008, BIN membership list includes 3,137 living members, both 
adults and minors. The evidence in the record shows that almost all of 
the petitioner's members claim descent from individuals who were 
members of the historical Brothertown Indian tribe of Wisconsin in 
1839. However, this PF finds that only 51 percent (1,593 of 3,137) of 
BIN members have demonstrated descent from an individual known to be a 
member of the historical Brothertown Indian tribe of Wisconsin. The 
petitioner has not demonstrated for this PF that its members descend 
from an historical Indian tribe. Therefore, the BIN petitioner does not 
meet the requirements of criterion 83.7(e).
    Criterion 83.7(f) requires that the petitioner's membership be 
composed principally of persons who are not members of another 
federally recognized Indian tribe. A review of the membership rolls of 
those Indian tribes in Wisconsin and Minnesota that would most likely 
include the BIN petitioner's members revealed that the petitioner's 
membership is composed principally of persons who are not members of 
any federally acknowledged North American Indian tribe. Therefore, the 
BIN petitioner meets the requirements of criterion 83.7(f).
    Criterion 83.7(g) requires that the petitioner not be subject to 
congressional legislation that has terminated or forbidden the Federal 
relationship. Congress stated in the Act of 1839 that the Brothertown 
Indian tribe's ``rights as a tribe'' recognized by the Federal 
Government, and specifically its power to act as a political and 
governmental entity, would ``cease and determine,'' that is, end and be 
limited permanently. Congress in this Act brought Federal recognition 
of the relationship with the Brothertown Indian tribe of Wisconsin to 
an end. By expressly denying the Brothertown of Wisconsin any Federal 
recognition of a right to act as a tribal political entity, Congress 
has forbidden the Federal Government from acknowledging the Brothertown 
as a government and from having a government-to-government relationship 
with the Brothertown as an Indian tribe. Congress has both expressly 
ended and forbidden the Federal relationship for this petitioner. 
Therefore, the BIN petitioner does not meet the requirements of 
criterion 83.7(g).
    Based on this preliminary factual determination, the Department 
proposes not to extend Federal acknowledgment as an Indian tribe to the 
petitioner known as the Brothertown Indian Nation.
    A report summarizing the evidence, reasoning, and analyses that are 
the basis for the PF will be provided to the petitioner and interested 
parties, and is available to other parties upon written request as 
provided by 25 CFR 83.10(h). Requests for a copy of the summary 
evaluation of the evidence should be addressed to the Federal 
Government as instructed in the ADDRESSES section of this notice.
    Publication of this notice of the PF in the Federal Register 
initiates a 180-day comment period during which the petitioner and 
interested and informed parties may submit arguments and evidence to 
support or rebut the evidence relied upon in the PF. Comments on the PF 
should be addressed to both the petitioner and the Federal Government 
as required by 25 CFR 83.10(i) and as instructed in the ADDRESSES 
section of this notice by the date listed in the DATES section of this 
notice.
    The regulations, 25 CFR 83.10(k), provide the petitioner a minimum 
of 60 days to respond to any submissions on the PF received from 
interested and informed parties during the comment period. After the 
expiration of the comment and response periods described above, the 
Department will consult with the petitioner concerning establishment of 
a schedule for preparation of the FD. The Acting PDAS-IA will publish 
the FD of the petitioner's status in the Federal Register as provided 
in 25 CFR 83.10(l), at a time that is consistent with that schedule.
    The Acting PDAS-IA George T. Skibine approved the Proposed Finding 
Against Acknowledgment of the Brothertown Indian Nation (Petitioner 
<greek-i>67) and approved the publication of this Federal Register 
notice.

    Dated: August 17, 2009.
George T. Skibine,
Acting Principal Deputy Assistant Secretary--Indian Affairs.
[FR Doc. E9-20285 Filed 8-21-09; 8:45 am]
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