Federal Register / Vol. 72, No. 35 / Thursday, February 22, 2007 / Notices 8007 

conduct certain activities with marine 

mammals. The application was 

submitted to satisfy requirements of the 

Marine Mammal Protection Act of 1972, 

as amended (16 U.S.C. 1361 et seq.), and 

the regulations governing marine 

mammals (50 CFR Part 18). Written 

data, comments, or requests for copies 

of the complete applications or requests 

for a public hearing on these 

applications should be submitted to the 

Director (address above). Anyone 

requesting a hearing should give 

specific reasons why a hearing would be 

appropriate. The holding of such a 

hearing is at the discretion of the 

Director. 

Applicant: Charles P. Kupfer, Millbury, 

MA, PRT–143853. 

The applicant requests a permit to 

import a polar bear (Ursus maritimus) 

sport hunted from the Northern Beaufort 

Sea polar bear population in Canada for 

personal, noncommercial use. 

Dated: January 19, 2007. 

Monica Farris, 

Senior Permit Biologist, Branch of Permits, 

Division of Management Authority. 

[FR Doc. E7–2939 Filed 2–21–07; 8:45 am] 

BILLING CODE 4310–55–P 

DEPARTMENT OF THE INTERIOR 

Bureau of Indian Affairs 

Final Determination for Federal 

Acknowledgment of the Mashpee 

Wampanoag Indian Tribal Council, Inc. 

of Massachusetts 

AGENCY: Bureau of Indian Affairs, 

Interior. 

ACTION: Notice of final determination. 

SUMMARY: Pursuant to 25 CFR 

83.10(l)(2), notice is hereby given that 

the Department of the Interior 

(Department) has determined that the 

Mashpee Wampanoag Indian Tribal 

Council, Inc., P.O. Box 1048, Mashpee, 

Massachusetts, 02649, is an Indian tribe 

within the meaning of Federal law. This 

notice is based on a determination that 

the petitioner satisfies all seven 

mandatory criteria set forth in 25 CFR 

83.7, and thus meets the requirements 

for a government-to-government 

relationship with the United States. 

DATES: This determination is final and 

will become effective 90 days from 

publication of this notice in the Federal 

Register on May 23, 2007, pursuant to 

25 CFR 83.10(l)(4), unless a request for 

reconsideration is filed pursuant to 25 

CFR 83.11. 

ADDRESSES: Requests for a copy of the 

Summary Evaluation of the Criteria 

should be addressed to the Office of the 

Assistant Secretary—Indian Affairs, 

Attention: Office of Federal 

Acknowledgment, 1951 Constitution 

Avenue, NW., MS: 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, and on 

March 31, 2006. This notice is based on 

a determination that the Mashpee 

Wampanoag Tribal Council, Inc. (MWT) 

meets all of the seven mandatory criteria 

for acknowledgment in 25 CFR 83.7. 

The Department considered the 

Mashpee petition under slightly 

modified timeframes set by a July 22, 

2005, Joint Settlement Agreement and 

Stipulated Dismissal (Agreement) 

resolving the case of Mashpee 

Wampanoag Tribal Council, Inc. v. 

Norton, 180 F. Supp. 2d 130 (D.D.C. 

2001), rev’d, 336 F.3d 1094 (D.C. Cir. 

2003), on remand, No. CA 01–111 JR 

(D.D.C.). 

A notice of the proposed finding (PF) 

to acknowledge the petitioner was 

published in the Federal Register on 

April 6, 2006 (71 FR 17488). Publishing 

notice of the PF initiated a 180-day 

comment period during which time the 

petitioner, and interested and informed 

parties, could submit arguments and 

evidence to support or rebut the PF. The 

comment period ended on October 3, 

2006. The regulations at 25 CFR 83.10(k) 

provide the petitioner a minimum of 60 

days to respond to comments that 

interested and informed parties 

submitted on the PF during the 180-day 

comment period. The Agreement 

modified this timeframe, providing the 

petitioner a 30-day response period, 

which ended on November 1, 2006. This 

final determination (FD) is made 

following a review of the petitioner’s 

and public comments as well as the 

petitioner’s response to the public 

comments. 

During the comment period, the 

petitioner submitted an updated 

membership list, supplemental 

genealogical and governmental 

materials, and historical documents, in 

response to requests for information 

made by the Department in the PF and 

in an informal technical assistance 

teleconference with the petitioner. 

These materials did not change the 

conclusions of the PF. The Department 

received several letters of support from 

the public for the Mashpee group. These 

letters did not provide substantive 

comment. The Department also received 

a letter from a former selectman of the 

Town of Mashpee pertaining to 

negotiations between the petitioner and 

the Town. This letter did not comment 

substantively on the PF. The only 

substantive comment by interested or 

informed parties came from the Office of 

the Massachusetts Attorney General 

(Massachusetts AG), to which the 

petitioner submitted a response on 

October 30, 2006. The Massachusetts 

AG’s comments are discussed under 

criteria 83.7(b) and 83.7(c) below. 

Criterion 83.7(a) requires external 

identifications of the petitioner as an 

American Indian entity on a 

substantially continuous basis since 

1900. The PF concluded external 

observers identified the petitioning 

group as an American Indian entity on 

a substantially continuous basis since 

1900. However, it pointed out that the 

available identifications of the Mashpee 

in the record for 1900–1923 constituted 

sufficient but minimal evidence for 

substantially continuous identification 

for those years, and encouraged the 

petitioner to strengthen its evidence for 

criterion 83.7(a) by submitting 

additional identifications for that 

period. In response, the petitioner 

submitted a new argument concerning a 

1907 document. As reevaluated for the 

FD, this document provides an 

additional identification of the 

Mashpee. When combined with the 

other identifications in the record for 

the PF for those years, the additional 

evidence is sufficient to show consistent 

identifications of the Mashpee from 

1900 to 1923. The evidence submitted 

for both the PF and the FD demonstrates 

external observers identified the 

Mashpee as an Indian entity on a 

substantially continuous basis since 

1900. Therefore, the petitioner meets the 

requirements of criterion 83.7(a). 

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 

PF concluded that the petitioner 

presented sufficient evidence to satisfy 

this criterion. During the comment 

period, in response to the Department’s 

request for information, the petitioner 

submitted a copy of the 1776 Gideon 

Hawley census of Mashpee. As part of 

an analysis of residential patterns of the 

Mashpee group for the colonial and 

Revolutionary periods, the PF described 

this document’s details using only 

descriptions of it from both State reports 

and secondary sources. For the FD, 

Department researchers analyzed the 

newly-submitted 1776 Hawley census 


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8008 Federal Register / Vol. 72, No. 35 / Thursday, February 22, 2007 / Notices 

and found that it supported the PF’s 

conclusions regarding the residential 

patterns of the group for the colonial 

and Revolutionary periods. 

In its comments on the PF dated 

October 2, 2006, the Massachusetts AG 

expressed concern that the PF did not 

adequately consider the evidence 

contained in the record of the lengthy 

jury trial in the Mashpee’s land claim 

suit of 1977–1978. The jury concluded 

that the Mashpee group did not 

constitute an Indian tribe for purposes 

of the Indian Nonintercourse Act (25 

U.S.C. 177). See Mashpee Tribe v. Town 

of Mashpee, 447 F. Supp. 940 (D. Mass. 

1978), aff’d, Mashpee Tribe v. New 

Seabury Corp., 592 F. 2d 575 (1st Cir. 

1979). In particular, the Massachusetts 

AG cited the testimony of the 

defendants’ two expert witnesses at 

specific sections of the trial transcript as 

examples of evidence that appeared to 

militate against Federal 

acknowledgment of the group. The 

Massachusetts AG then urged the 

Department to give the trial record of 

the case the fullest review before issuing 

the FD. In a follow-up letter dated 

October 3, 2006, the Massachusetts AG 

clarified that it was not taking a position 

on the recognition of the Mashpee in its 

October 2, 2006, comments, but was 

simply addressing those issues related 

to its concerns about adequate 

consideration of the evidence in the 

1978 trial record. 

The Department gave the evidence 

from the trial record a thorough review 

at the time of the PF. The Department 

examined all of the transcripts of the 

testimony (over 7,300 pages) as part of 

its evaluation of the Mashpee petition 

before the PF’s issuance. Although 

quality, not quantity, is critical, the 

Department also based the PF on 

considerably more evidence, over 

10,100 documents totaling about 54,000 

pages in the petition record. In contrast, 

there were only about 274 exhibits 

before the Court. None of these 

materials with the exception of the 

exhibits were available to the court at 

the time of the trial. In response to the 

Massachusetts AG’s comments, the 

Department reviewed again the 

evidence from the trial record, 

particularly the cited testimony of the 

defendants’ two expert witnesses. This 

review did not change the findings in 

the PF. 

The PF additionally examined the 

group’s community and politics for the 

lengthy period since the suit, 

approximately 30 years, as well as the 

earlier periods. It also incorporated 

more in-depth evaluations of the 

evidence, including detailed marriage 

and residency analyses, as well as 31 

interviews conducted by the 

Department’s anthropologist during an 

on-site investigation in 2006. 

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 

PF addressed the issues dealing with 

distinct community raised by the 

defendants’ expert witnesses in the trial 

transcript pages cited by the 

Massachusetts AG. Generally, the two 

witnesses argued the Mashpee lacked 

cultural distinctiveness and economic 

autonomy from the wider society and 

therefore were not a tribe. The Federal 

acknowledgment regulations, however, 

do not require a petitioner to maintain 

cultural distinctiveness or economic 

autonomy to be an Indian community. 

Instead, the regulations require the 

petitioner to be a socially distinct group 

of people within the wider society. In 

the Mashpee case, the PF described at 

length their continued community 

cohesion and social distinction from 

non-Indian populations since first 

sustained contact. 

In sum, neither the comments of the 

Massachusetts Attorney General nor the 

evidence in the trial transcript it 

referenced changed the PF’s conclusions 

that the Mashpee were a distinct 

community (criterion 83.7(b)). The 

Massachusetts AG raised concerns that 

the Department may not have fully 

considered the evidence and issues 

raised in the trial transcript. The PF was 

thorough in its review of the materials 

in the trial transcript and a larger body 

of evidence that the court did not have 

in the land claim suit. This FD 

reevaluated the evidence in the trial 

testimony. In response to the comments 

submitted by the Massachusetts AG 

citing the testimony of the two 

defendants’ witnesses, the FD reviewed 

this testimony and finds that the 

standards and definitions of a tribe used 

by these witnesses differ substantially 

from the requirements in the seven 

mandatory criteria of the regulations. 

The FD also finds that the trial 

testimony did not provide any evidence 

or arguments not already discussed in 

the PF, and did not merit a change in 

the evaluation of the evidence under 

criterion 83.7(b) in the PF. Therefore 

this FD affirms the PF’s conclusions. 

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. The PF 

concluded that the petitioner presented 

sufficient evidence to satisfy this 

criterion. Neither the petitioner nor any 

third parties submitted new evidence 

related to the PF’s conclusions regarding 

criterion 83.7(c). Several of the pages in 

the trial transcript of the 1977–1978 

land claim suit that the Massachusetts 

AG cited in its comments dealt with 

issues related to criterion 83.7(c). The 

defendants’ expert witnesses claimed, 

for instance, that the Mashpee were not 

a tribe because they lacked political 

autonomy from the wider society. The 

acknowledgment regulations only 

require political autonomy in relation to 

other Indian groups, defining autonomy 

as the exercise of political authority 

independent of any other Indian 

governing entity (See 25 CFR section 

83.1). Participation in the political 

processes of the wider society, as in the 

Mashpee’s case, is not evidence that a 

group does not exist as an Indian tribe 

exercising political influence or 

authority over its members. These 

witnesses also tended to ignore or 

minimize informal forms of leadership 

based on consensus and persuasion, and 

alternative forms of governance the 

Mashpee adopted in response to their 

unique history, geography, culture, and 

social organization, in favor of 

restrictive and limited notions of Indian 

leadership. 

Political influence over the group’s 

members was demonstrated by a long 

line of Mashpee leaders. Since the 

colonial period, the Mashpee have had 

sachems, proprietors, spiritual leaders, 

informal leaders, district and town 

officials, and council members who 

influenced and were influenced by the 

members on political matters of 

importance. The PF also showed group 

members considered the actions of their 

leaders important and were highly 

involved in political processes. 

In sum, the reevaluation of the 

evidence in the trial transcript 

referenced in the comments of the 

Massachusetts AG did not result in a 

modification of the PF’s conclusions 

that the Mashpee demonstrated political 

influence (criterion 83.7(c)). The PF 

dealt with the issues raised in the trial 

testimony affecting the evaluation of 

evidence under criterion 83.7(c) in its 

review of the materials in the trial 

transcript and a larger body of evidence 

that the court did not have in the land 

claim suit. This FD reevaluated the 

evidence in the trial testimony. In 

response to the comments submitted by 

the Massachusetts AG citing the 

testimony of the two defendants’

witnesses, the FD reviewed this 

testimony and finds that the standards 

and definitions of a tribe used by these 

witnesses differ substantially from the 

requirements in the seven mandatory 


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Federal Register / Vol. 72, No. 35 / Thursday, February 22, 2007 / Notices 8009 

criteria of the regulations. The FD finds 

that this material did not provide any 

evidence or arguments not already 

discussed in the PF, and did not merit 

a change in the evaluation under 

criterion 83.7(c) that the Mashpee 

demonstrated political influence from 

first historical contact to the present. 

Therefore, the petitioner meets the 

requirements of criterion 83.7(c). 

The PF found that the petitioner met 

the requirements of criterion 83.7(d) by 

submitting its present governing 

document: a constitution dated 

September 28, 2004, which described 

the group’s membership criteria and the 

current governing procedures. For the 

FD, the petitioner submitted a 

membership enrollment ordinance 

dated September 21, 2006, which 

clarifies certain sections of the 

constitution and provides additional 

evidence concerning the group’s 

membership criteria. The FD affirms the 

PF’s conclusion that the petitioner 

meets the requirements of 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 that combined and 

functioned as a single autonomous 

political entity. The PF found that 88 

percent of the petitioning group 

descended from the historical tribe and 

met the requirement for criterion 

83.7(e). The PF advised the petitioner to 

submit evidence to document descent 

for the remaining 12 percent and to 

update its membership list. 

In response, the MWT submitted a 

properly certified membership list dated 

September 13, 2006, naming 1,453 

members. The petitioner provided 

evidence acceptable to the Secretary 

demonstrating that about 97 percent of 

its members (1,403 of 1,453) descend 

from the historical Mashpee tribe as 

defined by the 1861 Earle Report. About 

2 percent (41 members) descend from 

the two Christiantown Wampanoag 

Indian families, Peters-DeGrasse and 

Peters-Palmer, who did not document 

descent from the historical tribe as 

defined in the Earle Report, but who are 

defined as qualifying ancestors in the 

MWT constitution. One of these families 

settled in Mashpee shortly after 1861 

and became part of the group by the 

early 1900’s. Descendants of both 

families became part of Mashpee 

community socially and politically by 

the mid-20th century. Nine remaining 

members (about 1 percent), do not have 

complete birth records naming parents, 

but are expected to be able to provide 

the proper evidence. 

The new evidence for the FD modifies 

the PF’s conclusions by changing the 

number of members in the MWT from 

1,462 to 1,453 and the percentage of 

members who have documented descent 

from the historical tribe from about 88 

percent to approximately 97 percent. 

The evaluation of additional 

documentation submitted strengthens 

the conclusion that the Mashpee 

petitioner meets the requirements of 

criterion 83.7(e). This FD concludes that 

the evidence is sufficient to meet 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 for the 

PF and the FD revealed that the 

membership is composed principally of 

persons who are not members of any 

acknowledged North American Indian 

tribe. Therefore, the petitioner meets the 

requirements of 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 for the PF and 

the FD showed no evidence that the 

petitioning group was the subject of 

congressional legislation to terminate or 

prohibit a Federal relationship as an 

Indian tribe. Therefore, the petitioner 

meets the requirements of criterion 

83.7(g). 

A report summarizing the evidence, 

reasoning, and analyses that are the 

bases for the FD will be provided to the 

petitioner and interested parties, and is 

available to other parties upon written 

request. 

After the publication of notice of the 

FD, 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. The IBIA must receive 

this request no later than 90 days after 

the publication of the FD in the Federal 

Register. The FD will become effective 

as provided in the regulations 90 days 

from the Federal Register publication 

unless a request for reconsideration is 

received within that time. 

Dated: February 15, 2007. 

James E. Cason, 

Associate Deputy Secretary. 

[FR Doc. E7–2966 Filed 2–21–07; 8:45 am] 

BILLING CODE 4310–G1–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

Issuance of Two Permits for Incidental 

Take of a Threatened Species to the 

Cedar City Corporation and the Paiute 

Indian Tribe in Iron County, UT 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Notice; issuance of permit. 

SUMMARY: This document provides 

notice that we, the U.S. Fish and 

Wildlife Service, issued two permits for 

the incidental take of the Utah prairie 

dog, a threatened species, on the Cedar 

Ridge Golf Course and the Paiute Tribal 

Lands in Iron County, Utah. 

ADDRESSES: Documents and other 

information submitted with the permit 

application are available for review, 

subject to the requirements of the 

Privacy Act and Freedom of Information 

Act, from the U.S. Fish and Wildlife 

Service, Utah Ecological Services Field 

Office, Fish and Wildlife Service, 2369 

W. Orton Circle, Suite 50, West Valley 

City, Utah 84119. 

FOR FURTHER INFORMATION CONTACT: 

Elise Boeke, Fish and Wildlife Biologist, 

Utah Field Office (see ADDRESSES), 

telephone (801) 975–3330. 

SUPPLEMENTARY INFORMATION: On May 

15, 2006, we published a notice in the 

Federal Register (71 FR 28048) 

announcing that we had received an 

application from the Cedar City 

Corporation and the Paiute Indian Tribe 

(Applicants), for permits to incidentally 

take, under section 10(a)(1)(B) of the 

Endangered Species Act of 1973, as 

amended (16 U.S.C. 1531 et seq.) (Act), 

the Utah prairie dog on the Cedar Ridge 

Golf Course and the Paiute Tribal Lands 

in Iron County, Utah. 

On January 5, 2007, we issued permits 

(TE–125039–0, TE–143347–0) to the 

Applicants subject to certain conditions, 

which we listed on the permit. We 

issued the permits only after we 

determined that—(1) The Applicants 

applied in good faith, (2) granting the 

permits will not be to the disadvantage 

of the Utah prairie dog, and (3) issuing 

the permits will be consistent with the 

purposes and policy set forth in the Act. 

Authority: The action is authorized by the 

Endangered Species Act of 1973, as amended 

(16 U.S.C. 1531 et seq.). 

Dated: January 5, 2007. 

Mike Stempel, 

Acting Regional Director, Region 6. 

[FR Doc. E7–2981 Filed 2–21–07; 8:45 am] 

BILLING CODE 4310–55–P 


rwilkins on PROD1PC63 with NOTICES