[Federal Register Volume 70, Number 198 (Friday, October 14, 2005)]
[Notices]
[Pages 60099-60101]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-20720]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs


Reconsidered Final Determination To Decline To Acknowledge the 
Eastern Pequot Indians of Connecticut and the Paucatuck Eastern Pequot 
Indians of Connecticut

AGENCY: Bureau of Indian Affairs, Interior.

ACTION: Notice.

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SUMMARY: Notice is hereby given that the Associate Deputy Secretary 
(ADS) has determined that the Eastern Pequot Indians of Connecticut and 
the Paucatuck Eastern Pequot Indians of Connecticut do not satisfy all 
seven criteria for acknowledgment as an Indian tribe in 25 CFR 83.7. 
This Reconsidered Final Determination (RFD) is final and effective upon 
the date of publication of this notice, pursuant to 25 CFR 83.11(h)(3).

EFFECTIVE DATE: The procedures defined by this notice are effective on 
October 14, 2005.

FOR FURTHER INFORMATION CONTACT: R. Lee Fleming, Director, Office of 
Federal Acknowledgment, MS: 34B-SIB, 1951 Constitution Avenue, NW., 
Washington, DC 20240, phone (202) 513-7650.

SUPPLEMENTARY INFORMATION: This notice is published in the exercise of 
authority delegated by the Secretary of the Interior to the Associate 
Deputy Secretary by Secretarial Order 3259, February 8, 2005, as 
amended on August 11, 2005.
    This notice is based on a determination that the Eastern Pequot 
Indians of Connecticut (EP) and the Paucatuck Eastern Pequot Indians of 
Connecticut (PEP) do not satisfy all seven mandatory criteria for 
acknowledgment in 25 CFR 83.7.
    A notice of the proposed finding to acknowledge the EP was 
published in the Federal Register on March 31, 2000, together with a 
notice of the proposed finding to acknowledge the PEP (65 FR 17294-
17304). The original 180-day comment period on these proposed findings 
was extended twice at the request of the State of Connecticut (State). 
The actual closing of the comment period, August 2, 2001, was 
established as part of a scheduling order entered by the Federal 
District Court for Connecticut in Connecticut v. Dept. of the Interior, 
(No. 3:01-CV-88-AVC) (D. Conn. 2001).
    The Department published final determinations (FDs) to acknowledge 
the two petitioners, EP and PEP, as one group, known as the Historical 
Eastern Pequot Tribe, in the Federal Register on July 1, 2002 (67 FR 
44234).
    On September 24, 2002, a group known as the ``Wiquapaug Eastern 
Pequot Tribe'' (WEP) filed a request for reconsideration of the FDs 
with the Interior Board of Indian Appeals (IBIA), and on September 26, 
2002, the State and the Towns of Ledyard, North Stonington, and 
Preston, Connecticut (Towns) also filed requests for reconsideration of 
the FDs with the IBIA under the provision of 25 CFR 83.11.
    On May 12, 2005, the IBIA vacated and remanded the FDs for 
reconsideration pursuant to 25 CFR 83.11(d)(2) and (e)(10). The IBIA 
ruled that the FDs incorrectly relied on ``the State's continuous 
relationship and implicit recognition of the Eastern Pequot as a 
political entity as `additional evidence' in support of demonstrating 
criteria 83.7(b) and 83.7(c) when the other evidence for a particular 
time period was insufficient'' (41 IBIA 17). The IBIA concluded: ``that 
the State and Towns have satisfied their burden of proof to show that a 
substantial portion of the evidence relied upon in the Assistant 
Secretary's determination was unreliable or of little probative value'' 
(41 IBIA 23).
    The IBIA decision identified items and issues to be addressed on 
reconsideration. In the first three issues

[[Page 60100]]

(IBIA items 1-3), the use of ``state recognition'' generally as 
evidence for criterion 83.7(b) or 83.7(c), the use of ``implicit'' 
state recognition in the FDs, and the non-citizenship status of the 
Eastern Pequot, the IBIA rejected the use made in the EP and PEP FDs of 
the historically continuous state relationship with the Eastern Pequot 
as evidence for criteria 83.7(b) and 83.7(c). The IBIA decision 
described the bases on which the state relationship could provide 
probative evidence, requiring a more specific articulation of how the 
state relationship reflected community and political influence as 
defined in 25 CFR 83.1 within the petitioners (41 IBIA 18).
    The IBIA also referred items outside its jurisdiction as possible 
grounds for reconsideration. Item 4 referred by the IBIA, the State 
claim that absent the state relationship there was insufficient 
evidence to satisfy criterion 83.7(b) ``community'' in the 20th 
century. The RFD determined that the FDs had already evaluated and 
rejected the claims made by the State concerning this evidence. 
Therefore, Item 4 was not grounds to reconsider criterion 83.7(b) for 
community in the 20th century.
    The RFD accepted Item 5 concerning evidence of a single political 
entity post-1973 as grounds for reconsideration. This item also 
affected the evaluation of the evidence under criterion 83.7(b) during 
the period 1973 to 2002 when the general conclusions about the state 
relationship were a factor in the FD. The RFD evaluated the specific 
state relationship with the Eastern Pequot after 1973 and concluded 
that it did not provide evidence concerning bilateral political 
processes within the Eastern Pequot as a single entity. The RFD 
concluded that a the Eastern Pequot as a single entity meets 83.7(b) 
and 83.7(c) from 1973 to the early 1980's. The RFD further found that 
EP and PEP had become separate groups in the early 1980's. It is the 
Department's policy not to encourage splits within recognized tribes, a 
policy equally applicable to groups that may be acknowledged. Here, the 
separation occurred after the petitioning process had started and was 
in the lifetimes of the adult membership. Because of the recentness of 
the split, EP and PEP neither separately or together demonstrate 
existence as a community, nor the exercise of political authority or 
influence from historical times until the present.
    The RFD evaluated the arguments and evidence presented by the 
parties before the IBIA concerning two 1873 documents (Item 6). Based 
on this evaluation, the RFD modified the analysis in the FDs on the 
issue of the two 1873 documents, but otherwise confirmed the FDs. As to 
Item 7, the RFD corrected an erroneous reference in the FDs concerning 
evidence of residence on the reservation in the 19th century, but did 
not change the ultimate conclusion of the analysis in the FDs, that the 
historical tribe met criterion 83.7(b) for the colonial to 1873 period.
    Item 8 concerning acknowledgment of a single tribe based on two 
acknowledgment petitioners, and Item 9, concerning tribal membership, 
raised issues that were addressed fully in the FDs and did not merit 
reconsideration.
    Item 10 concerned due process and notice concerning the PFs' 
conclusions regarding the post-1973 period. The RFD concluded that the 
parties received actual notice and all due process required in order to 
submit argument and evidence in response to the proposed findings.
    Therefore, Item 10 was not a ground for reconsideration. Item 11 
concerned the February 11, 2000 notice, which limited BIA research to 
that necessary for verification and evaluation, and alleged procedural 
irregularities. The RFD concluded, as litigated in Connecticut v. Dept. 
of the Interior, that the notice concerned internal agency procedures 
that did not affect the regulations or any parties' substantive or 
procedural rights. Item 11 was not a ground for reconsideration of the 
FDs.
    Numerous courts have upheld the Federal acknowledgment regulations 
and the Department's authority to issue them. Therefore, Item 12 was 
not a ground for reconsideration of the FDs.
    The RFD reviewed the various arguments of the WEP referred by IBIA 
as outside its jurisdiction and found that none was a basis for 
reconsideration of the FDs.
    The RFD reevaluated and reweighed the evidence in the record in 
accordance with the IBIA decision and the above conclusions concerning 
the other items referred by IBIA. On the mandatory criteria, the RFD 
revised the evaluation of criteria 83.7(b) and 83.7(c).
    Criterion 83.7(b) ``community'': The RFD reviewed the evaluation of 
criterion 83.7(b) from colonial times through the twentieth century 
(until 1973) in the FDs, and found that the FDs did not rely on state 
recognition as evidence in concluding that there was sufficient 
evidence for criterion 83.7(b). There was more than sufficient evidence 
to demonstrate criterion 83.7(b) for that time period without the use 
of the state relationship. There was no reason to reconsider that 
portion of the FDs, which is, therefore, affirmed in the RFD.
    The RFD reconsidered the post-1973 evidence concerning community. 
The historical Eastern Pequot tribe, including the families antecedent 
to the EP and PEP petitioners, met the requirements of criterion 
83.7(b) from colonial times through the early 1980's as a single 
community. The petitioners were not separate communities in this time 
period. The loss of the Jackson family, who bridged the divide between 
the various family lines, the formation of two separate organizations 
that encompassed the membership, and the lack of social interaction and 
cohesion between those families in the EP membership and those in the 
PEP membership, demonstrated that there were two separate groups, 
represented by the EP and PEP petitioners, had formed in the early 
1980s. In addition, as discussed in criterion 83.7(c), the state 
relationship did not provide evidence of a single political system. 
Therefore, the FD incorrectly relied on a single political system as 
evidence for a single community post-1973. The Eastern Pequot 
separation was a recent one and occurred within the lifetime of most of 
the adult members of the two groups. The two separate communities that 
existed after 1983 were not the same community as existed previously, 
although they shared a common origin.
    The two groups did not demonstrate existence as a community from 
historical times to 2002. The RFD concluded that EP and PEP separately 
or together did not meet criterion 83.7(b) from historical times until 
the present, notwithstanding that as a single group, the historical 
Eastern Pequot from which the petitioners derived, met criterion 
83.7(b) from early colonial times until the early 1980s.
    Criterion 83.7(c) ``political authority or influence'': The RFD 
reviewed the evidence for political authority and found that the FDs 
did not rely on the state relationship as evidence for criterion 
83.7(c) before 1913. Criterion 83.7(c) was demonstrated by other 
evidence for the colonial to 1913 period. Consequently, the conclusions 
in the FDs that the historical Eastern Pequot tribe, including the 
families antecedent to the EP and PEP petitioners, met criterion 
83.7(c) until 1913 as a single group is affirmed. The petitioners did 
not separately exercise political influence in this time period because 
only a single community existed within which political influence was 
exercised and the evidence for political influence encompassed the 
entire community.
    The RFD concluded that the petitioners did not meet criterion 
83.7(c) from 1913 to 1973 as one group. Whereas the FDs relied on state

[[Page 60101]]

recognition in general as evidence during this period, based on the 
reasoning in the IBIA decision, the evidence for this period was 
reevaluated. The RFD concluded that there was insufficient evidence 
that there was political influence or authority within the group as a 
whole or in any portion of it between 1913 and 1973. This reevaluation 
concluded that there was insufficient evidence for Atwood I. Williams's 
leadership of all or a part of the group, and of interactions with the 
State that showed political activity within the group. The state 
relationship did not provide evidence in this time period.
    The FDs relied on the state relationship as evidence and concluded 
that historical Eastern Pequot met criterion 83.7(c) from 1973 to 2002 
as one group. Based on the reevaluation in accord with the IBIA 
decision, without reliance on the state relationship, the RFD concluded 
that the two petitioners meet criterion 83.7(c) as one group from 1973 
to the early 1980's, and did not exercise political authority and 
influence as one group after that time. The two separate groups did not 
meet criterion 83.7(c) because of the recentness of the evolution and 
split into two separate groups, represented by the EP and PEP 
petitioners. No evidence was submitted concerning the petitioners after 
the date of the FDs to the IBIA, and the RFD did not evaluate them 
after that date.
    Criteria 83.7(a),(d),(e),(f), and (g): The reevaluation of the 
post-1973 period in the grounds described in Item 5 resulted in the 
conclusion that the two petitioners formed separate communities after 
the early 1980's, rather than a single group. The evaluations of 
criteria 83.7(a),(d),(e),(f) and (g) have been revised to reflect this 
conclusion. The evaluations of criteria 83.7(a),(d),(e),(f), and (g) 
were not otherwise affected because they did not rely on the state 
relationship as evidence. Both petitioners met these criteria as 
separate groups.
    The RFD is final and effective upon the date of publication of this 
notice in the Federal Register, pursuant to 25 CFR 83.11(h)(3).

    Dated: October 11, 2005.
James E. Cason,
Associate Deputy Secretary.
[FR Doc. 05-20720 Filed 10-12-05; 2:26 pm]
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