Summary of the Proposed Finding....
Administrative History of the Petition before the Proposed Finding....
Administrative History of the Petition since the Proposed Finding....
SUMMARY UNDER THE CRITERIA (25 CFR 83.7)....
Clarification of Simon Obomsawin,
One of the Petitioner's 20 "Primary" Ancestors....
ADS....Associate Deputy Secretary
ARP....Abenaki Research Project
ASHAI....Abenaki Self-Help Association, Inc.
AS-IA....Assistant Secretary - Indian Affairs
ATC....Abenaki Tribal Council
BAR....Branch of Acknowledgment and Research
BIA....Bureau of Indian Affairs
CFR....Code of Federal Regulations
DVD....Digital Video Disk
FAIR....Federal Acknowledgment Information Resource
FTM....Family Tree MakerTM genealogy software
IBIA....Interior Board of Indian Appeals
IORM....Improved Order of the Red Men
OD....Obvious Deficiency letter
OFA....Office of Federal Acknowledgment, formerly BAR
SSA....St. Francis/Sokoki Band of Abenakis of Vermont, Petitioner #68
Colonial Northeast, circa 1660-1725 (Map adapted from Sweeny and Haefli, Captor and Captives: the 1704 French and Indian Raid on Deerfield, 2003; http://1704deerfield.history.museum/maps/northeast.html)
The acknowledgment regulations, 25 CFR Part 83, establish the procedures by which groups may seek Federal acknowledgment as Indian tribes entitled to government-to-government relationships with the United States. To be entitled to such a relationship, the petitioner must submit documentary evidence that the group meets each of the seven mandatory criteria set forth in section 83.7 of the regulations. The Department shall acknowledge the existence of the petitioner as an Indian tribe when it determines that the group satisfies all of the criteria in 83.7(a-g). The Office of Federal Acknowledgment (OFA), within the Office of the AS-IA, has responsibility to review, analyze, and evaluate the petition. This FD concludes that the petitioner does not meet four of the seven mandatory criteria and therefore is not an American Indian tribe within the meaning of Federal law.
The Department bases this FD upon all the evidence in the record that the SSA petitioner, the State of Vermont, and other third parties submitted, together with information that OFA researchers gathered for purposes of verification and evaluation. Most notably, this FD considers the material submitted during the comment and response periods that followed the Department's issuance of the Proposed Finding (PF). The FD also considers the evidence, arguments, and conclusions discussed in the PF; therefore, this FD report should be read together with the PF.
After the publication of the FD notice, the petitioner or any interested party may file a request for reconsideration with the Interior Board of Indian Appeals (IBIA), under the procedures specified in section 83.11 of the regulations. The IBIA must receive this request no later than 90 days after the notice of the FD is published in the Federal Register. The FD will become effective as provided in the regulations 90 days from the publication unless the IBIA receives a request for reconsideration within that timeframe.
Administrative History of the Petition before the Proposed Finding
The SSA submitted a letter of intent on March 28, 1980, to petition for Federal acknowledgment as an Indian tribe. On October 22, 1982, the SSA submitted a documented petition to the Department. The Department conducted a formal technical assistance (TA) review of the petition, and on June 14, 1983, sent the first obvious deficiency (OD) letter to the petitioner. The petitioner responded to the first OD letter on May 23, 1986, with more documentation as discussed in the PF (Abenaki PF 2005, 4-5). The Department did not receive a certain "Addendum C" referenced by the petition, described as containing family histories, an oral history overview, and a pre-1800 historical work summary. On December 1, 1988, the Department informed the petitioner of its absence and asked the petitioner to provide it (Thompson 12/01/1988; Salerno 10/23/2001; Abenaki PF 2005, 5). As of the issuance of this FD, the Department still has not received a copy of this "Addendum C."
The petition narrative also made frequent references to an unpublished 1979 work entitled "Missisquoi Abenaki: Survival in Their Ancient Homeland," by John S. Moody, an individual with informed party status who was formerly a researcher for the petitioner. This manuscript, part of the petition record, made frequent references to primary and secondary sources, including a number of interviews, copies of which the petitioner did not submit to the Department for review, despite being requested to do so (Abenaki PF 2005, 5).
In December 1995 and January 1996, the group submitted a "Second Addendum" to its petition for Federal acknowledgment. On January 17, 1996, the Department placed the group on the
On November 1, 2005, the Department received a response from the petitioner. In this response, the group's governing body provided a letter dated October 11, 2005, separately certifying the group's "2005b" membership list. The response included another letter from the group's governing body, dated October 11, 2005, certifying the group's recent governing document along with several other documents previously submitted to the Department that needed certification. These certification letters properly addressed the technical issues to which the Department alerted the petitioner in its September 9, 2005 letter. The Department analyzed these documents for the PF on the assumption that the petitioner was in the process of certifying them. This FD notes that the petitioner certified these documents.
In the submission that the Department received on November 1, 2005, the petitioner also enclosed copies of two additional membership lists: one list labeled as a 1975 list, and the other labeled as a 1983 list. The petitioner did not certify either of these lists as a submission. The Department received these documents too late to incorporate into the PF and instead considered them for the FD. 1.
The Department issued a proposed finding on November 9, 2005, which concluded that the SSA petitioner did not meet four of the seven mandatory criteria criteria 83.7 (a), (b), (c), and (e)— and therefore was not an Indian tribe within the meaning of Federal law. (See the PF for a detailed administrative history up to November 2005.)
Administrative History of the Petition since the Proposed Finding
The Department published a notice of the PF in the Federal Register on November 17, 2005 (70 FR 69776). The Federal Register notice stated that its publication initiated "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 ... proposed finding," and that the petitioner would have a minimum of an additional 60 days to respond to any third-party comments.
1. The Department issued a notice on March 31, 2005, which provides guidance for how acknowledgment researchers should handle evidence. The notice, "Office of Federal Acknowledgment, Reports and Guidance Documents; Availability, etc." (61 FR 16513), states that "[u]nsolicited submissions received [more than 60 days after a petition is placed on active consideration] ... will be reviewed for the final determination and not for the proposed finding." The notice also states that the "[a]cknowledgment staff may request additional information from the petitioner ... prior to the proposed finding in order to clarify the arguments or evidence," but that the "proposed finding ... shall not be delayed to obtain this finding" (FR 16514). The Department received the 1975 and 1983 membership lists very late in the PF review process, only eight days prior to the issuance of the PF. In keeping with the intent of the directive, the Department did not delay the PF but instead chose to evaluate these two lists for the FD, as it would with unsolicited evidence.
Pursuant to 25 CFR 83. 10(i), the Department has the discretion to extend the comment period upon finding of good cause. On June 2, 2006, the Department provided the SSA petitioner a partial extension to the comment period of 90 days. The Department explained that it granted extensions when merited by "good cause," including, in this case, some explanation for why the petitioner did not complete the research and analyses in the required time, along with the specifics of future work. The Department noted that a 2001 report by the General Accountability Office "identified the need to instill a sense of urgency in the Department's acknowledgment process." In balancing these considerations with the request of the petitioner, the Department elected to reopen and extend the comment period by 90 days. However, the Department informed the petitioner that it could submit future requests for an additional extension, postmarked no later than July 31, 2006, and that it should include a description of a future work plan, together with a discussion of why that work remained uncompleted. If the Department did not receive such a request, the comment period would expire on August 14, 2006.
On May 15, 2006, the same day the Department received the letter from the petitioner requesting an extension of the comment period, the Department also received a mailing from John Moody, from Sharon, Vermont. The envelope, postmarked May 10, 2006, contained two letters. In the first letter, dated April 20, 2006, Moody requested interested party status in the 25 CFR Part 83 proceedings as they pertained to the SSA petitioner. The second letter, dated May 5, 2006, was entitled "Initial Response to Bureau of Indian Affairs, Office of Federal Acknowledgment Proposed Finding and Summary under the Criteria for the Proposed Finding on the St. Francis / Sokoki Band of Abenakis of Vermont, November 9, 2005." The letter was nine pages in length and included an additional nine-page appendix. This letter commented on the PF and requested an indefinite extension of the comment period.
On June 2, 2006, the Department responded to the two letters from Moody. The Department denied him interested party status because he did not qualify as an interested party as defined in 25 CFR 83.1 2. Moody requested interested party status in part to obtain copies of the documents upon which the Department based its decision for the PF. However, the Department emphasized he could obtain the same documents via a Freedom of Information Act (FOIA) request even without interested party status. Furthermore, the Department notified him of the 90-day
2. According to the definition in 25 CFR 83.1, an "interested party means any person, organization or other entity who can establish a legal, factual or property interest in an acknowledgment determination and who requests an opportunity to submit comments or evidence or to be kept informed of general actions regarding a specific petitioner. 'Interested party' includes the governor and attorney general of the state in which a petitioner is located, and may include, but is not limited to, local governmental units, and any recognized Indian tribes and unrecognized Indian groups that might be affected by an acknowledgment determination." Moody's past research did not establish a factual interest within the meaning of the regulations.
On May 17, 2006, the Department received a letter, dated May 9, 2006, and postmarked May 10, 2006, from Lester M. Lampman and several individuals associated with the petitioning group. 4. The letter requested an extension of the comment period and contained comments on the PF. Attached to the letter were a photograph, a photocopy of a photograph, and 11 pages of documents to supplement their comments. The letter also alluded to "oral history" tapes in possession of the family, but the letter did not provide copies of the tapes or transcripts of them. Furthermore, the letter mentions documentation that was "left in files at the tribal office." The Department responded to this letter on June 2, 2006, notifying the senders of the 90-day extension to the comment period and confirming the receipt of their initial comments on the proposed finding. Despite being notified of the additional 90-day extension to the comment period, neither Lester M. Lampman nor the cosignatories of the letter submitted copies of the "oral history" tapes allegedly in possession of the Lampman family, transcripts of the tapes, or copies ofthe documents that allegedly were "left in files at the tribal office."
On August 22, 2006, the Department received a letter, dated August 11, 2006, and postmarked August 14, 2006, from the petitioner. This letter contained comments from the petitioner, consisting of a set of photocopied treaty documents, four Internet essays entitled "Abenaki History," a DVD video presentation entitled "Against the Darkness," and a collection of meeting minutes from the 1970's, 1980's, and 1990's. There was no accompanying narrative explaining how the materials addressed the criteria. The letter also requested an additional extension of the comment period, indicating that staff shortages were hindering progress. The petitioner's letter
3. The Department, on three subsequent occasions, addressed Moody's requests to have interested party status and to extend the comment period. On August 14, 2006, the Department received a fax from Moody requesting interested party status and an extension of the comment period. The Department responded on August 31, 2006, stating in further detail that he was ineligible for interested party status, but that his ineligibility had not prevented him from commenting as an informed party on the PF during the original 180-day comment period or the additional 90-day comment period extension. The Department informed him that the comment periods had closed and that he could make requests for documents under the Freedom of Information Act. On September 13, 2006, the Department received a letter from the Honorable Bernard Sanders, Congressman from Vermont. Moody had asked Congressman Sanders to persuade the Department to extend the comment period and grant him interested party status. On October 16, 2006, the Department responded to Congressman Sanders, and explained its position on the matter. On December 22, 2006, the Department received a letter from the Honorable Patrick Leahy, Senator from Vermont, to whom Moody had appealed for assistance. On January 18, 2007, the Department responded and further explained how Moody did not qualify as an interested party.
4. The letter was from Lester M. Lampman; Mark Wayne Rollo, Sr., Louise Lampman Larivee; Larry LaPan, Sr., Colleen Brow Plante, and Lisa Lampman Rollo. Their letter begins with the assertion, "We are members of the St. Francis/Sokoki Band of the Abenaki Nation of Vermont." However, only one of these individuals appears on the petitioner's August 2005 "Al" list, the list that the petitioner's governing body formally certified and the Department used to conduct its evaluation. The rest of these members appear on the petitioner's "A2" list. In a letter the Department received on August 23, 2005, the petitioner defined the "A1" group as members with complete membership files. According to the petitioner, "A1" members are the only members eligible to vote in the group's elections (ATC Minutes 08/12/1997, 2). The "A2" individuals are described as "Abenaki," but cannot vote until they complete their files as requested" (St. Francis-Merrill to AS-IA 2005, 1). For more information on the "A1" and "A2" lists, see footnote 21 on p. 43 of this FD and the Abenaki PF 2005, pp. 88-89, 140-146.
The Department responded to the petitioner on August 28, 2006, indicating that the petitioner had not filed its latest extension in a timely fashion and had not submitted a detailed work plan. However, the Department indicated that it would consider reopening the comment period if the petitioner submitted, as soon as possible, a "more thorough justification and description of the work you need to complete." Pending the receipt of such a request, the Department noted, the 60-day response period would close on October 13, 2006. During this response period, the petitioner could respond to comments on the PF made during the original and extended comment periods.
On October 13, 2006, the response period closed, without the Department having received either a response from the petitioner or a detailed request to reopen the comment period. During both the original comment period and the extended comment period, the petitioner did not submit critical materials that the PF requested. In particular, the petitioner did not submit any of the materials that would help the petitioner establish descent from a historical Indian tribe. Overall, given the petition's deficiencies in meeting criteria 83.7(a), (b), (c), and (e), together with the explicit requests in the PF, the petitioner's comments were few in number and did not substantively address the PF.
On November 6, 2006, the Department sent a letter to the petitioner, interested parties, and informed parties, stating that the comment and response periods had closed. The letter also stated that, in accordance with 25 CFR 83. 10(k), the Department would consult with the petitioner and interested parties to establish an equitable timeframe for considering all comments and responses in preparation of its final determination. As part of this consultation, the letter stated that the Department anticipated beginning the final determination for the petitioner in January 2007.
On February 27, 2007, the Department telephoned the petitioner's contact person of record. The Department discussed with her a schedule for completing the FD. This schedule would begin consideration of the comments and responses on March 1, 2007, and tentatively produce the FD on June 15, 2007. The Department then faxed a letter describing this schedule to the petitioner, and mailed copies of that letter to the petitioner, interested parties, and informed parties.
The following summary under the criteria for the FD is the Department's evaluation of all the evidence in the administrative record to date. This FD [Final Decision] concludes that the available evidence is insufficient to satisfy four of the seven mandatory criteria: criteria 83.7(a), (b), (c), and (e). The PF concluded, based on the available evidence, that the petitioner did not meet these same four criteria. Therefore, this FD affirms the PF's conclusions, and the Department finds that the St. Francis/Sokoki Band of Abenakis of Vermont is not an Indian tribe within the meaning of Federal law.