two hundred years earlier (Petition Addendum: 126). The new organization has been described by Calloway and Moody as the "reconstituted Abenaki band" (Calloway 1990b:xvi, see also Moody 4/24/1976).The timing of the creation of the new Tribal Council is significant, just as it was in the Southeastern Cherokee Confederacy case. Each arose "during a time period—the 1970's—which saw the rise of both a renewed national interest in Indian identity and protests by militant Indian organizations" (BIA Southeastern Cherokee Confederacy 1985x:15). This was also a time in America in which "imposters trying to claim a distant relationship to an Indian in hopes of cashing in on new laws designed to help economically depressed Indian tribes" pushed themselves forward into the limelight. These Indian "wanna-bes," as the Native Americans call them, muddied the waters of tribal identification (Benedict 2000:59).
This coincidence in the emergency of the Abenakis in Vermont sheds some doubt on true continuity of the newly formed organization with the historical tribe. The federal regulations governing tribal acknowledgment address this phenomenon. They do not permit "groups formed in recent times" to be acknowledged (56 Fed. Reg. 47320, 47321). In fact, Criterion (a) is "intended to exclude from acknowledgment those entities which have only recently been identified as being Indian" (59 Fed. Reg. 9280, 9286).
The emergence of this new group claiming to be Abenaki Indians came as a surprise to many people. John Moody admitted that few, if any, whites knew of the Vermont Abenaki community until 1976). He conceded that even in the 1970's, "Most Abenakis from Odanak, even those presently living in New Hampshire and Vermont, had no idea an Abenaki community of any size still existed at Missisquoi" (Moody 1979:68, emphasis in original). Likewise the appearance of the Tribal Council was news to Vermont (Moody 1979
anthropologist William Haviland. 60. He sent off a quick inquiry to Gordon Day after seeing ID seeing an article about the Abenakis in Vermont in a publication of the Native American Solidarity Committee in 1976. He wrote as follows:
I just learned about the enclosed the other day. Do you know anything about this group? Their figure of 1500 Abenaki in Vermont seems high, to say the least. We are trying to find out more about them. (Haviland 4/22/ 1976).
We do not know what Day said in reply since it appears he responded by telephone. However, a few years later Day referred to these statements as "propaganda" (Day 4/27/1979).
The newly formed Abenaki Tribal Council also obtained short-lived state recognition of a sort, through an Executive Order issued by Governor Thomas Salmon (Salmon 11/24/1976). Governor Salmon's successor, Governor Richard Snelling, revoked the order a mere two months later (Snelling 1/28/1977). Since then the State of Vermont has never recognized the Abenakis as a tribe. The Executive Order issued by Governor Salmon was based on the report of Jane Baker, a consultant on Abenaki Indian Claims. She conducted "three months of intensive but obviously limited study,'" based extensively on interviews with members of the Abenaki Tribal Council (Baker 1976).
Despite this sudden new activity and the adoption of the Abenaki name by these
individuals, scholars continued to believe there was no Abenaki tribe in Vermont that had descended from the historic Abenaki community at Missisquoi. One researcher who conducted an extensive survey of Indian groups in the eastern United States published his
60. Haviland had begun studying the archeology and anthropology of Vermont Indians in the 1970's (Haviland 6/10/1970). He and Power published the first edition of their book The Orignial Vermonters in 1980.
findings in a book entitled We Have Not Vanished: Eastern Indians in the United States (Tamarin 1974). The purpose of Tamarin's study was to determine whether the Indians had vanished from the Eastern States, as was commonly thought. "To find the answer required long hours of research and weeks of travel—from the top of Maine to the foot of Florida" (Tamarin 1974:12). His investigation led him to the following conclusion: "Vermont is the home of over 200 American Indians, probably from tribes throughout the East as well as the rest of the country....Vermont's modern Indian citizens are not descended from the state's Original inhabitants." Tamarin was familiar with other Abenaki communities, such as one in Lake George, New York. He doubtless would have identified one in Vermont if it existed; but it was not there for him to see.It is fascinating to examine writings of Gordon Day during this period as well. He was still in the height of his career and published five works on the Abenakis during this eight year period. Despite the fact that the Abenaki Tribal Council was formed in Swanton during this time and suddenly became visible within the state, Gordon Day's articles do not include any confirmation of any connection between the newly formed Swanton Abenaki group and the historic Abenaki at Missisquoi.
61. In his article about the "Western Abenaki" in the encyclopedic Handbook of North American Indians, Day maintained that Indians at Missisquoi abandoned their village and went to St. Francis after the American Revolution along with all the rest of the Western Abenakis in Vermont and New Hampshire (Day 1978:151-2). He observed "[b]eginning with World War I, the lure of industrial employment started small Abenaki communities in several northeastern United States cities" (Day 1978b:152). The cities with the most two articles Day wrote during this time included no comments on the fate of Missisquoi (Day 1974, 1979).
important Abenaki communities in the 1970's were Albany, New York, 62. and Waterbury, Connecticut. Vermont did not figure in this story.Similarly in Abenaki Place-Names in the Champlain Valley," Day wrote that
The last village in the Champlain valley to be occupied by the Abenakis was Missisquoi, and this seems to have been abandoned during the American Revolution. From then until about 1960 there was more or less continuous visiting and short-term residence by Abenakis from Saint Francis to old familiar locations in the valley. (Day 1981a:230).
After the American Revolution, the center of Abenaki society remained Odanak/St. Francis. Vermont was simply a place for individual Indians to visit; it was not the site of a permanent tribal occupancy. In this article Day specifically listed the informants who gave him translations and stories behind the Abenaki place-names he describes. Not a single informant came from the Swanton group. Rather, the informants were the Obomsawins on Thompson's Point and residents of the village at Odanak/St. Francis (Day 1981a:231, Day 1948-1973).
He did not embrace the Swanton group as a new source of information. Day's 1981 work, "The Identity of the Saint Francis Indians," is the culmination of all his studies of the Western Abenakis. It synthesized all his previous work. In that important monograph, Day did not abandon his conclusion that the bulk of the Abenakis left Missisquoi after the American Revolution (Day 1981b:56). He repeated his view that Odanak was the center of Abenaki life. "Contact was maintained between these families and those in Odanak, and many returned in later life to live in Odanak" (Day 1981 b:62). He was silent on the existence of any Abenaki group in Swanton. While he incorporated some of John Moody's ideas in his discussion of the nineteenth century, he did not identify any late twentieth century group of Abenakis in Vermont (Day 1981b:57-58, 61-62). His reticence
62. Recall that the Obomsawins in Charlotte, Vt., had many Indian visitors from Albany. N.Y. (Royce 1969:2).
indicated he must not have thought they were actually tied to the historic Abenaki of the region. 63.Day's specific reaction to the formation of the Abenaki Tribal Council, the Baker
report, and Governor Salmon's Declaration indicate exactly what he thought about this new group and its claims of historic descent. Gordon Day's papers at the Canadian Museum of Civilization include a copy of Jane Baker's report to Governor Salmon. It is filled with his annotations, as he made comments in the margin of almost every page. He questioned her suggestion that these people had unique cultural "traditions as hunters, fishermen and trappers" (Baker 1976:9). He asked, "How different from rural Vermonters." In response to her focus on this group's "conversations involv[ing] woodland and waterway adventure stories," he wrote, "Again, how different from rural Vermonters?" (Baker 1976:9). Day, a native Vermonter and woodsman himself, knew well how rural the state still was. Day was emphatic and direct in his comments on the conclusions stated in Baker's October 15, 1976, cover memo to the Governor (Baker 1976). Next to the following two following sentences he wrote, "no."
Evidence has shown, however, that the St. Francis Abenaki have always considered northern Vermont their true home and that they conducted regular summer migrations down the Richelieu River for at least the last hundred and fifty years. These visits stopped in the late 1960's for reasons unknown.
The subsequent sentence read as follows:
It is the assumption of this writer that the Abenaki currently residing in Vermont are the natural consequence of centuries of movement up and down the Richelieu River.
Adjacent to this he put a question mark. The last sentence in the paragraph read:
63. At the time he wrote the "Identity of the St. Francis Indians," Day had seen Moody's research (Day 1981 b:vi). Although he acknowledged it and made references to it, he did not endorse Moody's view that the Swanton group was descended from the historic Missisquoi.
Many of the Canadian Abenaki were employed as sportsmen guides which implies that the summer visitations may have lasted months, increasing the chances of inter marriage and resettlement in Vermont.
To this he wrote, "not in Vt."
Day's most pointed comment was aimed at Baker's conclusory statement that "Today's claims are being presented by residents of the State who have proven their Indian heritage and relationship to the Abenakis of Odanak and Becancour." To this, he underlined the word "proven," and wrote "not yet" in the margin! (Baker 1976:29). He showed his skepticism of the proof by his notation next to this passage:
The census begun by the earlier Manpower staff has been continued by Mr. Canes in conjunction with the Tribal Council and they now have a list with 1,700 names and addresses of American Indians in Vermont. Approximately 80% of the names are coded Abenaki and Sokoki (another Abenaki group of the Connecticut valley) with the rest being Mohawk and other New England Indians. A few are resident American Indians from the western states.
Next to the line regarding coding the names as Abenaki, he wrote, "how?" (Baker 1976:15).
Day did not keep his criticisms of the Baker report to himself. His views were solicited by members of the Vermont Sportsmen's Federation and reported to the press. Day was well aware of these reports, as his files included various news articles and editorials sent to him by J. Earl Capron, Secretary of the Vermont Sportsmen's Federation. 64. These include one article reporting on a meeting of the Sportsmen's Federation. The article stated that Day seriously disagreed with Baker's report:
John Randolph, who has been asked to serve on the newly created Commission on Indian Affairs (see story), is perhaps the leading spokesman for the anti-recognition camp. As editor of The Vermont Sportsman magazine, Randolph wrote a scathing editorial in the December issue magazine, scathing editorial criticizing the Baker report and Salmon's decision.
64. Day's files are preserved at the Canadian Museum of Civilization in Hull, Quebec.
Randolph was at the meeting Sunday, and spoke at length on his views IDconcerning the Indians, and on his contact with Dr. Gordon M. Day, an anthropologist who works for the National Institute of Man in Ottawa, Canada.
"Dr. Day told me that he was surprised that the state has not asked for any verification of the descent of these people," Randolph said...."I can't claim to speak for Gordon M. Day, but I know that he would hotly contest the claims of genealogical studies in the Baker report," Randolph said. (Rutland Daily Herald 12/13/1976).
The Vermont Sportsman editorial, referred to above, recounted a conversation between Day and Baker regarding the lack of Abenaki descendants in Vermont. It read as follows:
On Aug. 13, 1976 Mrs. Baker met with Gordon M. Day, a former Vermonter now in the employe [sic] of the Canadian government at Ottawa. She was told by the veteran of 20 years of anthropological study on the Odanak Abenaki Indians that there were no more than 10 families now living in Vermont which could be proved direct descendants of the original or pre-colonial Vermont Abenaki. Though Day is the only ethnologist and anthropologist who could comment expertly on this critical and focal subject, Mrs. Baker apparently chose to ignore the central fact of her research or to deliberately delete it from her report to the governor of Vermont and the people he represented.
The facts unearthed by twenty years of research by Gordon M. Day, not by Mrs. Baker, are that published Vermont and New England histories are inexcusably lacking in telling even the basic fact of the existence of Abnaki native Americans in Vermont at the time of white settlement. Mr. Day has also proved that there are Abnaki descendants of those original native Americans living in Vermont today, but they are but a miniscule remnant of a Population which moved more permanently to Canada well before the War of 1812, when the Odanak Abenaki sided with Great Britain against the new country and thereby relinquished by war their territorial claims to Vermont. (Vermont Sportsman 12/1976).
There is no record in Day's files of any correspondence to the Sportsmen's Federation or Vermont newspapers indicating any disagreement with the articles about him. All indications, from his own comments on the Baker report, to the
second-hand reports of his views, imply that he continued to doubt the presence in Vermont of the 1,700 Abenaki descendants of the historic tribe.
1982 to Present
In 1982, the petitioner submitted the instant petition to the BIA. Since then its profile has been much more visible in Vermont. One significant event of the 1980's was a "fish-in" demonstration. This was a direct challenge to Vermont's fishing laws. When the participants in the fish-in were arrested and charged with fishing without a license, they asserted a defense in court that was aimed at obtaining tribal recognition. Petition, 130-31. In their defense they argued that they had aboriginal rights as Native Americans and thus were not subject to state regulation for fishing (State v. Elliott, 159 Vt. 102, 104; 616 A.2d 210, 211 (1992)). Through this lawsuit—which the fish-in participants invited by their conduct—they sought to obtain a court decision recognizing tribal rights (Petition: 130-3 1). They were unsuccessful.
Petitioner submitted the trial court's opinion in the case to BAR with materials it provided as supporting documents to the petition. However, to supply that lower court decision alone is misleading, because it was reversed by the Vermont Supreme Court (State v. Elliott, 159 Vt. at 104, 616 A.2d at 212). In its decision the Supreme Court made clear that it did not need to rule on the question of whether the fish-in participants constituted a tribe. The court said:
We do not decide whether the trial court ruled correctly on the issue of tribal status and assume for the purposes of this case that defendants are members of a bona fide tribe of North Americans. (State v. Elliott, 159 Vt. at 109, 616 A.2d at 214).
Since the Vermont Supreme Court did not rule on the issue of tribal status, it is wrong to contend that the Vermont courts have recognized the Abenaki as a tribe. The courts have not done so; the trial court's decision was overruled and has no precedential effect. The reason the Vermont Supreme Court did not recognize tribal status is because it held that even if recognized defendants were a tribe, their aboriginal rights had been extinguished ago long (State Elliott, 159 Vt. at 121, 616 A.2d at 221).
Summary of Failure of Evidence to Satisfy Criterions (a)
In order to satisfy Criterion (a), the petitioner must demonstrate that its group of Abenakis was identified as an American Indian entity on a substantially continuous basis since 1900. It must produce "evidence providing a reasonable basis for demonstrating that a criterion is met or that a particular fact has been established." The comments on the final rule addressed the problems that arise when "evidence is too fragmentary to reach a conclusion or is absent entirely." In those situations, "a criterion is not met if the available evidence is too limited to establish it, even if there is no evidence contradicting facts asserted by the petitioner" (59 Fed. Reg. 9280). The implication is that when there is contradicting evidence the decision is easier. In those cases, the BIA will find that the criterion has not been met. This is summed up in the regulation itself:
A petitioner may be denied acknowledgment if the evidence available demonstrates that it does not meet one or more criteria. A petitioner may also be denied if there is insufficient evidence that it meets one or more of the criteria. (25 C.F.R. 83.6(d)).
The evidence presented by the petitioner is totally insufficient to satisfy Criterion (a). The additional evidence presented in the State's Response to the Petition contradicts the petitioner's contention that it existed as an Indian entity from 1800 to at least 1976, or even
1981. The numerous examples of scholars who searched but did not discover this Abenaki Indian entity weighs heavily against petitioner's claim. It stretches credulity to believe that petitioner existed as a tribe when Frank Speck, A. Irving Hallowell, Gladys Tantaquidgeon, Gordon Day, John Huden, and Alfred Tamarin were unaware of them. For the seventy-five year period between 1900 and 1976, there are simply no external observations of an Indian entity in northwestern Vermont—or anywhere in Vermont.The petitioner's evidence is on par with that presented in the Chinook case where the BIA held: "A few identifications during a three-year period of the three-quarters of a century between 1873 and 1951 does not constitute 'substantially continuous' identification" (BIA Chinook Indian Tribe 2002:46205). Even shorter gaps in identification of the Indian entity have resulted in a failure under Criterion (a). The Muwekma record lacked evidence for at least a third of a century after 1927, and therefore did not satisfy the criterion for "substantially continuous" identification (BIA Ohlone/Costano Muwekma Tribe 2001:14). The Duwamish record exhibited a break of continuity from 1900, when the federal government last dealt with the "Duwamish and other allied tribes," and 1925 when the new group was formed (BIA Duwamish Tribal Organization 2001:15).
Even if somehow the regulations were interpreted in an unprecedentedly broad
fashion and the St. Francis/Sokoki Abenaki were deemed to have provided sufficient evidence of external identification since 1900, the BIA would still be required to consider the total absence of evidence of identification from 1800 to 1900. That is because the result of a determination under the 1994 federal regulations must be the same as it would have been under the 1978 regulations. When the regulations regarding acknowledgment were revised in 1994, the Department of Interior said: "None of the changes made in these final