regulations will result in the acknowledgment of petitioners which would not have been acknowledged under the previously effective acknowledgment regulations" (59 Fed. Reg. 9280). The fact that there are no contemporary outside observers who identified an Abenaki entity in Vermont for the entirety of the nineteenth century would have defeated any claim under Criterion (a) in the 1978 regulations. The revision of the regulations, with their focus on the period after 1900, does not mean that pre-1900 information may be ignored. The analysis must reach the same result under both sets of regulations. And, it is clear that the petitioner does not satisfy the external identification criterion under either one.
Criterion (b) — Community
"A predominant portion of the petitioning group" must comprise a "distinct community" and must have "existed as a community from historical times until the present" (25 C.F.R. 83.7(b)). In order to obtain federal acknowledgment, one of the essential elements that the petitioner must prove is that it has constituted a community distinct from non-Indian society. That distinction could be maintained in a positive way through separate language and customs. Alternatively, the distinction could be forced on the group in a negative way, through discrimination by the surrounding society. Both have the significant effect of keeping the Indian group separate. In addition to being distinct, the community must be an interactive one whose members are united through marriage and social ties. Moreover, the community must be continuous from historical times to the present; that is, its members must be traceable through the decades as members of the same community.
In order to prove that its group is "a distinct community from other populations in the area," the petitioner must provide evidence of a certain level of "social distinction from non-members" (BIA Miami Nation of Indians 1992:6).
This requires that they identify themselves as distinct and are identified as different by non-members of the group. However, the existence of only a minimal distinction provides no supporting evidence for the existence of social cohesion within the membership. Where a community exists, there characteristically are differences in the extent and nature of tribal community members' interaction with outsiders compared with their interaction with nonmembers [sic] of the community. For example, there may be limitations of and/or differences in their relationship with non-Indian relatives and their participation in non-Indian institutions such as schools and Churches may also be limited or otherwise distinct from that of non-Indians. (BIA Miami Nation of Indians 1992:6).
Furthermore, a federal appeals court has held that to exist as a Community under the Supreme Court's Montoya definition of a tribe, 65. there has to be "an Indian community [which] is something different from a community of Indians. That is to say, it has some boundary that separates it from the surrounding society, which is perceived as Indian and not merely as neighborhood or territory" (Mashpee Tribe, 592 F.2d 575, 586 (1St Cir. 1979), cert. denied, 444 U.S. 866 (1979) and 464 U.S. 866 (1983)).
The federal regulations elaborate on this criterion regarding "community" with examples of evidence that may be used to demonstrate community (25 C.F.R. 83.7(b)(1)). These emphasize ways in which the community is socially differentiated from the surrounding non-Indian society. Separate Indian churches, schools, or cemeteries are typical examples used to satisfy this criterion (Miami Nation of Indians of Indlana v. Babbitt, 112 F. Supp. 2d 742, 748 (N.D. Ind. 2000), aff'd, Miami Nation of Indians v. U.S. Dept. of Interior,
65. In Montoya v. United States, 180 U.S. 261, 266 (1901), the U.S. Supreme Court said: "By a `tribe' we understand a body of Indians of the same or similar race, united in a community under one leadership or government, and inhabiting a particular though sometimes ill-defined territory."
255 F.3d. 342 (7th Cir. 2001)). A group that fails to meet these requirements might look like this:
Probably by 1940 and certainly by 1992, the Miami Nation had ceased to be a tribe in any reasonable sense. It had no structure. It was a group of people united by nothing more than common descent, with no territory, no significant governance, and only the loosest of social ties. (Miami Nation v. Dept of Interior, 255 F.3d at 350).
Presented below are examples of community from BIA decisions in which petitioners satisfied Criterion (b). These are contrasted with the evidence offered by the St. Francis/Sokoki Band of Abenaki of Vermont.
Swanton Church is French Canadian, not Indian
The existence of a tribal institution is one way of demonstrating "tribal cohesion" and "the strength of the ethnic boundary" between the Indian community and the white population around it (BIA Narragansett Indian Tribe of Rhode Island 1982:10). The Narragansett Indian Church is an example that strongly demonstrated community for Criterion (b) in that case:
The church was formed as an independent community-controlled institution by members of the Narragansett community. Although the denomination has changed occasionally, the church has been led through most periods by a Narragansett minister and apparently has always had an exclusively Narragansett membership. The governing body of the church presently consists of a board, the members of which are also members of the tribe. The land on which the church was constructed is tribal land, not land owned by a particular denomination. (BIA Narragansett Indian Tribe of Rhode Island 1982:10.)
None of these conditions existed in Swanton. Many of the petitioner's ancestors were quite closely connected to the Church of the Nativity, the Catholic Church in Swanton. There are numerous records of baptisms and marriages of petitioner's ancestors there, as
shown in petitioner's Family Descendancy Charts. The church cemetery, St. Mary's Cemetery, was heavily used by petitioner's ancestors as well 66. (Ledoux, T. 1993). One cannot discern any limitations on the petitioner's families' participation in the Catholic Church that indicate they were treated differently from non-Indians. There is no separate Indian section for the petitioner's ancestors—they are buried in various places within the cemetery. There is no indication of "Indian burial," in any of the records. Nor was the church traditionally an Indian church, or one that grew out of an Indian mission. As the history of the church reveals, this parish was French Canadian.There were only a few scattered years during which the Swanton area was served by missionaries to the Indians. The first was not exactly at Swanton, but nearby on one of the islands in Lake Champlain. It was a short-lived French mission established in 1666 on Isle la Motte (Huden 1956b:116, Calloway 1990a:72). There may have been another short-lived mission on Lake Champlain in 1682 as well. (Calloway 1986:216). None of these lasted any significant length of time. John Gilmary Shea's History of the Catholic Missions Among the Indian Tribes of the United States, 1529-1854 does not report any missions at Missisquoi (Shea 1855:23, 155-57, missionaries to serve Penobscot and Odanak/St. Francis).
Sixty years later, the French saw a tactical advantage in sending a missionary to the Abenakis at Missisquoi; namely, they hoped this would wean them from the English and ally with the French (Charland 1961:7, Coolidge 1985:141). So, Father Etienne Lauverjat, had been a missionary in Maine and to Odanak/St. Francis, went and served the Indians at Missisquoi from 1744 to 1748 (Ledoux, R. 1988:136; Coolidge 1985:142). A chapel was
66. Petitioner's families did not all go to the Catholic Church though. There are a number who were buried in the Protestant Cemetery in Swanton as well. One notable family buried in Riverside Cemetery is that of Chief Leonard "Blackie" Lampman (Family Descendancy Charts. Hoague family, 31-34).
built in 1745; it was dismantled and its pieces used for a fort when the Abenakis left Missisquoi during the American Revolution (Charland 1961:8; Coolidge 1985:142).Thus, during the two centuries from 1600 to 1800, there were only sporadic attempts to set up a mission in the Missisquoi region. The longest period of missionary residence seems to have been four or five years. It was more than a hundred years later before a priest was sent to serve Swanton again in 1854. In the intervening years, there were infrequent intervening visits from itinerant missionaries who were based in Burlington. One was Father Amable Petithomme. He is mentioned in the Petition Addendum, where petitioner suggests that he "often pursued the 'wandering' Indians outside of the known reserves and reservations" (Petition Addendum 313-14). But the facts do not bear this out. Petithomme and another priest, Father Demillier, had been sent from France at the same time in 1834. Demillier was to serve the Passamaquoddy Indians in Maine, while Petithomme was sent to Burlington to serve the flood of Canadians who spoke only French (Moult' 1960:36-38).
Petithomme ministered to his people up and down Lake Champlain, from Vergennes to Swanton, and inland to Hinesburg. He covered a large territory. The Bishop of Boston complimented him on his progress among the Canadians, not Indians (Moult' 1960:44). No one described him as a missionary to the Indians in Vermont. Later, when his time in Burlington ended in 1835, he was sent to work with the Penobscot in Maine (Moldy 1960:46- 47; Ledoux, R. 1988:137). This was an assignment, and he found it difficult. He knew no English and very little of the Indian language, and these were the two languages spoken by the Penobscot. (Moult' 1960:50-52; Ledoux, R. 1988:137). Thus, petitioner's suggestion that Petithomme sought out Indians in Vermont is unsupported speculation.
The Church of the Nativity of the Blessed Virgin Mary in Swanton received its first resident priest in 1854: Father Louis Lionnet, born in France. (Ledoux, R. 1988:138). He served a growing French Canadian Catholic community. A history of French Canadians in New England, written in 1891, listed the Swanton Catholic parish as one of the earliest French Canadian parishes in Vermont, giving the date of its formal founding as 1856 (Hamon 1891). As opposed to some parishes that were listed as "mixed," Swanton was considered fully French Canadian. In 1891, Swanton had 240 Catholic families, of which 230 were French Canadian (Hamon 1891:194). The church with which most of the petitioner's families have been associated has never been an Indian church. On the contrary, its origins are French Canadian.
No Indian Cemetery was Used by Petitioner's Ancestors in the Twentieth Century
Another indication of community sometimes found in tribes that satisfy Criterion (b) is the use and maintenance of a separate Indian cemetery (BIA Jena Band of Choctaw 1994:4, BIA Mohegan Tribe of Indians of the State of Connecticut 1994:78-84). This was the case with the Jena Band of Choctaw whose members continued to use their Indian cemetery even after they joined white churches and discontinued Indian mourning, customs.
One tie that united the community was the elders' work in organizing members to clean and maintain the cemetery (BIA Jena Band of Choctaw, Anthropological Technical Report, 1994:11-13). The Mohegan Tribe continued to use its Indian cemetery throughout the twentieth century up to the time of their petition's submission (BIA Mohegan Tribe of Indians of the State of Connecticut 1994:82). Only Mohegans (and some non-Mohegan
In Swanton, there was at one time an Indian burial ground, known to Indian scholars in the late-nineteenth century. Rev. John Bulkley Perry, Swanton historian and professor at Harvard University, wrote in 1868 that this burial ground was
situated about two miles below the Falls, on a sandy terrace of considerable thickness, which rests on underlying clay. It is near the Missisquoi River, and undoubtedly belonged to the St. Francis tribe, a branch of the great Algonquin race, inhabiting that portion of Northwestern Vermont when it was first settled by whites. This burial-place was apparently connected with an old Indian village in the neighborhood. which consisted at an early day of about fifty huts, and was called Missisquoi, after the estuary or stream, on the banks of which it stood. It was unquestionably used as a place for the interment of the dead at a comparatively recent date...(Perry 1868:219).
This is something other than the Catholic Church's cemetery, which is located in the center of town. The Catholic Cemetery, St. Mary's, is the one used by most of the petitioner's ancestors. According to the Family Descendancy Charts prepared by petitioner, petitioner's ancestors were using St. Mary's cemetery by 1860. That's where the progenitors of the St. Francis, St. Laurent, Belrose, Campbell, Hakey, LaFrance and Medor family lines are all buried (see Family Descendancv Charts, first generation). It is also the location of the burial places of the second generation in the family lines of Hoague, Colomb, Ouimette, and Morits. These families list no burial information for the individuals in the first generation, all of whom came from Canada.
The prevalence of petitioner's ancestors in St. Mary's Catholic Cemetery indicates that these people maintained no connection, if ever they had one, with the Indian burial ground below the Falls, referred to by Rev. Perry. The fact that archeologists may have found ancient human remains in Swanton is not relevant to Criterion (b). The petitioner's
families were, for the most part, members of a French-Canadian Catholic community that used St. Mary's Cemetery.
No Indian School Existed in Franklin County
The existence of a separate Indian school can be one way of demonstrating community under Criterion (b). (BIA Jena Band of Choctaw Proposed Finding, 1994:4; BIA Little Shell Tribe of Chippewa Indians of Montana, Proposed Finding, Charts, 2000:8, BIA Narragansett Indian Tribe of Rhode Island 1982:2). There was no separate Indian school for the Abenakis in Swanton or elsewhere in Franklin County. There is no evidence of social distinction here. A search for petitioner's ancestors was also conducted in the records of the Carlisle Indian Industrial School. Petitioner's ancestors do not appear there. The only Abenakis who show up as students there were from the Tahamont and Masta families with connections to Maine, and Lake George, N.Y.
Petitioner's Ancestors Were Active Participants in White Business and Social Groups
The federal regulations provide examples of evidence that will satisfy Criterion (b). One type is "evidence of strong patterns of discrimination or other social distinctions by non-members" (25 C.F.R. 83.7(b)(1)(v)). Exclusion from social clubs or businessmen's organizations falls into this category. Discrimination in forms of address, business dealings, or physical harassment is also evidence that meets this criterion. The Jena Band of Choctaw provides an example:
The local population considered the Choctaw to be different from the rest of the population and treated them accordingly. The local store account books accordingly. the early 20th century showed that they paid for goods by skinning and curing hides as well as by day labor and household help. The Choctaw were
identified by the storekeepers by a first name and title "Indian" rather than by a first and last name. On the other hand, non-Indian customers were simply identified by name. When the Choctaw arrived in town as a group on a Saturday night, they were often subject to harassment from the general Population and in particular from the town marshal. (BIA Jena Band of Choctaw 1994:4).
None of this occurred in Swanton. To the contrary, the petitioner's ancestors appear to have been quite well integrated into the rest of Swanton society. They were members of several social and civic organizations and one was elected to city and state government office.
The Medor family was very involved with a Catholic French-Canadian organization called L'Union St. Jean Baptiste. This French Canadian patriotic association was founded in Quebec in 1834 "to stimulate a nationalist spirit" and encourage its members "to defend their linguistic and cultural heritage" (Canadian Encyclopedia 1985a). It eventually established branches in the United States, such as the one in Swanton.
The following news article points out the active involvement of the Medors in this following organization devoted to the promotion of French Canadian Culture:
Through the efforts of Dr. Carrieres, H.J. Campbell, Ed. Medor 1st, and Ed Vanslett, a St. Jean Baptiste Society has been formed being here, the same being Sept. 13' at which time 13 members were present. The society now numbers 60 persons and is in a flourishing condition. The following are the officers: Edward Vanselett, president; A. N. Dufresne, vice president; Dr. Carriers, secretary; J. Mercier, treasurer; H. J. Campbell, marshall, Charles Beard, assistant marshall; Edward Medor 2d and B. Duval, executive committee. (Swanton Courier, 10/29/1881).
The two Edward Medors appear in the Family Descendancy Charts for the Peter Cayie Medor family. They are uncle and nephew to each other, listed as individuals #5 and #9 respectively in that line. Another Medor family member, Joseph Medor, shows up as treasurer of the Society in 1913 (Swanton Courier 12/4/1913). Joseph is a brother of Edward 2d and is listed as individual #8 on that family chart.
Another fraternal organization named R.E. Columb as an active member (Swanton Courier 12/ 4/1913). This was the Missisquoi Camp of the Modern Woodmen of America, a fraternal insurance company founded in Iowa in 1883 (Modern Woodmen of America 1999a). The founder was inspired to choose the name after thinking about "the work of the pioneer woodmen clearing away the forest." He likened this to "the task of eliminating a man's financial burdens in the event of his death." (Modern Woodmen of America 1999b). This is hardly an analogy supportive of Indian heritage. R.E. Columb, a member of the Modern Woodmen, appears in the Joseph Columb Family Descendancy Chart as individual #80. The Courier states that the Woodmen's quarters were in his building in Swanton.Some of these same individuals helped form the Swanton Board of Trade in 1919. That organization's original members included R.E. Colomb, Joseph Medor, William Medor, and Gaylord Warner, all of whom appear in the Family Descendency Charts (Ledoux, R. 1988:175). William Medor is individual #1 on the Medor Family Chart; Joseph and R.E. Colomb are #8 and #80, respectively, on the Colomb chart; Warner is married to Martha Hance, individual # 12 on the Hance family chart.
Not only were these ancestors of the petitioners involved in the mainstream business and social organizations of the community, but two of them also served the community in elected office. R.E. Colomb was a village trustee from 1914 to 1916 (Ledoux, R. 1988:36). Joseph Medor was not only a town selectman from at least 1903 to 1908, but he was elected to represent Swanton in the State Legislature in 1908 (Ledoux, R. 1988:34, State of Vermont, Secretary of State 1908:512). In addition, R.E. Columb's son Arthur served in the local fire department in the 1940's (Swanton Courier 11/12/1942; Joseph Columb Descendancy Chart individual #184).