State of VT's Response to Petition for Federal Acknowledgment of the St. Francis/Sokoki Band of the Abenaki Nation of Vermont: Pages 151 to 159:

descendants of this historic Abenaki tribe could be found in Quebec. Neither of them indicated that there was any tribal group of Abenakis living in Vermont at that time.
Charles Adams's notes of his conversation with Elvine Royce of Montpelier describe her as a "full blooded Abenaki," and state that "She seems to think that the Abenakis could refute claim of Iroquois" (Adams 11/21/1952). 70. His notes indicate that she directed him to contact the main body of the tribe at "Odanak, Quebec. Address of Abenaki reservation in Canada. Does not know name of chief." Significantly, Elvine Royce did not direct the attorney to speak to any tribal political leaders in Vermont; she told him to contact Quebec. The implication is that there were no leaders in Vermont.
Around the same time, Gordon Day wrote to Attorney Adams. His letter reads in part,

In the interest of fairness to the people of Vermont who are asked to pay for the claim and to rightful Indian claimants, if any, no action should be taken without thorough research into the history of Indian land titles generally in Vermont. The true story is not contained In any legal documents alone or in ordinary histories or casual historical commentary. It exists in fragments in the writings and minds of a few research archeologists [sic] and ethnologists who are not well known outside their own circles. (Day 12/28/1952).

He then suggested that Adam's contact Dr. William Fenton, Dr. Arthur C. Parker, Dr. William Ritchie, and Dr. A. Irving Hallowell. Day went on to inform Attorney Adams of the whereabouts of the current descendants of the Abenaki and Caughnawagha tribes:

Whatever the status of Vermont in pre-history, the only Indians whom white settlers found actually living in Vermont were Abnakis, whose descendants now live at Odanak, near Pierreville, Quebec. More aggressive claims by Iroquoian groups should not be allowed to prejudice any claim which the St. Francis Abnakis may have. (Day 12/28/1952)
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FOOTNOTE:
70. Charles Adams later became Attorney General of Vermont; that may account for his papers ending up at the State Archives.

Notably, Day did not direct Adams to contact any tribal organization or tribal leaders in Vermont.

The petitioner's ancestors, the supposed community of Indians in Swanton, made no protest to the Caughnawagha claim. They did not contact Adams. When the St. Albans Daily Messenger, the largest newspaper in Franklin County, reported on the presentation of the final report to the legislature, it made no mention of anyone from Franklin county being involved for or against the matter (St. Albans Daily Messenger 4/8/1953).

Creation of Abenaki Tribal Council in 1974
It was not until 1974 that a constitution was adopted and a formal organization for the St. Francis/Sokoki Abenaki was created 71. (Baker 1976:8, Wiseman 2001:156). Fred Matthew Wiseman, a member of the petitioner, observed that the creation of a tribal government was very challenging since none had existed before (Wiseman 2001:152). He said the new organization grew out of an awareness created by the "Red Power" movement of the 1960's (Wiseman 2001:152).
It appears that the primary purpose of the organization was to pursue claims against state and federal governments for recognition. It called this work "status clarification," and pursued it through activities related to membership, correspondence with other tribes, and appearances before government agencies (Petition: 129). Jane Baker's 1976 Report to Thomas Salmon said as much: "First and foremost is the campaign [by the Tribal Council] toward formal recognition by the State of Vermont which will render the
_________________
FOOTNOTE:
71. The petition says the Council was formed in 1975. but the other documents give 1974 as the date (Petition: 123).

membership eligible for application to receive congressionally mandated funds" (Baker 1976:13). 

The 1970's Abenaki tribal organization does not appear to have been primarily
formed for the purpose of self-government. Its focus was on obtaining benefits from the state obtaining and federal government through recognition. In the Duwamish case, an organization "which existed to pursue claims rather than to provide self-government" was found insufficient to satisfy Criterion (c). (BIA Duwamish Tribal Organization 1996:5, 10).
There is also a significant question as to whether the mid-1970s Abenaki Tribal Council was a voluntary membership organization or the governing body of a pre-existing governing tribal structure. Jane Baker described the Tribal Council as a "two year old membership organization" that issues cards "verify[ing] that the holder is an Abenaki Indian or descendant of Abenakis" (Baker 1976:11). She reported to Governor Salmon in 1976 that there were 1700 Abenakis in Vermont. However, she also stated there were only 400 card-carrying members (Baker 1976:11 ). Thus the Abenaki Tribal Council could not even count as members a quarter of the individuals claiming Abenaki heritage. Moreover, Wayne Hoague, the first chair of the Abenaki Tribal Council, stated in 1977 that there were only 176 adult voting members of the group, plus 120 children (Hoague 1/12/1977). In the 1970's support and membership in the petitioner's organization was not widespread. Even the petitioner concedes that the creation of a governing body for the group was artificial and unnatural:

Families and individuals long accustomed to taking care of themselves have only gradually come to reckon with the Tribal Council as a significant factor in their lives. (Petition: 126).

The newly created Tribal Council of the 1970's did not have political authority.

The Petitioner's Political Organization was Dominated by One or Two Families

The focus on obtaining recognition and federal money, and the way that federal
money was used, became a point of contention within the petitioner's group. In the 1970's, and again in the 1990's, many members of the group questioned whether the St. Francis/Sokoki organization really represented the views of the Abenakis in the region. There was not wholehearted acceptance of the new self-proclaimed tribal government.
The very first chair of the Abenaki Tribal Council, Wayne Hoague, became the first loud critic of the new organization. Although Wayne Hoague had been one of the original organizers of the new government, he stepped down from chair of the Tribal Council in less than one year (Wiseman 2001:152, 154). He was succeeded by Homer St. Francis who served from 1974 to 1980, and would later be chief again (Burlington Free Press 7/9/2001).
During the first time period that Homer St. Francis was chief, Wayne Hoague charged that leaders of the tribe were secretive and that tribe members are not told how the federal money is being spent. (Burlington Free Press 1/17/1977, Hoague 1/ 12/1977). As a result of Hoague's criticisms, he was ostracized from the St. Francis/Sokoki Abenaki organization. Not only did Chief Homer St. Francis and Kent Ouimette obtain his removal from the Governor's Commission on Indian Affairs, but they denied him membership in the tribe.
This was reported by Mrs. Hoague:

When her husband reapplied for tribal membership—which requires a card issued by the council "they replied he couldn't prove he was Indian." Mrs. Hoague said.


"How can they say he's not an Abenaki if the rest of them are all related to him"" she asked. (Burlington Free Press 5/1977).

From 1974 to the present, petitioner's organizational politics has been dominated by one or two families struggling for control. For the most part, the St. Francis family has controlled the organization. Mrs. Hoague charged in 1977 that Homer St. Francis was elected "tribal chairman" in an election that was not widely publicized to Abenaki members. She said, "St. Francis was elected tribal chairman by the St. Francises, who were the only ones informed of the meeting" (Burlington Free Press 5/1977). Wayne Hoague also complained that several people were named to positions of authority to represent the Abenaki Tribal Council without ever being voted on by the membership (Hoague 1/12/ 1977). Similar instances of control by one family have weighed against federal recognition under this criterion (BIA MaChris Lower Alabama Creek Indian Tribe 1987:4, 2)6).

Further disagreements took place within the fledgling Abenaki organization in 1977, again demonstrating that there was no cohesive political leadership as required by the federal regulations. Kent Ouimette, who had helped St. Francis oust Wayne Hoague, himself decided to split off from St. Francis's group. He left his position as administrator of the St. Francis band and joined the "Missisquoi Council," headed by Chief Arthur 'Bill' Seymour (Burlington Free Press 10/21/1977). Ouimette wrote to Governor Snelling, saying,

Some of us have found that the present governmental structure of the
St. Francis band is incapable of protecting the constitutional rights of the individual, to say nothing of aboriginal rights. (Burlington Free Press 10/21/1977).

In fact three of the original organizers broke off in 1977 to form separate groups claiming to represent Vermont Abenakis (Wiseman 2001:157). In 1979, another dissenter, Richard Phillips, also broke away and formed a separate group, The Eastern Woodlands Band of the Abenaki Nation (Petition:131).

Horner St. Francis only stepped down as chief in 1980 when he had to serve a jail sentence (Burlington Free Press 9/13/1987). That is when Leonard "Blackie" Lampman became chief. Lampman was chief from 1980 until his death in 1987 (Burlington Free Press 5/10/1987). The 1987 election of chief was extremely contentious and surrounded by charges of unfairness. The race was between Lester Lampman, son of the former chief, and Homer St. Francis. One summary of the election read as follows:

The tribal elections of November 1986 72. [sic] were contentious, with emotions high in both the Lampman and St. Francis factions. It was also one of the biggest elections, with both sides doing lots of politicking and bringing voters to the polls. In order to assure the fairness of the election, a tribal election committee was formed, with three from each "side" and Ted Greenia, an "outsider" as head. The vote was confusing. April Rushlow, 73. a member of that committee, remembers the hours of counting and recounting and the problem with ballots that were incorrectly filled out. After the votes were tallied, St. Francis won by the slim margin of three votes. Former interim chief Lester Lampman and community members Joan St. Pierre attempted to have the results of the election voided, citing fraud, in that the incorrectly filled out ballots were not counted. St. Francis denied the recount, and the ballot box was sealed by the committee and stored in the tribal safe. (Wiseman 2001:160).

The new chief quickly consolidated his power. Before his two-year term had ended, he obtained a change in the Abenaki constitution to make him chief for life (Burlington Free Press 9/1-2/1989). St. Francis continued as chief until 1996 when he handed over the position to his daughter April Rushlow-Merrill (Burlington Free Press 7/9/2001). Further changes in the later years gave Homer St. Francis more control and more certainty that he could keep the role of chief in his family (Burlington Free Press 11/7/1995). A similar by-law allowing council members lifetime appointments was adopted by the MaChris in a case which found insufficient evidence of political authority due to the extensive control of the
________________
FOOTNOTE:
72. This appears to be an error; the correct date of the elections was September 1987 as attested to by contemporaneous newspaper articles.

organization by only one family (BIA MaChris Lower Alabama Creel: Indian Tribe 1987:4, 26).

The repeated criticism that the St. Francis/Sokoki Abenaki organization was
dominated by the St. Francis family and the subsequent changes in the constitution to perpetuate Homer St. Francis and his family members as chief are akin to the self-perpetuating council which existed in the Miami Nation. In that case the court said, the essence of proper tribal political authority is "bilateral political relations between tribal leaders and members." (Miami Nation of Indians v. Babbitt, 112 F. Supp. 2d 742, 750 (N.D. Ind. 2000)). The opposite is a "self-perpetuating council," where "[o]nly a handful of people did the organization's work, and they made decisions without consulting, or being influenced by, the members" (Miami Nation of Indlans, 112 F. Supp. 2d at 750).
In the case of petitioner, dissenters and people who were unable to break into the ruling group by election to the Tribal Council have repeatedly broken off to form other Abenaki groups (Petition: 131). The federal regulations state that the political authority criterion may be satisfied by evidence of "widespread knowledge, communication and involvement by most of the group's members." Exclusionary practices and the control of decisions by a small family group are contrary to the federal requirement, as borne out by the decision in the case of the Miami Nation, which was unable to demonstrate political authority under Criterion (C).
Attendance at tribal council meetings is one gauge of participation in governance. At the time the petition was submitted to the BIAgauged in the time the petition was first submitted to the BIA, only about 40-50 people attended tribal council meetings (Greenbaum & Wherry 1988:16). This is a small portion of the hundreds
_______________
FOOTNOTE:
73. She is the daughter of Homer St. Francis (Burlington Free Press 7/9/2001).

claimed as members. The number of attendees grew to 80-90 prior to the contentious council elections of the fall of 1987, but "attendance fell again after turmoil in the fall to about 40" (Greenbaum & Wherry 16). These figures do not demonstrate widespread involvement or acceptance of the decision-making processes of the group.

Another piece of evidence that would satisfy Criterion (c) would be proof that the
tribal organization is able to settle disputes between tribal factions (Miami Nation of Indians v. U.S. Dept. of the Interior, 255 F.3d 342, 346 (7th Cir. 2001)). Where the organization is truly a tribe in which members live in community for generations, the tribal government must settle disputes in a manner acceptable to all. However, where the group is a voluntary organization individuals may join at will, the disputes need not be settled. Instead, the dissenters disassociate themselves from the group and form a new voluntary organization meeting their needs. That is what happened in Vermont. Voluntary organizations, especially those formed for the limited purpose of pursuing legal claims, do not satisfy the federal requirement for political authority (BIA Duwamish Tribal Organization 1996:10; Mashpee Tribe, 592 F.2d at 582, n.3).
The result of the 1987 election and the subsequent constitutional changes was a change of the group as people realized they were not being listened to by their political leaders. In the 1990's, many members of the St. Francis/Sokoki Abenaki group did not accede to the leadership of Homer St. Francis. They formed separate organizations. In 1992 the Northeast Woodlands—Coos Band was formed. Through recruitment that band grew to 700 members (Wiseman 2001:169). In the fall of 1995 three more bands were created.
The first was the Traditional Abenakis of Mazipskwik and Related Bands. It split off from the St. Francis/Sokoki band and took with it a number of officials and employees from

the St. Francis/Sokoki tribal headquarters. Its chair was Connie Brow, a niece of Homer St. Francis, and its members included the former tribal judge Mike Delaney (Wiseman 2001:180-81). The Traditional Abenakis of Mazipskwik "described St. Francis as 'dictatorial' and tribal headquarters as a 'ghost town' dominated by members of the St. Francis family" (Burlington Free Press 10/29/1995). Members of this group wrote to the BIA and explained their dissatisfaction with the leadership of the petitioner. They contended that policies were decided by the Tribal Council which was dominated by immediate family members of the St. Francis family (Delaney 1996). They told the BIA that "anyone disagreeing with the Chief or Chiefs were politically caste [sic] aside and disenfranchised by the Chief" (Delaney 1/22/1996).

The second group to form in the fall of 1995 was centered in the upper Connecticut River Valley. This one was organized by Tom Obomsawin, Newt Washburn, and others. It became the nucleus of a dissident group in eastern Vermont and western New Hampshire. (Wiseman 2001:181). The third group was headed by David Hill-Docteau of Saxton's Rive in southeastern Vermont. He claimed that he, not Homer St. Francis, was the hereditary chief of the Abenaki Nation (Wiseman 2001:181). Further splintering occurred, so that by 2001 there were twelve groups claiming to represent Abenakis in Vermont (Wiseman 2001:186).
With all the dissension and creation of separate groups it is no wonder that an
observer from the Cowasuck of North America, which includes the Vermont Abenakis, said that Homer St. Francis "does not speak for the rest of the Abenaki, only his small group" (Burlington Free Press 10/29/1995).

State of VT's Response to Petition for Federal Acknowledgment of the St. Francis/Sokoki Band of the Abenaki Nation of Vermont: Pages 141 to 150:

When Gordon Day was looking for native Abenaki speakers in the 1950's, the only ones he could find in Vermont were the Obomsawins (Day 1948-1973). This family did not pass on the language to its children though. According to the petition, Elvine Obomsawin consciously decided not to teach her granddaughter Nettie DeForge the language and culture of the Abenaki (Petition: 100). Jeanne Brink reports that her Obomsawin grandmother "didn't teach her children the Abenaki language, because she wanted them to be assimilated" (Montpelier Bridge 12/2000).

Cultural Practices Were Not Retained in Any Abenaki Community in Vermont
When Homer St. Francis wanted to re-create an naming ceremony, he turned
to scholar Gordon Day for instruction (Day 4/25/1990). There was no one in the re-constituted Abenaki community in Franklin County who knew the practice; it had not been retained. While the petition mention that some individuals in the 1980's remember seeing older men and women engaging practices that they attributed to being Indian, there is no evidence that these practices continued past the 1930's or that they were taught to later generations (see, e. g., Petition:95 (burial custom), 95 (cooking skunk), 96 (sweat lodge)). Thus there was a significant gap in the practice of traditional Abenaki culture. Pieces that have been revived since the 1980's are merely that--revival of a long forgotten culture. In the 1980's there was a "re-establishment of cultural gatherings," which had not been a part of the society before that (Wiseman 2001:167). The very fact that these gatherings had to be "re-established" demonstrates that they had died out. Moreover, the audience for these gatherings was as much the white community as the petitioner itself. The

pow-wows that began in 1990 sought to publicize the new presence of the petitioner to those who did not know about it (Wiseman 2001:168).

Membership in the St. Francis/Sokoki Abenaki is Loose and Fluid
The analysis of the community criterion for the Narragansett relied in part on
evidence that "one is born a Narragansett and one remains one for his entire life." The sense of community attachment is so strong that "even among members expressing some dissatisfaction with tribal politics withdrawal of membership is not considered a viable alternative" (BIA Narragansett Indian Tribe of Rhode Island 1982:10). Among the Narragansett, individuals have a strong sense of belonging to the tribal community all their lives. This evidence supported a finding in favor of acknowledgment on that criterion.
In contrast, other petitioning groups have been denied acknowledgment when they have been created by a fluid membership recruitment process. This was the case for the Southeastern Cherokee Confederacy, the Northwest Cherokee Wolf Band, and the Red Clay Inter-tribal Indian Band (BIA Southeastern Cherokee Confederacy 1985a:5).

All three are recently formed voluntary associations of individuals who believe themselves to be—and in some cases are—of Indian descent. Additionally, they are overtly multi-tribal. Their recruitment notices state that specific tribal heritage is not a consideration for whether or not a person may join one of the groups—only a certain blood quantum. (BIA Southeastern Cherokee 1995a:54).

As the BIA put it, this is the "direct antithesis of belonging to an historic tribal community through birth or marriage" (BIA Southeastern Cherokee 1995a:55).
The members of the St. Francis/Sokoki Abenaki of Vermont do not exhibit the clear sense of belonging to a tribe that the Narragansett display. It is difficult for outsiders, such as the State, to know very much about internal membership disputes, but some have crept into

the public view. In 1977, Chief Homer St. Francis threatened to kick people out of the tribe. Wayne Hoague, the first chief of the reconstituted Abenaki Tribal Council, filed a complaint with the State about the tribe's mishandling of funds. According to the Burlington Free Press:

In his complaint. Hoague said, "People who are card holding members (of the tribe) are being told by Homer St. Francis (present Tribal Council chairman) that if they don't like the way things are being done he will take their Indian cards away." (Burlington Free Press
1/ 17/1977).

Chief St. Francis's method of dealing with Hoague was repeated in his treatment of another political opponent ten years later, as seen in the following news report of a tribal meeting:

There were allegations of misuse of funds and power tossed back and forth. One voice could be heard to say: "The bylaws say if the chief or anyone else is a nuisance, you can throw him out." Another voice, this one female, yelled: "Throw Joan (St. Pierre)." Someone apparently made a motion to that effect. The screamed yeas and nays sounded of equal volume but St. Francis announced that St. Pierre had just been kicked out of the tribe. (Rutland Herald 11/2/1987; compare Burlington Free Press 5/1977).

This was not simply ouster from a meeting; a year later, Joan St. Pierre was not allowed to vote at an Abenaki election, because, according to Homer St. Francis, she had been "thrown out of the tribe" (Burlington Free Press 10/10/ 1988).

There have been splinter groups that have left the tribe because they opposed the leadership. These included Homer's niece Connie Brow, who was instrumental in forming the Traditional Abenaki of Mazipskwik and Related Bands in 1995, as well as others in the 1990's (Burlington Free Press 10/29/1995, Wiseman 2001:181-86).
There are also examples of pan-Indian attitudes among the Abenakis in previous decades. According to the petition in 1982, "[t]he community, now as in earlier times, has always been receptive to Indian families from anywhere in the northeastern United States and

the border region with Canada" (Petition: 158-59). At that time, any Indian, no matter whether he or she was descended from a historical Abenaki group in Vermont, could be welcomed into the group.

In 1995, the Abenaki Tribal Council apparently instituted a major change in the tribal constitution's criteria for membership. This was undertaken specifically to improve the group's eligibility for federal acknowledgment (Burlington Free Press 11/7/1995). This change reflects vagueness as to the identity of the tribe, both now and in the past. It indicates a lack of certainty over the real shape of the tribe. Its composition was not fixed and identifiable; rather it was subject to alteration by the petitioner. The standards for evaluating Abenaki tribal identity over the years have changed depending on the circumstances. This is the opposite of a clearly defined community whose members know each other and who have been inter-twined as an Indian community since historic times.

There Were No Social Ties Between the Bulk of Petitioner's Ancestors and the Visible Abenakis in Vermont
In order to satisfy Criterion (b), the petitioner must demonstrate that the social ties that connect the community are broad reaching across family kinship groups. One case summarizes it like this:

Interaction must be shown to have been occurring on a regular basis, over a long period of time. Interaction should be broadly distributed among the membership. Thus a petitioner should show that there is significant interaction and/or social relationships not just within immediate families or among close kinsmen, but across kin group lines and other social subdivisions. Close social ties within narrow social groups, such as small kin groups do not demonstrate that the members of the group as a whole are groups connected with each other. (BIA Miami Nation of Indians 1992:5).

In meeting this criterion, the Narragansett provided evidence of an annual meeting to which members who lived outside of the core community returned (BIA Narragansett Indian Tribe of Rhode Island 1982:11). In addition, the Narragansett members showed that they knew a lot about other members. When asked about other members, they could relate where they resided, what their occupations were, how large their family was, and how active they were within the tribe (BIA Narragansett Indian Tribe of Rhode Island 1982: 10). In contrast, during John Huden and Gordon Day's forty years of contacts with the Obomsawins, no one in that family ever mentioned any of the Swanton people as fellow members of an Abenaki tribe.

There are also examples from the petition that reveal a lack of social interaction. For instance, "Leo St. Francis, Nazaire Jr.'s brother, remembers a band of twenty to thirty Indians who lived out in the meadow behind Slamon Farm" (Petition:97). However, as he recounted what he saw, he said "we didn't know all of their names." The petitioner describes these people as "totally unassimilated families [ ] who live[d] secluded without contact with the white society," and lived in the marsh (Petition:84). There was no social contact between the St. Francis family and those Indians in the meadow. These people were not known to the petitioner's ancestors by name; they were not part of the petitioner's community. This, and the fact that petitioner's ancestors (if they had any Indian blood) had intermarried with whites for so many generations, reinforces the view that petitioner became fully part of the French- Canadian society of Swanton (Petition:74).
Another aspect of community and social interaction that needs to be established is whether petitioner's ancestors in earlier decades, or centuries, interacted with the individuals identified as Indian at that time. This was a problem that defeated the Duwamish petition:

The petitioner's membership consists almost entirely of descendants from the families of marriages between Duwamish Indians and pioneer settlers. The marriage did not provide evidence, nor did the BIA's research find any evidence, that revealed that these families interacted with the historical Duwamish tribe or were cohesive themselves. (BIA Duwamish Tribal Organization 1996:6).

The petitioner has not demonstrated that the ancestors who are listed in the Family Descendancy charts ever interacted with the early nineteenth century remnants of the Missisquoi tribe who are described in the petition. It appears they cannot show such interaction. Most of the first generation in the Family Descendancy Charts was born in Canada and did not come to Vermont until the 1840's or later (see Table 2 above). They could not have formed a social network or community with the individuals whom the petitioner claims were Indians in the federal censuses of 1790-1830 (Second Addendum).
The Duwamish case also explains the need for continuity between the community identified as a tribe in one decade and the community identified as the same tribe in a later decade. In that case, the BIA compared the names on the 1915 and 1926 membership lists to determine whether the latter group was a continuation of the former, or whether they were two separate groups. The findings' stated:

The 1926 membership list was very different from the 1915 membership list of Satiacum's organization. The individuals who appeared on both the 1915 and 1926 lists comprised only 21 percent of the 1915 membership and 19 percent of the 1926 membership. The disjunction between the 1915 and 1926 lists is revealed by the finding that only 6 percent of the members of the 1915 organization, compared to 66 percent of the members in 1926, have descendants on the petitioner's modern membership roll.
There were several differences between the 1926 members and the 1915 members which, considered together, show that the two lists represented two
different groups of people. (BIA Duwamish Tribal Organization 1996:7-8).

While the petitioner does not have two historic membership lists to use for comparison, there are various historic documents such as Robertson's Lease, the Durham Grants, membership

lists of Abenaki at Odanak/St. Francis, and the names of individuals who identified themselves as Indian in the federal censuses in the late nineteenth and early twentieth centuries. Not a single one of these lists corresponds with the names of individuals listed as petitioner's ancestors in its 1995 Family Descendancy Charts. A detailed discussion of this appears in the genealogical analysis under Criterion (e) below. The necessary conclusion is that the petitioner is a different group of people from those known as Indian prior to 1930.

Summary of Failure of Evidence to Satisfy Criterion (b)
The evidence shows that petitioner's ancestors did not live in a distinct Indian community within the greater Swanton area. To the contrary, they interacted with the rest of the Swanton area community in the same way that French Canadians did. They held the same jobs, were members of the same clubs, went to the same Church, and were buried in the same place. They maintained no unique cultural practices or language. They were fully assimilated residents of Franklin County. By virtue of this assimilation, they had abandoned any distinct Indian identity, if they ever had any: "[A]ssimilation is simply a way of expressing the reverse of the existence of an Indian community" (Mashpee Tribe, 592 F.2d at 586).
The people who now claim to be an Abenaki community did not move to Franklin County all at the same time, nor did they come form the same place. There were no social ties that united the visible Abenaki the Obomsawins and those at Odanak—with the petitioner's ancestors. Despite the fact that they may now present the appearance of being united in a community, the evidence does not demonstrate a distinct community with active

social interactions in earlier decades. The BIA has rightly rejected petitions that simply compared the historical community with the present community:

Roe claims that it is necessary to look only at "endpoints," apparently taking the position that a Duwamish tribe existed historically and the petitioner claims to be the Duwamish tribe and so exists now. He assumes that similarities at the "endpoints" allow an assumption of continuity between the endpoint [But this is not valid.] ...past determinations have not accepted the comparison of "endpoints," as advocated in these studies, as relevant evidence Under the regulations.
The regulations require that contemporary evidence demonstrate continuous Community and political authority from historical times to the present. (BIA Duwamish Tribal Organization 2001:41).

And so, the BIA should reject the St. Francis/Sokoki evidence under Criterion (b) as insufficient to establish continuous community.

Criterion (c) —Political Authority
On order to meet the political authority criterion of 25 C.F.R. 83.7(c), petitioner must have "maintained political influence or authority over its members as an autonomous entity from historical times until the present." This criterion is rooted in the U.S. Supreme Court's statement in Montoya v. United States that a tribe must be "united in a community under one leadership or government" ( 180 U.S. 261, 266 (1901)). Among the aspects of political government which must be examined are the breadth of the group's authority. That is, can the leaders "mobilize significant numbers of members and significant resources from its
members for group purposes" (25 C.F.R. 83.7(c)(i)). Also, there must be "widespread knowledge, communication and involvement in political processes by most of the group's members" ( 25 C.F.R. 83.7(c)(iii)). One court described this criterion in this manner:

The people must "follow[ ], adopt[ ] and obey[ ]" the leadership. And the
leadership must be -controlling of significant elements in the lives of the people."...If no one follows, then the would-be leader is not leading anyone

and cannot sustain the claim to leadership. (Mashpee Tribe v. New Seabury Corp., 592 F.2d at 584).

The petition admits there was a lack of formal organization for most of the past two hundred years (Petition:86). Petitioner claims this is because family bands were the usual form of organization, with no further structure above them (Petition: 159-60). This has not been the case with the Canadian Abenakis, from whom the current petitioner supposedly broke off. They had clear chiefs in the nineteenth and twentieth century as demonstrated by documents such as the "Petition of the Abenakis of St. Francois Against General Emancipation of Indians in the Dominion" signed by Grand Chief of Abenakis in 1874 (Canada, Indian Affairs 1874) and the "Indian Distribution Paylists, Abenakis of St. Francis" signed by Abenaki chiefs in 1893 (Canada, Indian Affairs: 1893, see also Hume 1991:105). The inability of petitioner to point to any organization outside of family groups between 1780 and 1974 comports with the lack of community during that same extended time period.

Vermont Abenaki Silence in the Face of 1950's Caughnawagha Land Claims
One glaring example of the lack of political organization and influence in the
twentieth century is the absolute silence of any of the petitioner's supposed leaders in the face of the claims by Caughnawagha Iroquois to lands in Vermont. Organizing and protecting against the loss of tribal lands is a primary governmental or political function of an Indian tribe (Miami Nation v. U.S. Dept. of Interior, 255 F.3d 342, 346 (7th Cir. 2001)). Evidence that a group has been active in that area is useful in establishing proof under Criterion (c). The Abenakis had the opportunity to speak out in this regard in the 1950's, but
they were silent. Their non-action is similar to a situation addressed in the MaChris case in which the Indian Claims Commission awarded millions of dollars to "descendants of the

Creek Nation for the loss of aboriginal lands" (BIA MaChris Lower Alabama Creek Indian Tribe 1987:14, 27). The MaChris petitioners were "apparently unaware of this award and did not make application to share in its distribution, even though the claims payment was publicized in a local newspaper." (BIA MaChris Lower Alabama Creek Indian Tribe 1987:14). If a political organization had existed, then this would have been an ideal time for it to communicatemobilize them to make claims.

In Vermont, two Caughnawagha Iroquois Indian Chiefs came down from the Two Mountains Reservation in Quebec in 1951 and renewed their request to the Vermont State Legislature for compensation for Indian lands. 69. They addressed the State Legislature, which established a commission to investigate the Iroquois claim and present findings to the legislature. As a result, the Governor appointed Charles J. Adams in 1952 to conduct the Investigation (Burlington Free Press 4/20/1951, 4/19/1952; St. Albans Daily Messenger, 11/10/ 1952 ). The newspapers had front page stories and photos of the chiefs at the Vermont Statehouse.
One would have expected the Abenakis to speak up in the face of a claim to their own historic lands from a competing Indian group. Logically, either the Abenakis should have joined the claim or opposed it on the grounds that they were the rightful claimants. The only two people who spoke up were Elvine Obomsawin Royce and Gordon Day. They both contacted the attorney who had been assigned to investigate the case for the State. Both of them sought to inform Attorney Adams that the Iroquois had not been the historic tribe occupying Vermont-- the Abenakis were. However, they both informed him that the
_________________
FOOTNOTE:
69. This was a renewal of the land claims first asserted in 1798 (discussed above in section Nineteenth Century, Caughnawagha Claims to Vermont Legislature).

State of VT's Response to Petition for Federal Acknowledgment of the St. Francis/Sokoki Band of the Abenaki Nation of Vermont: Pages 131 to 140:

The mixing of these individuals in white society, through social and civic organizations, and ultimately through elected office, demonstrates a high degree of integration and acceptance in the community. It is directly contrary to the petitioner's claim these families "remained on the margins of white society" (Petition: 149). These are not the type of things one would see if the Indian community was a separate, distinct community apart from the rest of Swanton as the petitioner contends.

There Has Not Been a Continuous Geographic Concentration of Indians in Franklin County
The geographic concentration of the residences of the petitioning group can be used geographic petitioning to satisfy Criterion (b). It can be used for "high evidence" of geographical concentration, by demonstrating that "[m]ore than 50 percent of the members reside in a geographical area or almost exclusively composed of members of the group, and the balance of the group maintains consistent interaction with some members of the community" (25 C.F.R. 83.7(b)(2)(i)). Or, it can be used as part of the overall presentation of evidence as was done in the Wampanoag and Narragansett cases (BIA Wampanoag Tribal Council of Gay Head 1987:5, BIA Narragansett Indian Tribe of Rhode Island 1982:9). Significant numbers of Narragansett Indians lived within a ten-mile radius of the town of Charlestown from the mid-1750's to the time the petition was filed. Emigration from the area was limited (BIA Narragansett Indian Tribe of Rhode Island 1982:9). The lack of geographic concentration can also be important. The MaChris case illustrated the need for both geographic clustering and identification of an area as Indian:

While Federal census and county records show there has been some residential clustering and interaction among the principal families in the group from 1850 to the present at various and somewhat scattered locations in

southeastern Alabama, these family enclaves have never been regarded by others as being American Indian communities. (BIA MaChris Lower Alabama Creek Indian Tribe 1987:3).

The St. Francis/Sokoki Abenaki materials follow the latter illustration. The petition
admits that the outsiders did not regard the areas where petitioner lived as Indian (Petition:159). In addition, although the petition talks a lot about the continuity of habitation in Swanton and surrounding areas of Franklin and Grand Isle counties, the federal census records present a picture of Indians scattered around the state from 1860 to 1970, with almost no at all Indians in Swanton (see Table 1 above).
Even within Franklin County, the federal census records do not depict a distinct
community. The census records from the late nineteenth century show the petitioner's ancestors living in French Canadian neighborhoods, holding jobs that were the same as their non-Indian neighbors (Davis Affidavit, Attachment A:1-2).

The Petitioner Did Not Immigrate to Vermont as a Group at Any One Time
In contrast to the Narragansett, the St. Francis/Sokoki group was not stable. It
exhibited a great deal of immigration and emigration. Movement alone does not disqualify a group from federal acknowledgment. However, the movement must fall in a pattern that  shows "a group whose history could be traced through time and place" (BIA Steilacoom Tribe of Indians 2000:5881). To satisfy the "community" criterion, the evidence should "demonstrate that immigrants to the same place had preexisting ties based on earlier marriages, common residence in a settlement, or membership in a group" (BIA Little Shell Tribe of Chippewa Indians of Montana, Charts, 2000:4). They need to have migrated to the area together as a group, or in waves that show a connection between the old place of

habitation and the new one. A crucial question to ask is: "Do the migrants have any previous connection with each other that might inform the analysis of community once in Montana, including continuing ties with predecessor groups?" (BIA Little Shell Tribe of Chippewa Indians of Montana, Charts, 2000:4). The criterion of community will not be satisfied if a number of unconnected people come together as a group in the twentieth century.

However, that is exactly what we have here. The petitioner's Family Descendancy Charts provide a useful means of examining the immigration pattern of the families that supposedly make up the present community. Those charts, supplemented with information from other parts of the petition, show that families came to Swanton, or the surrounding area, over a hundred and twenty year period, from a variety of locations:

Table 2

Dates of Immigration of Families on Petitioner's Family Descendancy Charts

 

Family: Morits, John
Date Arrived in Swanton: 1820's

Former Location: Quebec
Source: John Morits was born in Quebec; no town given. His son, John F. Morits, was born in Highgate in 1826.

Family: St. Laurent
Date Arrived in Swanton: 1830's
Former Location: Quebec
Source: Hippolyte St. Laurent was born in Quebec; his children Sophie and Marie (and their husbands, Joseph Bourgeois and Lewis Colomb) were also born in Quebec, according to census records. The first grandchild to be born in Vermont was Mary Colomb in 1833. Family: Colomb
Date Arrived in Swanton: 1830's
Former Location: Waterloo,  Quebec
Source: Joseph Colomb was born in Quebec, as were his three children. His first grandchild to be born in Vermont was Mary Colomb in 1833. Joseph Colomb Chart.

Family: Medor

Date Arrived in Swanton: 1834-1841

Former Location: St. Regis, Quebec

Source: Peter and Marguerite Julia (St. Pittie) Medor both born in St. Regis, Quebec. Their second child was born in St. Regis, their third child was born in Swanton. Their sixth child was born in New York state in 1853. Peter Medor Chart.

Family: Hance

Date Arrived in Swanton: 1849-1854

Former Location: St. Gregoire, Quebec

Source: Dates and places of birth of children of Antoine and Caesarie Hance, Antoine Hance Chart.

Family: Phillips

Date Arrived in Swanton: 1848-1850

Former Location: Quebec

Source: Antoine and Catherine (Cadaive) Phillips were both born in Quebec. Their children were all born in Quebec between 1829 and 1848. They first show up in the 1850 federal census for Highgate, VT. The children and grandchildren of Antoine and Catherine did not stay in Vermont. Granddaughter Mary was born in Fort Edward, NY, and three of her children were born in Fort Edward, Morris Forks, and Scotia, NY. Antoine and Catherine's grandson Louis was born in Maine, and two of his children were born in Saratoga and Amsterdam, NY.

Family: St. Francis

Date Arrived in Swanton: 1850

Former Location: Iberville, Quebec

Source: The 1900 census indicates Mitchell St. Francis was born in Quebec and immigrated to the U.S. in 1850. Mitchell's sisters were married at Ste. Brigide in Iberville in 1851.

Family: Desmarais

Date Arrived in Swanton: 1850's

Former Location: Quebec

Source: Louis Desmarais was born in Quebec; his son George Demar was born in Franklin, Vt., in 1857.

Family: Hoague

Date Arrived in Swanton: 1868-1870

Former Location: St. Hyacinthe and St. Dominique, Quebec.

Source: Flavien Hoague and his parents were born in Quebec. He married Adele (Belair) Hoague who was also born in Quebec. Their first six children were born in Quebec. Their seventh child was born in Swanton. Flavien Hoague Chart. (U.S. Bureau of the Census 1870b).

Family: LaFrance

Date Arrived in Swanton: 1869

Former Location: Quebec

Source: Charles and Mary LaFrance were both born in Quebec; four of their seven children were born in Quebec. Charles LaFrance Chart.

Family: Ouimette

Date Arrived in Swanton: 1870's

Former Location: St. Armand, Quebec

Source: Theodore Ouimette and his children were all born in Quebec. Two of his children were married in Swanton. Theodore Ouimette Chart.

Family: Hakey

Date Arrived in Swanton: 1890

Former Location: Massachusetts and Quebec

Source: Eli Hakey was born in Massachusetts; his parents and grandparents were born in Quebec. Eli was married in Swanton in 1891. Eli Hakey Chart. (U.S. Bureau of the Census 1900e).

Family: Partlow

Date Arrived in Swanton: 1900

Former Location: New York

Source: Charles Partlow was born in Alburg, VT, but he married Sophie Blair in Clinton County, NY, and all their children were born in New York. Only two family lines are provided for the subsequent generations. Their son George married a woman from Massachusetts and they moved to Swanton before their first child was born in 1902. Charles and Sophie's son Frank married a woman from New York and their first two children were born in New York. Charles Partlow Chart.

Family: Obomsawin

Date Arrived in Swanton: 1901-1909 (to Charlotte, Vt.)

Former Location: Odanak, Quebec

Source:  Simon Obomsawin and his children were born on the Abenaki reserve at Odanak/St. Francis, Quebec. They went to Grand Isle County around 1900 and then settled in Charlotte, Vt., at the southern tip of Lake Champlain late that decade. (Royce 1969).

Family: Gibeau

Date Arrived in Swanton: 1920's

Former Location: Trois Rivieres, Quebec

Source: Margaret Gibeau was born in Trois Rivieres, Quebec. She was married in 1924 in Swanton.

Family: (Joseph) Gardner

Date Arrived in Swanton: 1940's

Former Location: New York

Source: Petition:85-86.

Family: (Lawrence/Pete) Lapan

Date Arrived in Swanton: 1940's

Former Location: New York

Source: Petition:85-86.

Family: Nepton

Date Arrived in Swanton: Late 20th c.

Former Location: Massachusetts, Quebec, Connecticut, and Rhode Island

Source: There is not a single birth, marriage, or death listed in Vermont on the Nepton Family Chart for six generations.

Not only does this demonstrate that no single group moved from one location to another, but it shows a lack of community relations among, the ancestors of the petitioner. Since these people were not all living in the same place in the 1840's or the 1890's, they did not constitute one community at that time. They were certainly not one community in Swanton, since they had not yet all arrived. And, they were not one community in Quebec or New York, since they did not all come front same town or parish.

This evidence corresponds with the example of the United Houma Nation. In the
proposed finding against federal acknowledgment for the United Houma, that evidence led to finding against conclusion that the petitioner did not exist continuously as a distinct community from historical times to the present. As the Proposed Finding stated, there was "no evidence for a Finding stated, there was "no evidence for a

UHN ancestral community (Indian or non-Indian) prior to 1830" (BIA United Houma Nation 1994:11). The specific deficiencies were described thus:

The UHN ancestors who first settled the bayous of southern Lafourche and Terrebonne Parishes, Louisiana, did not enter the area together. The UHN petitioner presents a situation in which a small number of individual Indians, from partially unknown tribal backgrounds (two unrelated Indian women and a single Indian nuclear family), and numerous non-Indian individuals, coalesced into a distinct community on Bayou Terrebonne between 1810 and 1830. Geographically, the origins of the individual families can be traced to several locations...


The petitioner's ancestors who would meet in Louisiana's lower bayous had few, if any, previous relationships, other than those within nuclear families.... The documentation indicates that the vast majority of the ties among the UHN's ancestors developed only after the families had settled on their land in Terrebonne Parish after 1800. After moving onto Spanish-era grants along Terrebonne Bayous near present-day Montegut, they united through marriage, economic undertakings, and other social interactions. After these immigrants had become one another's neighbors, over the course of a generation, the settlers evolved into the small farming community shown on Federal census records and General Land Office records in the 1830's. (BIA United Houma Nation 1994:12).

There is another way to examine a cross-section of the group described by petitioner. Instead of using the Family Descendancy Charts which list the ancestors of the present day community, we can examine names from the petitioner's list of prior generations in the petition's Appendix 1B to the Petition Addendum. 67. Names found in the federal census for 1870 and 1900 include information on the birthplace of the individual and his or her parents, as well as immigration and naturalization dates (U.S. Bureau of the Census 1870a, 1870b, 1900d, 1900e). This is summarized in the following table:
_________________
FOOTNOTE:
67. This list contains some names not found in the 1995 Family Descendancy Charts because petitioner narrowed its focus over time. The changing lists demonstrate the high decree of uncertainty in petitioner's proof.

Table 3

Continuity of Generations in Canada with

Pattern of Immigration of Individuals in Petition Addendum

Name:

Town:

Date of Immigration or Naturalization:

Number of Generations born in Canada:

Census:

John Martin

Highgate

1796-1844

2

1870

Isaiah Ramo

Highgate

1808-1859

2

1870

Charles Martin

Highgate

1808-1852

2

1870

Peter Medor

Swanton

1832-1854

1870

Peter Greenia

Highgate

1822-1852

2

1870

Stephen Brow

Swanton

Before 1826

1

1870

John White

Highgate

1830

2

1900

Mitchell Young

Swanton

1837-1866

2

1870

Joseph Martin

Highgate

1839-1863

2

1870

Peter Medor

Swanton

1840

2

1900

Martha Campbell (wife of George)

Swanton

1841

2

1900

Abram Campbell

Swanton

1844-1863

2

1870

Moses Greenia

Highgate

1847

2

1900

Edward Bushey

Highgate

Before 1848

1

1900

Nelson Hakey

Swanton

1850

2

1900

Mitchel St. Francis

Swanton

1850

2

1900

Edward Hance

Swanton

1854

2

1900

Eliza Vancelette (wife of Moses)

Swanton

1860

2

1900

Joseph Hoague

Swanton

1860

2

1900

Mary Medor (wife of Charles)

Swanton

1863

2

1900

Peter Hoag

Swanton

1863

2

1900

Tuffield Bushware

Swanton

1864

2

1900

Albert LaFrance

Highgate

1866

2

1900

Joseph LaFrance

Highgate

1867

2

1900

Sophia Greenio (wife of Justin)

Swanton

2

1900

Flavius (Fayvan) Hoag

Swanton

1870

3

1870

William Hakey

Highgate

1870

2

1900

John Lafarer

Swanton

1870

2

1900

Maggie Bushey (wife of Joseph)

Swanton

1880

2

1900

Gilbert Ouimette

Swanton

1880

2

1900

Name:

Town:
Date of Immigration or Naturalization:
Number of Generations born in Canada:
Census:

Joseph Remillard
Swanton
1893
3
1900

Emma Penell (wife of Frederick)
Swanton
1895
2
1900

Sarah Bushware (wife of Fred)
Swanton
1898
2
1900

Once again, the obvious conclusion is that the people who supposedly comprised the Abenaki community in Franklin County did not move to the area all at the same time. Moreover, they did not move there after only a short, temporary sojourn in many cases they had lived in Canada for 2 or 3 generations before taking, up residence in northwestern Vermont.
There is one interesting exception to the disordered picture of immigrants to Swanton who now claim to be Abenakis of Vermont--that is the Obomsawin family. They did retain a connection to a "predecessor community," and it was an Indian community. They kept up their ties to relatives at Odanak/St. Francis. They appear on the rolls of Abenakis maintained at Odanak/St. Francis. The 1875 census of the Abenakis in the village at St. Francis lists dozens of members of the extended Obomsawin family. Simon himself, the father of Marie, Elvine, Marion, and William, appears as a young man with his father and siblings in the list of tribal members who lived off the reserve in other parts of Canada 68. (Canada, Indian Affairs 1875:6).
That 1875 census for Odanak/St. Francis counts how many members of the tribe were "Absents aux Etats," or absent in the United States (Canada, Indian Affairs 1875:5). The
________________
FOOTNOTE:
68. The Family Descendancy chart for Simon Obomsawin says he was born in 1850. That fits with the individual listed on the 1875 Odanak/St. Francis census here.

specific names of the Odanak members who were in the United States at that time are given on the last page. Not a single one of these individuals shows up in the Family Descendancy Charts of the St. Francis/Sokoki petitioner. A similar list exists for the 1873 census; there too, none of the individuals in the United States show up in the petitioner's family charts. (Canada, Indian Affairs 1873).

The example of the Obomsawin family stands out, over and over in the evidence. In contrast to the petitioner, whose members from Swanton never identified themselves as Indian, were unknown to the Abenakis at Odanak/St. Francis, and who never shared their cultural knowledge with the researchers who sought to learn about it, the Obomsawins repeatedly shine through. But one family at Thompson's Point in Charlotte does not make a tribe in Swanton.

The Abenaki Language Was Not Spoken by Petitioner
One type of evidence listed in the federal regulations that will satisfy Criterion (b) is retention of a unique cultural trait such as the speaking of an Indian language (25 C.F.R. 83.7(b)(1)(vii)). The Jena Band of Choctaw kept their language; this was positive evidence in favor of acknowledgment in their case (BIA Jena Band of Choctaw 1994:4). Among the petitioner's ancestors the Abenaki language died out. The petition stated in 1982 that "Research to date has not found any contemporary speakers" of Abenaki in Vermont (Petition:95). When Homer St. Francis spoke of large gatherings at his father's house in the first half of the twentieth century, he said the visitors all spoke French—and he could not understand them (Petition:92).

State of VT's Response to Petition for Federal Acknowledgment of the St. Francis/Sokoki Band of the Abenaki Nation of Vermont: Pages 121 to 130:

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,
________________
FOOTNOTE:
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
_______________
FOOTNOTE:

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

spouses) could be buried there. A special cemetery committee even existed to confirm eligibility.

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).