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Nipmuc Nation v. Zinke

United States District Court, D. Massachusetts

March 30, 2018

THE NIPMUC NATION, Plaintiff,
v.
SECRETARY RYAN ZINKE, THE UNITED STATES DEPARTMENT OF THE INTERIOR, BUREAU OF INDIAN AFFAIRS, OFFICE OF FEDERAL ACKNOWLEDGMENT, AND THE UNITED STATES OF AMERICA, Defendants.

          MEMORANDUM OF DECISION AND ORDER

          TIMOTHY S. HILLMAN UNITED STATES DISTRICT JUDGE

         Background

         The Nipmuc Nation (“Plaintiff”, “Nipmuc Nation” or “Petitioner 69A”), has filed a Petition for Review of a final administrative determination by Secretary Ryan Zinke, The United States Department of the Interior (“DOI”)[1], Bureau of Indian Affairs (“BIA”), Office of Federal Acknowledgment, and the United States of America (collectively, the “Defendants”)[2]. Plaintiff seeks a ruling that the Defendants' Final Determination against federal acknowledgment was arbitrary, capricious, and abuse of discretion, against the substantial evidence and not in accordance with the law (Count One); that the BIA failed to follow the applicable regulations set forth in 25 C.F.R. §83 et seq. and therefore, the Defendants' Final Determination against federal acknowledgment violated Plaintiff's procedural due process rights (Count Two); and that the BIA's refusal to consider evidence in support of Plaintiff's Petition, despite its consideration of such evidence in the applications of other similarly situated tribes seeking federal acknowledgment, deprived Plaintiff of its right to equal protection under the law (Count Three). Essentially, Plaintiffs seeks a declaration that it has satisfied the legal criteria for federal acknowledgment as an Indian tribe under the laws of the United States of America. Accordingly, Plaintiff asks this Court to vacate Defendants' Final Determination against federal acknowledgment and reverse it, or, alternatively, to vacate the Final Determination and remand Plaintiff's Petition to Defendants with instructions to reconsider the Petition consistent with the findings of this Court. This Memorandum of Decision and Order addresses Plaintiff's motion for summary judgment (Docket No. 33), and Federal Defendants' Motion for Summary Judgment (Docket No. 40). For the reasons set forth below, the Plaintiff's motion is denied, and the Defendant's motion is granted.

         Standard of Review

         Summary Judgment is appropriate where, “the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Carroll v. Xerox Corp., 294 F.3d 231, 236 (1st Cir. 2002) (citing Fed.R.Civ.P. 56(c)). “‘A “genuine” issue is one that could be resolved in favor of either party, and a “material fact” is one that has the potential of affecting the outcome of the case.'” Sensing v. Outback Steakhouse of Florida, LLC, 575 F.3d 145, 152 (1st Cir. 2009) (quoting Calero-Cerezo v. U.S. Dep't. of Justice, 355 F.3d 6, 19 (1st Cir. 2004)).

         When considering a motion for summary judgment, the Court construes the record in the light most favorable to the nonmoving party and makes all reasonable inferences in favor thereof. Sensing, 575 F.3d at 153. The moving party bears the burden to demonstrate the absence of a genuine issue of material fact within the record. Id., at 152. “‘Once the moving party has pointed to the absence of adequate evidence supporting the nonmoving party's case, the nonmoving party must come forward with facts that show a genuine issue for trial.'” Id. (citation to quoted case omitted). “‘[T]he nonmoving party “may not rest upon mere allegations or denials of the [movant's] pleading, but must set forth specific facts showing that there is a genuine issue of material fact as to each issue upon which [s/he] would bear the ultimate burden of proof at trial.” Id. (citation to quoted case omitted). The nonmoving party cannot rely on “conclusory allegations” or “improbable inferences”. Id. (citation to quoted case omitted). “‘The test is whether, as to each essential element, there is “sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” ' ” Id. (citation to quoted case omitted).

         Where the court is asked to review a decision by the DOI to grant or deny a petitioner's request for federal acknowledgement:

[s]ummary judgment ‘is an appropriate procedure … and, because th[e] case ‘involves a challenge to a final administrative action, the Court's review is limited to the administrative record.'
‘The APA entitles a person suffering legal wrong because of agency action, ' or adversely affected or aggrieved by agency action to ‘judicial review thereof.' The APA requires the reviewing court to set aside an agency action that is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.' In conducting this review, considerable deference must generally be accorded to the agency. Specifically … the [DOI] has ‘special expertise' in determining whether petitioning Indian tribes are entitled to tribal recognition, and thus, the Court must be particularly deferential to its determinations. Accordingly, ‘[t]here is a presumption in favor of the validity of the administrative action'.
Despite the presumption of validity and the deference that must be afforded to an agency's actions, a reviewing court ‘must consider whether the [agency's] decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.' At a minimum, the agency must have considered relevant data and articulated an explanation establishing a ‘rational connection between the facts found and the choice made.'
[A]n agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.
As noted, the ‘requirement that agency action not be arbitrary or capricious includes a requirement that the agency adequately explain its result.' This requirement is not particularly demanding, however. Nothing more than a ‘brief statement' is necessary, so long as the agency explains ‘why it chose to do what it did.' Thus, if the court can ‘reasonably ... discern[ ]' the agency's path, it will uphold the agency's decision.

Muwekma Ohlone Tribe v. Salazar, 813 F.Supp.2d 170, 174 (D.D.C. 2011), aff'd, 708 F.3d 209 (D.C. Cir. 2013)(internal citations and citations to quoted authorities omitted)(alterations in original).

         Facts[3]

         History of Native American's in Southern New England

         The history of southern New England Indians in central Massachusetts, Rhode Island and Connecticut dates back to approximately 10, 000 B.C. These Indians spoke the closely related languages of the Eastern Algonquian family, including Nipmuc, Wampanoag-Massachusetts, Narragansett-Niantic, Mohegan and Pequot, and formed tribes that consisted of several local communities. By the 16th century, southern New England Indians had developed an agricultural economy that required smaller land bases and a more sophisticated political system, consisting of tribal and community leaders, called sachems, and representative councils. Historically, Nipmuc Indians lived in small groups around Massachusetts, Rhode Island and Connecticut.

         Contact between Europeans and Nipmuc Indians began in the early 1600s with the colonization of southern New England. In the 1640s, English colonists established twelve Nipmuc “praying towns” and attempted to convert the Nipmuc to Christianity. Among the praying towns were Hassanamisco (now Grafton, Massachusetts) and Chaubunagungamaug (now Dudley and Webster, Massachusetts). In the 17th century, English colonization of southern New England devastated the Nipmuc and other tribes of the region by spreading diseases for which they had no immunity, and warfare at levels they had not previously experienced. As numbers of English colonists continued to grow, southern New England Indians adopted various strategies for survival, including conversion to Christianity, adoption of English trade practices, goods and culture, and joining the English armed forces in fights against other Indians (with the hope that their cooperation would improve relationships). Southern New England Indians also gave into English pressures to sell their land, which resulted in fragmented tribal lands whereby Indians could not visit one another without trespassing on English land. Tensions between Indians and English escalated to the point of war - the hard-fought, bloody King Philip's War (1675-76). As a result of the war, 40% of the southern New England Indian population was killed. After the war, only a small number of Nipmuc remained in Massachusetts.

         After the war, southern New England Indians were sold as slaves and sent to work either in the West Indies or in English households, alongside African slaves. During the 18th century and through to the 20th century, the population of English colonists rose because of high birth rates and economic advantages, while southern New England Indians declined with disease and extreme poverty. Indians continued to face significant challenges to surviving in New England, such as land loss, including losses through fraud committed by colonial officials, guardians and English neighbors. In 1727, Massachusetts allowed white settlers to purchase 7, 500 of the 8, 000 acres of Hassanamisco lands, and the remaining 500 acres were divided among seven Indian families that resided there. These families were referred to by the Hassanamisco as “proprietary families.” The Cisco family, one of the families in Petitioner 69A, owns 2.5 acres of this land, which is currently referred to by Petitioner 69A as the “Hassanamisco reservation.”

         The perception of being “Indian” also became diluted as a result of two interrelated external forces. The first is the intermixture of Indians and Africans forming families together. Indians interacted with Africans largely because they were enslaved together in English households. The second force is Indian residential mobility. English colonists encroached on Indian land reserves, poached timber and other resources, thus reducing the value Indians could extract from their lands. Other Indians were forced to sell their lands to pay off debts. As a result, southern New England Indians were forced to seek economic opportunities in towns and cities, far away from their traditional homelands. Thus, Indians joined Africans and poor white laborers in the cities.

         European officials were able to distinguish Indians as “Indians” until well after the American Revolution. However, by 1800, “Indians” began to disappear from official records; individuals once designated as “Indian, ” were now designated as “mustee” or “Negroes” or “coloured.” By 1800, European officials regarded all southern New England Indians as “black, ” thereby drawing distinct lines between themselves and all persons of color.

         In the mid-1800s, Massachusetts commissioned a report to determine which Indians were within the state, which tribes they were associated with, and where they were. This report, called the Earle Report (“Earle Report”) included separate listings for families associated with, inter alia, the “Hassanamisco Tribe, ” the “Dudley Indians” and a separate listing of “Miscellaneous.” The major components or families who make up the vast majority of Petitioner 69A were not associated with the Hassanamisco in this state-report. Rather, they were associated with the “Dudley Indians” and “Miscellaneous” categories.

         In the 20th century, tribal entities in southern New England bound themselves together in pan-Indian organizations, such as the Indian Council of New England, founded in 1923, in an effort to increase their visibility, preserve and strengthen their traditions, promote intertribal cooperation, and more broadly establish their relationships with American Indians in general. The tribes also gradually became more visible to state and local governments as a distinct political constituency. This led, for example, to formal recognition of the Nipmuc Nation by the Commonwealth of Massachusetts in 1976 in an executive order issued by Governor Dukakis, recognizing that the Tribal Council of Nipmuc was the governing body of the Nipmuc Tribe and ordering state agencies to “deal with . . . the Hassanamisco Nipmuc Tribal Council on matters affecting the Nipmuc Tribe.”

         The Nipmuc Nation currently includes members of documented descent from historic Nipmuc people. A substantial portion of the Nipmuc Nation continues to live in the same geographic area of Central Massachusetts and parts of Rhode Island and Connecticut. Members continue to gather formally and informally, vote in tribal elections, marry other members of the Nipmuc Nation, and participate in annual pow-wows and other tribal events.

         The Case's Procedural Traverse

         On or about April 16, 1980, Zara CiscoeBrough, on behalf of “Nipmuc Tribal Council, Hassanamisco reservation, Grafton, Massachusetts, ” filed a letter of intent declaring an intent to file a petition with the BIA seeking recognition as an American Indian tribe. In 1984, Plaintiff, through “The Nipmuc Nation Trial Council Federal Recognition Committee, ” submitted a petition to the DOI, describing itself as descendants from two bands, the Hassanamisco and Chaubunagungamaug. Plaintiff was originally identified within the BIA as Petitioner 69. The DOI identified deficiencies in the petition in 1985 and 1988. Plaintiff indicated to DOI that the petition was complete in 1995 and active consideration began at that time. In 1996, the Chaubunagungamaug Band of the Nipmuc Nation filed a separate letter of intent to petition for federal acknowledgment of the “Webster/Dudley Band of Chaubunagungamaug Nipmuck Indians.” In other words, the Chaubunagungamaug Band withdrew from the request for tribal recognition as part of the Nipmuc Nation and instead, sought its own tribal recognition. The BIA accepted the withdrawal and separated Petitioner 69 into two separate petitioners: the Nipmuc Nation was designated Petitioner 69A and the Chaubunagungamaug Band was designated Petitioner 69B.

         Defendants evaluated Plaintiff's (Petitioner 69A's) petition for federal acknowledgment under 25 C.F.R. Part 83 (1994). On January 19, 2001, acting Assistant Secretary-Indian Affairs (“AS-IA”) Michael Anderson signed and issued a Proposed Finding in favor of acknowledgment for the Nipmuc Nation. The Proposed Finding in favor of acknowledgment was not published in the Federal Register, as required by applicable regulations. On September 25, 2001, AS-IA Neal A. McCaleb signed and issued a 219 page Proposed Finding against acknowledgment for the Nipmuc Nation (the “PF”). The PF was issued without notice to the Plaintiff and without any additional information or evidence than was before the DOI when AS-IA Michael Anderson signed and issued the unpublished Proposed Finding in favor of acknowledgment.

         On October 1, 2001, the PF against acknowledgment was published in the Federal Register. On January 23, 2002, a formal technical assistance meeting took place, with representatives of the Nipmuc Nation, the BIA and other third parties present. The stated purpose of technical assistance was for assistance to petitioners and “to ensure that the petitioner presents the strongest case possible and is not turned down for technical reasons.” During the January 23, 2002 formal technical assistance meeting, the Nipmuc Nation inquired as to the status of requests for further technical assistance. The BIA indicated that the request for further technical assistance was a matter of scheduling. The Nipmuc Nation inquired as to further field research visits. The BIA said “[q]uite frankly, I don't think so.” The Nipmuc Nation asked whether the BIA was going to bring on an anthropologist to evaluate its response. The BIA answered affirmatively and did not deny that this person would be someone “who hasn't made any field visits to the petitioner.” No further technical assistance of any kind, formal or informal, interviews or field research visits were conducted after the January 23, 2002 formal technical assistance meeting.

         On June 18, 2004, Principal Deputy AS-IA Aurene Martin issued the Final Determination against Federal Acknowledgment of the Nipmuc Nation (“FD”). Like the PF, the FD determined that the Nipmuc Nation did not meet four of the seven mandatory criteria for acknowledgement under 25 CFR §§83.7(a)-(f). More specifically, the FD found that Nipmuc Nation failed to meet the following criteria: § 83. 7(a)(the petitioning group has been identified as an American Indian entity on a substantially continuous basis since 1900); §83.7(b)(a predominate portion of the petitioning group comprises a distinct community from historical time until present); §83.7(c)(the petitioning group has maintained tribal political influence or authority over its members as an autonomous entity throughout history); and §83.7(e)(the petitioning group's membership consists of individuals who descend from historical tribes which combined and functioned as a single autonomous entity).

This FD evaluated evidence in the record under the mandatory criteria identified above in three different ways, based on the petitioner Nipmuc Nation's own self-identifications, to determine if it was a continuation of a historical Indian tribe. The three ways were (1) as those associated with the Hassanamisco reservation (Grafton), (2) as a joint organization encompassing both the Grafton and Webster/Dudley reservations, and (3) as an umbrella organization of the descendants of all historic Nipmuc bands.

         The specific findings regarding those criteria which Defendants found Plaintiff failed to meet are are summarized below.

1. 25 C.F.R. § 83.7(a) The first criterion requires the petitioning entity to have been continuously identified as an Indian entity. The DOI concluded that there was insufficient evidence in the record to show that Petitioner 69A had continuously been identified as an Indian entity. Only two percent of petitioner's five hundred twenty six members demonstrated Hassanamisco ancestry. Thus, the FD concluded that references to the Cisco family property (or Hassanamisco reservation) and those associated with it are not identifications of the petitioner - it was a substantially different group. Further, the occasional references to Dudley/Webster Nipmuc descendants with Hassanamisco did not identify “an entity” as required for criterion 83.7(a), but occurred in the context of pan-Indian activities in New England. Thus, the evidence in the record was insufficient to demonstrate external identification of the Petitioner 69 as an American Indian entity on a substantially continuous basis since 1900.
2. 25 C.F.R. §83.7(b). The analysis of second criterion, which requires that a predominate portion of the petitioner comprise a distinct community from historical times until present, found some evidence of community among some Hassanamisco descendants from 1785 to 1900, but did not find a community comprised of ancestors of the petitioner. Further, although one family line associated with Dudley/Webster had some ties to some Hassanamisco descendants around Worcester, Massachusetts, that was not a community comprised of petitioner's ancestors and in any event, those ties ceased in the 1950s. The evidence does not show interaction from 1900 to 1953 between the Hassanamisco descendants. . . and the ancestors of most of the Dudley/Webster or Curliss/Vickers descendants who comprise most of the petitioner's current membership.” Further, the DOI found that the examples of “informal social interaction and social relationships among the present membership … did not provide evidence for community for [the petitioner] as a whole.”
3. 25 C.F.R. §83.7(c). The third criterion requires the petitioner to demonstrate exercise of political authority over its members. The DOI did not find that a group comprised of ancestors of the petitioner “existed in any definable sense.” There was no indication of a political relationship among the “proprietary descendants, much less with the larger group of Dudley/Webster and Curliss/Vickers descendants antecedent to … most of the petitioner's membership.” In more recent times, “there is little data in the record to show a connection between the council and the general membership of the Hassanamisco or Nipmuc Nation organizations … There was only limited evidence that the issues dealt with by the Hassanamisco council were of importance to the members.” The limited evidence that conflict over issues was of concern to the membership or that interest in them was widespread was insufficient to demonstrate satisfaction of this criterion.
4. 25 C.F.R. §83.7(e). The fifth criterion requires that a petitioner demonstrate descent from a historic tribe. The Plaintiff defined the historic tribe its members descend from as “those individual and families of Nipmuc and other Indian ancestry who were part of the Hassanamisco tribal community by the 1920[s].” The DOI did not find a 1920s community as argued by petitioner Nipmuc Nation, nor did The DOI find a historical Indian tribe comprised of the Hassanamisco, Dudley and Miscellaneous Indians as identified in primary sources such as the Earle Report. There was no evidence in the record that persons listed in the 1861 “Miscellaneous category” were a tribe, nor evidence that persons on these lists, or their descendants, coalesced as a historical Indian tribe. Therefore, in calculating descent for purposes of this criterion, The DOI kept the groups separate as together they were not a historical Indian tribe. The DOI found only two percent of petitioner's members descend from the Hassanamisco list from 1861, and only fifty-three percent from the Dudley list in 1861. Thirty-four percent descend from the Miscellaneous list. Therefore, the petitioner's membership did not descend from a historical Indian tribe or from historical Indian tribes which combined and functioned as a single autonomous political entity.

         On June 25, 2004, the FD was published in the Federal Register. A panel of administrative law judges within the DOI affirmed the FD on September 4, 2007. The panel of administrative law judges referred certain identified issues for consideration by the Secretary of the Interior. On January 28, 2008, the Nipmuc Nation was advised that the Secretary ...


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