BIA denies Brothertown federal acknowledgment

Bureau reverses 1993 Interior finding that tribe was not terminated in 1839

By Gale Courey Toensing

Story Published: Sep 11, 2009

WASHINGTON – The Brothertown Indian Nation is determined to continue its quest for federal acknowledgment despite a BIA preliminary ruling to deny them federal status.

The BIA issued a Proposed Finding to deny the nation federal acknowledgment Aug. 17, stating that “evidence in the record demonstrates that the petitioner does not meet five of the seven mandatory criteria for federal acknowledgment” set forth in the statute.

“Therefore, the department proposes to decline to acknowledge the Brothertown petitioner,” the BIA said in a press release issued by Principal Deputy Assistant Secretary George Skibine, who oversaw the finding.

The Proposed Finding acknowledges that Brothertown was previously recognized by the federal government.

“The evidence in the record indicates that a Senate proviso to a treaty of 1831, a treaty of 1832 and an act of 1839 constitute ‘unambiguous previous federal acknowledgment’ of the Brothertown Indian tribe of Wisconsin,” the press release said.

But the BIA said the tribe lost its federal status in 1839.

“Congress, in the act of 1839, brought federal recognition of the relationship with the Brothertown Indian tribe of Wisconsin to an end. By expressly denying the Brothertown of Wisconsin any federal recognition of a right to act as a tribal political entity, Congress has forbidden the federal government from acknowledging the Brothertown as a government and from having a government-to-government relationship with the Brothertown as an Indian tribe,” read the press release.

The BIA’s finding that the tribe was terminated by the 1839 act of Congress is potentially the most fatal – and most controversial – roadblock to the Brothertown Indian Nation’s petition, because one of the seven mandatory criterion for federal acknowledgment is the tribe must not have been terminated by Congress.

In order to reach that conclusion, the BIA had to reinterpret a 1993 memorandum from the Interior Department’s Office of the Solicitor which concurred with an earlier finding by the Office of the Field Solicitor in Twin Cities that the act of 1839 “did not constitute termination of the Brothertown tribe. We find no reason to disagree with the Field Solicitor on this matter.”

The memorandum went on to say that the solicitor’s office had no information about whether the contemporary tribe would meet the criteria for federal acknowledgment, but it was eligible to try.

“Since we believe the Brothertown tribe was not terminated by the act of March 3, 1839, Stat. 349, the group calling themselves the Brothertown Indians is eligible to petition the department for federal acknowledgment as an Indian tribe pursuant to (the statutes),” the memo says.

“That’s our biggest concern,” said Brothertown tribal council Chairman Richard Schadewald. “In 1993 we were assured that we weren’t terminated or else why would we have spent the last 16 years doing all this work? And now all of a sudden they are throwing this back at us? So that’s a major disappointment because we were assured that we had the right to ask for acknowledgment through the Office of Federal Acknowledgement.”

Lee Fleming, OFA director, declined to explain the finding.

“I’d rather have the finding speak for itself. There’s quite a bit of discussion regarding this criterion that needs to be read by the petitioner, interested parties, and the general public because we’re in what is known as the 180-day public comment period in which we invite the parties to comment on our finding, and when we receive the comments then the petitioner has 60 days to read other people’s comments and respond to those, and then we move forward in reviewing all the comments and responses as we work on the final determination.”

The Brothertown Indian Nation is a unique tribe that was formed in 1785 by members of various eastern coastal nations battered almost to extinction by more than 100 years of European invasion, colonization, wars and disease. The members came from Connecticut, Rhode Island and Long Island tribes – Mohegan, Pequot, Narragansett, Montauk, Niantic and Tunxis – who moved to Oneida territory in upstate New York where the Oneida Indian Nation had set aside land for them. The Brothertown was formalized in 1785, and later moved to Wisconsin where a majority of members still live.

In addition to the termination finding, the Proposed Finding says Brothertown didn’t meet the criteria that require recognition as an American Indian “entity” on a “substantially continuous” basis; proof of continuous political authority; proof of continuous community; and proof that all the members descend from the historical tribe.

Kathleen A. Brown-Pérez, chair of the tribe’s federal acknowledgment committee, said the finding was “a huge disappointment.” Brown-Perez is an attorney and assistant professor of Native American Indian Studies at the University of Massachusetts, Amherst. She rewrote the tribe’s petition that was submitted in 2005 along with “10 banker’s boxes of evidence.

“You know, honestly, we thought we had it in the bag, we really did, so this ruling was a shock.”

The most frustrating thing, Brown-Perez said, was the finding of termination.

“If there’s any doubt at all whether a tribe was terminated – which there was with the Brothertown Indians – then Interior has to issue a ruling that the tribe was never terminated. We got that ruling and we spent countless years putting together our petition and waiting and waiting and waiting. Had we been told right off in 1993 that we’d been terminated, we would have appealed to Congress to un-terminate us. They didn’t do that. We wasted 16 years for the BIA to put us through the process and now they tell us, ‘You know what? We weren’t really serious when we told you you’d never been terminated.’ It’s horrible.

“I’m just wondering, once they decided that we were terminated, did they even really look at our petition and our supporting evidence?”

The tribe did all its own research and petition writing, Schadewald said.

“It was all a volunteer effort by our members. We’re not backed by any gaming promoters or any external group or anything. So that heightens our disappointment. We’re disappointed, but we’re determined. We’re going to take a good hard look at it and keep on going.”

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