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Nipmuc Nation v. Zinke
Citation: 305 F. Supp. 3d 257Docket: Civ. Act. No. 14–40013–TSH
Court: District Court, District of Columbia; March 30, 2018; Federal District Court
The requirement for agency action to not be arbitrary or capricious includes the necessity for the agency to adequately explain its decisions, which can be satisfied by a brief statement that clarifies the rationale behind its choices. If a court can reasonably discern the agency’s reasoning, it will uphold the decision. The historical context of Native Americans in southern New England dates back around 10,000 years, involving tribes that spoke Eastern Algonquian languages and developed a sophisticated agricultural economy and political system by the 16th century. Contact with Europeans began in the early 1600s, leading to the establishment of 'praying towns' aimed at converting the Nipmuc Indians to Christianity. The colonization resulted in devastating impacts on the Nipmuc and other tribes, including disease and warfare. In response to pressures from English colonists, southern New England Indians adopted various survival strategies, such as integrating into English culture and military alliances. Following the destructive King Philip's War, which decimated 40% of the Indian population, many were enslaved. Throughout the 18th and 19th centuries, the population of English colonists grew, while the Native American population declined due to disease and poverty, further exacerbated by land loss through deceit. In 1727, Massachusetts permitted extensive land purchases by white settlers, which severely fragmented tribal lands. The Cisco family, part of the Hassanamisco community, now owns a portion of land referred to as the 'Hassanamisco reservation.' Additionally, the identity of being 'Indian' became increasingly diluted due to intermarriage between Indians and Africans, who often shared similar fates as enslaved individuals in colonial households. Indian residential mobility was significantly impacted by English colonial encroachment on land reserves, which diminished the economic value of these lands for Indigenous peoples. Many Indigenous individuals were compelled to sell their lands due to debt, pushing southern New England Indians into urban areas in search of better opportunities, where they mingled with African and poor white laborers. By 1800, European officials began to classify Indigenous individuals differently, often labeling them as 'mustee,' 'Negroes,' or 'colored,' effectively erasing the designation of 'Indian' from official records. A notable report in the mid-1800s, known as the Earle Report, sought to identify the tribes and families within Massachusetts, revealing that significant families of Petitioner 69A were linked to the 'Dudley Indians' and categorized as 'Miscellaneous,' rather than with the Hassanamisco Tribe. In the 20th century, southern New England tribal entities formed pan-Indian organizations, like the Indian Council of New England in 1923, to enhance their visibility and promote intertribal cooperation. This increased presence eventually led to the formal recognition of the Nipmuc Nation by Massachusetts in 1976, which acknowledged the Tribal Council of Nipmuc as their governing body. The Nipmuc Nation comprises individuals with documented descent from historic Nipmuc people, many of whom continue to reside in Central Massachusetts and parts of Rhode Island and Connecticut, participating actively in tribal life. Zara Ciscoe-Brough filed a letter of intent in 1980 on behalf of the Nipmuc Tribal Council to petition the Bureau of Indian Affairs (BIA) for recognition as an American Indian tribe. In 1984, a petition was submitted to the Department of the Interior (DOI), identifying the petitioners as descendants of two bands, the Hassanamisco and Chaubunagungamaug. The BIA identified deficiencies in this petition in 1985 and 1988, but by 1995, the petition was deemed complete and active consideration commenced. In 1996, the Chaubunagungamaug Band opted to pursue separate federal acknowledgment, withdrawing from the Nipmuc Nation's recognition efforts. The Bureau of Indian Affairs (BIA) accepted the withdrawal of Petitioner 69, dividing it into two separate petitioners: Nipmuc Nation (Petitioner 69A) and Chaubunagungamaug Band (Petitioner 69B). The petition for federal acknowledgment for the Nipmuc Nation was evaluated under 25 C.F.R. Part 83. On January 19, 2001, Assistant Secretary-Indian Affairs Michael Anderson issued an unpublished Proposed Finding favoring acknowledgment. Subsequently, on September 25, 2001, AS-IA Neal A. McCaleb issued a 219-page Proposed Finding against acknowledgment without notifying the Nipmuc Nation or providing new evidence. This finding was published in the Federal Register on October 1, 2001. A technical assistance meeting on January 23, 2002, involving the Nipmuc Nation and BIA representatives, aimed to support the petitioners. During the meeting, inquiries regarding further assistance were met with limited responses, and no additional technical support or field research occurred thereafter. On June 18, 2004, Principal Deputy AS-IA Aurene Martin issued a Final Determination against the Nipmuc Nation's acknowledgment, concluding that it did not meet four out of seven mandatory criteria for acknowledgment. Specifically, the Nipmuc Nation was found insufficient in criteria 83.7(a) (continuous identification as an American Indian entity since 1900), 83.7(b) (distinct community), 83.7(c) (tribal political influence), and 83.7(e) (membership descent from historical tribes). The Final Determination assessed evidence from three perspectives related to the Nipmuc Nation's historical association with various reservations to determine its status as a continuation of a historical tribe. Defendants identified specific criteria pursuant to 25 C.F.R. 83.7 that Plaintiff failed to meet: 1. **Continuous Identification as an Indian Entity (25 C.F.R. 83.7(a))**: The Department of the Interior (DOI) determined that Petitioner 69A lacked sufficient evidence to show continuous identification as an Indian entity. Only 2% of the petitioner's 526 members could trace Hassanamisco ancestry, leading the DOI to conclude that references to the Cisco family and associated properties did not support identification of the petitioner. Occasional mentions of Dudley/Webster Nipmuc descendants were found to relate to broader pan-Indian activities rather than a specific entity, failing to demonstrate continuous identification since 1900. 2. **Distinct Community (25 C.F.R. 83.7(b))**: While some evidence existed for a community among Hassanamisco descendants from 1785 to 1900, it did not extend to the ancestors of the petitioner. Connections between certain family lines and Hassanamisco descendants ceased in the 1950s, and there was a lack of interaction between these groups from 1900 to 1953. Furthermore, informal social interactions among current members were deemed insufficient to establish a cohesive community. 3. **Political Authority (25 C.F.R. 83.7(c))**: The DOI found no recognizable group of the petitioner’s ancestors that exercised political authority. There was a lack of political relationship among the descendants, and limited evidence suggested that the issues addressed by the Hassanamisco council were relevant to the general membership, failing to demonstrate satisfaction of this criterion. 4. **Descent from a Historic Tribe (25 C.F.R. 83.7(e))**: The petitioner defined their historic tribe as individuals and families of Nipmuc and other Indian ancestry associated with the Hassanamisco community by the 1920s. However, the DOI did not find evidence supporting the existence of such a community or a historical Indian tribe comprised of the identified groups. The DOI maintained separate counts for the groups involved, noting that only 2% of petitioner's members descended from the Hassanamisco list and 53% from the Dudley list, with 34% from the Miscellaneous list. The petitioner, Nipmuc Nation, was determined not to descend from a historical Indian tribe or tribes that functioned as a single political entity. The Federal Register published the final determination (FD) regarding this on June 25, 2004, which was affirmed by a panel of administrative law judges within the Department of the Interior (DOI) on September 4, 2007. The panel referred specific issues to the Secretary of the Interior, who decided on January 28, 2008, not to pursue further reconsideration. In 1978, the DOI established regulations for recognizing American Indian tribes, detailed in 25 C.F.R. Part 83. These acknowledgment regulations require groups to demonstrate a continuous tribal existence and autonomous function throughout history. To achieve recognition as a tribe, a petitioner must satisfy seven criteria, including historical identification, community habitation, political authority, governance, membership lists, exclusivity of tribal membership, and absence of congressional legislation barriers. Petitioners are not required to provide definitive evidence for each criterion; reasonable likelihood based on available evidence suffices. The DOI must consider historical contexts where evidence may be limited. If the evidence does not meet one or more criteria or is insufficient, acknowledgment may be denied. Nipmuc Nation submitted a documented petition to demonstrate compliance with the required criteria, which the Assistant Secretary-Indian Affairs (AS-IA) reviews and assists with additional research as necessary. Interested parties, including state governors, attorneys general, local governments, and affected Indian tribes, receive notice of petitions for acknowledgment and can participate in the process. Once the Assistant Secretary for Indian Affairs (AS-IA) deems a petition adequately documented, it is placed on the 'Ready, Waiting for Active Consideration' list. The order of consideration is based on the notification date to the petitioner. During 'active consideration,' agency staff evaluates the petition and publishes preliminary findings in the Federal Register, initiating a 180-day public comment period, during which technical assistance is provided and additional arguments or evidence can be submitted. After the comment period, the petitioner can reply to comments. The final phase involves the Office of Federal Acknowledgment (OFA) staff summarizing the evidence and recommending to the AS-IA on the petitioner's eligibility. A final determination by the AS-IA is not final until 90 days pass without a request for reconsideration to the Interior Board of Indian Appeals (IBIA). If a request is made, the IBIA may affirm, vacate, or refer the matter to the Secretary of the Interior. The Nipmuc Nation alleges that the Defendants did not follow this process, claiming they acted arbitrarily by misdefining membership, failing to provide adequate technical assistance, reversing a positive preliminary finding without justification, and inconsistently applying federal laws to the Nipmuc Nation compared to other tribes. The Nipmuc Nation, referred to as Plaintiff or Petitioner 69A, claims that the Defendants unlawfully defined the Nipmuc Nation and determined that it failed to meet four federal acknowledgment criteria based on that definition. The Plaintiff argues that the Defendants disregarded its right to self-identify and instead imposed a narrower definition linked solely to the Hassanamisco Band of the Nipmuc Nation. The Nipmuc Tribal Council, which represents the broader Nipmuc Indian people, submitted a letter of intent to petition the Bureau of Indian Affairs (BIA) for recognition as an American Indian tribe, including members from various regions beyond just the Hassanamisco Band. The Plaintiff asserts that the Defendants' focus on the address associated with the Tribal Council led to a misunderstanding of the identity of the petitioning entity. It contends that this mischaracterization resulted in significant errors in the Defendants' analysis and ultimately affected their findings regarding the four criteria. However, the record, including the Plaintiff's letter of intent and petition, does not support the claim that the Defendants improperly defined Petitioner 69A. The Plaintiff argues that once the Defendants identified it as Hassanamisco, the inquiry under Section 83.7(a) should have concluded, but instead, the Defendants demanded a higher burden of proof to clarify the identity of the entity, which the Plaintiff claims it could not fulfill. The next step involves reviewing the Defendants' findings regarding each of the four failed criteria to assess whether their decision was arbitrary or capricious. Plaintiff contends that Defendants' decision was arbitrary and capricious for applying a more stringent standard than the regulations or their interpretation required. According to Section 83.7(a), a petitioner must demonstrate continuous external identification as an American Indian entity since 1900. This identification must come from sources other than the petitioner itself. Defendants determined that the evidence did not show continuous external identifications of the Hassanamisco Nipmuc entity beyond the proprietary descendants from 1900 to 1979. They noted that the Hassanamisco descendants represented only 11 out of Petitioner 69A's members and that the majority of external identifications during that time were related only to the Sisco family property and its residents, with other identified families not being members of Petitioner 69A. While some associations of Dudley/Webster Nipmuc descendants with Hassanamisco were identified, these were primarily in the context of pan-Indian activities rather than as an identification of a distinct Indian entity linked to Petitioner 69A. The Defendants found that evidence of external identifications of various Indian groups related to Petitioner 69A existed only from the mid-1970s onward, concluding that the ancestors of most members were not recognized as part of the Hassanamisco entity during the relevant timeframe. Therefore, Petitioner 69A did not meet the Section 83.7(a) requirements. The Defendants properly applied the regulation, concluding that only 2% of Petitioner 69A's membership had external identification, insufficient to support recognition of the entity as a whole. The Plaintiff's assertion that the Defendants' denial of meeting the Section 83.7(b) criterion was arbitrary was based on a claim of a 'Hassanamisco-centric focus' that excluded evidence of non-Hassanamisco Nipmuc communities, which the Plaintiff argued would have demonstrated the existence of a distinct community. Plaintiff asserts that Defendants neglected to consider off-reservation Nipmuc families and the Wabbaquassett and Hatchet Pond communities despite initially acknowledging them as Nipmuc communities. According to 25 CFR 83.7(b)(1), evidence to establish community may include significant marriage rates, social relationships, and informal interactions among members. Additionally, 25 CFR 83.7(b)(2) allows demonstration of community through geographic concentration (50% of members residing in a specific area) or distinct cultural patterns. Defendants conducted a thorough analysis and concluded that Plaintiff did not meet the necessary criteria. They found evidence of a limited community primarily associated with descendants of original Hassanamisco families from 1785-1950. The focused community was located in Worcester, Massachusetts, not the Hassanamisco Reservation in Grafton, which, while symbolically important, did not reflect active community ties. Most of Petitioner 69A's ancestors were not linked to the Worcester community or documented as interacting with one another until the 1960s and 1970s, with continuous contact ceasing in the 1950s. The Sisco family was identified as the only family maintaining continuous ties to Petitioner 69A since the 1950s. Other families, including the Gigger, Scott, and Hemenway lines, were added to Petitioner 69A's membership between 1996-1997 but were removed in a 2002 revision that aimed to clarify social ties. The Defendants concluded that the reduced membership list did not demonstrate sufficient social connections under Section 83.7(b). The evidence failed to show distinct cultural traditions among members. Plaintiff does not dispute these findings but claims that Defendants' decision was arbitrary and capricious for failing to consider the off-reservation communities and requiring specific interactions while overlooking evidence of broader connections. Plaintiff also argues that Defendants did not adequately address prior precedents in their analysis. Defendants assert that the FD does not explicitly mention the Wabbaquasset but refers to off-reservation Nipmuc families, and argue that even if these families were not considered, the Plaintiff fails to demonstrate how this omission would have impacted the Defendants' analysis. The Defendants maintain that they have not overlooked prior precedent, citing more pertinent cases. The Plaintiff claims the Defendants acted arbitrarily and capriciously by not providing necessary assistance during a technical meeting and misleading the Plaintiff regarding required evidence. However, the court finds no basis for viewing the Defendants' decision as arbitrary or capricious based on the available record. Section 83.7(c) mandates that a petitioning group must demonstrate it has maintained tribal political influence or authority over its members throughout history. Relevant factors include the group's ability to mobilize members and resources, the importance of issues to the membership, widespread political engagement, meeting the criteria of Section 83.7(b), and evidence of internal conflicts. Additionally, the group must show that leaders or mechanisms exist that allocate resources, mediate disputes, influence member behavior, and organize economic activities. The Defendants concluded that the evidence did not support the existence of political influence or authority within the Hassanamisco entity from 1785 to 1900 at a sufficient level. The community among the Hassanamisco proprietary descendants during this period lacked the necessary historical continuity to satisfy the criterion. Furthermore, key families linked to Petitioner 69A were not associated with Hassanamisco as identified in the 1861 Earl Report and did not integrate with it before 1900. Consequently, Petitioner 69A does not meet the criterion prior to 1900, and no recognizable Hassanamisco community existed from 1900 to 1961 that included a majority of Petitioner 69A's ancestors. In the late 1950s, a loose community of descendants from the Hassanamisco proprietary families existed, primarily connected through the Sisco family, which did not engage in significant political relationships with other descendant groups. Political activities relevant to Petitioner 69A occurred mainly between the 1920s and 1950s within pan-Indian organizations in New England; however, these organizations did not exert political authority over the 1920s community members that Petitioner 69A claims to represent. Most ancestors of Petitioner 69A members were not part of these organizations, and the majority of their members do not have descendants in Petitioner 69A, indicating a lack of bilateral political relationships. From 1978 to 1996, there was minimal evidence of engagement between the Hassanamisco council and the broader membership of the Hassanamisco or Nipmuc Nation organizations, with council members primarily acting as family representatives. Annual meetings were poorly attended and focused on a limited agenda, lacking significant political engagement. The evidence suggests that the fluctuating membership numbers were not politically driven, particularly a reduction in 2002 that responded to findings on community status. The defendants determined that Zara CiscoeBrough did not exercise political influence over any community from the 1960s to 1982, nor did the Hassanamisco council until its dissolution in 1996, nor any successor councils between 1990 and 2002. The evidence pertaining to conflicts and membership opinions from 1990 to 2002 was deemed irrelevant, as it involved individuals no longer associated with Petitioner 69A. The units that formed the Nipmuc Nation in 1994 were not recognized as communities exerting political influence, nor was the Nipmuc Nation in 1997. Plaintiff claims that the defendants overlooked critical factors in their determination, but the regulation allows for flexibility in demonstrating political influence, indicating that the factors listed are not mandatory. The defendants’ decision was upheld as neither arbitrary nor capricious due to their analysis of the evidence presented. A petitioning group must provide evidence of political influence or authority through the existence of group leaders or mechanisms that meet four specified factors. The Defendants analyzed whether the Plaintiff satisfied these factors but the Plaintiff argues that the Defendants mischaracterized the evidence. A key point of contention is a 1907 letter from Sarah M. Cisco to the President, which is lost, but the response from the Office of Indian Affairs (OIA) remains. The OIA indicated the letter concerned land claims by descendants of the Hassanamisco Indians, yet the Defendants concluded it was a personal inquiry. The Plaintiff contends this interpretation is erroneous, claiming it contradicts the OIA's response regarding the government's lack of relations with New England Indians. However, without the original letter, any conclusions about its significance are speculative, and even assuming Defendants misinterpreted it, this would not undermine their overall findings. The Plaintiff also argues that the Defendants disregarded oral evidence presented, such as accounts of annual fairs and tribal meetings. The Defendants attributed less weight to this evidence due to a lack of contemporaneous documentation, asserting that the absence of primary evidence was not arbitrary or capricious. The Defendants concluded that the Plaintiff did not meet the requirements of Section 83.7(e), which necessitates that the petitioning group's membership descends from historical tribes that functioned as a single autonomous entity. The Defendants determined that no such amalgamation occurred, summarizing that the historic Nipmuc tribe consisted of individuals from the Hassanamisco community by the 1920s. The community in question consists of individuals with ancestral ties to the Dudley Indians, Miscellaneous Indians, and Hassanamisco Indians as identified in the Earle Report from the 1920s. However, the Defendants concluded that there was insufficient evidence to establish a coalesced entity of these groups by that time, determining instead that the Dudley/Webster and Hassanamisco Indians were historically distinct tribes that never amalgamated. Among Petitioner 69A's 526 members, only 2% (11 members) could trace documented descent from the Hassanamisco tribe, while 53% (277 members) were documented descendants of the Dudley/Webster tribe. Collectively, these figures did not meet the required criterion, as the combined percentage of 55% was inadequate. Additionally, 45% of Petitioner 69A's members lacked documented ancestry from either tribe. The Defendants concluded that Petitioner 69A failed to demonstrate descent from a unified historical tribe. The Plaintiff argues that the Defendants misinterpreted the term "community" and improperly relied on the Earle Report, prepared by a non-Indian, to classify the tribes and thereby denied recognition of the amalgamated entity Petitioner 69A claims to represent. The Plaintiff insists that its identity encompasses a single historical tribe formed by multiple bands at the Hassanamisco Reservation and challenges the separation of the tribes made by the Defendants. Furthermore, the Plaintiff contends that members descended from Mary (Curliss) Vickers, classified as "Miscellaneous" Indians, should be recognized as Nipmuc descendants to help meet the 80% requirement for federal acknowledgment. Plaintiff argues that Defendants improperly imposed additional requirements on Petitioner 69A to demonstrate tribal relations, which are not stipulated by existing regulations. The Plaintiff claims that if all relevant descendants were counted, 88.6% of Petitioner 69A's members would have documented Nipmuc descent, exceeding the necessary threshold. Furthermore, Plaintiff contends that Defendants acted arbitrarily and capriciously by misleading Petitioner 69A during a technical assistance meeting, where they stated that at least 80% of members needed to be descended from a historic tribe. Defendants later determined that only 54% of Petitioner 69A's members met this criterion. In response, Petitioner 69A reduced its membership from 1,602 to 526 to better reflect the Hassanamisco tribal community. However, Defendants subsequently concluded that only 2% of the revised membership descended from a historic tribe, a significant decrease that Plaintiff argues indicates Defendants' failure to adequately assist Petitioner 69A and a change in the definition of Nipmuc Nation between the preliminary findings (PF) and final determination (FD). The Plaintiff expresses concern regarding Defendants' classification of the Hassanamisco and Dudley/Webster tribes as separate entities and the exclusion of the Curliss/Vickers lineage from the count. Despite detailed analysis provided by Defendants regarding family connections, the overall decision regarding Petitioner 69A's compliance with the tribal descent criterion is deemed not arbitrary or capricious, although the Plaintiff's main argument pertains to the alleged lack of technical assistance by Defendants, which I will now evaluate. The evidence supports Defendants' finding that Plaintiff did not satisfy the criteria outlined in Section 83.7(a, c, and e). Plaintiff contends that the Defendants' failure to provide adequate support during the technical assistance meeting, misleading information regarding the necessity of additional evidence, and misrepresentation of existing evidence led to an arbitrary and capricious final determination (FD) that should be vacated. Regulations mandate that Defendants hold a formal meeting upon request to discuss the reasoning and factual bases for proposed findings, with proceedings recorded and available to participants. Following the issuance of the proposed finding (PF) on September 25, 2001, Plaintiff requested a formal technical assistance meeting, which occurred on January 23, 2002. During this meeting, Defendants offered guidance to bolster Plaintiff's petition, which Plaintiff relied upon. Plaintiff highlights several instances where Defendants failed to utilize evidence they previously indicated would strengthen the petition. Notably, Defendants assured Plaintiff that the identification of Dianna Curliss as a Nipmuc implied that Mary Vickers was also a Nipmuc. However, the FD later stated that Plaintiff had not presented new evidence to establish Vickers' descent from the Nipmuc Indians, significantly influencing the determination of the evidence's sufficiency under Section 83.7(e). Additionally, Plaintiff presented evidence related to the Wabbaquasset families, but Defendants did not reference this in the FD, despite earlier affirmations of its relevance to the Nipmuc community. A new anthropologist and two new evaluators were introduced to analyze Plaintiff's materials, yet they conducted no site visits to the Hassanamisco Reservation due to budget constraints. Furthermore, no additional informal technical assistance meetings or face-to-face interviews with tribal leaders occurred, nor were any tribal gatherings attended, leading to a decision about Plaintiff's federal acknowledgment without direct engagement with its members. Plaintiff contends that Defendants failed to provide adequate technical assistance, inhibiting its ability to present crucial evidence for its petition. If this failure is established, it could render the Defendants' unfavorable finding against federal acknowledgment arbitrary and capricious, warranting a remedy to vacate the final decision (FD) and remand the case to the Department of the Interior (DOI) for proper technical assistance. However, Plaintiff's argument is limited to the Section 83.7(b) and 83.7(e) criteria, and even if Plaintiff prevails on this issue, it cannot succeed overall due to its inability to demonstrate that Defendants' conclusions regarding the Section 83.7(a) and Section 83.7(c) criteria were arbitrary and capricious. Plaintiff also argues that Defendants violated regulations and procedural due process by not publishing the initial positive proposed finding in the Federal Register and subsequently reversing it without new evidence. However, the court finds that the positive proposed finding was not a binding official statement from the DOI, but rather a draft that lacked review by the Solicitor's Office and publication in the Federal Register, as required by regulations. The regulation stipulates that only findings published in the Federal Register are official and subject to public comment. The court further clarifies that not all proposed findings require publication; only those deemed official under the regulations do. This aligns with precedent indicating that interpretive rules do not necessitate the same notice and comment obligations as legislative rules. The DOI Office of Inspector General issued a report questioning whether the recommendations from AS-IA Anderson and DOI were adequately analyzed during the signing of a positive proposed finding. However, the Defendants' final determination (FD) reversing this finding was not deemed arbitrary or capricious. The court concluded that the Defendants' decision denying the Plaintiff federal acknowledgment did not violate the Plaintiff's Fifth Amendment right to due process. Consequently, the Plaintiff's motion for summary judgment was denied, and the Defendants' motion for summary judgment was granted. The Plaintiff submitted multiple affidavits not included in the administrative record, which were created post-FD. The court noted that it typically limits its review to the administrative record unless one of four exceptions applies, none of which were established by the Plaintiff. While the court acknowledged some facts from these affidavits for historical context, they were not considered in evaluating whether the Defendants' FD was arbitrary or capricious. Additionally, the Plaintiff's letter of intent, while unclear, indicated that the Nipmuc Tribal Council acted on behalf of the Nipmuc Indian tribe and expressed an intention to seek recognition as an American Indian tribe. The court found the suggestion that the reference to the "Hassanamisco Reservation" was merely an address to be unconvincing. Lastly, the Plaintiff argued that a Defendants' historian had previously denied the recognition of the Nipmuc Nation as comprising individuals of Nipmuc heritage, as noted in the Constitution, suggesting a disconnect between the group that filed the original letter of intent and the current petitioners. Dr. DeMarce, in a memorandum dated January 10, 1997, addressed issues regarding Petitioner 69A's identification and status in relation to the "Nipmuc Nation" and its historical ties. She noted that while the Plaintiff claims the Bureau of Indian Affairs (BIA) incorrectly defined its original letter of intent as representing the "Hassanamisco Reservation," the Plaintiff's own definition of the "Nipmuc Nation" has been inconsistent throughout the proceedings. The administrative record lacks evidence of a functioning community or historical tribe among those designated as members of the "Nipmuc Nation." The Defendants provided a detailed summary of findings on four criteria that the Plaintiff failed to meet for federal acknowledgment. Although Petitioner 69A adjusted its membership list following findings that it did not constitute a community, the Plaintiff has not substantiated its claims regarding descent from historical tribes. There is ambiguity about whether the Defendants misled Petitioner 69A concerning the necessary documentation for its membership. The Plaintiff raised procedural due process and equal protection claims but failed to preserve them, as these were not adequately addressed or supported during hearings. The criteria for federal acknowledgment necessitate an evaluation of social, political, and communal structures, which extend beyond mere self-identification. The complexity of the criteria makes it challenging for petitioning tribes to fulfill all requirements, and the Defendants' findings, while open to debate, are deemed neither arbitrary nor capricious, thus warranting upholding of the decision against federal acknowledgment.