Historical research casts doubt on BIA process to acknowledge Indian tribes

Transcription

1 Historical research casts doubt on BIA process to acknowledge Indian tribes In early 2014, the Bureau of Indian Affairs ( BIA ) issued a Proposed Finding to acknowledge the Pamunkey Indian Tribe as a federally recognized Indian tribe. An ongoing historical investigation, however, of the evidence relied upon by the BIA in its Proposed Finding, as well as other historical documents not cited in the Proposed Finding, reveals that there are numerous deficiencies, inconsistencies, omissions, and weaknesses in the BIA s analysis. First, the documents BIA relies on to identify historical individuals as Pamunkey Indians and to ascribe their collective actions to those of an exclusively Pamunkey Indian community and political entity do not support BIA s approach. Rather than being indicative of a politically and socially distinct Indian group, the documents include non-indian members of the local community residing on the state reservation in King William County, Virginia. These findings call into serious question the thoroughness and reliability of BIA s acknowledgment review process generally. Second, the evidence strongly tends to demonstrate that, out of only six historical individuals BIA identified as Pamunkey Indians having descendants in the petitioner group, at least one, and likely several, were non-indian. Thus, it seems that a significant portion of the membership does not descend from the historic Pamunkey Tribe at all, and are not likely Native American. BIA Improperly Relied on the 1835 Colosse Baptist Church Records as Evidence of Tribal Status The Proposed Finding relies heavily on a list prepared in 1835 by the Colosse Baptist Church of new members for two key purposes. 1 First, BIA uses the 1835 list to identify listed individuals as Pamunkey Indians. Second, BIA relies on the list as evidence that residents on the state reservation were a cohesive, distinct community separate from the white and African-American members of the church because they purportedly joined the church as a group, and later left as a group in Both assumptions were incorrect. The Colosse church records clearly show that individuals identified in the Proposed Finding as historical Pamunkey Indians joined and left the church as individuals before, during, and after the period. According to the church records, individuals with surnames historically associated with the state reservation community joined and left the church as individuals, not as part of any cohesive group, and some of those surnames did not appear on the 1835 list, indicating that the 1835 list is not representative of the entire state reservation community. In addition, the church records generally identify purportedly Pamunkey individuals (including some on the 1835 list) as free colored rather than Indian. In fact, no church records identify any individual as a specifically Pamunkey Indian. If even one member of the 1835 list can be demonstrated to be non-indian which appears to be the case with Edward Bradby the list is not evidence that the individuals on the list are Pamunkey. 1 The 1835 list describes the new members not as Pamunkey, but rather as descendants of an Indian Tribe on Indian Island, which is presumably the site of the Pamunkey state reservation in King William County, established in colonial times.

2 BIA s interpretation of the 1835 church list as identifying exclusively Pamunkey Indian individuals, and as evidence of a cohesive, exclusively Pamunkey Indian community on the state reservation is plainly incorrect. The Proposed Finding does not indicate that BIA undertook any examination of the relevant documentary materials or whether it simply took petitioner s characterization of the limited evidence it provided on face value. The Petitioner Group Does Not Meet the 80 Percent Requirement To qualify for acknowledgment, a petitioner group s members must demonstrate that at least 80 percent of its members descend from a historical Indian tribe. BIA concluded that just 80 percent of the members of the Pamunkey petitioner group could demonstrate descent, all from only six historical individuals identified by the BIA as Pamunkey Indians. At least one of those six ancestors identified as Pamunkey, however, was almost certainly not Indian i.e., Edward Ned Bradby (b.abt.1797-d.aft.1876). 2 Bradby is identified as a Pamunkey Indian based on two documents only: (1) his inclusion in the ca Colosse Baptist Church list of new members; and (2) 1872 Southern Claims Commission testimony in which he self-identifies as a Pamunkey Indian. These two claims provide little support. First, as noted above, the 1835 list is not evidence, in itself, of Pamunkey status. Second, Bradby s Southern Claims Commission testimony was a self-interested selfidentification claims were only granted to those who had been loyal to the Union during the Civil War, and the Pamunkey community was specifically known for having aided the Union army; it therefore would have been advantageous to clearly claim membership in that community. By contrast, the evidence strongly tending to show that Bradby was not Pamunkey is extensive. First, Bradby does not appear on any of the four petitions from the Pamunkey to the legislature from , a list that BIA treats as highly probative of the actual membership of the Pamunkey during that time. The Proposed Finding acknowledges this significant omission, but only suggests that Bradby may have been related to Bradby men appearing on local tax lists from and on the 1836 petition. It does not identify any evidence to support that supposition. Documentary evidence strongly suggests that Edward Bradby was a free black or person of colour born in Charles City County, Virginia, about , who only became a resident of the Pamunkey reservation community in King William County sometime between 1822 to 1830.The first verifiable documentation of Bradby s presence in King William County is the federal census of 1830, in which Bradby then approximately 34 years old is identified as a free person of color. In fact, Bradby testified before the Southern Claims Commission testimony when he was approximately 75 years old that he resided on the state reservation for only approximately 50 years. The 1820 James City County federal census lists a Ned Bradbry a free colored man; the King William County census does not identify any males his age in King William County in any household of a similar surname. The 1820 census also shows that Edward Bradby lived in the 2 Spelling variations are common in 19th century documents - variants include Bradbry, Bradley, Bradberry, and Bradbury

3 midst of a sizeable free black community. Historical records further indicate that Bradby was born about 1794 to 1798 to Susannah Miles, sister of Nathaniel Miles, a free black man of Charles City County; that he may have resided in Chesterfield County sometime between 1810 and 1816; and that he and other relatives relocated to the state reservation community in King William County sometime between 1822 and There is no documentary evidence to support that Bradby or any of his relatives identified as Native American, prior to the 1835 Colosse church records. Thus, documentary evidence only demonstrates that Bradby moved to the Pamunkey reservation from outside the local area sometime in approximately his late 20s or early 30s, and only gradually began to identify as Pamunkey, likely to take advantage of tax preferences. Evidence indicating that Bradby was not a Pamunkey Indian includes: In 1831, when he and Lucy Bradby, probably his wife, joined the Lower College (later Colosse) Baptist Church (before their inclusion on the 1835 list), they are not identified as Indian, despite being listed as part of a group that included many surnames historically associated with the Pamunkey reservation community. In 1833, Ned Bradby and his relatives are listed in a special census of free negroes and mulattoes in King William County. King William County tax lists further record that Edward Bradby and his relatives were not identified or taxed as Indians, or were specifically identified as free negro or mulatto in 1834, 1835, 1839, 1841, 1843, and Bradby and one of his relatives are first identified as Indian in 1846 on the tax lists and Bradby is also taxed as an Indian in Bradby (and his relatives) are not taxed or identified as Indians in Ned Bradberry is taxed as a free negro in In 1855, Edward Bradley twice published classified ads in the Richmond Daily Dispatch, seeking the return of his lost free papers and an Indian register from the trustees of the Pamunkey tribe, and identifies himself as a free man of color. Selfidentifications as other than Indian are particularly significant given the Proposed Finding s heavy emphasis on the efforts the Pamunkey took to protect their identification as Indian, and in particular, to avoid being identified as black or colored. In the 1860 federal census, Ned Bradbury is recorded as the mulatto head of an all- mulatto household. In 1865 chancery court testimony Ned Bradley identifies several of his close relatives, all of whom appear to be free black or mulatto. In 1872 Southern Claims Commission testimony, Edward Bradley / Edward Bradby self-identifies as an Indian belonging to the Pamunkey Tribe. Claims were only - 3 -

4 granted to those who had been loyal to the Union during the Civil War, and the Pamunkey community was specifically known for having aided the Union army. It therefore would have been advantageous to clearly claim membership in that community. The only historical documents specifically identifying Edward Bradby as an Indian are instances of self-identification or acceptance of his self-identification by non-indians. There is no historical evidence that Edward Bradby was ever accepted as a Pamunkey Indian by the Pamunkey Indian community itself. The historical evidence, therefore, strongly tends to show that Bradby was a free black or mulatto who moved to the Pamunkey reservation in his late 20s or early 30s and was not a tribal member, as indicated by fact that he was not on any of the four Pamunkey petitions between 1836 and Indeed, the 1842 petition acknowledges that residents on the reservation were not all Pamunkey, by stating that we regret to say that there are some here that are not of our Tribe. BIA does not grapple with this evidence, and if it did, it would have to deny the petition. If Bradby is not a Pamunkey Indian as the documentary evidence strongly tends to show the 1835 church list is not a reliable list of Pamunkey Indians. That conclusion affects not just Bradby, but two of six historical ancestors for whom BIA has no reliable evidence of Pamunkey status. BIA identifies William Bradby as a Pamunkey Indian based on the 1835 church list and chancery court testimony in which Edward Bradby stated that William Bradby was his brother neither of which demonstrates Pamunkey ancestry. BIA identifies Matilda Brisby as a Pamunkey ancestor. She is probably related to Edward Bradby and is otherwise identified as a free black in the historical record. Like Bradby, BIA concluded that she was a Pamunkey Indian based on the 1835 church list and 1877 Southern Claims Commission testimony, which BIA claims verifies her identity as a Pamunkey Indian, but which, in fact, identifies her only as living on Pamunkey Island. BIA cannot rely on documents that include non-indian individuals, such as the 1835 church list, as evidence of an exclusively Pamunkey community and political entity. Based on the research to date, at least half of the six historical ancestors are demonstrably not Indian at all. Further research is anticipated to call into question the Indian identity of at least one more of the remaining three Pamunkey ancestors, and to critically examine the basis for BIA s determinations regarding the community and political authority criteria. It may very well be the case that a legitimate Pamunkey Tribe exists, but the evidence strongly suggests that this petitioner group is not the legitimate tribe. BIA s trust obligation certainly extends to those Indians whose tribal identity and status are being appropriated by others who do not qualify. Indeed, BIA has been confronted with numerous cases of disenrollment and battles of leadership, in substantial part because of its failure to fully vet the historic evidence of tribal status. This is another such case. BIA s administration of the acknowledgment review process has been heavily criticized in the past, and its current proposed revisions to the acknowledgment regulations are particularly controversial, in large part because BIA is proposing to reduce evidentiary burdens and take a more relaxed approach to determining tribal status. BIA s failure to recognize and resolve the - 4 -

5 inconsistencies between its Proposed Finding, and the historical evidence that it relies upon, raise serious questions about its ability to administer the acknowledgment review process. BIA must consider this evidence before it acknowledges as a tribe a group for which the historic evidence fails to support identification of at least half the historic ancestors as Pamunkey Indians