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BIA ordered to reconsider two recognition cases
Monday, May 16, 2005

Two Connecticut tribes whose 300-plus year histories with the state helped them win federal recognition were sent back to the drawing board last week in two of the most highly controversial and politicized cases to date.

In separate decisions dated May 12, the Interior Board of Indian Appeals rejected the final determinations in favor of the Eastern Pequot Tribal Nation and the Schaghticoke Tribal Nation. Both tribes have been recognized by the state of Connecticut since the late 1600s, when their reservations were established and a system of tribal overseers was created.

But Bureau of Indian Affairs officials during the Clinton and Bush administrations wrongly relied on this history to patch up holes in the evidentiary record the tribes submitted, two administrative law judges wrote. While the use of state recognition is not outright barred, the IBIA said it was "unreliable or of little probative value" for the cases at hand.

"The final determination goes to great length to explain how the Eastern Pequot may have had a distinct status under state law — a status not shared by Indians generally or by non-Indians — but fails to articulate how that status is probative of actual interaction, social relationships, or a bilateral relationship between the group and its members," Judge Steven K. Linscheid wrote in the Eastern Pequot decision.

"The FD for STN used state recognition in the same way that we found to be impermissible," he said in the Schaghticoke decision. Judge Anita Vogt concurred with both rulings.

The move means the BIA must write new final determinations that will address the issues raised, including how the state-tribal relationship proves whether the tribes qualify for federal status. Despite the additional hurdle, tribal leaders said they were sure they could clear up the matter.

"We're confident that upon further review the questions raised by the IBIA will be adequately addressed by the evidence in our petition and the BIA will reconfirm their positive decisions," the Eastern Pequots said in a statement.

"While we are disappointed in this result, we are not discouraged," Schaghticoke Chief Richard Velky said. "The IBIA has not ruled that we are not entitled to recognition."

Officials from Connecticut, who filed the challenge with the IBIA, had another take. They said the rulings sound the death knoll for the tribes, who have been financed by wealthy backers and have plans to open casinos.

"The net result: Federal recognition for these two groups is virtually impossible, because they cannot rely on state recognition to overcome key flaws or gaps in evidence," said state attorney general Richard Blumenthal.

At the very least, the reconsideration will delay the tribes for at least another year while they submit additional evidence for the BIA to review in what has already been a time-consuming effort. The Eastern Pequot preliminary finding was issued in May 2002 and a final determination in June 2002. The Schaghticoke preliminary finding came in December 2002 and the final determination in January 2004.

In both cases, the tribes benefited from their continuous relationship with the state. Former assistant secretary Kevin Gover, former assistant secretary Neal McCaleb and former acting assistant secretary Aurene Martin all relied on the state status to fill in parts of the record where the evidence was lacking.

"Why can't this relationship itself be proof of a tribe's political existence over that time period?" Martin said at an Indian law conference shortly after she signed the Schaghticoke final determination.

The decision by Martin was particularly controversial because state recognition was used to a greater extent than in the Eastern Pequot one. Later, the BIA admitted that it miscalculated the tribe's internal marriage rate in a way that helped the tribe.

In the Eastern Pequot case, BIA researchers at the Office of Federal Acknowledgment, formerly the Bureau of Acknowledgment and Research, recommended that the tribe be denied. Gover, in his preliminary finding, and McCaleb, in his final determination, used their authority as assistant secretary to recognize the tribe.

The process was changed somewhat by the time Martin ruled on the Schaghticoke petition. Rather than an up-or-down from BIA staff, she was presented with a briefing paper that outlined options she could take for approving or rejecting the tribe.

Despite controversy over the use of state status, investigations by the Interior Department's Inspector General have found no wrongdoing by either the Clinton or Bush administration. Just last week, the deputy inspector general said the recognition process was "one of the more transparent processes" within the department.

This isn't the first time state recognition has been used by the BIA either. It helped the Mohegan Tribe of Connecticut win a favorable ruling in 1994. But it didn't help the Golden Hill Paugussett Tribe, also of Connecticut, obtain recognition.

It's also not the first time the IBIA has ordered a reconsideration in a recognition case. The favorable final determination for the Cowlitz Tribe of Washington had to be rewritten after a challenge by another tribe before the IBIA.

Get the Decisions:
Eastern Pequot Tribal Nation | Schaghticoke Tribal Nation

Only on Indianz.Com:
Federal Recognition Database (July 2004)

Relevant Links:
Schaghticoke Tribal Nation - http://www.schaghticoke.com
Interior Board of Indian Appeals Decisions - http://www.ibiadecisions.com