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BIA reverses course on state recognition of tribes
Thursday, October 13, 2005

Recognition Documents: BIA Press Release | Eastern Pequot Notice | Schaghticoke Notice Reaction to Decisions: Eastern Pequot | Attorney General Gov. Jodi Rell | Sens. Dodd, Lieberman

Two Connecticut tribes whose relationship with the state goes back more than 300 years were denied federal recognition by the Bush administration on Wednesday.

In a set of eagerly anticipated decisions, associate Interior deputy secretary Jim Cason, a non-Indian Bush political appointee, rejected the Eastern Pequot Tribal Nation and the Schaghticoke Tribal Nation. He said both tribes failed to meet all seven mandatory federal recognition criteria.

The Eastern Pequots failed to demonstrate their existence as a tribal community due to a split in the 1980s, Cason said in one decision. The split also led to the failure to show political authority and influence from the early 1900s to present day, he said.

As for the Schaghticoke, Cason said there was insufficient evidence to show community existence during two periods in the 1990s. The tribe also failed to show political authority and influence for three periods in its history, he said.

The decisions are a blow to the tribes, whose federal recognition petitions have been among the most controversial in Bureau of Indian Affairs. Tens of millions of dollars have been spent on researchers, lawyers and lobbyists on all sides of the battle.

They also represent a dramatic turnaround in the BIA's federal recognition policy. Three former officials -- Kevin Gover from the Clinton administration and Neal McCaleb and Aurene Martin from the Bush administration, all of whom are enrolled tribal members -- had embraced the Eastern Pequots and Schaghticokes as legitimate due to their continuous relationship with the state.

Gover, in numerous interviews and public statements, had expressed support for the tribes because they persevered despite centuries of European and American influence. In issuing a favorable preliminary determination on the Eastern Pequots, he was the first BIA official to use state recognition of a tribe as a backdrop to the tribe's federal status.

McCaleb agreed with Gover and made a positive final determination for the Eastern Pequots in June 2002, a few months before retiring. But he had issued a negative preliminary determination on the Schaghticokes, holding that state recognition wasn't enough in their case.

Martin, who left the Bush administration last year and is now a lobbyist, showed great sympathy for the tribes as well. She reversed McCaleb's ruling and issued a positive final determination for the Schaghticokes in January 2004.

She publicly defended her decision, arguing the "active" and "ongoing" relationship between the tribe and the state was sufficient to patch up holes in the record. "Why can't this relationship itself be proof of a tribe's political existence over that time period?" she said at an Indian law conference a few months after her ruling.

Those views have now been cast to the side under the decisions issued yesterday by Cason, who had no prior experience in Indian issues before joining the Bush administration and once admitted that he wasn't well versed in recognition issues. He has been acting as head of the BIA since the resignation of Dave Anderson, an Indian entrepreneur who had recused himself on all recognition cases.

At the same time, the decisions reflect a victory of sorts to the BIA staff that processes the recognition petitions and the government attorneys who represent them. The Office of Federal Acknowledgment, formerly known as the Branch of Acknowledgment and Research, and a couple of attorneys within the Office of the Solicitor, clashed openly with Gover on recognition policy.

The staff has taken a stricter view of the evidence tribes have submitted to back up their claims. Their decade-by-decade analyses can sometimes produce odd results -- for example, a tribe might meet the criteria for one decade, not meet it for the next and then meet it again the following decade.

That was evident in the two Federal Register notices that Cason signed on October 11. In one document, he wrote that the Schaghticoke Tribal Nation satisfied the community criteria from colonial times to 1920 and from 1967 to 1996. But curiously, the tribe didn't meet the test from 1920 to 1967 or from 1997 to the present.

In the Eastern Pequot document, Cason expressed a seemingly unusual view with regard to the well-known political dispute within the tribe that led to the formation of two factions. "It is the [Interior] department's policy not to encourage splits within recognized tribes, a policy equally applicable to groups that may be acknowledged," he wrote.

The earlier decisions on the tribe had gone the other way on this point. Both Gover and McCaleb concluded that that internal dispute was evidence of the tribe's political influence and authority. The factions have since rejoined to form one single governing entity.

The two decisions, known as reconsidered final determinations, were required because the Interior Board of Indian Appeals in May 2004 ruled that state recognition, in and of itself, couldn't be used to patch up holes in the record. The BIA was then ordered to draft new decisions on both tribes.

Once the two notices are published in the Federal Register, they become effective immediately. The tribes can then pursue a challenge in the court system. Tribal leaders yesterday indicated they would continue to press their case.

"Today's decision is a disappointment, but it is far from the end of the long struggle to confirm the heritage we know is ours," said Marcia Flowers, the chairwoman of the Eastern Pequot Tribal Nation.

IBIA Decisions:
Eastern Pequot Tribal Nation | Schaghticoke Tribal Nation

Only on Indianz.Com:
Federal Recognition Database V2.0 (May 2005)

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

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