IBIA vacates two federal recognition decisions

Gale Courey Toensing
5/25/05

WASHINGTON - The Department of the Interior Board of Indian Appeals (IBIA)
has directed the BIA to reconsider its final determinations granting
federal acknowledgement to Connecticut's Schaghticoke and Eastern Pequot
tribal nations.

In a ruling May 13, the IBIA said the decisions have been vacated and
remanded to the BIA "for further work and reconsideration."

Tribal leaders expressed disappointment, but said the rulings were just one
more barrier to be cleared on the long road to federal recognition.
Opponents of federal recognition and casinos claimed the rulings as a
momentous triumph.

The Eastern Pequots, located in southeastern Connecticut, received federal
recognition in 2002. The Kent-based Schaghti-cokes, in the northwest of the
state, were recognized last year. Both decisions were appealed by the state
and by coalitions of anti-casino towns and regional councils of elected
officials.

Both tribes plan to open casinos if their federal status withstands all
appeals.

In both cases, the appeals board gave credence to the state's argument that
the BIA had relied too heavily on the tribes' relationship with the state
for evidence of continuous community and political authority - two of the
seven criteria a tribe must meet for acknowledgement.

"The final determination for Schaghticoke Tribal Nation used state
recognition in the same way that we found to be impermissible in the
Historical Eastern Pequot Tribe.

"In addition, we agree with the state that the STN final determination
gives even greater probative value and evidentiary weight to ... 'implicit'
state recognition, and therefore it constituted a substantial portion of
the evidence relied upon," the two-judge panel said.

The judges concluded that they have no jurisdiction over the substance of
other states' charges and "that these allegations are best left for the
assistant secretary to consider and address on remand."

Schaghticoke Tribal Nation Chief Richard Velky received the news while he
was on his way to attend his daughter's college graduation in New
Hampshire.

"We're deeply disappointed, but we're not discouraged. It's unfortunate
that we once again have to go back and prove our heritage, but we've always
been able to answer any questions that arose and we're very confident we'll
prove our case with additional documentation. We only hope and ask that the
reconsideration be done in an expedited and timely fashion," Velky said.

Marcia Jones Flowers, chairman of the Eastern Pequot Tribal Nation,
expressed similar disappointment.

"The IBIA's opinion is just another step in this long acknowledgment
process. 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," Flowers said.

The tribes have 120 days to submit additional material proving community
and political authority for the periods in which the IBIA found gaps. The
evidence that met the criteria for all other time periods will stand.

Dan DuBray, spokesman for the Department of the Interior, said the IBIA
decision does not reverse or overturn the BIA's decisions, but simply voids
them.

"This is yet another step in the federal acknowledgement process. This
process is transparent, open and thorough - with a system of checks,
balances and administrative review. These two decisions fully illustrate
the thorough nature of the process. The decision means that the matters in
the petitions will now be returned to the Department for consideration,"
DuBray said.

Elected officials were elated by the IBIA's rulings.

"This decision is huge and historic," said Attorney General Richard
Blumenthal, who has long led the state's battle against the BIA's
recognition of state tribes and the possibility more Indian gaming
facilities.

"It is a knockout punch, a monumental and momentous victory for
Connecticut. 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.

"The IBIA has restrained and rebuked this out-of-control, lawless and
capricious agency. This IBIA ruling effectively endorses my call for
sweeping reform of the tribal recognition process," Blumenthal said.

Two days before the IBIA decision, state officials testified at a Senate
Indian Affairs Committee oversight hearing where they alleged the BIA is
rife with corruption and political influence from wealthy casino backers.

"This is a big win for the people of Connecticut," said Gov. M. Jodi Rell.
"If granted, these recognitions would have destroyed the historic,
small-town character of many communities in western and eastern
Connecticut."

U.S. Rep. Nancy Johnson, R-5th District, pledged to push for reform in the
BIA and to make sure that the last round is won to permanently reject the
Schaghticokes' recognition. Johnson has submitted a bill to Congress to
rescind the BIA's Schaghticoke decision.

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