Eastern Pequots' appeal of recognition reversal rejected

Gale Courey Toensing
1/25/06

N. STONINGTON, Conn. -- The Interior Board of Indian Appeals has declined
to accept an appeal filed by the Eastern Pequots in an attempt to reclaim
their federal acknowledgement.

Tribal Chairman Marcia Flowers heard the news from the tribe's attorney
Patty Marks Jan. 18, exactly one week after the appeal was filed.

"They rejected the appeal on jurisdictional grounds, arguing that the tribe
is out of the BIA system," Flowers said.

The appeal asked the board to reconsider a decision by Interior Associate
Deputy Secretary James Cason last October to reverse the tribe's federal
recognition, which was granted more than two years earlier.

"Too bad they didn't act this quickly the first time. We had to wait three
years for the IBIA to remand our positive final determination," Flowers
said.

Descendants of the Indians massacred in the 1637 Pequot War, the Eastern
Pequots were given a land base by the colonial government in 1683. The
Lantern Hill reservation is the oldest in the country that has been
continuously occupied by the descendants of the original indigenous people
who populated the area prior to European contact.

The Eastern Pequots and the Paucatuck Eastern Pequots, a family once split
by factions, petitioned separately but were federally recognized by the BIA
as one tribe in 2002.

Almost immediately, state Attorney General Richard Blumenthal and a
coalition of towns near the tribe's reservation in southeastern Connecticut
appealed the tribe's recognition to the appeals board.

The appeal languished until last May, when the appeals board vacated the
BIA's positive determination -- and that of the Schaghticoke Tribal Nation
-- and remanded both decisions back to the bureau for reconsideration.

In an unprecedented move, the BIA reversed both tribes' federal recognition
on Columbus Day last October. Cason notified tribal leaders of his decision
by fax.

In reversing the tribe's federal status, Cason said that state recognition
was given too much weight in supplementing evidence for continuous
community and political authority during some periods of the 20th century.
He further rejected the fact that the two factions had reconciled and
reunited, saying their previous split proved a lack of community.

In a prepared statement in response to the appeal's filing, Blumenthal said
the Eastern Pequots could not appeal to the IBIA.

"There is no further appeal possible to the IBIA since it has already ruled
once on this petition. The only means of challenging the BIA's denial of
recognition is by direct appeal to U.S. District Court," Blumenthal said.

An appeal to the federal court is the next step, Flowers confirmed.

"We knew the IBIA appeal was a long shot, but it was a long shot we felt we
deserved. I'm not really disappointed; I mean, how can you be disappointed
when the biggest disappointment was our positive determination being
reversed? Everything after that kind of pales. The sad part is the BIA is
not for Indians anymore," Flowers said.

The IBIA appeal filed will provide the basis of an appeal to the court. No
filing date has been determined yet, Flowers said.

The appeal agued, among other things, that there is new evidence the tribe
has not had the opportunity to submit that could affect the reconsidered
final determination; the BIA's research and review of the evidence was
inadequate; there are reasonable alternative interpretations of the tribe's
evidence; and the approach used was inconsistent with the regulations'
intent, failed to provide the tribe with the same rights as other
petitioners and violated the tribe's right to due process.

The appeal also said that the BIA acted unlawfully in reversing the tribe's
federal status because it advised the tribe about preparing its petition,
then changed the rules without notifying the tribe.

The agency cannot "change its mind about key issues it addressed in its
technical assistance and use that change as the basis for denying the
petitioner's positive finding. The applicant has a reasonable right to rely
on the advice it is given until it is notified it can no longer do so,"
Marks wrote.

When notice is given that the rules have changed, the petitioner also has
the right to submit additional evidence, Marks said.

"A petitioner cannot be left to rely to its own detriment on the bad advice
it receives from the BIA," the appeal said.

The appeal also argued that Cason violated the federal acknowledgement
regulations by demanding more evidence than the regulations require.

The regulations say that continuous community and politically authority
must be demonstrated on "a substantially continuous basis" but not "at
every point in time," and that various types of evidence and combination of
evidence can be used.

Marks contended that the Eastern Pequots' combined evidence proves
continuous community and political authority throughout the tribe's almost
400-year documented history in the state.

"The BIA does not have the authority to deny recognition to the historic
Eastern Pequot tribe on this basis," Marks said.

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