Russell hired Rost to pile massive stones on and around the tribe’s central pavilion, where meetings and social events take place.

Schaghticoke Tribal Nation Seeks to Regain Rightful Status

Gale Courey Toensing
5/31/11

A superior court judge has ordered a non-Indian man to leave the Schaghticoke Tribal Nation reservation in northwest Connecticut, where he has cut down dozens of trees and has damaged acres of land. In addition to evicting the man, the ruling also settles a long-running dispute over the tribe’s governance and leadership, affirming that the Schaghticoke Tribal Nation, not a faction that calls itself the Schaghticoke Indian Tribe, is the tribe’s legitimate governing authority.

But equally important, says Schaghticoke Tribal Nation Chief Richard Velky, the ruling will help the nation in its campaign to regain federal acknowledgment. That recognition—granted by the Bureau of Indian Affairs (BIA) on January 29, 2004—was revoked in an unprecedented move by the BIA in 2005, after a relentless 18-month lobbying campaign by Connecticut politicians and the very powerful lobbyist for a group of wealthy anti-casino landowners, Barbour Griffith & Rodgers, and at least a dozen municipalities in the state. Connecticut Federal District Judge Peter Dorsey dismissed the tribe’s appeal of the reversal in 2008, based largely on the fact that he believed federal decision-makers who said they were not affected by the tsunami of political pressure put on them. That political influencing was so blatant and the reversal-process so notorious that one Indian law attorney in Washington recently called it “a shameful example of all that’s wrong with the federal recognition process.”

On April 15, Connecticut Superior Court Judge Corinne L. Klatt evicted Michael Rost from the reservation on Schaghticoke Mountain, where he had been living on and off since 2004. Citing state statutes that regulate state-recognized tribes, Klatt found that the Schaghticoke Indian Tribe (SIT) formally changed its name to Schaghticoke Tribal Nation (STN) in 1991 when the tribe formed a nonprofit corporation and adopted a constitution as part of its petition for federal recognition. “While previously the Schaghticoke tribe had used different formal appellations, with the adoption of this constitution, the name then became the Schaghticoke Tribal Nation,” Klatt wrote.

Rost, in his efforts to stay put, had “vigorously challenged” the STN’s right of control over the reservation, Klatt wrote, but the STN’s evidence established the legitimacy of both the nation and Velky’s leadership. Among the exhibits STN submitted was a letter, dated March 9, 2011, from the state’s Department of Environmental Protection (DEP), which holds Indian land in trust for state-recognized tribes. The letter recognizes Velky as tribal chairman and notes that there have been “no claims or challenges” to his leadership filed according to the required legal process. Judge Klatt wrote, “Based on the evidence submitted by both parties, the court finds that the Schaghticoke Tribal Nation, through its Tribal Council, is the governing authority for the Schaghticoke Tribe.” Rost has appealed the decision.

The lawsuit against Rost was filed by Velky and his distant cousin Alan Russell, who for years has claimed leadership of the SIT, a faction comprising mostly members of Russell’s family—fewer than a dozen people. Russell claimed the chairmanship of the tribe for a short period in the mid 1980s. It was a turbulent time characterized by factional disputes involving allegations of illegal council meetings and fake votes, a lawsuit filed by the tribal council against Russell for unauthorized logging on the reservation and, at one point, two councils. Most of those issues were resolved when the state Freedom of Information Commission upheld the legitimacy of an election in 1985 that ousted Russell, who has continued to claim leadership of SIT regardless of the legal ruling.

Schaghticoke Tribal Nation Chief Richard Velky

Despite the ongoing feud, Velky and Russell joined forces in the lawsuit against Rost last summer, both accusing him of destroying land known to contain sensitive archeological sites and stealing Indian artifacts. Velky says he entered the alliance with Russell for the sake of the tribe’s land—the 400-acre reservation is all that remains of 2,500 acres set aside for the tribe in 1736 by the colonial government. “We weren’t looking for Alan to sign up with STN and, obviously, we aren’t ever going to sign up with him. We just wanted to get this guy off the reservation and protect our land,” Velky says.

It was Russell who brought Rost onto the reservation in early 2004 in what appears to have been an act of fury against the Bureau of Indian Affairs decision to grant federal recognition to the 300-plus member STN. It’s not clear exactly when Rost began living on the reservation, but he was often there from early 2004 on.

According to police records, Russell, who lives on the reservation, contracted Rost, who owned a rock quarry in a nearby town, to bring boulders (some weighing five tons) onto the reservation and pile them around the tribe’s community pavilion, where tribal meetings and social events take place, damaging the building and putting children and other tribal members at risk. Both men were arrested in March 2004 and charged with risk of endangerment and criminal mischief. According to police records, Russell told the state police that he and Rost “were making a stone wall around the pavilion, that an artist friend was good at rock design, that in a month they were going to put cement between the rocks and take down the pavilion.”

As a condition of his bond, Russell was ordered to remove the rocks and “not do anything further to interfere with or damage the building.” (The boulders were eventually removed by a contractor overseen by the DEP, but it’s not clear who paid for that work.) The court later dropped charges against Russell, but found Rost guilty of reckless endangerment and disturbing the peace, and ordered him off the reservation for 18 months.

Rost returned to the reservation in 2007 but, after a falling out with Russell, he sided with Russell’s sister Gail Harrison, who claimed she had “deposed” her brother and was now the “chief of SIT,” according to DEP documents. Claiming he was authorized by Harrison to build a pyramid on top of the mountain, Rost began tearing up swaths of soil with bulldozers and other heavy earth-moving equipment, desecrating burial sites in the process. He cut down dozens of trees, gouged out roads near the dens of endangered rattlesnakes—the tribe’s symbolic protector—and lacerated the mountainside, destroying streams and a vernal pool. Throughout this time, the DEP ignored multiple appeals from Velky and STN’s tribal council to issue a cease-and-desist order to protect the reservation land against Rost’s depredations, and the state police refused to act. The agencies based their decision on directions from then Attorney General Richard Blumenthal, who claimed that a “leadership dispute” in the tribe prevented the state from acting on the reservation. Blumenthal, who opposed STN’s federal recognition and then led the political campaign to overturn the BIA’s positive decision, with the support of at least a dozen municipalities in the state, is now a U.S. senator.

It was a frustrating time for the nation, Velky says. “They pretended they couldn’t do anything to stop the destruction because they didn’t know who the tribe’s leader was,” he says.

According to Velky, Russell, through an attorney, invited him to join the lawsuit to oust Rost from the reservation, and the

Schaghticoke Tribal Nation petition

STN council approved the action. During the court hearing, Harrison told the judge that Rost was renting and living in a converted garage she owns. But only tribal members through their councils have the right to determine who lives on their reservation, according to state law, the judge said, ruling that Rost had no right to occupy the dwelling even if Harrison wanted him there.

Although Russell sought Rost’s eviction, he was not happy with the judge’s finding that STN and Velky are the legitimate governing authority and leader of the Schaghticoke tribe, and vows to challenge the finding. “She made a big mistake by giving Richie that little bit of authority on the reservation because we have paperwork proving otherwise,” says Russell, who failed to show up in court in March when the judge heard testimony and received documents. “He doesn’t have authority here. I’m glad it came out this way. Maybe we can get rid of him once and for all.”

The ruling satisfied Velky, who says the nation will continue its quest to restore its federal acknowledgement although he was not prepared to discuss the steps the council is taking. “What they did to us was attempted cultural genocide,” he says.

Many people agree. Mention STN’s case to almost anyone involved in Indian affairs and they scoff that what happened was a flagrant disregard for a process that’s supposed to be straightforward. “You put in facts, you compare facts to rules and you determine if the facts fit the rules,” says a Washington lobbyist who asked not to be named so as to not jeopardize his relationship with BIA. “Well, they changed the rules after the fact and made it a political process.”

Aurene Martin, a former deputy assistant secretary-Indian affairs who issued the final determination recognizing STN, stands by her decision. “I think it was a good decision. When I made the decision I had the advice of the staff at the Office of Federal Acknowledgement and I felt the Schaghticoke petition was a very strong one, so it was a good decision and I’m sad it got overturned later on,” Martin said recently.

In reversing the recognition, Interior Associate Deputy Secretary James Cason trashed a policy decision made after a deliberative process by former Interior Secretary Gale Norton and the BIA staff that concluded the tribe’s hundreds of years of state recognition merited important consideration as a matter of “constitutional principles of federalism.” Martin maintains that state recognition should be given weight in determining a tribe’s federal status. “I especially think the use of state recognition as evidence of a tribe’s political existence is a completely solid legal basis to make that determination on, and so, yes, I would stand by that decision,” she says.

Martin declined to discuss what happened at the Interior Department regarding the decision to reverse STN’s recognition, but said the recognition process needs to be revised. “I think the regulations have become so set in stone that they fail to account for the vagaries of history.”

Michael Rossetti, Norton’s former general councilor who left Interior a month after STN received federal recognition, said the secretary’s decision should have spoken for itself. “There was a presentation made by career staff to political appointees, including me, and the recommendation [to acknowledge the STN] was made on what we understood to be the career peoples’ comfort level with doing it,” he says. “And recommendations were made up the line consistent with that recommendation. Now, it might have been reversed a year later, but at the time when the decision was made, career people in the department appeared to be comfortable with it,” Rossetti is now at the law firm of Akin Gump.

Most attorneys and lobbyists who deal with Indian affairs will only speak anonymously because of ongoing interactions with the Interior Department. One lawyer who asked not to be named said, “The Schaghticoke decision is the shameful example of all that’s wrong with the recognition process. The tribe put 20 years into answering all the questions it was required to answer only to have the rules change after the last minute to deprive them of their positive finding.”

STN’s appeal pointed out several instances of what it called the BIA’s “capricious and arbitrary” rule changes. In one example, the BIA advised the tribe to encourage un-enrolled members to join STN. In its positive decision recognizing the tribe, the BIA interpreted the un-enrolled members as part of a factional rivalry that provided evidence of continuous community. But in its reversal, the agency said the few members who remained un-enrolled indicated a lack of continuous community.

Several lawyers and lobbyists say that entrenched bureaucrats at Interior have an inordinate amount of power to decide which tribes receive federal acknowledgement.

The good news for tribes—and perhaps the STN—is that the Interior Department appears to be getting the message that the federal recognition process needs an overhaul. George Skibine, Interior deputy assistant secretary-management, said recently that the acknowledgment regulations are being revised. Among the proposed changes are a shortening of the process (STN filed its letter of intent to petition for federal acknowledgement in 1981) and the creation of an independent administrative forum to review petitions before final decisions are rendered. “I think some of the groups that are petitioning feel it’s not a fair process or necessarily impartial,” Skibine said.

It’s not clear if tribes who were denied recognition will have another shot under the revised rules. The Schaghticoke nation is in the unique position of being the only contemporary tribe to have its federal recognition terminated since the end of the termination era in the 1970s.

Velky says he will continue to seek justice for his people. “We followed all the rules, while our opponents were talking to the Interior decision-makers, the governor, the White House, the judge, the Interior Board of Indian Appeals, the Senate Committee on Indian Affairs. Everyone was having discussions but us. We had to wait to exhaust the process. Now we’re no longer under any court oversight and we’re looking to see what options we have as a tribe that was federally recognized based on the merits of our petition.

“We know it’s not an easy reversal to overcome. But Schaghticoke had the dubious honor of being the first tribe to have its federal recognition reversed by the BIA. We think we’ll set the stage for another, more-positive first—the first tribe to have its recognition restored.”

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