Sen. Richard Blumenthal (D-CT)

Blumenthal Flip Flops on Federal Rec Third Party Veto

Gale Courey Toensing

Sen. Richard Blumenthal (D-CT) rarely, if ever, agrees with Schaghticoke Tribal Nation Chief Richard Velky about anything having to do with federal recognition, but that rare moment has arrived.

Blumenthal, Connecticut’s former attorney general, now says that a third party veto provision he helped insert into the Bureau of Indian Affairs’ proposed revisions of the federal recognition rules is unconstitutional, the Connecticut Mirror reported. Velky said the same thing a year ago.

The provision would give third parties that were involved in litigation against tribes veto power over those tribes’ right to re-petition for federal recognition under the revised rules. A tribe would have to go to the same third party that fought its federal recognition at the Bureau of Indian Affairs, the Interior Board of Indian Appeals and/or in federal court to get consent to re-petition. In Connecticut, which has fought indigenous sovereignty for almost 400 years, the likelihood of that happening is slim to none, Indian leaders say.

“I’ve argued, and so have other parties, that [the third party veto] raises very severe constitutional questions,” said Blumenthal, who has successfully fought federal recognition of Connecticut’s three state recognized tribes – the Schaghticoke Tribal Nation (STN), the Eastern Pequot Tribal Nation (EPTN) and the Golden Hill Paugussett Indians (GHP). Beyond Connecticut, Blumenthal has advocated aggressively against tribal sovereignty, federal recognition, and tribal governments’ jurisdiction on tribal land. He intervened in San Manuel v. the National Labor Relations Board in which a split federal appeals court tossed out 75 years of tribal exemption from federal labor laws. He led a coalition of more than a dozen state attorneys general to intervene in the Narragansett Indian Tribe’s efforts to place 31 acres of land into trust for elder housing, which ultimately resulted in the U.S. Supreme Court’s 2009 ruling in Carcieri v. Salazar that limits the Interior secretary authority to take land into trust for tribes recognized after 1934. He testified in front of the House Resources Committee against legislation to fix that ruling, recommending instead that “Congress should have sole authority to approve post-1934 tribal trust land requests.”

Last spring when the proposed revised rules were announced, Blumenthal acknowledged that the third party veto was added in response to Connecticut politicians’ requests. "I am pleased that the administration has been responsive to our concerns about giving groups a second chance of recognition when they failed the criteria the first time," he said.

RELATED: Federal Recognition Proposal Praised – Except for CT’s ‘Third Party’ Veto

Velky wrote to the Interior Department’s Assistant Secretary – Indian Affairs Kevin K. Washburn last May soon after the proposed new rules were published. A discussion draft of changes issued in the spring of 2013 was well received in Indian country, but the third party veto that made its way into the proposed regulations is unconstitutional, Velky told Washburn.

“Unfortunately, the proposed rule's supplemental provision granting third parties the right to object or consent to any tribal effort to re-petition does not, I believe, comport with the due process and equal protection principles of our Constitution,” Velky wrote. “Nor does the U.S. Constitution provide that a state and its political subdivisions may exercise an absolute veto over the exercise of constitutional authority vested exclusively in the Federal government.”

RELATED: Washburn's Bold Plan to Fix Interior's Federal Recognition Process

RELATED: Federal Recognition Proposal Praised -- Except for CT's 'Third Party' Veto

RELATED: Velky to Washburn: Third Party Fed Rec Veto Is Unconstitutional

Asked to comment on Blumenthal’s new position regarding the third party veto, Velky said, “I’m glad to hear he realizes that even though we’re Native people, we are guaranteed our rights and protection under the United States Constitution.”

Without the third party veto, the Connecticut tribes were well placed for review under the proposed revised rules. Although tribes will still be required to meet the seven mandatory criteria for federal recognition in the existing regulations, an important revision would give new weight to tribes that have maintained state-recognized reservations since 1934. Connecticut tribes have some of the oldest reservations in the country. The GHP’s reservation was established in 1639. The tribe was denied recognition in a Final Determination in 2004. Blumenthal was able to overturn positive Final Determinations for the EPTN and the STN in 2005 based in part by arguing that the tribes’ reservations established in 1683 and 1736, respectively – and recognized by the state ever since – were irrelevant to their bids for federal acknowledgment.

Now that the senator acknowledges that the third party veto would not likely stand up to a constitutional challenge, he has asked the BIA to ditch its plans to revise the rules altogether. “We think these rules are illegal and extremely unwise,” Blumenthal said, according to the Connecticut Mirror, without explaining how they are illegal or unwise. He also said he "repeatedly, emphatically and passionately" told the BIA there's no need to change the standards for recognition. "The mystery here is why the BIA has even considered changing them," Blumenthal said – a baffling assertion since Blumenthal himself had called the federal recognition process “broken” and the BIA “lawless, capricious and out of control” for years – until the agency reversed EPTN and STN’s federal recognitions.  

RELATED: Blumenthal blasts BIA's 'new rules'

Blumenthal says he blocked the three state recognized tribes from federal status because they could file land claims and open casinos. New casinos would void the state’s gaming compacts with the federally recognized Mashantucket Pequot Tribal Nation and the Mohegan Tribe. The compacts have netted the state well over $6 billion from Foxwoods Resort Casino and the Mohegan Sun since they opened in the 1990s. But more casinos may be coming anyway.

In a surprise twist to Connecticut’s gaming story, state legislators recently backed a bill to allow Mohegan and Mashantucket to form a partnership to operate up to three news casinos in the state, strategically located to attract customers who might otherwise go to the increasing number of casinos in the surrounding states.

RELATED: Connecticut Tribes Propose Casino Partnership to Battle Competition, Lawmakers Support

Blumenthal declined to respond to ICTMN’s request for comment on the additional casinos and other direct questions, but sent instead the congressional delegation’s comments on the proposed revised rules that were submitted to the Interior Department last September. The delegation made a number of recommendations, all of which are calculated to usurp the federal government’s authority over the federal recognition process and block Connecticut’s state-recognized tribes from the nation-to-nation relationship with the federal government that acknowledgment brings. For example, the delegation asks the BIA to bar re-petitioning altogether or, if it remains, to allow any third party into the process – even if they had nothing to do with the original process. Other recommendations would require the state to confirm in writing that a tribe exerted political control over a continuous community on a reservation. If adopted, the recommendations would effectively create a third party veto.

The final revised rules will likely be released sometime this spring.

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