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Federal judge rules: More evidence allowed

KENT, Conn. - The Schaghticoke Tribal Nation has won a round in its battle
for federal acknowledgement.

U.S. District Court Judge Peter Dorsey has ruled that the tribe may submit
new evidence to the BIA about tribal marriage rates during the first half
of the 19th century to prove the tribe's continuous community and political
authority while the agency prepares its reconsidered final decision.

The BIA's January 2004 decision to grant the Schaghticoke federal
acknowledgement was vacated in May by the Interior Board of Indian Appeals
on appeal by the state, and remanded back to the BIA for reconsideration.

The new evidence will respond to a statement from the Office of Federal
Acknowledgement to the appeals board last December - 18 months after the
tribe was federally acknowledged - that researchers had unintentionally
used inconsistent methods to calculate intra-tribal marriage rates and had
made a mathematical error.

The new documents and reply briefs from interveners will be filed during
the next few weeks under a tight timeline set by Dorsey. The federal judge
has overseen all procedures in the BIA's evaluation of the Schaghticokes'
petition because of the tribe's pending land claims for 2,150 acres of
undeveloped land abutting the 300-member tribe's 400-acre reservation on
Schaghticoke Mountain.

The ruling also extends the BIA's decision deadline by 30 days to Oct. 12.

OFA Director Lee Fleming, in a July 14 "technical assistance" letter to
Schaghticoke Tribal Nation Chief Richard Velky, requested specific
documents "from 1801 to about 1850," including vital statistics and court
cases cited in previous submissions, and legible photocopies of original
handwritten overseers' reports for the same period.

"Such evidence may provide information regarding the length of marriages,
marriage partner's ethnicity, and tribal affiliation for individuals in the
final determination tables for which there is limited information in the
existing record," Fleming said.

The tribe has been gathering documents since it first received the letter
from the OFA last December, Velky said.

"We had anticipated that sooner or later we'd have the right under due
process to submit documents for anything they called into question due to
the fact that they came out with this letter three days after our final
submission deadline during the appeal. We're prepared," Velky said.

Both the OFA statement and Fleming's letter said researchers had counted
individuals instead of marriages in order to reach a certain threshold
marriage rate to prove the two criteria. The threshold is not clear,
however: One section of regulations reads, "At least 50 percent of the
marriages in the group are between members of the group"; and another,
"Significant rates of marriage within the group." Also, there is no
explanation of how marriage rates could be more than 50 percent if
marriages rather than individuals are counted.

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Neither letter specified whether or how much the marriage rates fell below
50 percent for the years 1801 - 1840. But a "mathematical error" for 1841 -
1850 resulted in the rates dropping from 50 percent to 46 percent, Fleming

Dorsey's ruling set off a spat between Republican Gov. Jodi Rell and state
Attorney General Richard Blumenthal, a Democrat, both of whom oppose
federal recognition for state tribes other than the previously recognized
Mashuntucket Pequots and the Mohegans.

On July 13, Rell released an angry letter she had written to Dorsey, urging
him not to allow the Schaghticokes to submit more evidence to "this runaway
federal agency" - evidence "that might demonstrate a higher rate of
Indian-to-Indian marriages in the mid-19th century," Rell wrote.

"Most galling," Rell wrote, "is the BIA suggestion" for an extended

However, Dorsey's ruling did not respond to a BIA request, but to a motion
from the tribe, supported by U.S. Attorney John Hughes, the federal
government's representative in the proceedings.

"We're just following what the court has asked us to do," said Nedra
Darling, director of the BIA's public information office.

Rell also echoed Blumenthal's statements that the tribe's marriage rates
were around 20 percent, a claim that is not substantiated in OFA or BIA

In response, Blumenthal issued a statement saying Rell's letter supported
points he had already made in a brief but it was too late to influence
Dorsey's decision, which had been made a week earlier.

"If this issue was decided last week, as the attorney general indicates, I
am disturbed I would only learn of that decision today in a press release,"
Rell retorted in another statement.

The officials' behavior was "repulsive," Velky said.

"It's unthinkable that the state attorney general and now our governor
would actually ask a U.S. federal judge to ignore facts and fairness. There
is no justice when a government decision is made without all the facts,"
Velky said.